It can't be lewd if no one is offended, Judge Marc Salton rules in the charges against 10 exotic dancers.
By CARY DAVIS
Published June 20, 2003
NEW PORT RICHEY - A Pasco judge on Thursday dismissed misdemeanor lewd conduct charges against 10 exotic dancers, ruling that eyewitness accounts from undercover deputies are not enough to win a conviction in such cases.
The ruling, which could have broad implications for the future regulation of Pasco adult businesses, centered on the key element necessary to prove the crime of lewdness: namely, that someone must be offended.
Pasco County Judge Marc Salton ruled that law enforcement officers do not qualify as offended victims. There must be someone else, the judge ruled, an unsuspecting member of the public who does not want to be exposed to the acts in question.
"Since the crux of the offense of lewdness is the intrusion on the rights of others, the protected class must be unsuspecting members of the public at large who would not want to be exposed to the (dancers') conduct, as opposed to a law enforcement officer conducting an investigation in an undercover capacity," Salton wrote in his 11-page order.
A law enforcement officer, the judge added, "does not constitute an unsuspecting member of the public and cannot be an "offended person.' He surely cannot complain that the Defendant's actions significantly intruded upon his rights."
Prosecutors say an appeal is likely.
Assistant State Attorney Mike Halkitis said the ruling defies common sense. No exotic dancers would ever be charged with lewd conduct if prosecutors cannot use undercover officers as witnesses. After all, Halkitis said, prosecutors would be hard pressed to find strip club patrons who are offended by the dancers' conduct.
"It would make prosecution extremely difficult, even impossible," Halkitis said.
Tampa attorney Luke Lirot, the lawyer for the dancers, called Salton's ruling "courageous." Lirot, who has carved out a legal specialty defending the adult entertainment industry, urged Salton at an April hearing to follow the lead of a Hillsborough County judge who recently threw out lewdness charges against dancers on similar grounds.
"I think (Salton's) ruling shows a trend toward less harassment of adult businesses in general," Lirot said Thursday.
Any appeal would be heard by a panel of three Pasco judges.
An appeal would bring clarity to what has become a divisive issue on the Pasco bench. In April, another Pasco judge heard similar arguments and ruled there was no legal problem with an undercover officer serving as the sole witness in a lewdness case against a dancer.
The Sheriff's Office is closely monitoring the issue. The agency has long relied on undercover raids to build lewdness cases against dancers and send a message to Pasco strip clubs.
Sheriff's Office representatives have said they will rely on the courts to determine how the agency will regulate adult businesses in the future.
The Sheriff's Office has said that the women whose cases were thrown out Thursday were charged because they went beyond giving lap dances with minimal contact to undercover deputies. According to arrest reports, some women were arrested for simulating sex acts on customers and each other. Others exposed themselves for undercover deputies, who placed money in the dancers' G-strings, reports said.
Salton, in his ruling, said he "is not passing judgment on the morality or lack thereof of the (dancers') conduct." Nor, he wrote, should his ruling be interpreted to mean authorities cannot continue to regulate adult establishments. For example, authorities could charge dancers under different statutes, such as obscenity or prostitution.
- Cary Davis covers courts in west Pasco County. He can be reached in west Pasco at 869-6236, or toll-free at 1-800-333-7505, ext. 6236. His e-mail address is cbdavis@sptimes.com
