Free speech or scantily clad lewd behavior?
Bikini clubs are suing over a Hillsborough law that limits touching between dancers and customers. Past court rulings are unclear.
By CARRIE WEIMAR
Published September 25, 2006
TAMPA - The woman in the pink satin bikini drops to her knees as the man approaches the stage.
As the purple neon lights pulse, she wraps her arms around his neck and whispers seductively in his ear. He smiles and slides money into her garter belt.
It's a transaction performed hundreds of times each night at Lil' Tootsies, a bikini bar in east Tampa. And it was banned this month under an ordinance passed by the Hillsborough County Commission.
The ordinance, one of three aimed at regulating adult businesses, prohibits scantily clad employees from touching customers in an establishment that sells alcohol.
Now the owner of Lil' Tootsies, along with the owners of two other bikini bars, is fighting back. They joined forces in a lawsuit filed last week in U.S. District Court, saying the county's ordinance illegally restricts their First Amendment right to free speech.
They are asking a judge for an emergency order blocking the ordinance until a jury trial can be held.
The outcome of the suit is unpredictable, given the murky nature of court rulings on adult businesses. There's no clear direction from the U.S. Supreme Court, and recent decisions from other courts have been confusing, if not contradictory.
So in the battle of the bikini bars vs. Hillsborough County, it will be up to a U.S. District Court judge in Tampa to determine where the First Amendment ends and lewd behavior begins.
"It's hard to find a clear-cut answer in situations like this," said Bruce Jacob, a professor at Stetson University College of Law. "This is the kind of case that can go either way."
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The struggle between elected officials and adult businesses has raged for decades.
Local governments say the clubs invite prostitution, illegal drugs and lewd behavior. The owners argue dancers have a constitutional right to self-expression.
The difficulty is in defining obscene behavior, Jacob said. What separates a go-go dancer gyrating in a club from a modern dancer performing erotic movements on stage?
The 3rd U.S. Circuit Court of Appeals, based in Philadelphia, tried to answer that question last month when it handed down opinions in two separate cases involving adult businesses.
Both lawsuits were brought by bar owners challenging ordinances banning lewd activity in places that serve alcohol, one in Atlantic City, N.J., the other in Philadelphia.
In both cases, the bar owners argued the ordinances were overly broad and violated First Amendment protections. The 3rd Circuit struck down the Philadelphia law restricting the bar, but said the ordinance in New Jersey passed legal muster.
Daniel A. Silver , the lawyer representing the topless bar in New Jersey, said there was no clear difference between the cases.
"I can't answer why there was a different decision made by the same judges," Silver said. "I don't understand why cases with identical facts had opposite results."
Silver said he was still deciding whether to appeal to the U.S. Supreme Court.
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The latest drive to regulate adult businesses in Hillsborough County began in June 2005, with the arrival of Showgirls, one of the three bikini bars involved in the lawsuit.
The bar is in Valrico, the back yard of County Commissioner Ronda Storms, who urged her colleagues to consider reviewing public nudity laws.
The third bikini bar named in the suit is Showgirls Men's Club, located in Plant City.
In response to Storms' request, the commission agreed to hire an outside consultant to review county laws. The commission chose Scott Bergthold, a Tennessee attorney who specializes in defending local governments that ban or regulate adult businesses.
Bergthold helped draft the three ordinances approved unanimously by the commission Sept. 7. Among the regulations: a ban on any touching of the clothed or unclothed "buttocks, breasts, lap, groin area or pubic area" between patrons and bikini-clad employees.
Bergthold did not return several calls seeking comment.
Bikini bars are different from strip clubs in that dancers remain covered. They also serve alcohol, banned from clubs where nudity is permitted. Neither Pinellas County nor Pasco County has ordinances regulating them.
Luke Lirot, the lawyer representing the three bikini bars, said touching is a natural extension of dancing in these bars and shouldn't be restricted.
"When the Hooters lady leans over you as she takes your order, it's all part of the act," Lirot said. "Contact makes the experience that much more comfortable for everyone."
In the lawsuit, Lirot argues the county had no basis for passing the ordinance. While the county claims physical contact in bikini bars leads to unlawful sexual activity, it offers no evidence to prove it, the lawsuit stated.
Lirot also argues touching is essential to freedom of expression and is protected by the First Amendment. The dances performed at bikini bars aren't very different from the dirty dancing that goes on in a regular club, he said.
"If people can hug and rub lotion on each other at the beach, I don't see why they can't do that at my clients' establishments," Lirot said.
Business is already suffering at the bikini bars, Lirot added. Since the ordinance was adopted, the number of patrons has dropped by roughly 30 percent, he said. He is asking the court to overturn the law and reimburse his clients for attorneys' fees.
David Hudson, a research lawyer for the First Amendment Center, said Lirot's First Amendment argument may be difficult for the court to accept.
While the question of obscenity in adult businesses continues to rage, judges have been consistent when it comes to restricting touching, Hudson said.
"There have been a lot of arguments that lap dancing conveys a special type of emotional expression," Hudson said. "But the courts have pretty much rejected that."
Roger Diamond, a Santa Monica, Calif., attorney who specializes in adult entertainment, disagreed. The law is so unclear in this area, it's anybody's guess how a judge will rule, he said. He also questioned why municipalities spend so much time trying to regulate bikini bars.
"Let adults do what they want," Diamond said. "It's silly for them to get involved. What's the big deal if somebody touches somebody else?"
Carrie Weimar can be reached at 813 226-3416 or firstname.lastname@example.org.