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    Judge dismisses lap dancing cases

    Hillsborough County Judge Elvin Martinez says an ordinance outlawing lap dancing is unconstitutional and too broad.

    By DONG-PHUONG NGUYEN

    © St. Petersburg Times,
    published August 2, 2001


    TAMPA -- Some people accused of violating the city's lap dance ban won a break from a judge Wednesday.

    Hillsborough County Judge Elvin Martinez dismissed all lap dancing cases that were pending in his court. The cases involved defendants with last names beginning with the letters C, I, K, R and T, which is how cases are assigned to his courtroom.

    In an order signed Tuesday, Martinez declared the ordinance unconstitutional and "unpractical," saying it is too broad and allows selective enforcement. He also said lap dancing does not put public health or safety at risk.

    "Statutes or ordinances cannot be so overbroad that they prohibit constitutionally protected conduct as well as unprotected conduct," wrote Martinez, a former longtime legislator. "They also cannot be so overbroad they make common conduct criminal and provide the police with unfettered discretion to arrest."

    The ruling affects about 35 defendants, most of them dancers at Mons Venus, which is owned by strip club king Joe Redner.

    "We're elated," Redner said Wednesday. "It is well-reasoned and cuts right in the heart, to the crux of the matter."

    The four-page opinion adds further confusion to the lap dance issue. Prosecutors say they will appeal the ruling to Hillsborough Circuit Court. Meanwhile, appeals already are under way incases in which other judges ruled the ordinance constitutional. And two dancers convicted last week are expected to appeal. Tampa police say they will continue to make arrests.

    Martinez found that the ordinance results in arbitrary enforcement because the city acknowledges that an innocent bystander, such as a soda vendor making a delivery, would not be guilty if he or she got within 6 feet of a nude dancer.

    The judge also found practical problems with the ordinance, "considering the realities of movement" inside a strip club. For example, someone could be guilty for passing by an unclothed person on the way to the restroom.

    Furthermore, he said, the city failed to prove that the ordinance "furthers a substantial government interest."

    The city's evidence does not show that the use of adult establishments in Tampa causes an increase in criminal activity or poses a health risk, Martinez found.

    Prosecutors, however, believe the ordinance is sound.

    "Lap dancing has never been a constitutionally protected act -- it's as simple as that," said Assistant State Attorney Richard Leal, chief of the misdemeanor division. "It doesn't involve speech."

    But if defense attorneys have their druthers, three other misdemeanor judges who handle cases involving defendants whose names begin with other letters will follow suit.

    Lawyer Mark Rodriguez, one of six attorneys who filed the original motion to dismiss the charges against their clients, said he plans to file another motion this week, asking the other judges to issue stays in their cases until Martinez's order is appealed.

    The move is needed so that "no more women and customers are wrongly convicted," he said.

    Last week, separate juries swiftly convicted two Mons Venus dancers of violating the ordinance, which requires nude dancers to stay 6 feet away from customers. They were the first two such cases to go to trial in Tampa. Both dancers were fined $100.

    About 300 cases are pending in the courts, prosecutor Leal said.

    "It certainly makes it uncomfortable when a judge finds something unconstitutional," Leal said. "It does create a problem, which we need to resolve as soon as possible."

    - Times staff writer David Karp contributed to this report.

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