COVINGTON, KY – Ruling that the county’s sexually oriented business licensing and regulation scheme “does not run afoul of (the plaintiffs’) First Amendment and other constitutional concerns,” U.S. District Judge David L. Bunning Monday dismissed a lawsuit challenging portions of Kenton County’s sexually oriented business ordinance.The lawsuit, brought in 2004 by four Covington area adult clubs and three club employees, was filed to prevent enforcement of a new ordinance that requires adult businesses to pay a $3,000 annual licensing fee and mandates that a distance of five feet be maintained between performers and their patrons, both during a dancers performance and during a one-hour “cooling-off period” following a performance.
Kenton County Attorney Garry Edmondson said the case has “national significance,” according to the Cincinnati Enquirer.
“To our knowledge, no other court in the nation has been asked to decide whether a community’s prohibition of erotic dancers co-mingling with patrons is an extension of their speech,” Edmondson said.
According to the Enquirer, Edmonson said that Judge Bunning’s ruling means that the county may immediately begin enforcing the distance restriction and cooling period, and that the county will institute the annual licensing fee starting January 1st, 2007.
Of the four clubs that brought the lawsuit, Club Venus, Rodney’s LeFoxx, The Pad and Viva LeFoxx Cabaret, two remain in business – Club Venus and Rodney’s LeFoxx. The clubs are represented in the case by notable First Amendment specialist H. Louis Sirkin, who says his clients will appeal the ruling.
“We are disappointed in the decision by Judge Bunning. There are issues we disagree with in his ruling,” Sirkin said, according to the Cincinnati Post. “That is why it is wonderful that we have the appellate system in this country. It is our intention to take this matter to the Sixth Circuit, where we know we will prevail in the issues we have raised.”
In the lawsuit, the clubs contended that the county’s ordinance was an impermissible prohibition of free expression, that the ordinance holds clubs liable for the actions of employees and patrons, and permits unreasonable, warrantless searches.
According to the Post, Bunning wrote in his opinion that “While plaintiffs suggest the erotic expression does not end at the end of the stage, case law has not recognized it to extend further so as to include such commingling or private conversations.”
According to the Enquirer, the clubs claimed that the “commingling” with patrons was an extension of their on-stage erotic dances and were therefore protected free expression.
Bunning wrote in his ruling that what it is the erotic dancing itself which is protected and not “a performance which involves touching by patrons,” and could lead to criminal behavior such as prostitution or the sale of drugs.
“Basically what the commingling involved was a system of hustling drinks for sliding-scale prices ranging from $12 to $1,000 in exchange for private conversations with the entertainers,” Bunning wrote, according to the Enquirer.
“That ‘conversation’ included everything from an actual conversation between a dancer and patron to ‘significant physical contact in a booth of a darkened room where neither conversationalist had his or her feet on the floor,’” Bunning added in his decision, noting that “some of the dancers reported that oral sex did sometimes occur.”
Bunning further reasoned that “three prostitution arrests at one of the clubs also demonstrate the potential that such ‘conversations’ carry to cause adverse secondary effects, as do the statements offered by the entertainers in conjunction with these arrests along with the report of the FBI undercover investigation regarding solicitations for prostitution.”
Sirkin countered that the prostitution arrest in question occurred at the Liberty’s Show Lounge, a club which was not party to the lawsuit, and argued that his clients should not be punished for incidents or problems that might have taken place at Liberty’s.
According to the Enquirer, Sirkin said he also found it troubling that the county was not required to recognize a long-standing agreement between the city of Covington and his clients involving such issues as licensing fees and dancers interacting with their patrons.
“My clients did not breach any of their commitments to the city of Covington, so they don’t deserve to have these additional regulations imposed on them,” Sirkin said.
