BISMARK, ND — Exotic dance clubs in the state of North Dakota suffered a blow at the unanimously gavel wielding hands of the state Supreme Court yesterday, when it declared regulations to exotic dancing as being compatible with free speech.Although McCrothers Corp., the owners of the Tree City Bar, and Luke Berger, the owner of the Silver Dollar Bar, had both argued in a South Central District Court that limits being placed on them by Mandan ordinances were restrictions to First Amendment rights, Judge Robert Wefald had ruled in favor of the laws in March of 2006.
According to the Bismarck Tribune, the club owners had also insisted that the ordinances existed exclusively to run them out of business.
When the case was brought to the attention of the state Supreme Court, Chief Justice Gerald VandeWalle explained that “Nude or semi-nude dancing is expressive conduct protected by the First Amendment. Nevertheless, expressive conduct protected by the First Amendment may be regulated.”
Further, the court decided that although the ordinances created adult cabaret zoning areas, required cabaret licenses, and forbade the sale of alcohol, these were examples of the community attempting to protect against “the negative secondary effects caused by adult entertainment establishments rather than at the suppression of expression.”
VandeWalle was willing to concede that “Although motivating factors for the enactment of the ordinances may have included moral aversion to adult establishments and the prevention of another adult establishment locating on Mandan’s Main Street, the City Commission minutes and the commissioner’s subsequent findings do not reflect that these were the primary factors.”
Whatever the motivations behind the ordinances had been, McCrothers Corp had provided the court with evidence that it had seen its revenues drop from $66,809 during a four-month period prior to the regulations being put in effect to $21,066 during a four-month period following their implementation. Berger likewise submitted evidence of a similar decrease during the same time periods. The club owners contended that they should be compensated for the property interest lost due to the city’s actions.
Unfortunately for the club owners, VandeWalle’s court not only upheld Wefald’s decisions and previous dismissal of their concerns, but ruled that the ordinances were not unconstitutional seizure of property, since the club owners could have changed the nature of their businesses.
“The ordinances merely prohibit McCrothers and Berger from offering exotic dancing in an establishment that serves alcohol,” VandeWallen concluded. “They may continue to operate bars in their present location, relocate and offer adult entertainment without an alcoholic beverage license, or convert their businesses to unregulated enterprises.”
