Musings on laws affecting adult entertainment, alcoholic beverages and other "vice" industries
I’m a fan of Mad Men. Friends got me hooked; NetFlix brings my fix.
How would Don Draper and the Sterling Cooper Advertising Agency handle these industry issues?
I’m not sure what Don & Co. would do. I bet they’d smoke a little. Drink a little. Repeat. Then craft a solution that involved advertising sex. Yes, I’m a master of the obvious. Check out the Ninth Circuit Court of Appeals‘ “brothel advertising” decision and decide for yourself.
This case requires us to resolve an interesting and surprisingly unanswered question of First Amendment law: whether the constitutionality of a zoning ordinance should only be evaluated with regard to the “alternative avenues of communication” it leaves open at the time it is passed, or also those it leaves open at the time it is challenged….
… opens this opinion issued today by the Second Circuit Court of Appels.
Get in early. Cuz they ain’t makin’ more land.
“Outrage over a 20-foot, anatomically correct stallion outside a strip club in rural northern Mississippi could lead to a new law allowing counties to regulate such establishments,” begins this article by Shelia Byrd in BusinessWeek. According to the article, the bill would give Mississippi’s 82 counties the option to draft regulations for strip clubs that try to open in rural, unincorporated areas. I’m assuming the State’s counties do not otherwise possess a ‘home rule’ power to regulate adult businesses, which seems odd if true. From the article …
“Since I’ve filed the bill, I’ve gotten a lot of telephone calls and encouragement from pastors and others. But really what started it all was that bikini on that stallion,” Chism said….
Lowndes County Supervisor Leroy Brooks said most counties don’t have zoning ordinances.
“Certainly, we need something on the books in case somebody gets too outlandish,” Brooks said.
But Brooks said he’s told residents that The Pony is a legal establishment and has the right to operate whether or not there’s an issue of morality.
“I don’t drink, but I’m not trying to close down bars,” said Brooks, who inspected the club after receiving calls from residents. “The place was clean. They had security guards. I wasn’t really interested in looking at the women, but they looked OK.”
Not too far away, in the City of Destin, Florida, citizens are debating a similar concern. In this article by Tosha Sketo for The Destin Log, we learn that “Pastor James Calderazzo of Safe Harbor Presbyterian Church said he and his congregation do not want a strip club to move into Destin. But since Atlanta strip club owner Terry Stephenson settled [a federal lawsuit] with the city last month, it’s likely that topless dancers will be featured in the city by the end of the summer.” From the article …
Calderazzo said he asked his congregation to pray about the recent development. He urged his congregation to fight against wrong-doers but also “love those that are doing wrong.”
“We really need to seek the Lord in this,” he said.
The Destin Fire Control District is another potential neighbor of the strip club, but Fire Chief Kevin Sasser said he isn’t too concerned about a topless bar moving in near the station. He said he has consulted the Okaloosa Island Fire Chief about what effect strip clubs have had on the area and found out that it really didn’t have any impact.
He said call volumes hadn’t gone up, and were similar to call volumes from any establishment that sells alcohol.
“If any incidents do occur, then our response time would be shorter,” Sasser said. “That’s really the only difference.”
A hearty salute to Lowndes County Supervisor Leroy Brooks and Destin Fire Chief Kevin Sasser. If the First Amendment is a flame atop a hill on a moonless night, folks like Messrs Brooks and Sasser are shielding it from hurricane-like winds rolling up from the pews. Please forgive my mixed metaphors.
*Full disclosure: I was counsel on the Destin lawsuit along with my esteemed colleague, Gary Edinger.
“The Federal Communications Commission fined Rocky Mountain Radar for producing two types of police radar jammers. The Commission alleged that the jammers harmfully interfered with authorized radio communications – a violation of FCC regulations,” begins this opinion from the Fifth Circuit Court of Appeals issued today. As framed, the issue “is whether C450 and S201 are ‘intentional radiators’ under the Commission’s regulations.”
The Commission ran three tests on each of the jammers, and Rocky Mountain Radar argues that the tests’ results do not provide sufficient evidence for summary judgment – and neither do the Commission’s conclusory interpretations of those results. One test involved a police radar gun aimed at a jammer-equipped car as it drove down the road. According to the company, the police radar machine correctly read the car’s speed, so the jammer must not interfere with police radar – and cannot be an intentional radiator.
Ultimately, though, no issues of material fact remain that the jammers fit the regulatory definition of intentional radiators – notwithstanding the possibility of either the jammers’ inefficacy or the inconclusiveness of any test results. Rocky Mountain Radar’s founder and owner admitted – both in an expert report and at deposition – that the jammers work by receiving a radar signal, mixing the signal with an audio frequency, and through an antenna reflecting the new conglomerate signal back to the police unit. Jammers that function in this way meet the regulatory definition of an intentional radiator – something the company has known since the 10th Circuit twelve years ago handed down its decision in Rocky Mountain Radar.
The court of appeals concluded that no dispute of material fact existed about whether Rocky Mountain Radar’s unlicensed police jammers generate and emit radio energy:
The company designed its jammers to interfere with police radio communications, and – by obstructing law enforcement’s effort to keep our roads free from careless drivers – the company endangers the public’s safety. The Commission’s regulations expressly forbid all of this. The district court did not err in granting summary judgment to the Commission and ordering the company to pay the forfeiture.
I wonder if Radar Mountain Radar’s attorneys are saying, “The court’s fast-and-furious analysis of the FCC regulations has created mixed signals”?
Or something like that.
Let’s say that one day, you’re banned from a casino (for hitting a slot machine and breaking its “belly glass”). Years later, somehow, you’ve worked yourself back into that casino (hitting the slots and winning thousands).
How, exactly, should you cash in those chips?
The issue: Whether a casino (here, Prairie Meadows) had the authority to withhold winnings from a person who had been “involuntarily banned” from its gambling facility? The Iowa Supreme Court’s answer: Yes.
The plaintiff, Mr. Blackford, sued the casino under a number of theories. The supreme court focused on his “conversion” claim. In what might be called ’Contracts 101 meets Statutory Gambling,’ the supreme court did away with Mr. Blackford’s conversion claim like this:
In this situation, Prairie Meadows is the offeror. It makes an offer to its patrons that, if accepted by wagering an amount and the patron wins, it will pay off the wager. Simply stated, the issue is whether Prairie Meadows made an offer to Blackford. Because Prairie Meadows has the ability to determine the class of individuals to whom the offer is made, it may also exclude certain individuals. Id.Blackford had been banned for life from the casino. He was provided a notice which provided as follows: “ON THIS DATE YOU HAVE BEEN ADVISED THAT YOU HAVE BEEN PERMANENTLY DENIED ENTRANCE OR ACCESS TO THE FACILITY OF PRAIRIE MEADOWS RACETRACK AND CASINO.” Under an objective test, unless the ban had been lifted, Blackford could not have reasonably believed he was among the class of individuals invited to accept Prairie Meadows’s offer. The jury found that the ban against Blackford had not been lifted, and, therefore, Prairie Meadows had not extended him an offer to wager. Because there was no offer to him, no contract could result. Without the contract, Blackford could not show a possessory interest in the jackpot, and his conversion action must fail.
I wonder if Mr. Blackford pursued a claim for unjust enrichment? Just as the slots paid out to Mr. Blackford, he paid into the slots. What’s good for the goose, I say. If the casino had no contractual obligation to pay Mr. Blackford because it had not “extended him an offer to wager,” the casino has no contractual right to keep those repeated wagers.
(HT: Leagle.com)
When Cowboy’s applied for a liquor license, “[o]pponents, including WyWatch Family Action members, crowded commission meetings for the initial approval in September 2008 and for the renewal in February 2009, saying the establishment[] would cause an increase in sex crimes, exploitation of women, prostitution, and the promotion of obscenity,” reports Tom Martin here for the Star-Tribune.
Both licenses issued despite WyWatch’s protested fears.
Now it’s time for the County to entertain year 2010 liquor license renewal applications, and it seems likely that WyWatch’s fears must once again give way to the law. According a letter the Natrona County Sheriff wrote to the Natrona County Commission (i.e., the body that decides liquor license renewal applications), Cowboys has not been responsible for an increase in crime or gender exploitation over the past year. Au contraire:
The sheriff’s office received 29 calls from the club from Feb. 1, 2009 to Feb. 1, 2010, he wrote.
Twenty-two of those fell in the categories of general information or citizen assistance requests, including activated security alarms, loud music, a medical call, a traffic accident and other minor issues, Benton wrote.
“The remaining seven calls were to report three assaults, one larceny, two property damages and one threatening,” he wrote. “If you subtract the 22 calls for service … the remaining seven calls could be in line with any other facility with an equal amount of business, for a one year period.”
The sheriff’s office has issued no citations to Cowboys staff for violations of liquor license requirements, Benton wrote.
The article also reports that, “[i]f there have been any direct effects of the strip club on domestic violence, Self-Help Center Director Liz Baron said she hasn’t seen any.”
I, for one, support WyWatch’s right to protest. To be heard. But if the evidence of crime ain’t there, WyWatch’s vigil must remain just that: a vigil. While prophets can warn of the future, adjudicators must dwell in the past and present, lest we need due process and equal protection in the unpredicted future.
If you’re planning to …
1. Give her flowers;
2. Give her chocolate;
3. Treat him to dinner & drinks; or
4. Take in a movie
… don’t forget where you are.
“The Texas Supreme Court will decide whether the state’s $5 charge on strip club patrons violates the First Amendment right of free expression,” begins this article by Chuck Lindell for Austin Legal. Last June, Texas’s Third Court of Appeals in Austin issued a 2-1 ruling affirming a 2008 decision by state trial court to strike down the law, enacted in 2007 to raise money for sexual assault prevention and an insurance fund for low-income Texans. (Mr. Lindell’s article links to the court of appeals’ majority and dissenting opinions.)
The not-so-thinly-veiled premise for the law — that strip clubs contribute to sexual assault — is pure politics, which runs right down to the law’s shorthand name: Pole Tax. In many cities and counties, the laws regulating and licensing strip clubs are called “Sexually Oriented Business” ordinances. Get it? It’s word association at its best, depending on who you ask.
A few years ago, my wife’s sister and her husband (a surgeon), my wife, and I were crammed in a car driving somewhere. I forget where. Anyway, we passed a billboard for “S.O.B.’s,” which we determined was some kinda restaurant. “Did you see that?” we asked each other. Here’s the first thing that popped into our minds (and out of our mouths):
Me: Sexually Oriented Business?
My brother-in-law: Shortness of Breath?
My wife and sister-in-law: Son of a Bitch!!
I’d hate to see a gimmick trounce the First Amendment. I’m sure that I’m not alone.
Location schmocation.
A couple of items in the news. First, a provocative piece from the talented David Hudson of the First Amendment Center, entitled “Obscenity online: Do we need a national standard?”
Second, the Iowa Court of Appeals delivered this decision yesterday. Iowa charged Clarence Judy, owner of a strip club in Hamburg, Iowa, with three counts of public indecent exposure in violation of Iowa Code sections 728.5 (3), (4), and (6). At trial, Judy moved for a judgment of acquittal, alleging that his establishment fell into an exemption for “theaters.” The district court agreed. And the State’s appeal was … dismissed. News coverage is available at How Appealing here. (HT: Howard Bashman).
It’s not what you show; it’s where you show.
Meet John Reget.
He claims that the City of La Crosse ”selectively enforced its junk-dealer ordinance against him, targeted him for rezoning in a discriminatory fashion, and selectively enforced its noise regulations.” Mr. Reget and the City, according to today’s opinion from the Seventh Circuit Court of Appeals, “have had a long, acrimonious relationship stemming from Reget’s operation of a business that doubles as a body shop and an automobile-restoration company. The City’s junk-dealer ordinance required Reget to comply with certain building and safety-code provisions and to fence his outdoor auto storage from the view of his surrounding residential neighbors.”
The Seventh Circuit’s analysis:
We begin with Reget’s claim that the City singled him out for enforcement of the junk-dealer ordinance. That ordinance requires, among other things, that “[t]he premises of a junk dealer” be enclosed by a “proper fence.” LA CROSSE, WIS., CODE § 20.12(F). The ordinance applies to a junk dealer who stores two or more junked automobiles outside of any building for more than 30 days. Id. § 7.01(V) (Regulations for Storage of Junked Automobiles and Parts). Reget maintains that the City intentionally targeted him for enforcement of this ordinance by: (1) citing him three times between 1991 and 1994 for violating the ordinance (the specific nature of these violations is unclear); and(2) “requiring” him to fence his property in exchange for settlement of the zoning dispute. Reget has failed, however, to establish that he was treated differently than a similarly situated junk dealer.
Dear John: I’ve built a fence. It’s finally time to go our separate ways. Forever yours, the City.
