Here’ an unpublished opinion issued last Friday by the Fifth Circuit Court of Appeals. A little background: In 1994, El Paso Entertainment (a strip club) sued the City of El Paso, challenging the validity of its zoning ordinances regulating Sexually Oriented Businesses. Before that issue could be resolved, the City and El Paso Entertainment entered into an agreed judgment in 1995, “precluding the City from enforcing any SOB ordinances against either Foxy’s Nightclub or Lamplighter Lounge for as long ‘as the businesses remain[ed] in operation at their current locations by their current owners and operators.’” You can see where this is going.

In 1996, after the 1995 agreed judgement of course, the sole shareholder of the corporations (Mark Diedrich) operating Foxy Nightclub and Lamplighter Lounge sold his interest to another person (Dean Reiber). So the corporations that own and operate the strip clubs did not change; the person owning the shares in those corporations changed.

The district court sided with the City and held that, under the terms of the zoning code, a change of ownership had occurred. The court of appeals, however, held that the phrase “owners and operators” as used in the agreed judgment was ambiguous. It ruled that “this matter is best resolved on remand by a full hearing to allow the parties to present extrinsic evidence and otherwise develop their positions.” New life for the clubs.

It never ends.

Mr. Elfman writes:

Here’s how part of the quid pro quo works:

Various hotel doormen ask people in taxi lines where they’re headed. Doormen aren’t necessarily interested in tourists’ sunny day. They’re also trying to find out which tourists want to go to a strip club. When a doorman finds guys looking for naked ladies, they may pull them out of a taxi line and say, “Let me put you in this free limo.”

Cabdrivers hate that, because it takes strip club cash out of their pockets.

Then that limo driver takes his riders to a strip club, gets paid by the club an extra $10 to $100 per rider, then heads back to the doorman and gives him as much as one-fourth to half of that strip club cash.

And you thought your taxi driver was just being friendly. Maybe you should stay in Vegas. Until you figure it out, that is.

To hear Quansa Thompson talk of her life as an exotic dancer, to listen to her describe how men offer cash as she sashays, gyrates and jiggles the night away, is to evoke a thousand titillating thoughts, not a single one having anything to do with the Federal Fair Labor Standards Act of 1938.

That is, until Thompson brings up the Depression-era law, which she discovered last summer after being fired by her then-employer, the House, a den of prurient entertainment on Georgia Avenue NW. Thompson is suing the House in U.S. District Court, alleging that the club pays dancers no wages, but ought to under the law. The club has denied the charge.

That’s how this article by Paul Schwartzman for The Washington Post begins.

This issue has spread like wildfire in the industry. It’s a legitimate claim. But, given the unique arrangements that nude-dance performers often hold with their clubs (one in which the dancer often makes leaps and bounds beyond what FLSA requires), it’s not always a practical claim — that is, unless you’re fired.

As my mentor used to say when he’d find a counterintuitive legal outcome, “it’s a barnacle on the hull of the law.”

**Update: A class action of this variety was just conditionally certified in my backyard.

“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.

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.

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.

The Result:

Plaintiffs have not demonstrated that the County’s reliance on evidence related to businesses other than adult dancing establishments was unreasonable or that this evidence is inapplicable to adult dancing establishments.

Plaintiffs have failed to cast direct doubt on the County’s rationale for enacting Ordinance 05-21. Plaintiffs did not address all of the evidence supporting the County’s finding of a correlation between sexual oriented businesses and prostitution, the potential spread of disease, lewdness, public indecency, illicit sexual activity, illicit drug use and drug trafficking, undesirable and criminal behavior associated with alcohol consumption, and litter. Nor did Plaintiffs furnish evidence sufficient to call into question each of these factual findings. Plaintiffs have therefore failed to satisfy their burden of casting direct doubt on the County’s rationale for the ordinance.

Here is the decision. I’m betting an appeal is in the works.

The self-proclaimed “Tea Room” applied for a special use permit to offer adult entertainment. Denied. A federal suit followed, alleging, among other things, that the zoning code violated the First Amendment. In the latest round, Judge Gottschall held that the trustees were not entitled to legislative immunity. But she didn’t stop there. The judge went on to hold that the trustees weren’t entitled to judicial immunity, either: 

The absence of a requirement that Trustees give a reason for a special-use vote, coupled with the Illinois legislature’s decision to mandate that special use decisions be reviewed by Illinois courts under the deferential standard accorded to legislative acts, renders appellate review of special use votes too insubstantial a procedural safeguard to permit the extension of judicial immunity to the Trustees under Reed. Id. Absent any authority granting judicial or legislative immunity to municipal actors in the special use context, the court cannot shield the Trustees from liability.

I don’t no what the Village will do next.

Read the decision.