Meeting the Sin Laws

Last month, Ryan Thomas Deiter of Front Royal participated in a poker tournament at a house.

Apparently it didn’t go well. Now a Warren County Circuit Court grand jury will decide whether to indict Mr. Deiter for “abduction by force, robbery and use of a firearm after forcing another participant to leave the game at gunpoint and taking between $700 and $1,000 from the man who had been holding the money.” Not good manners, granted. As Ben Orcutt for NVDaily.com reports here, though, “The incident has drawn interest about whether such a card game was legal in the first place. In [one lawyer's] opinion, if poker was being played and not games of chance, then the game was probably legal.”

So which endeavor requires more skill: Winning your office pool’s March Madness bracket? Or beating Mr. Deiter in five-card stud? Bonus question: For which contest should you probably wear a kevlar uniform?

Well, there’s an app for that: Sazerac

• Ice
• 1 sugar cube
• 1 ounce water
• 2 ounces rye whiskey (preferably Sazerac)
• A few drops Herbsaint or Absinthe
• Lemon zest

“Fill a rocks glass with ice and water and set it aside. Drop a sugar cube into a separate rocks glass and splash with bitters and the water. Muddle the concoction until the sugar cube is diluted. Fill the glass with ice and pour whiskey over it. Empty the water filled rocks glass and pour a few drops of the Herbsaint into it, rolling [the] liquid around the inside of the glass to coat it. Strain your cocktail into the coated glass and finish it off with lemon zest.” [source]

Yes, that’s how they do the Sazerac in New Orleans. Watch it and other über-cool, YouTube presentations of “New Orleans’ Best Cocktails: The Collection,” courtesy of Keith I. Marszalek for NOLA.com. I know somone once said that tomorrow is promised to no one, but there’s nothing wrong with (every so often) letting your mind race to this day’s end.

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.

I’m a fan of Mad Men. Friends got me hooked; NetFlix feeds my fix.

How would Don Draper and the Sterling Cooper Advertising Agency handle these industry issues?

• Stripper mobile grinds to a halt
• Appeals court reinstates limits on brothel ads

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.