RICHMOND, Va. (CN) - An attorney for a North Carolina strip club argued before the Fourth Circuit Wednesday that an ordinance adopted by the city of Rocky Mount to regulate sexually oriented businesses is overly broad and should be thrown out.
Gary Edinger, the attorney for plaintiff American Entertainers LLC, says his client opened the Gentlemen's Playground club in Rocky Mount in 2004, but only ran into trouble in 2014, when the city began enforcing a requirement that clubs featuring nude dancers have a specific kind of permit, and threatened to shut the plaintiff down for not having one.
Edinger, a Florida-based attorney who has argued similar cases in the past, said Rocky Mount's ordinance violates American Entertainers' First amendment rights because the law is overly broad in how it defines violations.
The ordinance requires businesses to apply for the license if they fall into one of two categories: adult cabaret or Adult live entertainment. It goes on to classify what conduct leads to such a designation. Showing, even partially, “specified anatomical areas” like the female breasts or buttocks, or “specific sexual activities” like “fondling or other erotic touching” of the public region, would require you to apply for the license.
“The ordinance doesn’t regulate nudity, it talks about anatomical areas and actions,” he said, pointing to terms used in the law like “erotic touching” and “fondling.”
Edinger said the ordinance failed to carve out an exception for mainstream entertainment venues, like ballet or traditional theatre performances, an issue that has doomed similar ordinances in the past.
To illustrate his point, he drew the three-judge panel's attention to the Richmond Ballet's website which, he said, currently features a promotion for the company's upcoming performance of "Sleeping Beauty."
The image used shows a male dancer holding a female dancer in the air by her pelvic region. Edinger said under the terms of Rocky Mount's ordinance ballet companies would be forced to get a license if their dancers participated in acts like those shown.
But U.S. Circuit Judge Stephanie Thacker, appeared to be unconvinced by this comparison, suggesting there's a difference between the words "touch" and "erotic touch.”
“I disagree,” Edinger said.
He then turned to Carandola v. Bason, a similar case involving a strip club that had been denied a state liquor license by North Carolina regulators.
The Fourth Circuit later struck down the ordinance challenged in that instance, finding it too broad and an unlawful burden on mainstream entertainment venues.
“If your goal is to have a very broad law where it applies to clothed and not-clothed entertainment … you need a carve out for non-sexual entertainment,” he said.
Nick Ellis, the lawyer for Rocky Mount, said the city has an interest in regulating topless dancing as a way to combat secondary negative impacts that are often associated with sexually-oriented businesses.
Ellis pointed to the ordinance’s use of the word “regularly” in describing the amount of contentious “erotic touching” that would trigger a violation of the ordinance.
“We’re trying to regulate the negative secondary effects and not impact mainstream businesses,” he said. “Ballet lifts are not ‘erotic touching.’”
U.S. Circuit Judge James Wynn questioned the ability of the Rocky Mount's police chief to deny a club permit if the applicant had not violated any applicable laws.
“Doesn’t [the ordinance] give the police chief a pretty wide range to deny the permit?” he asked Ellis.
“[The chief] gets to pick and choose which laws to enforce ..." the judge said.
In an interview with Courthouse News before Wednesday’s hearing, Edinger said he believed the comparison to Carandola alone would be enough for his client to win the day.
“The court provided a menu on how to revise the statute,” he said of the Carandola decision.
But in a blog post on his law firm’s website, Ellis defended the city’s ordinance saying it was precise in its ability to not violate a business’s First amendment rights.
“If those provisions are drafted with those protections in mind, such ordinances should fare well when challenged in court,” he wrote.
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