Jun 29, 2007  |  By: LOU CHIBBARO J  | COMMENTS     

D.C. Attorney General Linda Singer has called on a federal judge to dismiss a lawsuit challenging the constitutionality of a city law preventing adult businesses — whether gay or straight — displaced by the new baseball stadium from reopening in new locations.
 
In a legal brief filed June 8 in U.S. District Court for the District of Columbia, Singer said there is a “valid governmental interest” in restricting nude dance clubs and that nude dancing associated with establishments serving alcoholic beverages aren’t completely protected by the First Amendment’s free-speech clause.
 
Singer’s 18-page brief came in response to a lawsuit filed April 18 on behalf of Club Rendezvous, a straight nude dance establishment displaced from its premises on Alabama Avenue in Southeast Washington by a city-sponsored redevelopment project.
 
The lawsuit charges that a 2001 law passed by D.C. City Council and signed by former Mayor Anthony Williams, which sets restrictions on the transfer of licenses for nude dance clubs serving liquor, is “unconstitutional on its face under the First and Fourteenth Amendments.”
 
The suit cites past U.S. Supreme Court decisions affirming that nude dancing is a form of “protected expressive activity” under the Constitution’s First Amendment free speech clause.
 
Club Rendezvous is not among the five nightclubs — three gay and two straight — that were displaced last year by the new baseball stadium. But it is challenging the constitutionality of the same law that now prevents those clubs from moving into new locations in a warehouse section off of New York Avenue, N.E., in Ward 5, where they have identified buildings.
 
Attorney Jimmy Bell, who filed the lawsuit on behalf of Club Rendezvous, said a ruling declaring city restrictions against adult nude dance clubs unconstitutional might also clear the way for the reopening of other adult gay businesses displaced by the stadium, including a bathhouse, an adult movie theater and an adult arcade.
 
The city’s Department of Consumer & Regulatory Affairs forced one such business — Club 2120 — to shut down this week, charging that it had been operating for a little more than a month as a sexually oriented business in a zone that prohibits such businesses. Owner Bob Siegel denied the gay club was a sexually oriented business and vowed to appeal the DCRA’s decision to revoke the business’s occupancy permit, which forced it to close Tuesday. It had been operating at 2120 West Virginia Ave., N.E.
 
David Hudson, an attorney and researcher with the First Amendment Center at Vanderbilt University in Nashville, Tenn., said he could not predict how the U.S. District Court would rule on the Club Rendezvous lawsuit.
 
But Hudson, a recognized expert on First Amendment application to adult businesses, said longstanding Supreme Court rulings would likely result in the overturning of any D.C. law that seeks to zone nude dance clubs or other adult businesses out of existence.
 
“They can marginalize them, disperse them and restrict them,” he said. “But they can’t totally ban them. The city is opening itself up to expensive litigation if it doesn’t provide them someplace to move,” he said.
 
The Club Rendezvous lawsuit says the 2001 law provides “no rational reason” for restricting nude dancing in establishments licensed to serve alcoholic beverages while the city imposes far fewer restrictions on liquor stores or bars and nightclubs that play hip-hop or go-go music, which have been linked to adverse secondary effects.
 
“As a result, by imposing restrictions on one class of establishment and not another, without any showing of real differences between them, D.C. Official Code 25-374 (2001) is arbitrarily discriminatory and must be struck down under the Federal Equal Protection Clause,” the lawsuit says.
 
The suit also charges that the 2001 law “was adopted without any valid evidence upon which the state could rely to show adult businesses in general, and plaintiff’s business in particular, cause [negative] primary or secondary effects.”
 
Similar to Hudson, Bell pointed to a number of U.S. Supreme Court decisions over the past 25 years that have established constitutional requirements for regulating adult businesses, including nude dancing. Among them, he said, is the requirement that local governmental entities conduct a study or review existing studies to determine whether adult businesses would create negative effects in the surrounding community, such as lowering real estate values or boosting crime and blight.
 
“The record shows there was no study to look into secondary effects,” Bell said, in referring to City Council’s ...