LOCAL

D.C. attorney general defends nude dance restrictions
Lawsuit says city ban on relocation of strip clubs is unconstitutional

LOU CHIBBARO J
Friday, June 29, 2007

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 deliberations over the 2001 law.
 
“Each time the Supreme Court hands down a decision, that becomes the law of the land,” Bell said. “The record shows they did not do what was required when they passed this law.”
 
Former D.C. Councilmember Sharon Ambrose (D-Ward 6) authored the law, saying her intent was to allow nude dance clubs to move to new locations under certain conditions. She noted that prior to Council passing the 2001 law, nude dance clubs were banned from moving entirely and faced being forced out of business if displaced from their existing locations.
 
Gay activists supported the Ambrose legislation at the time. Gay & Lesbian Activists Alliance spokesperson Rick Rosendall said strong opposition to nude dancing by neighborhood groups and business leaders forced Ambrose to add various restrictions to her bill that prevent the clubs displaced by the stadium from relocating.
 
Earlier this year, gay Councilmember Jim Graham (D-Ward 1) introduced a bill calling for a one-time exemption from the 2001 law to allow the displaced adult clubs to relocate.
 
Councilmember Harry Thomas (D-Ward 5), who represents the area where the displaced clubs planned to reopen, joined many of his constituents in waging a fierce lobbying campaign against the Graham bill.
 
Graham agreed to a series of amendments proposed by Thomas that nightlife advocates say have greatly weakened his bill and raise questions about whether it would be sufficient to enable the clubs to find a suitable place to reopen.
 
Council passed the heavily amended bill on a “first reading” vote on June 5. It is scheduled to come up for a second and final vote July 10. Graham said he could not have secured the votes to pass the bill had he not agreed to Thomas’ amendments.
 
In her opposition brief to the Club Rendezvous lawsuit, Singer, among other things, calls on the court to dismiss the suit on grounds that the “plaintiff’s claims are not ripe, it lacks standing and it has failed to exhaust its administrative remedies.”
 
She said Club Rendezvous “has not yet even applied to transfer its liquor license to another location (nor, obviously, has it been denied that request), and there is no imminent administrative action pending.”
 
Singer cited a U.S. appeals court ruling, JMM Corp. v. District of Columbia, which held that an adult bookstore in downtown Washington could not file suit in federal court to challenge an order to shut it down for allegedly violating zoning rules until it first took its case to city regulatory agencies and the local D.C. Superior Court.
 
“What plaintiff claims is a current breach of its constitutional rights is nothing more than a premature challenge to a matter of preeminent local concern — the regulation of adult-oriented businesses that sell alcohol,” Singer argues in her brief.
 
She quoted a past federal appeals court ruling as saying, “The Supreme Court has held that the First Amendment does not prohibit laws justified by a valid government interest when those laws do not reflect an intent to control the content of speech but rather incidentally limit unfettered exercise of the right.”
 
“Although ‘nude dancing is not without its First Amendment protections,’ ‘the state has ample power to prohibit the sale of alcoholic beverages in inappropriate locations,’” Singer quoted another court ruling as saying.
 
U.S. District Court Judge Henry Kennedy Jr., who is presiding over the case, has yet to set a trial date.
 
According to the Club Rendezvous lawsuit, the 2001 law effectively prevents the club and similar businesses from relocating anywhere in the city. Although the law says such businesses could relocate in commercial and manufacturing zones identical to the ones in which they operated previously, as well as in the downtown business district, other city laws and zoning regulations make it unlikely that a location acceptable to the city can be found, Bell said.
 
Nightlife advocates have argued that existing zoning regulations banning such clubs from operating within 600 feet of a residential building effectively prevent any more nude dance clubs from opening in the downtown area, where condominium residences have emerged in recent years on almost every city block. Existing nude dance clubs in the downtown business district are exempt from the 600-foot rule under a “grandfather” clause in the law.
 
Bell characterized as “nonsense” the assertion by the Singer brief that the case isn’t ripe and it should be dismissed because Club Rendezvous hasn’t applied to reopen in another location.
 
“Everyone knows the reality here, that my client can’t move anywhere for the sole reason that he is an adult entertainment club and the city won’t allow it,” Bell said.
 
He said he will file his own brief responding to Singer’s brief on July 8.

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