Let's set aside for a moment the niceties of due process and innocent-until-proven-guilty and take Dallas police at their word. We'll take without further cross-examination the claim that they conducted a five-month investigation of Eternal Eden, a regular, all-night rave at Northwest Dallas' Jaguars strip club, and that undercover officers made no fewer than 51 purchases of meth, Ecstasy, Molly and other illegal drugs. We'll also accept at face value the assertion that the four dozen drug buys, and the 15 indictments that followed (mostly of club employees and VIP patrons), prove that Eternal Eden -- again, this is an all-night rave at an all-nude strip club -- was, in fact, chock-full of illegal drugs and that some of those drugs caused the overdose deaths of at least two teenagers.
Assuming all of the above is true, the question now is this: Does the city have the authority to shut Jaguars down?
Dallas sued the strip club two weeks ago seeking to have it declared a "common nuisance" under state law -- i.e. "a place to which persons habitually go for the delivery, possession, manufacture or use of controlled substances" -- and shut down for one year.
Jaguars management didn't have any comment on the suit at the time, but two days before Christmas the club and its owner, Bryan Foster, responded with a lawsuit of their own, claiming that the city's attempted crackdown violates their rights under the First Amendment.
The city's lawsuit was actually the second prong of its legal attack on the strip club. One week earlier, DPD Deputy Chief Vernon Hale had sent Foster a certified letter informing him that Jaguars' sexually oriented business license had been revoked under a provision of city code that allows a police chief to unilaterally shut down a strip club if the operator has "knowingly" allowed the possession, use or sale of drugs at the business.
In their response, Foster and Jaguars argue that the revocation is unconstitutional. The club's stock-in-trade -- i.e. women getting naked -- is constitutionally protected speech. Foster denies that he "knowingly" allowed drugs at Jaguars, but that's beside the point. "The use of past conduct by customers or an employee such as a waitress to revoke a license constitutes a prior restraint of expression prohibited under the First Amendment to the U.S. Constitution."
Foster and Jaguars continue in this vein. The allegations of drug use are "properly viewed as a mere pretext to suppress and prohibit the constitutionally protected expression which Jaguars features. ... The use of draconian means to revoke business licenses causes the license requirement itself to become a prior restraint designed to suppress the content of the expression in violation of the First Amendment to the U.S. Constitution. ... The use of a mere allegation by the City to deny a license has already been found to not pass constitutional scrutiny."
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Here, they reference two federal court decisions: one, from 1986 that upheld the city's broad authority to regulate sexually oriented businesses but declares unconstitutional a provision denying an SOB license to someone merely accused (rather than convicted of) certain crimes; the other, from 2002, overturned Police Chief Terrell Bolton's revocation of Cabaret Royale's license after four dancers were convicted of public lewdness.
Foster and Jaguars are asking for a temporary injunction preventing the city from revoking its sexually oriented business license and, after trial, an order declaring the provision of city code that allows Dallas' police chief to shut down a strip club based on the mere allegation of drug sales declared unconstitutional.
Otherwise, they claim "irreparable harm will result to Jaguars," which will "lose customers and goodwill created over a number of years creating a monetary loss which is difficult to calculate."
Send your story tips to the author, Eric Nicholson.