Touchy Subject

In Dallas' enduring war against topless clubs, it was supposed to be a new weapon. But in the legal Beirut that has the city fighting 35 different court and licensing cases involving many of the city's two dozen adult cabarets, the city's "two-rubs-and-you're-out" law has so far turned out to be a costly dud.

Last week, U.S. District Judge Joe Fish permanently barred the city from revoking the licenses of three clubs it had tried to close for violating a legal mechanism aimed at keeping topless dancers from going beyond the mere bump and grind. He ordered the city to pay the club's legal fees, which defense attorneys say could run between $120,000 and $150,000.

City Attorney Madeleine Johnson says the city is contemplating whether to appeal the ruling. "This is a hard-fought battle, a lot of hand-to-hand combat. At the end of the day, we will have some beneficial rulings and others where we have tested what we can do and what we can't under the limitations the courts have set out," Johnson says. She said the city's sex-business ordinance--imposing restrictions on location and licensing and limitations on who may hold licenses--was upheld in federal court last year, a loss the clubs in turn are appealing.

In late 2000, shortly after the city updated its sex-business ordinance, it dispatched many of the vice squad's 22 detectives to the topless clubs to crack down on lap dancing, over-friendly table dancing and other dancer-patron contact barred under the state's public-lewdness law.

By last April, with the vice cops serving up a load of alleged violations, county prosecutors gathered enough misdemeanor convictions and uncontested guilty pleas from dancers to trigger the "two-rubs" provision at several large clubs. According to a city attorney, "dancers grabbed, rubbed or fondled" undercover officers' genitals and "one convicted employee nipped with her teeth at a detective's penis through his outer clothing."

Under the revised code, a club's license is automatically revoked if an employee commits a lewd act on two or more occasions within a year. So the city sent Cabaret Royale, the Dallas Gentlemen's Club and Lipstick--three clubs where several dancers had been convicted of lewd conduct--letters last spring informing them that their licenses were revoked.

The clubs immediately sued the city in federal court. Judge Fish allowed them to continue operating while the matter was considered.

Citing decades of precedents under which topless, erotic dancing has been held to be protected expression under the First Amendment, Cabaret Royale's attorney Steve Swander argued that the city's approach is unconstitutional because it punishes the club for the illegal acts of employees, acts the club's management may not be aware of.

"If it were a dancer and a bartender performing a lewd act, the ordinance might be applied," says Swander, who argued to the court that the new policy constituted a prior restraint of expression because it would "terminate future presumptively protected expression at the club." He explained that the U.S. Supreme Court has allowed cities to close sexually oriented businesses as public nuisances, but that was not shown in this case.

Johnson says the city has the legal authority to close businesses where drugs are regularly peddled, so it follows that it has the right to close clubs where dancers routinely break lewd-conduct laws. Under state law, sexual contact in a public place is a Class A misdemeanor, punishable by up to a year in jail. Lawyers on Johnson's staff argued to Judge Fish that club managers are well-aware of the penal code and "certainly aware that law enforcement action is occurring with respect to their employees because uniformed officers enter the establishments the evening the offenses occur to identify offending employees." They also argued that the club owners' right to free expression would not be violated because they are free to open new clubs at other locations.

None of this persuaded Fish, who pointed out that the city's ordinance prohibited owners from opening new clubs for a year after a license is revoked. He concluded in his opinion that the city failed to show the clubs are "careless, reckless or incompetent" in regulating the conduct of their dancers.

"Basically, in a large club, you have a lot of dances going on at the same time," Swander says. "You may have some that violate the rules. How can anyone be perfect in making sure that doesn't happen?"

Cabaret Royale's vice president and license holder, Steve Craft, declined to comment on the case before meeting with his lawyers. "There's no doubt they've stepped up enforcement as a matter of policy," he says of the lewdness arrests.

Johnson says the city's efforts have been met with countermeasures at the clubs. "Now we have them turning the lights down so it's hard to get video; they're ID-ing more to monitor and see if [vice cops] are coming in the club."

She says Dallas is not trying to eliminate topless clubs, but simply requiring that they operate legally and in locations that do not have harmful effects on surrounding neighborhoods. Johnson says that in the constant evolution of law on the matter, she sees a tilt in the courts toward cities' rights to regulate the businesses. "There's a lot of favorable things happening in the law," Johnson says.

Last week, in a case that could be a major victory for city restrictions, the 5th U.S. Circuit Court of Appeals upheld the constitutionality of a Wichita County ordinance that effectively bars table dancing. The county's rules specify that dancers must maintain a 6-foot distance from customers and perform on stages no less than 18 inches tall.

"The courts are upholding a lot of things more restrictive than our ordinance," says Dallas police Captain Jack Bragg, commander of the city's vice squad "I think it will only be a matter of time before we will be able to enforce the law without it being a big waste of resources."

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Thomas Korosec
Contact: Thomas Korosec