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Federal judge douses swimsuit-club owner's request for relief

By David Hudson
First Amendment Center

Bourbon Street South, an Orange County, Fla., swimsuit club, cannot prevent county officials from regulating the business under its adult entertainment law, a federal judge ruled last week.

In Ward v. County of Orange, William Ward, proprietor of Bourbon Street, contends that county officials have violated the First Amendment by selectively enforcing an adult business zoning law.

According to Ward, his business is not an "adult performance establishment," because the predominant purpose of the club is not "sexual stimulation" or "sexual gratification."

Swimsuit clubs, or juice bars, do not serve alcohol and feature female dancers who wear at least some clothing. At Bourbon Street, customers can purchase dances with women clad in swimsuits, dresses or hot pants.

The issue is of paramount importance to both Ward and county officials, because if the club is deemed to be an adult entertainment establishment under county law, then Ward will have to close down and move to another location.

In June, U.S. District Court Judge Patricia Fawcett delayed her ruling on Ward's motion for preliminary relief from the zoning law, because county officials tried to introduce evidence of sexually related activities occurring at other businesses owned by Ward.

Fawcett gave each side more time to submit additional evidence about the activities that occurred only at Bourbon Street.

The county introduced affidavits from a couple of former employees of Bourbon Street who said that they had witnessed sexual acts between customers and dancers at the club.

Fawcett denied Ward's motion for a preliminary injunction last week in part because, according to the judge, Ward "has not shown a substantial likelihood that Bourbon Street" is not an adult performance establishment and "has not carried the heavy burden necessary for the issuance of a preliminary injunction."

The judge wrote that "because injunctive action is an extraordinary and drastic remedy, it is the exception rather than the rule, and Plaintiff must clearly carry the burden of persuasion."

Steven Mason, attorney for the club, said: "The opinion is mind-boggling for its lack of citation to legal authority. If it was a hamburger, we would starve because there is nothing in it.

"The court said that we were an adult performance establishment. However, one of our challenges was that the statute containing the definition of 'adult performance establishment' violates the First Amendment, and thus, the judge should have considered the merits of that First Amendment argument," Mason said.

"None of the challenges that were raised were addressed in any fashion," Mason said. "It was a blind leap of faith in the government and its ability to regulate First Amendment speech.

"We've got two choices now: appeal the denial of a preliminary injunction or close down and hope to prevail at the final judgment stage."

Mason said his client will decide whether to appeal in a few days.

A call placed to the county attorney was not returned.


Federal appeals panel reinstates part of swimsuit-club owner's lawsuit

Judges reject challenges to adult entertainment ordinance on its face, but say lower court must examine other claim. 07.21.00

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