Ruling Clears Path For Beer Ban In Strip Clubs

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Written by: 195 on Mar 4, 2010

Shelby County government is preparing to enforce new rules for strip clubs two years after the County Commission approved them.

A ruling Tuesday by the Sixth U.S. Circuit Court of Appeals in Cincinnati sets the stage for enforcing the ordinance that bans beer and other alcoholic beverages from strip clubs. The new rules also include a system of permits and criminal background checks for all employees and owners.

The court has refused to rehear an appeal of its decision backing a countywide ordinance regulating all adult-oriented businesses. Specifically, the court refused to block enforcement of the ordinance pending a trial on its constitutionality before U.S. District Court Judge Bernice Donald.

Attorneys for the seven strip club owners who filed suit in federal court two years ago have said they will seek an appeal on the issue of enforcement to the U.S. Supreme Court.

Donald’s next action is to set a trial date.

Reversals
Assistant Shelby County Attorney Robert Rolwing said in an e-mail Tuesday to county commissioners that the county will ask the Sixth Circuit to lift the stay.

“It is highly unlikely that the Supreme Court will take this case,” Rolwing wrote.

“The court of appeals will either lift the injunction or order us to wait until the Supreme Court issues a letter denying an appeal.”

The ordinance applies to the city of Memphis as well as the county outside Memphis until or unless the city passes its own ordinance with different terms.

The Shelby County Commission approved it in late 2007. It is based on a state law.

Memphis City Council members then voted to delay a decision on a city ordinance until the court challenge was resolved.

Then-Memphis Mayor Willie Herenton’s administration had proposed a different method of regulating strip clubs in the city that would permit beer and other alcoholic beverages. That change would have left the Memphis Alcohol Commission, also known as the beer board, intact.

The city board regulates the clubs through its power to suspend or revoke beer permits. Club owners say beer sales are an essential part of their operations.

Critics of the system, including county commissioners who voted for the ordinance, said the beer permits are a poor method of regulating the clubs because suspensions are almost always appealed in court and delayed.

The countywide ordinance would leave regulation of the beer ban to Memphis Police and Shelby County Sheriff’s departments.

Inelegant but binding
Before enforcement of the ordinance was stayed, an Adult Oriented Establishment (AOE) board was appointed and met several times to establish the ground rules for the permit procedure.

Once enforcement was stayed, the board voted to begin enforcing the law 30 days after a final court ruling on the issue of the stay.

A three-judge panel of the appeals court ruled in November, upholding Donald’s initial decision not to stay enforcement.

The court agreed with Donald that the plaintiffs did not show “a substantial likelihood of success” in challenging the definitions of adult entertainment and other basic terms in the ordinance. The club owners argue the terms are defined in an overly broad, unconstitutional way.

The appeals court found some “grammatical inelegance” in the ordinance that does not specifically make an exception for performances of “serious artistic value or establishments devoted principally to offering such performances.”

“We disagree, however with the proposition that grammatical inelegance makes an interpretation unfair or unsustainable,” the November ruling read. “There is no rule of law that compels us to assert the strictest tenets of English grammar over the demonstrable intent of the legislators.”

The nightclub owners then requested a rehearing “en banc” or before the entire appeals court. That was denied Tuesday when none of the judges pushed for a vote on the request.

The three judges who heard the original appeal also concluded “that the issues raised in the petition were fully considered,” and denied it.

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