Thursday, January 27, 2005
Ninth Circuit Upholds La Habra Ordinance Regulating ‘Lap Dances’
By a MetNews Staff Writer
A city ordinance requiring exotic dancers to remain at least two feet away from patrons during “lap dances” and prohibiting physical contact between dancers and patrons in “adult cabarets” did not violate constitutionally protected freedom of speech and expression, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court affirmed Senior U.S. District Court Judge Gary L. Taylor’s dismissal of claims by adult business owner Bill Badi Gammoh and several exotic dancers that the ordinance was vague and overbroad, and granted summary judgment to the City of La Habra on the issues of freedom of speech and expression. The panel also rejected the contention that the ordinance accomplished a regulatory taking.
Judge Richard C. Tallman, joined by Senior Judge A. Wallace Tashima and Judge Raymond C. Fisher, opined that the regulation did not ban expression by the dancers, it simply placed regulations that were designed to prevent negative secondary effects of adult businesses.
The appeal stemmed from an ordinance passed by La Habra’s City Council to regulate adult businesses. The ordinance included extensive findings regarding problems the city related to adult businesses.
It included regulations to address these problems and the effects by prohibiting physical contact between dancers and patrons and by requiring “adult cabaret dancers” to remain at least two feet away from patrons during performances. The two-foot rule applied only to offstage performances, commonly referred to as “lap dances” and which Gammoh termed “clothed proximate dancing.”
The rule requiring dancers to remain two feet from patrons applied only to “adult cabaret dancers”, which the ordinance defined as 1) dancers performing at an adult cabaret, 2) performing as a sexually-oriented dancer, exotic dancer, stripper, go-go dancer, or similar dancer, 3) emphasizing the dancer’s breasts, buttocks, or genitals, and 4) whose performance emphasized these body parts on a regular and substantial basis.
Gammoh claimed that this language was vague and overbroad because it contained subjective terms. Tallman noted that to survive a vagueness challenge an ordinance has to be sufficiently definite that ordinary people could understand what was prohibited and that would not encourage arbitrary or discriminatory enforcement.
While Tallman agreed that many of the individual terms contained in the ordinance were subjective, the court held that the ordinance as a whole was not unconstitutionally vague.
Because the subjective definitions and limitations for an “adult cabaret dancer” in the ordinance provided a sufficient context, and the prohibited conduct—physically touching patrons or dancing within two feet of patrons—was objectively defined, Tallman explained, ordinary people could understand the limitations.
The court also held that the ordinance did not violate constitutional guarantees of freedom of speech and expression because it did not completely ban the form of the expression, it simply regulated how close the dancers could get to the patrons. “While the dancers’ erotic message may be slightly less effective from two feet, the ability to engage in the protected expression is not significantly impaired,” Tallman said.
The distance regulation was permitted because it served a substantial government interest in reducing the negative effects of adult entertainment, which the record and the ordinance itself detailed, , such as the exchange of money or drugs. Tallman said.
The judge went on to say the ordinance was narrower than other ordinances, limiting the restriction to two feet for example, rather than 10 feet, which the court had previously approved. Because the ordinance allowed the dancers’ expression, was narrowly tailored, and was designed to serve a substantial government interest, it met the intermediate scrutiny standard and did not violate constitutional protections, the court ruled.
Gammoh’s argument that the ordinance was unconstitutionally overbroad also failed, Tallman opined, because the ordinance was limited to “adult cabarets,” and any overbreadth was insubstantial when compared to the city’s legitimate goals of reducing secondary effects of adult entertainment, including drug dealing.
The case is Gammoh v. City of La Habra, 04-56072.
Copyright 2005, Metropolitan News Company