7099 version 1.092 Lawyerdude: 541 476 8954 Dlawyerdude@gmail.com Lawyerdude1989@yahoo.com Page Created: Sat, Oct 1, 2005. Upgraded 3 Oct 05. Upgraded 04 Oct 05. Upgraded 5 October 2005.
Lawyerdude’s Lap Dance page.
Nyssa opinion from Oregon Supreme Court.
29 Sept 2005
4 foot rule violates Oregon’s first amendment.
Lawyerdude says: The club lawyers were smart. They argued based on the state constitution. Therefore this case cannot be overturned by the U.S. Supreme Court ! The adverse opinion from our 9th federal circuit is the obvious reason why our Oregon night club lawyers used Independent State Grounds to successfully strike the illegal ordinance.
Plus: Lap Dance Litigation History - state by state and city by city.
This page is http://www.lawyerdude.netfirms.com/lapdance.html
Related Pages:
List of states in order of admission. Find source of constitution: http://www.laserdude.gq.nu/states.html
9th Circuit case ruling against freedom: http://www.laserdude.gq.nu/gammoh.html
This Nyssa case at the Oregon Supreme Court site: http://www.publications.ojd.state.or.us/S49963.htm
The Nyssa opinion from the court of appeal where the club lost: http://www.publications.ojd.state.or.us/A113180.htm
The companion case: State v. Ciancanelli, 181 Or App 1, 45 P3d 451 (2002): http://www.laserdude.gq.nu/ciancell.html
Ciancanelli at Oregon Supreme Court site: http://www.publications.ojd.state.or.us/S49707.htm
Ciancanelli case at the court of appeal where they lost: http://www.publications.ojd.state.or.us/A108122.htm
Here is a real lesson in litigation tactics !! This one firm LOST their challenge to the 2 foot rule ! Their loss is http://www.laserdude.gq.nu/gammoh.html They went to federal court (which is what I would have done previously - but not now!) By comparison, this Oregon firm went to STATE court http://www.lawyerdude.netfirms.com/lapdance.html and argued their rights under the STATE constitution. The U.S. Supreme Court cannot intercede in interpretation of a state constitution!
You will see that the guys who lost at the 9th federal circuit failed to address overbreadth and vagueness. Whoops ! Major mistake !
Their client hasn't a clue that their lawyers screwed em ! Here is my overbreadth page: The litigants did not deal with overbreadth: http://www.lawyerdude.8m.com/5409.html Here are my 2 vagueness pages: The litigants failed to address vagueness: http://www.fu.gq.nu/vague2.html http://www.lawyerdude.netfirms.com/vagueness.html
Their clients can still win on Independent State Grounds. Maybe somebody should call the club and tell the owners where their lawyers screwed up. Taboo Gentlemen's Club Incorporated. Main office: 3025 E. La Mesa Ave. Anaheim, CA (714) 630-5069. http://www.taboogc.com/Homepage.htm I went to their web site; they apparently worked out something - but they are not in the business of good communication.
They should have demurred ! My demurrer page: http://lawyerdude.8k.com/5736.html 8 wins out of 8 attempts.
Highlights of this webpage; Table of Contents.
Legal/ Constitutional Analysis by Lawyerdude
Supreme Court dealt a blow to “adult businesses”
California’s current 1872 constitution
California added an oppressive constitutional clause
California 1872 pursuit of happiness clause
Article I, section 5 of the Washington Constitution
The Alaska constitution was held to protect use of harmless drugs at home.
Lawyerdude’s Comments are in the left column. Supreme Court Opinion is in the right column.
The club admits patrons 18 years of age and older and does not serve alcohol.
History of Lap Dance Litigation - State by State, City by City
Federal District Court in Seattle rules in favor of strip clubs. ! Sept 2005.
Deja Vu club litigated/ aborted/ lost in Washington state court of appeal
9th Federal Circuit (California, Oregon, Nevada, etc.) rules against 1st amendment and dancers !
Nevada state court judge declared ordinance unconstitutional
Los Angeles Lap Dance Law gets whacked by popular petition.
Tampa Lap Dance ban ruled unconstitutional in 2001
Legal/ Constitutional Analysis by Lawyerdude
1. Lawyerdude says: The club lawyers were smart. They apparently read about the adverse opinion from our 9th federal circuit wherein the court ruled against the 1st amendment and upheld a 2 foot rule. I have discussed that case elsewhere in this article. Our local Oregon club argued based on the Oregon state constitution. Therefore this case cannot go to the U.S. Supreme Court. Click here to see what other cities have done regarding Lap Dances. The case will NOT be appealed to the U.S. Supreme Court. Here is why:
The strippers argued successfully that they are protected by the OREGON constitutioin. The FINAL ARBITER of interpretation of the OREGON constitution is the OREGON Supreme Court.
These defendants were smart, smart, smart !
This is called "Independent State Grounds" !
In 1982 Famous lawyer Herald Price Fahringer and his shithead friend Lawyer Paul Cambria seriously erred in his most famous case by NOT arguing independent state grounds. They WON on appeal ! Had they argued their case based on the NEW YORK constitution AND the U.S. constitution then their victory would have survived because it would NOT have gone to the U.S. Supreme court, but NOBODY mentions this fact. Because of their fuckup, kiddie porn is now illegal.
http://laws.findlaw.com/us/458/747.html
"A New York statute prohibits persons from knowingly promoting a sexual performance by a child under the age of 16 by distributing material which depicts such a performance. The statute defines "sexual performance" as any performance that includes sexual conduct by such a child, and "sexual conduct" is in turn defined as actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals. Respondent bookstore proprietor was convicted under the statute for selling films depicting young boys masturbating, and the Appellate Division of the New York Supreme Court affirmed. The New York Court of Appeals reversed, holding that the statute violated the First Amendment as being the explicit inclusion of an obscenity standard in a companion statute banning the knowing dissemination of similarly defined material, the statute in question could not be construed to include an obscenity standard, and therefore would prohibit the promotion of materials traditionally entitled to protection under the First Amendment."
Of course, kiddie porn IS legal. The ruling of the Supreme Court is mistaken, but their word is the final word until some kiddie porn case is won on Independent state grounds or until they overturn their opinion in Ferber.
2. In 2004 the U.S. Supreme Court dealt a blow to “adult businesses” and this is one basis for the 9th circuits support of a 10 foot rule. http://www.fepproject.org/fepp/supremecourt200304.html#zj
3. Let’s See what the various constitutions say: Article 1, section 8 of the Oregon constitution is similar to that clause in other state constitutions.
a. Oregon’s 1859 constitution says:
"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."
b. By comparison, the 1849 California constitution says:
Sec. 9. Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.
c. California’s current 1872 constitution says:
SEC. 2. (a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
d. California added an oppressive constitutional clause to prevent its courts from giving us any more freedom that the U.S. Supreme Court permits via the U.S. Bill of Rights. In other words our evil oppressive California government changed the state constitution so that it is meaningless regarding the bill of rights; it gives us nothing more that what we already have with the U.S. Constitution. This is an atrocity.
e. California 1872 pursuit of happiness clause says:
SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
California courts have castrated this flowery libertarian clause; today it means NOTHING !
f. Article I, section 5 of the Washington Constitution provides "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." From http://www.laserdude.gq.nu/states.html we can see that Washington was the 42nd state admitted. By comparison, Oregon was 33rd .
g. The Alaska constitution was held to protect use of harmless drugs at home. Their constitution says the same thing as California’s regarding “life and liberty . . .and pursuing happiness” and held that it permits them to smoke pot. I used that case in my LSD brief at http://www.circuitlawyer.8m.com/1170.html The case is Ravin v State (Alaska, 1975) Found at Volume 537 of the Pacific 2nd Reporter at page 494. This 22 page seminal opinion by the Supreme Court of Alaska vindicates the right to private use of harmless drugs in the home. 28 headnotes. Headnote #1: "Issue of cruel and unusual punishment was not considered by this court." #2 "Once a fundamental right under a state constitution has been shown to be involved and it has been further shown that this constitutionally protected right has been impaired by governmental action, government must come forward and meet its substantial burden of establishing that abridgment in question ws justified by a compelling governmental interest [i.e. Strict Scrutiny as distinguished from Rational Basis]." ... #4 "If governmental restrictions interfere with individual's right to privacy, court will require that relationship between MEANS AND ENDS BY NOT MERELY REASONABLE BUT SUBSTANTIAL". (Means, ends testing is discussed by the US
Wordy, badly written opinion. I wonder which clerk wrote this crap.
The Cianacelli companion opinion is better: http://www.laserdude.gq.nu/ciancell.html
Lawyerdude’s Comments are in the left column. Supreme Court Opinion is in the right column.
FILED: September 29, 2005
IN THE SUPREME COURT OF THE STATE OF OREGON
CITY OF NYSSA, Respondent on Review,
v.
SALLY A. DUFLOTH, Petitioner on Review.
CITY OF NYSSA,Respondent on Review,
v.
DUANE L. SMITH, Petitioner on Review.
(CC A00080112, A00080111; CA A113180 (control), A113181; SC S49963)
On review from the Court of Appeals.*
Argued and submitted November 3, 2003.
Laura Graser, Portland, argued the cause and filed the brief for petitioners on review.
James N. Westwood, of Stoel Rives LLP, Portland, argued the cause and filed the brief for respondent on review. With him on the
brief was Gary Kiyuna, of Stunz, Fonda, Kiyuna & Horton, Nyssa.
Bradley J. Woodworth and Lake James Perriguey, of Bradley J. Woodworth & Associates, PC, Portland, filed the briefs for amicus curiae Association of Club Executives.
James K. Neill and Jennifer Williamson, of Davis Wright Tremaine LLP, Portland, filed the briefs for amicus curiae Danzine.
Chin See Ming and Julia E. Markley, of Perkins Coie LLP, Portland, filed the brief for amici curiae ACLU Foundation of Oregon, Inc. and White Bird.
Carmel E. Bender, Portland, filed the brief for amicus curiae Lola Greene Baldwin Foundation for Recovery.
Lawyerdude says: Foundation for Recovery is a meddling annoying group trying to save women from using their sexuality to make money.
Robert M. Atkinson, Assistant Attorney General, Salem, filed the brief for amicus curiae State of Oregon.
Tracy Pool Reeve, Senior Deputy City Attorney, City Attorney's Office, Portland, filed the brief for amici curiae City of Portland and the League of Oregon Cities. With her on the brief was Christy K. Monson, Salem.
Before Carson, Chief Justice, and Gillette, Durham, Riggs, Me Muniz, and Balmer, Justices.**
GILLETTE, J.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
De Muniz, J., dissented and filed an opinion.
*Appeal from Malheur County Circuit Court, Rodney W. Miller, Judge. 184 Or App 631, 57 P3d 161 (2002).
**Kistler, J., did not participate in the consideration or decision of this case.
GILLETTE, J.
In this criminal case, the defendants, owners of a nude dancing club, were convicted of violating a local ordinance that required, among other things, that entertainers at such clubs remain at least four feet away from the patrons. Defendants appealed their convictions to the Court of Appeals, arguing that the ordinance was facially unconstitutional as an unlawful restraint on expression in violation of Article I, section 8, of the Oregon Constitution. (1) A divided, en banc Court of Appeals affirmed the ruling of the lower court.
Lawyerdude says: “Affirmed” means that the court of appeal said that the defendant dance club patrons/ dancers were rightfully convicted and the patrons/ dancers lost their case - but this was at the court of appeal. Here the Supreme Court says that the court of appeal was wrong. This Oregon Supreme Court rules in favor of freedom and in favor of the strip club folks.
City of Nyssa v. Dufloth/Smith, 184 Or App 631, 57 P3d 161 (2002). We allowed review and, for the reasons set out below, now reverse the decision of the Court of Appeals.
The pertinent facts are not in dispute. Defendants are the owners and managers of "Miss Sally's Gentlemen's Club" in the City of Nyssa. The club features nude female dancers. The club admits patrons 18 years of age and older and does not serve alcohol.
In February 2000, a police officer responded to a complaint at the club and, upon entering, saw a nude dancer kneeling against a barrier surrounding the stage, shaking her hair in a patron's face. The dancer was less than a foot away from the patron. The officer arrested defendants for violating a section of the Nyssa City Code (NCC), which provides, (2) in part:
"5.10.130: Every adult concession shall comply with the following standards of operation and the following standards of conduct must be adhered to by employees and entertainers of all adult concessions:
"* * * * *
"(17) No entertainer is permitted to be unclothed or in less than opaque and complete attire, costume or clothing, so as to expose to view any portion of the pubic region, buttocks, genitals, vulva, or anus, except removed at least four feet (4') from the nearest patron." (3)
The Nyssa Municipal Court convicted both defendants of violating that city code provision. Defendants appealed those convictions to the Malheur County Circuit Court, where they demurred to the charges,
Lawyerdude says: See my demurrer page:
http://lawyerdude.8k.com/5736.html
I have written 8 demurrers and they all won. Most criminal lawyers do not even know what a criminal demurrer is!
asserting that the city ordinance is an unconstitutional restriction on expression. The circuit court denied the demurrers, conducted a trial de novo, convicted defendants of the violations, and fined them each $185. Defendants appealed their convictions to the Court of Appeals.
In the Court of Appeals, defendants argued that the city's ordinance requiring entertainers in "live adult entertainment establishments" to remain four feet away from patrons impermissibly restricts expression in violation of Article I, section 8, of the Oregon Constitution and, therefore, that the circuit court erred in denying their demurrers. The city countered that the Court of Appeals recently had decided, in State v. Ciancanelli, 181 Or App 1, 45 P3d 451 (2002), that nude dancing is not protected expression under the state constitution. The city also argued that the ordinance at issue is not an impermissible restriction on expression because it does not prevent or interfere with the dancers' message; rather, the ordinance is directed at preventing sexual activity and, to that end, merely imposes a reasonable restriction on conduct. Finally, the city argued that the ordinance did not restrict speech at all, but only restricted conduct.
The Court of Appeals majority concluded that it need not decide whether the ordinance in this case restricts expression or is aimed merely at conduct. According to the majority, even if the ordinance were directed at expression, the ordinance is not unconstitutional, because nude dancing is not expression protected under Article I, section 8, of the Oregon Constitution. In reaching that conclusion, the Court of Appeals agreed with the city that the court's earlier decision in Ciancanelli was dispositive.
In Ciancanelli, the defendants were convicted of, among other things, violating a state statute, ORS 167.062(3), which makes it a crime to "direct, manage, finance or present a live public show in which the participants engage in * * * sexual conduct." The defendants in that case had argued that this statute is unconstitutional because it is directed, by its terms, at expression.
In its opinion affirming the defendants' convictions in Ciancanelli, the Court of Appeals considered the constitutionality of the statute in light of this court's opinion in State v. Robertson, 293 Or 402, 649 P2d 569 (1982). In Robertson, this court explained that Article I, section 8, contains a broad prohibition –- "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever," together with an exception –- "but every person shall be responsible for the abuse of this right." According to the court in Robertson, that prohibition "forecloses the enactment of any law written in terms directed to the substance of any 'opinion' or any 'subject' of communication." Robertson, 293 Or at 412. However, also according to the court, the sweeping prohibition set out in Article I, section 8, contains an exception for certain kinds of restrictions on expression. Under that exception, a law would survive a constitutional challenge if "the scope of the restraint [on expression] is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach." Id.
Lawyerdude comments: If the historical exception had been there when the constitution was written then there is a good argument that the writers of the constitution intended to eliminate that exception. Otherwise they could easily have written that exception into the constitution, but they did not write any exception into that clause ! This bullshit argument of the Robertson case is typical of the intellectually dishonest right wing zealots like the now-deceased Chief Justice Rehnquist. His opinions were transparent lies.
Using that analytical framework for analyzing Article I, section 8, cases, the Court of Appeals in Ciancanelli reviewed the line of laws and cases dating back to the seventeenth century dealing with public nudity and public sexual conduct, and concluded that ORS 167.062 falls within a "well-established" historical exception to the Oregon Constitution's general prohibition against laws restricting expression. Id. at 19. In light of that conclusion, the Court of Appeals held that, although the statute at issue is directed at expression, it does not violate Article I, section 8. 181 Or App at 27.
In the present case, the Court of Appeals reasoned that the city's nude dancing ordinance is, for purposes of constitutional analysis, indistinguishable from the nude dancing statute at issue in Ciancanelli. Accordingly, the court concluded that the Nyssa ordinance likewise does not violate Article I, section 8, even if it is aimed at expression. Dufloth/Smith, 184 Or App at 639.
Before this court, defendants argue that the ordinance at issue here is directed at expression and that the Court of Appeals misapplied the historical exception doctrine announced in Robertson when it concluded that laws dealing with nude dancing fall within an historical exception. Defendants argue that this court did not intend the "historical exception" to include that type of restriction on expression; rather, the historical exception includes only laws against "well-established conventional crimes," such as forgery, fraud, and perjury. The city, for its part, continues to contend that the ordinance's four-foot rule regulates unprotected conduct and not expression but that, even if the ordinance were held to restrain expression, it nonetheless either legitimately focuses on forbidden effects or falls within the historical exception from Article I, section 8, protection identified by the Court of Appeals in Ciancanelli.
This court allowed review in Ciancanelli and heard argument in that case on the same day that we heard oral argument in the present case. Our decision in State v. Ciancanelli, ___ Or ___, ___ P3d ___ (decided this date), informs our analysis in the present case. Accordingly, we briefly summarize our conclusions in Ciancanelli.
In Ciancanelli, as in the present case, the parties' arguments principally concern the correct application of the Robertson framework to the facts of the case. On review in this court in Ciancanelli, however, the state also presented an argument that the analytical origins of the Robertson framework were unsound and that this court should jettison Robertson and reexamine Article I, section 8, using the systematic approach for analyzing original provisions of the Oregon Constitution that the court described in Priest v. Pearce, 314 Or 411, 840 P2d 65 (1992). Under the Priest paradigm, the court searches for the intent of the people who drafted and adopted the original provision of the constitution. In so doing, the court examines the wording of the constitutional provision, the case law surrounding it, and the historical circumstances leading to its adoption. 314 Or at 415-16.
In Ciancanelli, this court agreed to reexamine Article I, section 8, using the Priest methodology. We chose to do so, however, not because we agreed with the state's premise respecting Robertson's shortcomings -- in fact, we did not agree with that premise -- but because the state's extensive arguments respecting Article I, section 8, focused on a part of that provision that was not central to this court's decision in Robertson. Ciancanelli, ___ Or at ___ (slip op at 11).
In our substantive analysis, we stated that Article I, section 8, announces a broad and sweeping right of an individual to free expression. As we stated in Ciancanelli, the words are so sweeping, in fact, that "it appears to us to be beyond reasonable dispute that the protection extends to the kinds of expression that a majority of citizens in many communities would dislike -- profanity, blasphemy, pornography -- and even to physical acts, such as nude dancing or other explicit sexual conduct, that have an expressive component." ___ Or at ___ (slip op at 42).
Analysis of the second part of Article I, section 8, the so-called "abuse" clause, was more difficult, however. Based on the historical evidence, we noted in Ciancanelli that the framers might have intended that phrase to be construed in either of two ways: (1) to convey, on the one hand, that a legislature has full authority to punish, after the fact, any speech that it deems to be abusive; or (2) to convey, on the other hand, that a legislature may punish or interfere with expression only to the extent that the expression causes injury to the fundamental, "natural" rights of other individuals. ___ Or at ___ (slip op at 44). We further noted that, because there appeared to be no sound basis for choosing one of those possible meanings over the other, the state would have to demonstrate that Robertson is incompatible with both of those possible meanings in order to meet its burden of showing that the Robertson framework is contrary to the framers' intent. ___ Or at ___ (slip op at 45). We concluded that the state had not met and could not meet that burden, because Robertson is fully compatible with the latter, "natural rights" approach. Ultimately, we announced that we would continue to use the Robertson framework to analyze challenges brought under Article I, section 8. ___ Or at ___ (slip op at 47-48).
We now turn to the task of applying the Robertson framework to the issue before us -- namely, whether the city's four-foot ordinance violates Article I, section 8. Under that framework, we first determine whether it is a law directed by its terms at restraining or restricting speech or expression.
This court previously has considered whether laws purporting merely to restrict the manner of expression, without prohibiting expression entirely, were "directed at expression" for purposes of an Article I, section 8, analysis. In City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988), for example, this court addressed a zoning ordinance that required "adult" bookstores to be located at least 500 feet from any residential zone and, in some cases, at least 1,000 feet from any other adult business. The ordinance did not prohibit all adult bookstores from locating within the city limits, nor did it purport to limit the content of the printed material for sale in the stores. Nonetheless, this court held that, in light of the fact that "the same structure devoted to essentially the same kind of use, retailing reading or viewing materials or showing films, becomes a prohibited use under the ordinance simply because the quantity of 'adult' merchandise increases from a minor to a 'substantial' or 'significant' portion," id. at 181, that ordinance was "flatly directed against one disfavored type of pictorial or verbal communication." Id. at 184. Similarly, in Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993), this court held that a law that prohibited the use of "an automatic dialing and announcing device to solicit the purchase of any realty, goods, or services" was directed at expression. The court held that, insofar as the law was applicable only to those messages soliciting commercial services or goods but did not apply to any other type of message, the law "restricts expression because it is directed at a specific subject of communication, excluding some speech based on the content of the message." Id. at 376. And, finally, in Ciancanelli, we held that, because the statute at issue there "prohibits and criminalizes [certain sexual] acts only when they occur in an expressive context, i.e., in a 'live public show[,]' * * * we cannot avoid the conclusion that the statute is directed primarily, if not solely, toward the expressive aspect of the conduct that it describes. That is, the statute is one restraining free expression." ___ Or at ___ (slip op at 56) (emphasis in original).
The ordinance at issue in this case provides that "[n]o entertainer is permitted to be unclothed or in less than opaque and complete attire, costume or clothing, so as to expose to view any portion of * * * [certain body parts], except removed at least four feet (4') from the nearest patron." NCC § 5.10.130(17). "Entertainer" is a defined term and means "any person who provides live adult entertainment within an adult concession." Id., § 5.10.020(5). "Live adult entertainment" means "any exhibition, performance or dance of any type which contains * * * any display of specified anatomical areas," including, among other things, less than completely or opaquely covered buttocks and breasts. Id., § 5.10.020(2)(b); § 5.10.020(13). In addition, the ordinance specifically excludes from the scope of its reach, among other things, plays, operas, musicals, classes, seminars, exhibitions and performances that are "not obscene." NCC § 5.10.150(1). Thus, by its terms, the ordinance applies only to one disfavored type of communication (nude performances) in one disfavored type of establishment (one that regularly features that type of entertainment). In that way, it is indistinguishable from the laws and ordinances at issue in Tidyman, Moser, and Ciancanelli, all of which this court held to be directed at expression. We hold that Nyssa City Code, section 5.10.130(17), restrains free expression.
Having concluded that the city's four-foot ordinance is directed by its terms at expression, we turn to consider whether it nonetheless is permissible because it is "wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach." Robertson, 293 Or at 412. As noted, the Court of Appeals concluded that the city's rule falls within the same "well-established" exception that it had found and on which it relied in its Ciancanelli decision -- an exception for laws regulating public sexual conduct. City of Nyssa, 184 Or App at 638 (citing historical exception analysis in Ciancanelli, 181 Or App at 16-19).
However, this court today has rejected the Court of Appeals' Ciancanelli decision, including its conclusion that there is a well-established historical exception within the meaning of the Robertson framework for laws regulating live public shows involving displays of nudity and sexuality. Ciancanelli, ___ Or at ___ (slip of at 58-59). (4) The city does not suggest any other basis for finding the present law to fall within a historical exception to the prohibition of Article I, section 8, and we find none.
In summary, we conclude that Nyssa City Code, section 5.10.130(17), is a law that is directed by its terms and in its actual focus on restraining a particular variety of expression, and that it does not fall within any well-established historical exception to the prohibition against such laws in Article I, section 8. It is unconstitutional on its face. Accordingly, defendants' convictions for violating the ordinance must be reversed. (5)
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
DE MUNIZ, J., dissenting
For many of the reasons expressed in my dissent in State v. Ciancanelli, 339 Or ___, ___ P3d ___ (2005), I also dissent in this case. Specifically, I would conclude, on two grounds, that the ordinance at issue in this case is not unconstitutional under the State v. Robertson, 293 Or 402, 649 P2d 569 (1983) framework. First, the ordinance does not constrain either the subject or the content of nude dancing. Limiting proximity of the dancers is simply not limiting expression.
Second, the four-foot proximity ordinance focuses legitimately on forbidden effects. The Nyssa City Council has legislatively determined that "[t]he regulation of distances at which live performances occur from the patrons [is] directed at the elimination of sexual conduct or other adverse secondary effects, unrelated to the protected expression of the performer." In my view, the proximity ordinance is tailored to address an effect (sexual conduct or harm to dancers) rather than an expression of opinion.
I therefore respectfully dissent.
1. Article I, section 8, provides:
"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."
Return to previous location.
2. Since the time of defendants' arrest, the City of Nyssa has amended the applicable city code provisions in ways that do not affect our analysis in this case.
Return to previous location.
3. "Adult concession" is defined as, among other things, a "live adult entertainment establishment." NCC § 5.10.020(1). A "live adult entertainment establishment" is defined, in turn, as:
"any building or portion of a building to which any member of the public is invited or admitted and where any employee or entertainer, on a regular basis or as a substantial part of the premises activity, conducts live adult entertainment."
NCC § 5.10.020(3). In addition, "entertainer" is defined as "any person who provides live adult entertainment within an adult concession as defined in this Section whether or not a fee is charged or accepted for entertainment." NCC 5.10.020(5).
"Live adult entertainment" means:
"any exhibition, performance or dance of any type which contains:
"* * * * *
"(b) any display of specified anatomical areas."
NCC § 5.10.020(2). Finally, "specified anatomical areas" is defined to include, among other things, less than completely or opaquely covered buttocks and breasts. NCC § 5.10.020(13).
Return to previous location.
4. We explained in Ciancanelli that, contrary to the Court of Appeals' view, a historical exception cannot be established with respect to laws directed at regulating the portrayal of sexual matters merely by showing that similar regulations were longstanding at the time of the adoption of Article I, section 8, and continued to exist in Oregon after the adoption of that provision, if those historical criminal prohibitions were directed exclusively at protecting the hearer or the viewer from a disfavored message. Id. at ___ (slip op at 52-53, 58-59).
Return to previous location.
5. As this court pointed out in Ciancanelli, the legislature constitutionally may enact laws designed to prohibit or punish conduct that amounts to prostitution or other criminal activity, but Article I, section 8, precludes the legislature from using limitations on speech or expression as a substitute for regulating that conduct directly. ___ Or at ___ n 31 (slip op at 58-59 n 31). In the present case, the city constitutionally can regulate such conduct as sexual contact between performers and patrons, and the fact that an individual uses speech or expression in the course of that conduct would not immunize the individual from prosecution. However, that is not what the ordinance at issue here does. The four-foot ordinance does not specifically preclude or even refer to sexual contact between performers and patrons. Rather, as discussed, it simply restrains certain kinds of expression in certain kinds of establishments.
History of Lap Dance Litigation - State by State, City by City
1. Federal District Court in Seattle rules in favor of strip clubs. ! Sept 2005.
Sep. 13, 2005
A federal judge ruled that Seattle must end a moratorium on licenses for new strip clubs.
U.S. District Judge James Robart blasted Seattle for continually extending the moratorium first adopted in 1988 on the grounds that it had not yet adopted a new land-use policy, the Seattle Post-Intelligencer reported.
"The city's unhampered authority to continue extending the moratorium and delaying the implementation of new regulations evidences its 'unbridled discretion' to limit erotic dancing, a protected form of free speech," Robart said.
The city has decided against appealing Robart's ruling, instead fighting adult entertainment clubs by pushing for a ban on lap dancing aimed at cutting their profits. The next step in the case, ASF Inc. v. City of Seattle, is a trial for damages.
A proposed ordinance that would require dancers to remain at least 4 feet away from their customers has many strippers up in arms because they fear lower tips.
In September 2005, U.S. District Judge James Robart ruled that a moratorium on the opening of new strip clubs was an unconstitutional restraint on free speech. The city could wind up paying the plaintiff, a man who wants to open a club downtown, millions of dollars in damages.
In anticipation of the ruling, Democratic Mayor Greg Nickels came up with rules to discourage new strip clubs and make it easier to police existing ones.
Under these rules, dancers would have to stay 4 feet away from customers, private rooms would be barred, customers couldn’t give money directly to entertainers, and the minimum lighting would be increased — think parking-garage brightness.
Vice squad hails proposal
Technically, the city already bans “touching” between a dancer and customer, but officials dispute whether that means sexual touching or all touching. At any rate, they say it’s impossible to enforce and completely ignored.
2. Seattle City council passes 4 foot rule by 5-4 vote on Mon 3 Oct 2005. Lawyerdude says that a sphere of autonomy surrounds the dancers and patrons. The “secondary effects” argument regarding prostitution is pretextual and deminimis. Seattle passes lap-dance ban
City with liberal reputation weighs tough new strip-club rules
Image: Seattle strip club
Ted S. Warren / AP
Lawmakers are poised to adopt rules mandating dancers remain at least 4 feet away from customers at the Deja Vu club and other adult adult-entertainment venues in Seattle.|
SEATTLE - Strippers who venture too near the laps of their dollar-bill-waving patrons have exposed an unexpected prudish streak in this West Coast bastion of tolerance and liberalism.
Fearing a spate of new cabarets after a federal judge struck down the city’s 17-year moratorium on new strip clubs, the City Council is planning to vote Monday on some of the strictest adult-entertainment regulations of any big city in the country.
No lap dances. No placing dollar bills in a dancer’s G-string. And the clubs must have what one council member likens to “Fred Meyer” lighting, a reference to the department store chain.
“It’s wiping out an entire industry in Seattle,” said Gilbert Levy, a lawyer for Rick’s gentleman’s club.
Seattle’s queasiness over naked dancing contradicts its usual freewill attitude, dating back to the city’s thriving business separating prospectors from their gold at brothels and saloons. Anti-war demonstrations are routine here, a gay population has thrived for nearly a century, and residents voted two years ago to make enforcing marijuana laws the police department’s lowest priority.
‘What is sin?’
“Seattle had always had that reputation for being a wide-open town, so it’s an almost-normal kind of Seattle controversy — what is sin?” said local historian David Wilma.
After the number of strip clubs jumped from two to seven between 1986 and 1988, the city imposed a 180-day moratorium on new cabarets while it studied the issue. Over the next two decades, the City Council repeatedly extended the moratorium, in part to avoid the politically sensitive issue of where the new strip clubs would be allowed.
The number of strip clubs in the city fell to four. By contrast, Atlanta has roughly three dozen.
But last month, U.S. District Judge James Robart ruled the moratorium was an unconstitutional restraint on free speech. The city could wind up paying the plaintiff, a man who wants to open a club downtown, millions of dollars in damages.
In anticipation of the ruling, Democratic Mayor Greg Nickels came up with rules to discourage new strip clubs and make it easier to police existing ones.
Under these rules, dancers would have to stay 4 feet away from customers, private rooms would be barred, customers couldn’t give money directly to entertainers, and the minimum lighting would be increased — think parking-garage brightness.
Vice squad hails proposal
Technically, the city already bans “touching” between a dancer and customer, but officials dispute whether that means sexual touching or all touching. At any rate, they say it’s impossible to enforce and completely ignored.
“How do you know there’s no touching unless you’re one of the participants?” said Mel McDonald, the city official charged with strip club regulation. “It’s dark in there. You don’t know whether they’re half-an-inch away or not. With the 4-foot rule, it’s a lot less subjective. Our vice people can enforce it without buying a dance.”
City Council meetings on the rules have drawn protests from more than 100 of the city’s 554 licensed dancers, many toting young children.
But the general public doesn’t seem terribly interested, said Paul Elliott, aide to council member Richard McIver.“We get more e-mails about putting synthetic turf on the Lowell Heights playfield,” Elliot said.
3. Deja Vu club litigated/ aborted/ lost in Washington state court of appeal but never really dealt with the issue. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=418181&invol=o01 In another losing case http://www.bigeye.com/sexeducation/DCRIncVPierceCty.html the club lost. These cases are found by this google search: http://www.google.com/search?hl=en&lr=&safe=off&q=Washington+%22state+constitution%22+adult+%22free+speech%22&btnG=Search
4. 9th Federal Circuit (California, Oregon, Nevada, etc.) rules against 1st amendment and dancers ! This case is why Oregon strip club appealed using Independent State Grounds which is a concept that I explain herein.
By The Associated Press
01.28.05
You can read the actual opinion here: http://www.laserdude.gq.nu/lapdance.html
LA HABRA, Calif. — A federal appeals court has upheld La Habra's ordinance requiring strip-club dancers to stay at least 24 inches from customers.
The ordinance was designed to target lap dancing, which the city claims is responsible for prostitution, crime, drug use and disease.
In a 3-0 ruling on Jan.26, 2005 , the 9th U.S. Circuit Court of Appeals rejected arguments by Bill Badi Gammoh, owner of the city's only adult-entertainment club, and by several lap dancers that the ordinance is unconstitutional.
The 2-foot limit does not deny the dancers their ability to perform, the judges said in Gammoh v. City of La Habra.
Attorney Deborah Fox, who represented the city in its fight with the owner of Taboo Gentleman's Club, said it was an important ruling because "lap dancing is the financial linchpin of the adult industry and this is the end of the argument about its prohibition."
Gammoh's fight with the city began shortly after he opened the strip club in 1998 and filed a lawsuit challenging the city's anti-lap dance ordinance as vague and unconstitutional.
The ordinance "unfairly impedes on (a dancer's) right to expression and speech," attorney Scott Wellman said.
The 9th Circuit disagreed. "The 2-foot rule," Judge Richard Tallman wrote, "merely requires that dancers give their performances from a slight distance; it does not prohibit them from giving their performances altogether."
5. Nevada state court judge declared ordinance unconstitutional on Jan. 21 that a Las Vegas law prohibiting strippers from fondling customers during lap dances is unconstitutionally vague.
District Court Judge Sally Loehrer affirmed a lower court ruling that as many as five misdemeanor criminal cases filed against Las Vegas strippers should be dismissed.
The Jan. 21 ruling affects only dancers within city limits. The Clark County Commission in 2002 limited touching between strippers and patrons during private lap dances, specifically barring strippers from touching or sitting on the customer's genital area. But the municipal code was not as specific, saying only that strippers and their patrons should not "fondle" or "caress" each other.
Under Loehrer's ruling, no dancer in the city can be arrested for violating the municipal code. The city is considering an appeal.
6. Los Angeles Lap Dance Law gets whacked by popular petition. What happened in Los Angeles is interesting. The Lap Dance ban lasted only 2 months. Petitioners worked out an agreement with the city to remove the 6 foot law. Here are 3 stories:
a. Attorney Roger Diamond, formerly an advocate for freedom, decided early NOT to fight the ordinance. He obviously follows the money interest without regard to the dancers and their patrons. Here is the beginning of the story:
September 16, 2003 06:42am
Los Angeles Bans Lap Dancing in Strip Clubs
Source: Reuters
by: Company Press Release (Query: What company?)
(LOS ANGELES, CA) -- You can look, but you can't touch or even get close any more.
That's the order that went out to patrons of strip clubs on Tuesday when Los Angeles City Council passed a measure requiring dancers to stay at least 6 feet away from customers, thus ending lap dancing in the city.
The ordinance, passed unanimously despite stiff opposition from strippers and adult club owners who fear for their livelihood, banned lap dancing and any other kind of bodily contact between dancers and customers in strip clubs, bikini bars and adult bookstores.
The ban follows rising complaints by people living near adult cabaret clubs about prostitution, drug use, excessive noise and streets littered with condoms.
But club owners and dancers, who make most of their income from cash tucked into their G-strings, have said the ban will kill the thriving business which employs thousands of people.
The new law, which must be signed by Los Angeles Mayor James Hahn before going into effect, requires state-licensed security guards to be on duty at all times. Violators face up to six months in jail and as much as $2,500 in fines.
Roger Diamond, a lawyer representing about 20 Los Angeles strip club owners, had opposed the measure, arguing that a city body cannot regulate what goes on inside adult clubs.
But on Tuesday he said the clubs would "rather work with the city. We're not here to be bad neighbors," Diamond said.
Fuck Roger Diamond.
23 Sept 2003 - one week after Roger Diamond buckled:
Usually, stupid laws tend to erupt out of stupid politicians. But every once in a while, stupid citizens take it upon themselves to make decent citizens' lives hell.
Of course, by decent I mean those of us who enjoy a nice, wholesome lap dance now and again. Well, brace yourselves, Angeleans, because those fuckin' fascists I like to call Breeding Yuppie Scum are out to rob you of this most American of activities.
The Los Angeles City Council caved in to these tyrants' ridiculous demands last week, voting unanimously to deprive tax-paying, law-abiding folk of their right to get a lap dance at any of the city's magnificent gentlemen's clubs. Also passed were a slew of insipid new regulations guaranteed to strangle the life out of L.A.'s complex tapestry of adult businesses, at a time when the city can use every drop of revenue it can get.
In addition to banning lap dances, the new ordinance will now prohibit direct tipping of dancers, as well as demanding that customers and dancers and patrons remain a distance of at least six feet away from one another. VIP rooms and partitions of any kind in public areas except restrooms will go the way of the dinosaur, and clubs will now be forced to employ state-licensed security guards. Penalties for violating the law could include a $2,500 fine and as much as six months in jail.
Not only would this ordinance be a royal pain in the ass for consumers, it would be a disaster for entertainers, especially dancers whose meager salaries force them to rely on lap dances and tips to make a living. Without these gratuities, dancers (often young women trying to put themselves through college in what can be a potentially lucrative industry) wouldn't make any more money than office temps.
Obviously, the multitude of adult businesses that thrive in the City of Angels (and in turn help make it thrive) won't let this aggression stand. They've armed themselves with top attorneys, who have pledged to fight the new ordinance tooth and nail.
Chief among them is political consultant Steve Afriat, who told the Los Angeles Times last week he intended to tackle the problem the way any good California lawyer would—litigation.
"We're going to sue the city," said Afriat, whose consulting firm, Afriat Consulting Group, represents New Wave, Inc., a group which operates the Venus Faire and Deja Vu Showgirls clubs in the San Fernando Valley. "Basically, the council is bowing to the morality agenda of certain homeowners."
Mike Salk, director of public affairs at Afriat, said the ordinance amounts to an assault on working women in Los Angeles.
"This is a simple case of them going after single working women, many trying to support their kids or go to school, and denying them their chosen profession," said Salk. "I think the council is bound by the morality police. And the biggest threat here is that this is a slippery slope. Next, they could come after abortion clinics, gay clubs, you name it. For a city that's 60 percent Democrat, this is a pretty scary precedent."
Like Afriat, Salk says he thinks the next logical progression for adult businesses and their advocates is to join forces in civil action against the city of Los Angeles, who Salk says "just walked their way into a big, fat lawsuit."
"I think the industry will get together and realize they can, and need to, band together and fight this thing," he said.
Afriat's resident attorney John Weston isn't the only lawyer representing adult interests who's hopping mad at the lap dance ordinance, and willing to take the city on to defend the rights of entertainers and patrons.
"There was no need for this," attorney Roger Jon Diamond told the Times. "This affects a woman's right to choose her profession. A lot of these dancers are single women supporting their children, putting themselves through school. I think this is overkill."
Now that you're as pissed off about all of this as I am, what can you do about it? If you're a club owner, you can join the fight against this ordinance in the courts.
If you're a patron who loves lap dances, or a dancer who loves (and lives from) giving them—while the City Council has already approved this malodorous ordinance, it has yet to be signed by Mayor Jim Hahn. I would highly suggest deluging Hahn's office and letting him know in no uncertain terms how you feel about never getting another lap dance in Los Angeles County again.
Hahn can be contacted through email or at City Hall, (213) 978-0600.
L.A. Law - by Steve Robles
Lap-Dance Ban Stripped
Strip clubs remain touchy-feely as a community signature drive forces the city council to abandon most of its new reform law
~ By DENNIS ROMERO ~
t seemed like a politician’s dream deal: Los Angeles City Councilwoman Cindy Miscikowski’s no-lap-dancing law would get strip clubs in line with a more wholesome, Leave It to Beaver-like set of community standards while pleasing her Westside constituency. Instead, the council has taken a spanking from the adult entertainment industry, and the two sides are now hammering out a compromise law. After all the international headlines about how the porn capital of the world found something wrong with a little bump-’n’-grind, a council vote on Friday, November 21, will likely keep local laps happy after all.
The slam-dunk ordinance passed in September but backfired for Miscikowski when 106,000 city voters signed a petition to put the matter on the ballot instead of on the books, as the council intended. Backers had more than twice the number of signatures needed to put the law to the electorate and keep the council’s version on hold until voters had a say. The council’s only choice now is to wait for a March 2005 ballot measure, or repeal the law and work out a deal with strip-club owners. It chose the latter, and the deal has none of the “conduct” restrictions of Miscikowski’s original law: Lap dancing is back, the six-foot-distance required between dancers and patrons is gone, and the no-touch-tipping rule has also been abandoned.
The city’s referendum process ultimately forced the council to strip those provisions from the law, says Adena Tessler, legislative deputy to Miscikowski. The process requires that once a council law is the subject of a certified, successful signature drive, the council cannot simply enact a similar ordinance.
Though rebuffed, the council will apparently still get some of what it wanted. Sexual touching during lap dances is still illegal. Adult venues will be required to hire state-certified, on-site security guards; patrons under age 18 will be banned; and clubs will have to undergo annual Police Commission permit reviews.
One twist is whether this back-room compromise will be legal in the shadow of a referendum process that is supposed to either kill the old law or put it to the popular vote. “I don’t think an agreement to replace this with another ordinance is legally enforceable, but I do think it’s politically enforceable,” says Roger Jon Diamond, the celebrity attorney representing a number of strip clubs in the council battle. In any case, both sides spun the compromise law as a victory.
“It’s a positive compromise,” Tessler says. “There are a lot of good things in this new ordinance, including the annual review process. We’re trying to deal with the illegal behavior and the opportunity to take money for sex. There’s not going to be that opportunity anymore.”
Diamond, however, says “it’s an absolute victory” for the venues. “Had we not done the referendum,” he says, “[the lap-dance law] would have taken effect, and most of these clubs would be out of business already.”
Organizers of the signature drive say the 106,000 signatures reflect community outrage toward a council focused on a “non-issue” when the police department is sorely under-funded and the state budget crisis is squeezing local coffers. Critics of the ordinance long claimed that Miscikowski had picked lap dancing as an easy target for political glory that would effect little meaningful change.
Misinformation was common. In the Los Angeles Times, constituent Cristi Walden complained that six adult businesses had opened in her West L.A. neighborhood in the last 10 years. The true number was closer to four, including one venue that indeed was the site of a citation for suspected prostitution, but it was a good sound bite for the morality crusade. But there apparently weren’t enough crusaders for the battle.
Sources pointed out to CityBeat, for example, that Miscikowski’s law would cover alcohol-serving “topless bars,” even though such establishments already had to abide by similar statewide rules that were rarely enforced. (“We don’t do a lot of enforcement at those locations,” admitted a top vice officer at the Los Angeles Police Department.) It begged the question of why additional laws were needed when the police department, down more than 1,000 officers from its mandated operating levels, could barely put enough badges on the mean streets. Patrolling the laps of strip-joint patrons isn’t a top priority and won’t likely be anytime soon. But after a July issue of CityBeat reported witnessing innocent violations of the state’s own no-contact rules at topless bars such as Cheetah’s in Hollywood, that venue was reportedly raided.
Z Bone, who hosts perhaps the region’s oldest and most prominent strip- club guide, zbone.com, says Miscikowski underestimated a tie-and-lager demographic that doesn’t go to strip clubs regularly but likes to know they’re there. The anti-lap-dance ordinance was belittled and council representatives were flogged regularly on testosterone-driven talk radio.
“I suspect that there might be more than a few people who might vote against some of the council members who pushed for this ordinance,” Z Bone says. “Some of the smaller cities have passed similar ordinances, and since there were very few existing clubs in that city, they quietly closed down and went away. I think it was a miscalculation on the part of the L.A. City Council members to think that the same thing would happen in L.A. – with over 40 clubs that would have been affected. These clubs combined generate tens of millions in revenue per year for their owners, and spending millions to fight the ordinance was just another business expense for them.”
“No one is saying that these businesses should go away,” counters Tessler of Miscikowski’s office, “just that they should be responsible.”
Still up for debate is the council’s attempt to outlaw private “VIP rooms” at strip clubs. Miscikowski argues that vice officers have a hard time seeing what’s going on inside them and that prostitution could occur out of view. “VIP lounges will no longer be okay,” says Tessler. “All the areas where entertainment is going on need to be open. That really allows our vice and investigators the ability to walk through and see there’s no problems.”
But Steve Afriat, a hired lobbyist who ran the signature-gathering campaign at supermarkets, sporting events, and the clubs themselves, is holding out for the rooms.
“We’re trying to have the council understand that VIP rooms are what we call them, not dark little rooms where illicit activity is going on,” Afriat says. “We have famous people who come to our clubs – movie stars and TV actors and pro sports athletes – and they want to enjoy the entertainment at the clubs unfettered by busybodies and people who would make it hard for them. They go to restaurants and nightclubs and sit in private rooms, and this is no different. Perhaps the council would let us do it with glass walls.”
11-20-03
7. Tampa Lap Dance ban ruled unconstitutional in 2001.
Lap Dance Ordinance Ruled Unconstitutional By PETER E. HOWARD phoward@tbo.com Published: Aug 2, 2001
TAMPA - Less than a week after two dancers were convicted of violating the city's lap dance ban, a Hillsborough County Court judge ruled the ordinance unconstitutional. The ruling is a stinging defeat for the city in its continuing fight to curb Tampa's adult entertainment industry. Industry folks, however, had always maintained the ordinance was illegal.
Hillsborough County Judge Elvin Martinez said the so-called 6-foot rule is unconstitutional ``on the grounds that it is over broad, and on the grounds that the city's stated purpose for enacting the ordinance is not furthered by the ordinance.``
Martinez said the ordinance is aimed at prohibiting physical contact between nude dancers and patrons, but does not address patrons coming closer than six feet to nude women who are serving soft drinks
This type of ``selective enforcement provides police with unfettered discretion to arrest, and that under the provisions of the ordinance, whether they are being enforced or not, dancers and patrons who are engaging in otherwise constitutionally protected First Amendment rights of freedom of speech and association are subject to criminal prosecution,'' Martinez said in his ruling.
When Tampa officials approved the ordinance in 1999, they said it was needed to prevent the spread of disease and because lap dancing contributes to prostitution.
Martinez disagreed.
``There was no evidence presented to reasonably conclude that sexually transmitted diseases are spread as a result of contact dancing between a clothed person and nude dancer,'' the judge said. He also noted that there was no evidence to support that claim that lap dancing increases the incidence of prostitution.
The ruling dismisses the cases against 38 dancers and patrons.
Since the city began its sporadic enforcement of the ordinance, more than 300 dancers and customers have been arrested at clubs such as Mons Venus and Pink Pony.
Last week, two nude dancers were convicted of violating the ordinance in two separate jury trials in Hillsborough County court.
Molly Jacobson, 27, a long-time dancer at Mons Venus, was the first to be convicted. Jennifer Daniels, 20, also a dancer at the Mons, was the second found guilty. The women plan to appeal.
Hillsborough County Judge Joelle Ann Ober fined the two women $100 each.
8. I don’t know what happened in Las Vegas. That city is too corrupt and corporate for my interest and analysis.
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