Feb 18, 2011 5:00 PM PST    Text size: 

The decision by the 4th U.S. Circuit Court of Appeals upholds a federal judge's injunction against "unconstitutionally overbroad" strip club regulations there.

"We conclude that the statute — which limits the range of permissible conduct, attire, and entertainment at establishments licensed to serve alcoholic beverages — prohibits a broad swath of expression protected by the 1st Amendment and is not susceptible to a limiting construction," 4th Circuit Judge James Wynn wrote for the court. "Accordingly, we affirm the permanent injunction prohibiting enforcement of the statute."

Maryland amended its laws to outlaw nude servers and hostesses, sexual attire simulating erogenous areas and sexual touching in venues licensed to serve alcohol. The new regulations were supposed to take effect in October 2005.

The rules also banned the simulation of sexual acts, such as masturbation, sodomy, bestiality and flagellation, as well as the use of sex toys and novelties in adult-themed clubs.

Further, nude entertainers would also be prohibited under the law from being within six feet of customers.

Maryland and Prince George's County officials said that the statute served a legitimate government interest, linking the combination of nude dancing and alcohol to the secondary effects of higher rates of crime, sexual assault and prostitution and lower property values.

But operators of two clubs — Legend Night Club and the Classic III Supper Club — contended that the officials showed no evidence of any such secondary effects in Maryland and failed to support their claim with studies. They sued and had their cases consolidated against the state and Prince George's County in 2005.

A lower court in Baltimore determined that the law was unconstitutionally overbroad. It also said that a grandfather clause, involving an exemption to venues that have been in business under one owner since September 1981, violates equal protection rights.

The lower court judge, U.S. District Judge Marvin Garbis, ruled foul in the case, because not so coincidentally the former Maryland state Sen. Tommie Broadwater owns a gentlemen’s club that received a license on Aug. 14, 1981.

“The court finds plaintiffs to have established beyond any reasonable doubt, that the legislation's ‘grandfather clause’ was deliberately crafted to favor the potentially connected former senator,” Garbis wrote at the time.

In the latest legal wave, Maryland and Prince George's County appealed to the Richmond, Va.-based 4th Circuit, which voted to affirm the permanent injunction on Thursday.