Federal Appeals Court Upholds Daytona’s Nudity Ban

Q Boyer
DAYTONA BEACH, Fla. — A federal appeals court has upheld the city of Daytona Beach’s zoning and nudity ordinances, finding that all of the city’s ordinances challenged in a lawsuit brought by a local club are constitutional.

“The bottom line is the 11th U.S. Circuit Court [of Appeals] upheld the city’s authority to enforce its zoning regulations and public nudity ordinance with regard to the adult entertainment establishments,” Daytona City Attorney Bob Brown said.

The decision was the latest round in a lawsuit brought against the city of Daytona Beach by the owners and operators of Lollipop’s Gentlemen’s Club, which claimed that the city’s zoning and public nudity ordinances violated dancers’ 1st Amendment rights.

In a previous ruling, a district court upheld the zoning ordinances, finding that the city had provided a “constitutionally sufficient number of available sites for adult theaters,” and denied Lollipop’s claim that the club had been “grandfathered in” under Florida law.

The district court, however, struck down the Daytona Beach nudity ordinances, finding that the ordinances “did not further the substantial government interest in reducing negative secondary effects associated with adult theaters.”

The 11th Circuit concurred with the district court on the zoning ordinances, but reversed the district court’s ruling regarding the nudity ordinances, stating in its ruling that the city “has indeed carried its evidentiary burden of establishing their constitutionality because the ordinances further substantial government interests,” and remanded the case to district court for further proceedings.

Brett Hartley, attorney for Lollipops, told XBIZ that he believes the appellate court was “clearly wrong on several issues,” and that he intended to appeal the decision.

“The city has to show some connectivity between clubs and the supposed ‘negative secondary effects’ that their ordinances are supposed to mitigate,” Hartley said.

Hartley said that in his opinion, the 11th Circuit’s decision simply sets the evidentiary bar too low with respect to the city’s secondary effects claims.

“The court found that all a city has to show is that it ‘reasonably believes’ that adult entertainment businesses cause these negative secondary effects,” Hartley said. “Well, [under the court’s standard in this decision], I can ‘reasonably believe’ that Santa Claus exists, or ‘reasonably believe’ that there is such a thing as the Tooth Fairy.”

To combat the city’s evidence of negative secondary effects caused by adult businesses — evidence that was largely anecdotal — Lollipops commissioned experts to generate a report that called into question the city’s claims. The two experts characterized the research relied upon by the city as “shoddy,” “meaningless” and “unreliable.”

The appellate court, however, was not persuaded by the data presented by Lollipop’s experts, and stated in its opinion that a “close examination of Lollipop’s experts’ studies calls into question their stated conclusion that they ‘cast grave doubt’ on the city’s evidence that adult theaters increase crime, and equally important, the studies do not even purport to address the city’s evidence that adult theaters tend more generally to perpetuate urban blight and decay.”

Regardless of the 11th Circuit’s ruling, Hartley said he finds the city’s secondary effects argument hard to swallow.

“The notion that the proximity of a naked breast to an alcoholic drink is somehow to cause crime is just retarded,” Hartley said.

Hartley said that going into the hearing before the 11th Circuit, one thing was already known; whichever side came out on the losing end would appeal the court’s decision.

“It’s important to understand that either side was going to appeal, depending on how the court ruled,” Hartley said. “This is all just part of the dance.”