The Eleventh Circuit recently upheld a Spaulding County, Georgia ordinance banning nude dancing in places where alcohol is sold. In holding for the County, the Court also upheld the Order of Summary Judgment by the District Court Jack Camp, a judge who was all-too familiar with the subject matter of after-hours entertainment.
A nightclub owner brought action against the County, challenging the constitutionality of ordinances prohibiting nude dancing in venues where alcohol was sold and alleged malicious arrest and prosecutions. Opening as a sports bar in 2006, the nightclub began to feature nude dancing in 2007. After local authorities conducted an undercover investigation, the club filed a lawsuit to enjoin the County from enforcing its alcohol and adult ordinances. After conducting an evidentiary hearing, the District Court denied the club’s motion to enjoin the provision of the adult ordinance prohibiting nude dancing in places that serve alcohol. Unable to sell liquor and offer nude dancing simultaneously, the club went out of business. The club filed an amended complaint, alleging that that the violations violated the First Amendment. The club also alleged that the District Court judge who presided over the evidentiary hearing should have recused himself due to his patronage at a local strip club and a recent arrest for possession of cocaine.
The Court of Appeals upheld the District Court’s grant of summary judgment for the County, holding that the ordinance served a substantial government interest and that police had probable cause to arrest the club’s operator for violating the ordinance. In determining whether the ordinance passed constitutional muster, the Court applied the test used in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). The Court held that ordinances prohibiting nude dancing where alcohol is served are content-neutral and unrelated to the suppression of free speech. Because the County had a substantial government interest in curbing criminal activity associated with nude dancing in clubs serving alcohol, the ordinance was constitutional. The Court also held that the district judge’s conduct did not warrant retroactive recusal, because his conduct was unrelated to the club’s case (there was no evidence he had frequented the Curves club), and there was no proof of actual bias on the judge’s part.
Our Local Government Law, Litigation and Appellate Practice Groups have all successfully handled adult use cases in Florida on behalf of local governments. In particular, Susan L. Trevarthen, Chair of our Public Land and Zoning Practice Group, is often called upon to represent municipalities faced with adult use applications and litigation.
To read a copy of the Opinion, please click here.
Author(s): Brooke P. Dolara
