Nude 'entertainment' in bars, bottle clubs, and juice bars

Editor’s Note:  Written several years ago by Paul J. McGeady, who served as Morality in Media’s General Counsel from 1977 until 2006, this article provides an overview of one legal approach to addressing the problem of “nude entertainment.”  An up-to-date study on “Nude Dancing” has been prepared by the National Obscenity Law Center [475 Riverside Dr., Ste. 1264, New York, NY 10115 or call (212) 870-3222 or email nolc@moralityinmedia.org].

Another wave of assaults on community standards by the so-called "adult" entertainment industry involves the use of topless and bottomless dancers in neighborhood bars and other commercial establishments.  Here follows a brief outline of methods that have been used in combating the explosion of nude entertainment establishments.

Establishments That Sell Alcohol

The decisions by the United States Supreme Court in California v. LaRue (1972), New York State Liquor Authority v. Bellanca (1981) and City of Newport v. Iacobucci (1986) held that the broad authority given to the states by the Twenty-First Amendment to regulate the traffic in alcoholic beverages included the authority to ban topless and bottomless dancing in establishments where liquor is also sold for on premises consumption.

In 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996), the Supreme Court disavowed the reasoning in LaRue, but did not overrule that case. The Court stated that the 21st Amendment did not trump the 1st Amendment or qualify it. The Court also stated, however: “Entirely apart from the 21st Amendment, the state has ample power to prohibit the sale of alcoholic beverages in inappropriate locations…[and] to restrict the kind of ‘bacchanalian revelries’ described in…LaRue…regardless of whether alcoholic beverages are involved.”

It should be noted that in LaRue, the government was not required to justify its regulation by evidence of deleterious effects or studies. This may now be necessary.

Goldrush II v. City of Marietta (Ga. Sup. Ct. 1997) was the first case decided after 44 Liquormart to address the question of what level of judicial scrutiny (whether strict or intermediate) is required when evaluating laws regulating nude dancing in bars. The Goldrush II court applied the intermediate scrutiny test enunciated by the Supreme Court in United States v. O’Brien, 391 U.S. 367 (1968), concluding that the Georgia ordinance at issue had been crafted as a content-neutral time, place and manner regulation on the basis of deleterious secondary effects associated with the nude dancing-alcohol combination.

The Goldrush II case, combined with later cases, indicates that cities and states may continue to ban nude dancing in establishments that serve alcoholic beverages provided they now present suitable specific evidence of deleterious secondary effects associated with the combination of nude dancing and consumption of alcohol. If so, the courts will apply the intermediate test enunciated in O’Brien, rather than strict scrutiny.
Since evidence of secondary effects either locally or from other locales is not difficult to acquire, the wise course of action, in preparing bar-nudity legislation, is to create a time, place or manner content-neutral ordinance that meets the O'Brien test.

Later cases that reached the same result as Goldrush, using the nudity -alcohol deleterious content-neutral approach, include Sammy's Mobile v. City of Mobile (11th Cir. 1998); Artistic Entertainment v. City of Warner Robins, (11th Cir. 2000); Wise Enterprises v. United Government of Athens-Clarke County (11th Cir. 2000); DPR Inc. v. City of Pittsburg (Kan. App. Ct. 1998); Jott Inc. v. Charter Township of Clinton (Mich. App. Ct. 1997) (indicating that 21st Amendment still applicable); Urmanski v. Town of Bradley (Wis. App. Ct. 2000); rev. den., (Wis. Sup. Ct. 2000); American Show Bar v. Sullivan County (Tenn. Chancery Ct. 1999, aff'd, Tenn. Ct. Apps. 2000).

Juice Bars

An entrepreneur who does not have a liquor license or who has lost it for violations of a nudity-alcohol ordinance, or who may want to avoid the prohibitions or provisions of such an ordinance, will frequently turn to the "Juice Bar" gambit where, instead of serving alcohol, he or she will serve soft drinks or juices and continue presenting nude "dancing." These establishments may also admit minors since no liquor is served. This latter element makes such establishments doubly pernicious.

Where not prevented by law or preemption, the remedy is to enact a Barnes-type "public nudity" ordinance that applies across the board, with, of course, suitable exemptions for nudity "which is part of some larger form of expression." Examples of such exemptions appear above. A direct attack on nude dancing in juice bars survived constitutional scrutiny in Schultz v. City of Cumberland (7th Cir. 2000).

The cases cited above for regulating nudity in bars could also serve as models substituting evidence of secondary effects, other than the nudity-alcohol combination.

One of the better public nudity ordinances, based on Barnes (with appropriate exceptions for artistry), is found in Gatena v. Orange County (M.D. Fla. 1999), aff'd, (11th Cir. 2000). An ordinance that requires "slightly" more body covering than just pasties and G-strings is Café 207 Inc. v. St. John's County (M.D. Fla. 1994, aff'd, 11th Cir. 1995).

Bottle Clubs

The latest Supreme Court case upholding a ban on nudity in public places, City of Erie et al. v. Pap's A.M., (2000), happened to involve a bottle club establishment that did not sell or serve alcohol but did permit patrons to bring their own alcohol for on-premises consumption.  Prior to the Pap's case, Pennsylvania adopted a statute prepared by Morality In Media that specifically prohibited lewd, immoral or improper entertainment in Bottle Clubs (defined in the statute). The statute was upheld in Commonwealth v. Maker, 716 A.2d 619 (1998) and sustained on appeal to the Pennsylvania Supreme Court (2000). The Pennsylvania Supreme Court based its decision on the Pap's case.

Note

Care should be taken in all cases whenever and however nude dancing is banned to create an exemption for serious artistic shows or entertainment (cf., Lounge Management v. Town of Trenton, Wis. Sup. Ct. 1998).  An example of such an exception is found in the Artistic Entertainment case noted above.  Another example is found in Gatena v. County of Orange, (M.D. Fla. 1999, aff'd, 11th Cir. 2000).

See also the limiting construction of the seminal Barnes v. Glen Theatre case (1991), where the Supreme Court observed that the statute had been given a limited construction by the Indiana Court to permit "some nudity as a part of some larger form of expression".

Municipalities must also ensure that they have constitutional or statutory authority to enact such an ordinance and that it is not preempted by state law or regulation.