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Ordered by City to End Nude Dancing, Club Sues

by Norm Kent

South Florida Gay News

Wednesday April 25, 2012

When Swinging Richards of North Miami Beach opened last fall with promises of full frontal male nudity, many bewildered bar owners and patrons wondered just how they could do it, as a 1994 city ordinance had banned nudity in its alcoholic beverage establishments.

No one has to wonder any longer. The City of North Miami Beach has taken the legal position the club never had a right to allow nudity from its inception. The club could not disagree more, and is going to court to prove it.

Stated attorney Jamie Benjamin, whose firm, along with co-counsel Norman Powell, filed the federal suit, "For 22 years the city of North Miami Beach licensed adult nude entertainment at that location, but as soon as one Swinging Richard appeared there, the city began a campaign to shut them down. It is blatant sex-based discrimination, targeting gay life."

Without fanfare, in February, city attorneys put the club on notice that their nude dancing was illegal, and ordered them to cease and desist, or have their dancers and management face arrest and prosecution.

"Nothing," the club's ads say, "should get between you and a good time." Apparently, the city doesn't agree.

The city had first imposed a deadline of March 23, but then gave them an extension until April 27.

The city then told the nightclub that they would "commence enforcement" of the law without further warnings, beginning Wednesday, May 16.

In response, the club's attorneys have filed a federal lawsuit against North Miami Beach seeking an injunction to stop the city dead in its tracks, and prevent enforcement of the 1994 law banning nudity.

The law firm of Benjamin & Aaronson of Fort Lauderdale, skilled first amendment advocates, have laid out a number of novel legal arguments asserting that the city has no basis to enforce the law.

In their first count, the attorneys take the position that the law unconstitutionally discriminates against homosexuals and "male patronage," since the establishment at 17540 Biscayne Boulevard previously, two decades ago, allowed totally nude dancing by females.

"The change in the gender of the performers and the sexual orientation of the clientele are the only changes made at the Plaintiff's establishment," the law firm argues in its complaint. The firm asserts that the city is trying to treat gay men differently from straight men. That discrimination, they say, is illegal, treating identical classes of citizens differently, solely because of their sex.

Second, the club argues it should be exempt from enforcement of the nudity ban because its particular location has "a history of non-enforcement spanning two decades." It is seeking a declaratory judgment from the district court that they are exempt from the ordinance, based on having complied with earlier licensing requirements.

A third legal argument asserts that the ordinance is legally unenforceable because the dancers' performances are "constitutionally protected" by the first amendment. The nude dancing, they are saying, is a right equivalent to free speech, and the city attempting to stop it is tantamount to illegal, prior restraint.

Fourth, that the ordinance should not be enforced because it is "legally defective," and thus inherently unconstitutional. Within that argument, its counsel states that the terms and wording of the law is vague, or not narrowly tailored to meet legal standards of enforceability. Thus, they argue the vagueness leaves dancers and management confused as to what is legal conduct and what is prohibited.

Consequently, they are asking the court not to allow the city to enforce the law, which leaves a reasonable person confused as to what the standards are.

Finally, in its 26-page complaint, the lawyers argue that there are additional flaws in the ordinance that unfairly inhibit the club's rights and illegally "and unlawfully" expand the city's "unbridled" discretion.

Once served with the lawsuit, North Miami Beach attorneys will have 20 days to answer and file its motions to dismiss and affirmative defenses. They are expected to claim the law was properly enacted and is legally enforceable, and the club had no right to open its doors and to allow nude dancing in defiance of the ordinance.

The first legal step for the club will be to ask a court for a hearing to bar enforcement of the nudity ban while the suit is pending. The issue for the court to immediately address at a request for an 'injunction,' is whether the public interests of the community warrant allowing the 'status quo' while the lawsuit winds its way through the courts over the next year.

If the club prevails initially, nude dancing will continue as is. If not, the dancers would have to bare just a little bit less. Either way, the beautifully anointed club is properly licensed and may remain open. Enhanced by well-groomed and muscular dancers from international venues, the club has become enormously popular with its gay clientele.

Matt Colunga, 35, the General Manager of Swinging Richards in North Miami, has been with the company for 15 years starting out in their Atlanta location.

"I feel our club is good for gay South Florida tourism and gay life. We have a wonderful club and we offer people a good time in a safe environment during a rough economic time," he said. "Our community should pull together and help fight the city."

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