Court examines whether sexually oriented business board applies ordinances fairly

Sunday, December 18, 2011 at 8:05pm

The Metropolitan Sexually Oriented Business Licensing Board celebrated its sixth birthday this year.

For more than half a decade, the board has been registering “entertainers,” investigating strip clubs and doling out suspensions on behalf of Metro’s infamous “three-foot rule.”

But it hasn’t been without growing pains. A court case filed by Deja Vu nightclub in 1997 delayed the board’s formation from the onset. A court-mandated injunction was set on Metro’s new sex codes for seven years, before the U.S. District Court lifted it in 2005.

But even though the SOBLB has been up and running for six years, it still has its detractors. A court case currently in the hands of the Tennessee Court of Appeals shines light on some potential legal issues with the law and its enforcement.

 

 

The origins of regulating “sexually oriented” ventures in Music City date back nearly 150 years. According to The Hidden History of Nashville by journalist George Zepp, prostitution ran rampant in Nashville during the Civil War.  

Union military officials who were occupying the city enacted a prostitution-licensing program in 1862. Women had to present “surgeon’s certificates,” attesting to their good health, to get approved. The move made Nashville a pioneer in regulating a legal sex trade.

Fast-forward 147 years.

On June 7, 2009, a man and a woman walked into Christie’s Cabaret in downtown Nashville. Entertainer No. 1090 and Entertainer No. 25 approached them.

In a private area, the entertainers gave the couple lap dances.

The action was a clear violation of Metro Code 6.5.140 which states: “No customer shall be permitted to have any physical contact with any entertainer on the licensed premises while the entertainer is engaged in a performance of live sexually oriented entertainment.”

Unbeknownst to the entertainers, the act was being videotaped. The man was actually a private investigator working undercover, and the woman accompanying him was his assistant.

According to Christie’s legal defense, the entertainer’s estranged ex-husband hired the private investigator amid a divorce and child custody battle.

The investigator handed the video over to the SOBLB. Shortly thereafter, the entertainer and Christie’s were cited for the violations. The ordinance holds clubs responsible for violations that take place on the premises, and Christie’s received a 36-day suspension of their operating license.

Christie’s appealed the decision in a lawsuit filed in Davidson County Circuit Court, citing a “flawed process” in the hearings.

Among their complaints:

City employees never investigated the alleged conduct, and the SOBLB shouldn’t be able to issue citations based on third-party investigators.

The SOBLB and the Metro ordinance have been “enforced in an arbitrary, capricious manner” and “no other business in the city is subject to this type of ordinance enforcement,” the complaint reads.

The SOBLB compressed violations against the entertainer, but didn’t for the club, unfairly ruling that “the petitioner had a higher duty to supervise the entertainer than she did in not violating the city’s ordinances regarding adult entertainment.”

In Metro’s reply to the complaint, the city contends that the case was valid and the rulings are legal. According to the board, it heard testimony from the investigator, his assistant and the entertainers — all of whom corroborated the video evidence.

Christie’s also had a say at the hearing. The company’s representatives made a motion to dismiss the case, cross-examined witnesses, and made a closing argument. Metro said that adds up to a fair hearing.

Metro also claims a decision can only be “arbitrary” when there is no evidence in the record to support it, but the evidence shows a violation took place.

Davidson County Circuit Court agreed with the city and denied a reversal of the board’s penalty against Christie’s on March 24. Christie’s appealed to the Tennessee Court of Appeals, and oral arguments were heard in the case on Dec. 6.

But what makes the case particularly unusual is that Christie’s Cabaret no longer has a physical location in Nashville. The club closed after its Eighth Avenue property was gobbled up by the Music City Center project last year.

The appeals court questioned whether the case was now moot — but Christie’s attorney, Price Harris, argued that if the company wants to locate to Nashville again, they don’t want the penalty to tarnish their record.

Harris also made a broader argument that attacked the entire process of the SOBLB. In the current structure, the inspector presents evidence to the board, asking whether they should proceed with a citation. When the citation is issued, the board holds an administrative hearing to decide the case.

According to Harris, the same court shouldn’t be allowed to make both decisions. For instance, when the police issue a speeding ticket, a judge determines the validity of the ticket — not the police.

As of press time, the appeals court hadn’t issued an opinion on the case.

 

 

Christine Gibson was working for the sheriff’s office in 2006 when she spotted a job posting for the inspector position at the SOBLB. She thought the position aligned perfectly with her law enforcement background and administrative skills.

Five years later, she’s still at it — and she has noticed a slight change of sentiment among entertainers in the city.

“When I came on board, I was still fielding complaints from the dancers that they didn’t like the three-foot rule because the customers aren’t paying as much,” Gibson said.

“Now, everybody is aware of the law, they are more accepting and compliant. Some of the dancers are saying they appreciate the law because they feel safer.”

But Gibson still keeps busy with violators.

“The ones that are [not complying] are making more money because the clients are paying them more to do the illegal things, which upsets the girls that are doing the right thing,” Gibson said.

“If every club and every girl was on the same playing field, it would be a much better business because it would be fair across the board.”

And while the SOBLB strives to make adult businesses fair, the court of appeals will have the final word on whether the board itself is legally sound.

8 Comments on this post:

By: Left-of-Local on 12/19/11 at 10:19

Yay. Joy. Whoo hoo. Happy effing birthday, Prude Police. Thanks for making illogical rules a reality, and driving the tax dollars OUT of the county for 6 years and counting.

By: nvestnbna on 12/19/11 at 11:15

Not to take a position on this type of business, but the article didn't disclose how many businesses this full time metro employee and commission over see?

This whole enterprise SOBLB was contrived by Metro to shut these businesses down. So they came up with a set of rules(under the guise of public safety or whatever), that severely restrict their operations. I doubt Christies has any interest in re-opening, just keeping that as an option while they contest their settlement for the property taken for the MCC.

Oh yeah, back to the number of businesses overseen by this commission .... I think it is six.

By: Ask01 on 12/19/11 at 1:14

I often wonder how much money government spends legislating and policing morality. In an expenses versus results showdown, I wonder how the scales would tip.

Sex, alcohol, drugs, the grand triad, once at least, of organized crime of which people were going to partake regardless consequences. The nation learned from prohibition, as far as alcohol is concerned, that it is a fearsome monster which, allowed to run wild, is uncontrollable. Once corraled, broke to the bit, and branded, the beast could at least be managed, and at a profit.

There is a growing movement to change drug laws allowing marijuana to be grown, packaged, sold, and of course, taxed just like alcohol.

I believe the time is here to consider taking the same approach to the sex industry.

Let us put aside our prudish and moralistic attitudes and accept there is a market, otherwise we wouldn't be reading stories such as this, nor the reports of arrest for soliciting.

When prohibition ended, while bootlegging did not end completely, a major source of income for organized crime was yanked away. Likewise, legalizing some lower risk drugs, processing, packaging, and taxing will generate income, reduce enforcement costs, and severely impact the criminal element. Let me say now, save the rhetoric, I've heard it all, how any drug is dangerous, et cetera. The same can be said for alcohol and tobacco, and we know the end of that story.

The same principle applies to the sex trade. The more intense efforts to stamp out the act, the further off the radar it is driven, the harder it is to track and police and the more money will be funneled to the criminal element.

All I am saying is, we should examine how much we spend against how much is gained and ask ourselves if the cost is justified.

Just my humble opinion.

By: BigPapa on 12/19/11 at 1:30

Yes, this whole idea is a sham reason to put these places out of business, or a the least restrict the # of them operating.
The Libertarian in me says they should be free to operate as they see fit. If people pay, then go for it, why do I care if someone wants to see naked women?

The property owner in me is glad they cant just open anywhere because these type of business are a quick road to blight and a downward spiral in property values. They just attract MORE undesirable businesses and undesirable people.

By: kamaliman87 on 12/19/11 at 5:45

I just don't understand why somethings the government wouldn't want to regulate and tax. Forcing this kind of business to go underground makes it less profittable to the government, causes more spreading for diseases, and opens the door for more crimes. So why not make it positive, only allow the businesses downtown/metro area, not within residential property, within a means of tight security, and of course systematic way of taxing, lets tax the entertainers and owners, I know waiters and waitresses have to report their earnings. Lap dances, yeah sure, just not nude on nude contact/body fluid contact. So let me guess, Nashville wants the craigslist prostitutes to keep doing their thing, and the men/women keep secretly spreading diseases and such to everyone and their spouses/significant others?

By: Left-of-Local on 12/20/11 at 8:58

Big, not always. But in "these parts" where our culture has such a vastly immature and ignorant concept of "vices", yes.

By: WickedTribe on 12/20/11 at 12:23

The SOBLB needs to be eliminated. It's particularly bizarre that it came about when it did (in modern times) in a liberal city. I'm sure a majority of citizens here do not support having moral police.

By: TITAN1 on 12/21/11 at 10:18

I wish all those trashy places would go out of business.