JACKSONVILLE, Fla.—On March 5, Jacksonville Mayor Lenny Curry signed into law a new bill that had two major effects: 1) It required all dancers at the city's various bikini and nude clubs to obtain official work identification cards before they would be allowed to dance, and 2) It raised the age at which women could get the dancer identification cards from 18 to 21. Both requirements were touted as necessary to make human trafficking at the clubs more difficult, and the new law, in its preamble, charged that "strip clubs are widely recognized as being a significant part of the sex trafficking network" and that trafficked women are often recruited to work in the clubs—except that thus far, no dancers have been identified by police as having been trafficked, though two local women's organizations in the area claimed to have aided two allegedly trafficked dancers.
"This legislation is important because girls are being transported to Jacksonville because our city has had fewer restrictions," said Vicky Basra, president and CEO of the Delores Barr Weaver Policy Center in Jacksonville, which advocates for young women and girls. "The legislation helps create some monitoring of underage trafficking that is rampant in strip clubs," Basra claimed.
But even before the businesses shut down in compliance with social distancing recommendations in the wake of the coronavirus pandemic, the new law made doing business much more difficult for the clubs—and so a group of 12 clubs plus four dancers and would-be dancers hired prominent Florida-based First Amendment attorneys Gary Edinger and Jamie Benjamin to sue—and what a lawsuit it is, running over 140 pages in length, not counting exhibits.
"The complaint is actually a couple of grievances rolled into one," Edinger told AVN. "It's against Jacksonville, Florida, which is a fairly unique jurisdiction for a couple of reasons. One is because it directly regulates and licenses bikini bars, and bikini bars themselves are not super common around the country. Nudity and alcohol in a lot of places is the norm, but Jacksonville specifically regulates them, so it's unique in that way—and while not quite unique in the state, Jacksonville really does pick on its adult clubs much more than the average jurisdiction."
Edinger's problems with Duval County, of which Jacksonville is the county seat, go back for at least 25 years, and he recalled a time about 16 years ago when police, in an unconstitutional abuse of their power, would come into the clubs and arrest every dancer in the place—even women who had just arrived and were still in street clothes; they too would be taken to jail.
"So we sued on the theory that they were arrested for municipal violations, the lowest possible criminal charge, and no one ever went to jail; they just paid fines and went home," Edinger explained. "But every other person who was arrested or at least charged with a municipal violation had the opportunity to be ticketed; we call that 'notices to appear,' and so Jacksonville wasn't doing that, and so we sued and settled on a consent order that said dancers would be subject to getting ticketed like anyone else for a municipal violation.
"That changed last year, for some reason; we're not sure why," he continued. "So part of our complaint says, 'Wait a minute; we litigated this almost a generation ago; we actually have a federal consent order requiring the city to ticket instead of doing custodial arrests, and they just ignored the order, so that's part of the complaint. Another part has to do with the treatment of dancers during these most recent raids last year, and the two things that we're particularly complaining about are that the dancers that were arrested were not just taken downtown but they were put in leg chains, they were shackled, and that just doesn't happen. Every girl that got arrested was put in leg chains and led out that way, so that is unacceptable."
Another part of the complaint deals with the fact that the police entered the clubs without warrants to make arrests—another constitutional violation.
"At one of the raids where they were arresting some of the performers, the dancers who were not suspected of having committed a crime were let into their locker room and not allowed to leave; they were detained for about two hours. You know, ladies detained for two hours eventually have to use the restroom, and they were not permitted to leave, and instead were forced to urinate in buckets and server basins in front of their fellow dancers and in front of the cops, so I'm told. One of the dancers who's a plaintiff in our case says that about 15 dancers were forced to urinate in public, so that's not acceptable."
But the major allegation in the lawsuit is a constitutional challenge to the ID card regimen. Edinger notes that as a rule, even though the dancers are considered independent contractors rather than employees, the clubs themselves maintain records as to each dancer's stage name and real name, as well as how to reach them if necessary: Addresses and phone numbers. But the lawsuit specifically attacks the fact that the police don't have the necessary procedures in place to make sure the dancers get licensed properly and quickly.
"With a typical fairly standard licensing provision, you know, a dancer will go in, make an application and immediately get a temporary or provisional license. That's the way it's done, and probably the way it would have to be done constitutionally," Edinger said. "That's not done in Jacksonville. It takes a while to process them; we don't know how long it's gonna take. The dancer ID card fee is very high: $150."
Part of the problems the Jacksonville clubs and dancers face is likely due to the fact that the city is both very religious and very conservative.
"The Baptist Church has an inordinate political influence there," Edinger noted, "and while this is north Florida, we call it 'south Georgia' basically; it's a very conservative community. But you know, there are conservative communities up in the panhandle and they don't treat adult businesses like that. Jacksonville is really its own thing. It's like they took it as a personal challenge to make as many constitutional errors as possible in as few words as possible, which explains why the complaint is so long: Because they just did everything wrong."
Possible evidence that the city has a (pardon the expression) hard-on for the clubs and dancers is the fact that Edinger won a similar case against the city back in 1999, in a case called Lady J Lingerie v. Jacksonville, where the city tried to zone out adult establishments by leaving just one area in which they could locate, and that only had room for two businesses. The city argued that another zone had space for more, but in order to locate there, a club would need an "an exception", which the court saw an the equivalent of a license to operate which had two major defects: the city had discretion whether to issue the exception, and had the power to sit on the application for an inordinate period of time. Edinger prevailed in that case, but sees echoes of it in the current dispute.
"I litigated Lady J Lingerie around the turn of the century, and so the city has apparently not learned its lesson and passed just a really bad law," he said. "So we're going after that, and the thinking was, as long as we're challenging the amendments they made to their Code, we should also go after a couple of portions of their Code that would not have merited an independent lawsuit but have been very annoying over the years. Examples would be, they used to cite managers fairly often, whenever a dancer was arrested. They'd say, well, the manager is responsible for the dancer's actions. It would be a vicarious criminal liability theory, which again we don't allow, and the cases say you're not supposed to charge managers just because they're in that role, hold that title.
"There were a number of things having to do with vicarious liability that are problematic, and then they have just a whole host of interesting little defects that we picked on in the complaint. One of the requirements, for instance, in the new dancer licensing is that the sheriff would have to evaluate citizenship, and for those who are not U.S. citizens, they'd have to prove they had a right to work in the states, and then if you employed a dancer who didn't have the right work papers, that's a second degree misdemeanor under this ordinance. That actually is preempted by federal immigration law, which says that you can require work papers because you're supposed to file I-9s for employees, but that's limited to employees, and that requirement can't be imposed on contractors, which the dancers all are. Also, the federal government says that you can have local licensing laws that punish on the basis of immigration status, but it can only be a suspension or revocation of the license; you can't impose a fine or criminal penalty."
What with the court system postponing much of its business in response to the pandemic lockdown, Edinger has no idea when the club/dancer lawsuit will go to trial, but he and his partner have filed for a temporary injunction to the new requirements, which he expects will be heard fairly quickly.
"We narrowed our challenges on the injunction just to the things that really made a difference and were time-sensitive," he explained, "so those mostly have to do with the new licensing requirement and also the arrest of dancers, so those are both really easy to present; they don't require much in the way of facts—and with the dancer arrests, it's just plain in violation of the old consent order; that one's easy. And then the licensing issues are all facial constitutional challenges so they're easily presented by preliminary injunction, so I think we'll do well with that."
In the meanwhile, with all of the clubs closed due to the pandemic, even if the courts take a couple of weeks to consider the application for the preliminary injunction, they won't suffer much harm from the delay, though Edinger said he'd like to get the injunction in place as soon as possible for when the clubs can reopen and the dancers can once again legally ply their trade.
Pictured: Sinsations is one of the plaintiff clubs to this lawsuit
