The Steakhouse said it wasn't fair and went to court. No use. A recent ruling from a federal appeals court has upheld an ordinance in Raleigh, N.C. that requires special permits for adult businesses. The Steakhouse offers topless dancing.
The Steakhouse applied for the permit in 1997 and was rejected. The Raleigh Board of Adjustment ruled that the business didn't have enough parking spaces. In addition, it failed to show that its business would not harm properties around it or unduly affect traffic.
The topless dance club lost the first round in federal court and took the case to a three-jusdge panel of the 4th U.S. Circuit Court of Appeals. It didn't fare any better there.
The appeals panel used the ever-popular "secondary effects" argument to uphold the city ordinance. That argument goes that the city is not really infringing on anyone's First Amendment rights because city fathers don't like topless dancing but because such businesses are known to foster crime, property value deterioration and other bad things.
Nude and topless barroom dancing have a long history of spawning deleterious effects," the court said. "The First Amendment does not foreclose communities from taking modest precautions against the secondary maladies of nude or topless barroom dancing."
Part of the suit argued that the ordinance was unconstitutional because it didn't require the city to rule on the permit request in a reasonable amount of time. Another part said the law should not put the burden of proof on the business to prove it won't have bad secondary effects.
The appeals court rejected both claims. It said the 90-day period specified in Raleigh was reasonable to rule on permit requests. It also said that, because the Raleigh law does notactually regulate the content of speech, it can place the burden of proof on a business.
An attorney for The Steakhouse said he thought the opinion was inconsistent with higher court rulings but that no decision has been made yet on whether to appeal.
-- Barry Garron
