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Judge’s ruling in Strip Club Crackdown sets up 300 cases for court

EL PASO- from www.elpasoinc.com – Three years after passing a new law to control strip clubs, the city is just starting to prosecute almost 300 criminal cases.

Challenges to the new law by owners of sexually oriented business are one big reason for the long delays.

But when District Judge William Moody ruled in favor of the city about a month ago, it opened the door to taking the cases to court.

“We have something like 200 citations pending in municipal court waiting for this. Now that we have a ruling from Judge Moody that the ordinance is valid we can proceed,” said Kenneth Krohn, assistant city attorney.

City records show that 283 citations were issued to clubs, stores and employees between December 2007 and April 30 of this year. The citations are Class C misdemeanors punishable by up to a $500 fine.

El Paso has about 20 sexually oriented businesses. They range from big strip clubs like Jaguars Gold Club or Tequila Sunrise, full of young men and scantily clad women on a typical Friday night, to small stores that sell adult books and videos.

The 2007 ordinance is sometimes called the “6-foot rule.” The term is shorthand for a series of rules that require businesses and employees to be licensed. They also regulate conduct, such as performers maintaining a distance of 6 feet from customers and not getting down on all fours.

In addition, the ordinance mandates certain layouts and lighting in clubs and adult book and video stores.

Most of the violations so far were given to businesses and employees for not being licensed. At least 10 businesses received more than two citations each within a 12-month period.

Those businesses might be forced to close. One part of the ordinance says that if a business gets two or more violations in a 12-month period, its operating license can be revoked.

But because the businesses are appealing the judge’s ruling on the constitutional issues – and because any or all of the individual citations might be challenged by each defendant – there’s still a long way to go before these matters are settled.

For years before passing the new ordinance in 2007, the city had worked with Chattanooga lawyer Scott Bergthold. He’s nationally known for advising cities across the country on ways to crack down on sexually oriented businesses.

City Council passed the new ordinance in May 2007. Just a month later, a lawsuit against it was filed by Jose Fong, owner of Tequila Sunrise, and Bryan Foster, owner of Jaguars Gold Club. The clubs are in Far East El Paso, along Interstate 10.

The lawsuit used strong language to describe the city’s actions, and in particular, those of Mayor John Cook.

“Various zealots and, in particular, the current Mayor of El Paso, lobbied relentlessly for an increase in restrictions … resulting in the de facto recruitment of an out-of-state ‘expert’ to prepare and propose the challenged Ordinance,” states the lawsuit.

The club owners argued that the city was infringing on the right of adults to enjoy entertainment protected by free speech.

It said the city was doing so by using made-up claims of secondary harmful effects – things like negative effects on surrounding property, prostitution and the potential spread of disease.

But the city argued that the ordinance tried to strike a balance between the rights of the businesses to operate and the city’s right to regulate them.

That was explained in a 2007 newsletter sent by Cook. It read: “The Supreme Court has held that the regulation of sex businesses is constitutional as long as those regulations are not aimed a preventing speech, but rather are directed at stopping the ‘negative secondary effects’ associated with SOBs. Thus, if your intent is to protect the community, keep crime down and preserve property values, and if you still allow the pornographic speech to occur subject to certain regulations, there is no constitutional violation.”

That section of the newsletter was written by Roger O’Dell, an El Pasoan who worked for years on the ordinance and now directs the El Paso Model Cities program.

The businesses argued that the claims of secondary effects were based on an outdated study. They also objected to requirements that employees of the businesses be licensed, arguing that it constitutes an “occupation tax.”

In his February ruling, Judge Moody took the city’s side, finding in its favor. He signed an order executing his decision in March.

Mayor Cook said it was important for the ordinance to get passed that test.

“I’m pleased to see the prosecutions happen. I was one of the champions in getting the ordinance passed in the first place,” said Cook.

As the bulk of the prosecutions get underway, Assistant City Attorney Laura Gordon says the city has a fight on its hands.

“The city’s position is the tickets are valid and we’re going ahead with prosecution of the cases, but the defendants are aggressively defending their cases,” she said.

Gordon said that the three-year delay was in part due to the city’s desire to have a court’s backing for its prosecutions, and partly because of the defense tactics.

“The lawyers for the adult businesses have been very aggressive in going in and requesting trial dates, then when we would go forward, they would ask for a continuance or reset because the civil trial was still going,” she said. “Now that the court has issued an opinion, things are getting pushed again.”

Some of the citations had already been dealt with, when individuals either pleaded guilty or failed to show up in court.

But Gordon said no businesses have been tagged with the two convictions that would give the city reason to shut them down.

While Bergthold is advising the city, the businesses have their own national experts on board.

Representing Jaguars in the civil case contesting the ordinance is Luke Lirot, a Florida lawyer who specializes in adult entertainment issues and has taken on the Church of Scientology. He did not return calls seeking comment.

Attorney Steven Swander from Fort Worth is representing the book and video stores in appealing the decision upholding the ordinance. Swander said he would not discuss the appeal.

Charles Roberts, an El Paso criminal defense lawyer, is representing four book and video stores, as well as close to 90 employees. He said most of them have been ticketed more than once.

Roberts said he is challenging whether the prosecution is legal through the use of habeas corpus.

Habeas corpus allows someone to seek relief from unlawful detainment. In this case, it raises constitutional issues not about the existence of the ordinance, but about its application and whether it is unfair to employees and business owners.

“All I can tell you is, it will be up to some other judge besides the judges of the municipal courts to decide whether these prosecutions can continue,” Roberts said.

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