Judge upholds city sex club ordinance

By Randy Hanson

Judge Eric Lundell has upheld a city of Hudson ordinance that requires exotic dancers to stay 5 feet away from customers.

In a decision filed last week in St. Croix County Circuit Court, Lundell said the city's ordinance "does not regulate speech, but to the contrary is a legitimate legislative attempt to regulate effects of sexually oriented businesses."

"While a dancer's erotic message may be slightly less effective from 5 feet, the ability to engage in protected expression is not significantly impaired," Judge Lundell wrote.

East of the River Enterprises II, the owner of Hudson's only nude-dancing club, filed a lawsuit challenging the constitutionality of the ordinance shortly after it was adopted by the City Council on May 17. East of the River claims the ordinance forced the club to halt nude dancing because the dancers couldn't make a living with the no contact rule.

Lundell wasn't convinced that the 5-foot rule prevents nude-dancing clubs from profiting in Hudson. He said the club arguably could remedy its alleged loss of profits by restructuring the way it does business.

In an earlier ruling in which he denied East of the River's request for an injunction preventing enforcement of the ordinance, Lundell said it wasn't the city's fault that clubs like Centerfolds treat exotic dancers like independent contractors and refuse to pay them wages.

"The test is whether a business could operate under the regulations at issue, not whether a particular business will be able to compete successfully within the market," Lundell wrote in the most recent decision.

Hudson Ordinance No. 3-99 imposes a number of regulations on sexually oriented businesses in what the City Council says is an effort to combat the adverse secondary effects of the businesses.

The ordinance also includes a ban on the sale or consumption of alcohol in the businesses and places restrictions on their hours and where they can locate.

The ordinance says adult businesses increase crime, lower property values and contribute to the spread of sexually transmitted diseases.

Lundell said the ordinance correctly addresses the secondary effects of adult entertainment, such as prostitution, sexual assault and other crime, without "suffocating other protected expression in a real and substantial manner."

"The language of the Hudson ordinance indicates that the city is aware that unduly restrictive regulations, such as those enacted by the town of Trenton, will not survive judicial review," Lundell wrote.

The Wisconsin Supreme Court in 1998 struck down a town of Trenton ordinance that banned nudity in establishments licensed to serve alcohol, saying it was too broad. Randall Tigue, the lawyer for East of the River Enterprises II, represented the owners of the Border Lounge in Hager City in that case.

Lundell said that while the U.S. Supreme Court has held that sexually explicit expression is protected by the First Amendment, it also has said that society's interest in protecting that type of expression is "of a wholly different, and lesser, magnitude" than protecting other forms of expression, such as political debate.

Governments can limit sexually explicit expression, Lundell said, "as long as the regulation is directed solely towards ameliorating the purported secondary effects of such speech and is not directed at its content."

"Because the ordinance does not create an absolute ban on protected speech, it is properly analyzed as a form of time, place and manner regulation," he said.

Lundell said courts in general have not been overly sympathetic to arguments that an exotic dancer can't convey her erotic message from a distance of 5 feet.

He also said it wasn't unreasonable restrict a nude dancing club's late-night hours. Under the Hudson ordinance, clubs could still remain open 127 hours a week, he noted.

Hudson lawyer Mark Gherty, who represented the city in the case, hailed Lundell's decision as "well-reasoned."

"I think it will stand up very well to any appellate court test," Gherty said.

He said the decision didn't surprise him. Courts around the country have accepted regulations on sexually oriented businesses that focus on the time, place and manner in which the message is conveyed, he said.

"I think it was a matter of applying the law."

Thor Gunderson, president of East of the River Enterprises II, and his lawyer, Tigue, didn't return calls asking for comment on Lundell's decision in time for this week's edition of the Star-Observer.

In the past, they have said they would appeal if Lundell sided with the city.

East of the River Enterprises already has appealed a ruling by Lundell that upheld the city's denial of a liquor license for Centerfolds Cabaret.

That case is pending before the Wisconsin 3rd District Court of Appeals.