Pasty time

With all their setbacks in court, the local strip clubs are contemplating other options.

Eric Langan says he may respond to the U.S. Supreme Court with pasties.

Langan, 39, is the chief executive officer of Houston-based Rick's Cabaret International Inc., owner of four strip clubs in the city. On March 17, he and other club owners lost an 11-year fight to overturn a city ordinance when the country's highest court refused to hear their case.

The regulation, passed in 1997, bans topless dancing clubs and other adult businesses within 1,500 feet (457 meters) of daycare centers, schools and churches, double the previous distance. The idea is to force the clubs to move, if not shut down entirely. An easy fix for ordinance-violating bare breasts may foil the plan, Langan said.

"The City of Houston will win the battle and lose the war because they won't be able to regulate us once we move to latex pasties," said Langan, whose company is the largest publicly traded owner of strip clubs, with a market value of $176 million. Pasties are latex coverings used to conceal nipples.

This subject has come up before. I recall that several clubs went the latex-pasties route in the immediate aftermath of the 1997 ordinance, as a way of getting around the requirement for dancers to get licensed with the city. It won't surprise me if that is the preferred option now, as it would be less costly than relocating. How successful it will be, I couldn't say, but I don't recall any clubs closing down at that time, so perhaps that bodes well for them.

Here's an angle I hadn't considered:

The regulation may have unintended consequences, Langan said. "Any ice house can now compete with us just by throwing a girl on the bar in a bikini or pasties without being subject to any additional regulation," he said, referring to neighborhood taverns. "I think we're going to see a lot more clubs putting dancers on stage."

Well, strictly speaking they could have done that at any time before now. Why they'd think it's a good idea all of a sudden is not clear to me. I mean, I guess that could happen, but this sounds like bluster to me.

And for those of you not in Houston thinking "there but for the grace of God..."

Unlike most city ordinances restricting adult entertainment, Houston's measure doesn't have a grandfather clause that lets existing businesses remain, said defense attorney John Weston, who represented the club owners. The businesses also must pay for their relocation, he said.

The Houston ordinance is odd, coming from the only major U.S. city with no zoning laws, said Weston, who filed the Supreme Court petition.

"Politics is a dirtier game than any lap dance I've ever witnessed," said [Angelina] Spencer of the Association of Club Executives. "A bad precedent like this, which is so restrictive, opens up the doors for this to take place across the country."

Keep an eye on your City Councils, that's all I'm gonna say.

In the meantime, the strip clubs did score a victory yesterday, on a different matter.

A Travis County judge ruled Friday that the state's new $5-per-patron strip club fee is an unconstitutional tax, but the state promised to appeal.

State District Judge Scott Jenkins' ruling prohibits Texas from assessing or collecting the tax. Clubs were to have made their first quarterly payments next month.

Jenkins said the fee is actually a "content-based tax" that must be strictly scrutinized because it is imposed on a business activity protected by the First Amendment. He said it did not pass constitutional muster because the state failed to link the activity being taxed to the programs being funded.

The Legislature enacted the adult entertainment fee, effective Jan. 1, and dedicated the first $25 million to sexual assault prevention and additional revenue to low-income health care. The fee was expected to raise more than $50 million for health care in its first two years.

It was the dedication of money to health care that caused the tax to be unconstitutional, Jenkins said.

He heard testimony from club owners, state employees and sexual assault prevention officials during a four-day trial earlier this month.

"There is no evidence that combining alcohol with nude erotic dancing causes dancers to be uninsured, that any dancer is in fact uninsured, or that any uninsured dancer could qualify for assistance from the fund," the judge said.

"The programs that were to be funded from this money were worthwhile, but we disagree with the unconstitutional manner in which they were imposed," said Stewart Whitehead, who represented the Texas Entertainment Association and an Amarillo club, which challenged the fee.

The Texas Attorney General's Office said it would "vigorously appeal" Jenkins' ruling.

At the time the suit was filed, I thought the clubs' argument was weak. Clearly, I underestimated them. Vince got it right.

The Texas Association Against Sexual Assault, which was slated to receive money from the fee, said in a statement on its Web site that it was disappointed by the decision.

"We are hopeful that the attorney general will choose to appeal this decision," said Karen Amacker, a spokeswoman for the group. "In the interim, TAASA intends to continue (to) work with key legislators, the attorney general, the governor, the comptroller and others to ensure we learn from our missteps and pass a dedicated, sustainable funding source for sexual violence-related services in our state."

The statement said the association does not claim that patrons of adult entertainment venues are more or less likely to perpetrate sexual violence.

"It can be reasonably concluded that an industry that flourishes by objectifying women does impact the attitudes and beliefs that support sexual violence," Amacker said. "The fees assessed to adult entertainment venues are a mechanism to mitigate those greater resulting societal ills."

The author of the bill that enacted the fee, Rep. Ellen Cohen, D-Houston, was unavailable for comment. An aide said Cohen would study the ruling and planned a news conference Monday.

Cohen, former head of the Houston Area Women's Center, said when she filed the bill that she was not suggesting that strip club patrons commit sexual assault, but that money generated by sexually oriented businesses should pay for sexually oriented crimes.

I'm more in agreement with Rep. Cohen's justification for the bill than I am with Ms. Amacker's. Despite the win yesterday, I still think the state will have decent odds on appeal.

Posted by Charles Kuffner on March 29, 2008 to Local politics