Fourth Circuit: You don’t have to choose between girls and booze

By Randazza & DeVoy

In this recently released opinion from the Fourth Circuit, Gentlemen’s Clubs have won an important victory in their ability to serve alcohol as well as T’n’A on premises.  The decision in Miller (Defendant-Appellant) v. Legend Night Club (Plaintiff-Appellee), Case No. 09-1540, released today, holds that a Maryland Statute that restricts the activities allowed at an alcohol-serving establishment is unconstitutionally overbroad.

Among the conduct prohibited by Maryland Code Article 2B, §§ 10-405(c) and (d) is allowing patrons to caress or fondle employees’ breasts and buttocks, permitting “any employee or person to wear or use any device or covering exposed to view, which simulates the breast, genitals, anus, pubic hair or any portion of it,” the “display of the pubic hair, anus, vulva or genitals,” and so forth.  Violation of any of these provisions results in an establishment having its alcohol license revoked. Md. Code Article 2B, § 10-405(b).  Prince George’s County was added to the list of counties to which these provisions would apply, effectively ending the adult club industry in that area, which is fortuitously close to Washington, D.C.

Plaintiffs originally sought a declaration that the statute was unconstitutional.  In April of 2009, the District of Maryland held that the statute was unconstitutionally overbroad, and could not readily be limited.  The court also found that the statute’s grandfathering provision, which allowed strip clubs to continue operating and serving alcohol so long as they had been doing so since 1981, violated the Equal Protection Clause.  As much as “cougarism” is the in thing these days, hopefully these longstanding establishments would have hired new talent throughout their existences.

At the appellate level, the Appellants argued that the statute was appropriate under the secondary effects doctrine.  Rather than seeking to curtail nudity and erotic entertainment, the Appellants claimed that they were concerned about the deleterious social effects associated with alcohol-fueled adult entertainment.  For those who aren’t First Amendment attorneys, this is the equivalent of facilely shrieking “think of the children” in the face of everything you dislike.

The Fourth Circuit subjected the relevant statute to intermediate scrutiny, requiring that the  Appellants show that the law materially advances a substantial or important interest by redressing past harms or avoiding future ones.  The Circuit panel’s analysis of this standard was driven by the fact that the Appellants could not provide any evidence of harmful secondary effects arising from alcohol served at gentlemen’s clubs in Prince George’s County.

While such restrictions are surprisingly common around the country, they generally apply specifically to strip clubs and similar institutions.  The statute at issue in Miller did not, and its prohibitions, broadly written, applied to every institution in the state that sold alcohol.  Consequently, a wide breadth of protected behavior would have been trapped within the statute’s ambit.  Simulated sex during dinner theater would result in the venue’s alcohol license being suspended.  Virtually any bar that allowed a bachelorette party in its doors would be put out of business by the statute, and the same would go double for bachelor’s parties.  While nobody seriously questions that these events are protected by the First Amendment, Maryland’s law would have stripped any venue permitting them to occur on their premises of their alcohol license.

Furthermore, the Appellants’ argument that the statute would only be applied to adult entertainment venues found no traction in the Fourth Circuit.  Not only was the statute silent on this issue, but Appellants presented no way to read the statute so it would apply only to those establishments.  The state’s brief history of only enforcing the statute against adult entertainment businesses was not sufficient to show the statute had a limited construction.

Because the financial remedy for the harm caused by enforcing this provision would not be adequate to compensate adult club owners, the Fourth Circuit held that the District Court properly entered a permanent injunction against the statute’s enforcement.  The Circuit wrote that: “Regarding the third requirement for injunctive relief, the threatened injury to Plaintiffs easily outweighs whatever burden the injunction may impose. At a minimum, each Plain- tiff faces a loss of its license coupled with a loss of valuable business opportunities.”  The imposition of this injunction imposed no burden on the state of Maryland and furthered the public interest of protecting constitutional rights, even at the expense of crybabies.

Maryland could amend its statutes to circumvent this decision.  Because it already declined to do so in 2007 when the case was originally pending, though, it seems unlikely to do so again.  As a result, the alcohol distribution rights of adult entertainment venues in Maryland are safe for now.  One cannot doubt, however, that some Palinite will agitate against this constitutional protection in the near future.

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