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- By: Lawrence G. Walters, Esq.
- Weston, Garrou, Walters & Mooney
- Prepared for: Swingfest ‘08
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- Swingers Clubs face governmental hostility based on fear of sexual
expression.
- Clubs are prosecuted under a variety of legal theories.
- Family values groups pressure government officials to act rashly and
sometimes illegally.
- The future development of legal issues is uncertain but optimism is
warranted.
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- Starts with (lack of) Sex Education: Abstinence programs & virginity
pledges.
- Continues with the belief that children should be denied information
about their sexuality.
- Exacerbated by Family Values Groups and churches that publish
misinformation regarding sexuality and morality.
- These activists fear sexual practices (polyamoury, polygamy, “kinky”
sex) that they do not understand.
- Some hostility motivated by moral confusion over attraction to “sinful”
thoughts/activities.
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- Erotophobes: Those who fear and hate sexuality.
- Erotophiles: Those who appreciate or tolerate sexual exploration.
- Erotophiles do not force others to be sexually adventurous, but
erotophobes force everyone to be less so.
- America’s War on Sex, Marty Klein, PhD
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- Children are damaged by sexual words, pictures and concepts.
- The country is full of sexual predators.
- People cannot explore sexuality safely.
- “Other” people are interested in sexual exploration and atypical erotic
activity.
- Eliminating venues for sexual experiences will eliminate sexual
behavior.
- Fear of sexuality is responsible citizenship and plain common sense.
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- Adult entertainment regulations.
- Licensing laws, fire, safety & building codes, and occupational
inspections.
- Alcoholic beverage statutes.
- Prostitution, lewdness and indecent exposure laws.
- Nuisance abatement laws.
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- First Amendment right of association.
- Right of privacy (state & federal)
- Substantive due process (Lawrence v. Texas)
- Equal protection
- Malicious prosecution
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- Do the definitions apply to swingers clubs?
- Is the club in a proper zone?
- Is the Club licensed?
- Is the ordinance constitutional?
- Has the code been maliciously enforced?
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- Law is not content-based
- There exists a substantial governmental Interest
- Law is narrowly-tailored to meet the asserted objectives
- Law leaves open ample alternative avenues of communication
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- Controlling sexually transmitted diseases (STDs)
- Preserving societal order and morality
- Traffic, noise and litter
- Calls for police service
- Property values/urban blight
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- Usually do not trigger First Amendment protection
- Building codes often applied hyper- technically to swingers clubs
- Fire/safety/construction codes can support emergency closure orders
- Government can demolish “unsafe structures”
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- Ramona’s investigated by multiple agencies to no avail.
- Building inspector offered to “take care of business.”
- Unpermitted work renders building “unsafe.”
- Offers to repair/correct and administrative challenges fruitless.
- Federal civil rights action instituted.
- Governmental assurances of no demolition.
- Next business day – complete demolition of structure.
- Settlement paid – Ramona’s gone.
- Lessons learned.
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- Prostitution: Generally requires sex for hire – therefore inapplicable
to lifestyles clubs.
- Lewdness: § 796.07(b) – any indecent or obscene act applies to
ownership, leasing and operation of a place or structure for lewdness.
- May not apply to place where such conduct is intended.
- A police officer can now testify as the offended victim. § 796.07(3)(b)
- Indecent Exposure: § 800.03 – applies to lewd display of sexual organs,
but not in a place provided or set aside for such purpose.
- Nude beach offense dismissed by the federal court
- All theories support criminal prosecution, incarceration and fines.
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- Can apply to any building where criminal or unsavory activity occurs.
- Nuisance actions can be brought by government or private parties.
- Government can declare certain activities a nuisance (rave clubs, gang
activity, etc.)
- Can result in closure of the operation.
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- “The Board of County Commissioners finds that any place…used as the site
for…prostitution, youth and street gang activity, gambling, stolen
property, unpermitted rave clubs, illegal sale or consumption of
alcoholic beverages, or lewd or lascivious behavior may be a public
nuisance…”
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- Two (2) nuisance activities within six (6) months can result in finding
of a nuisance.
- Court can order abatement of the nuisance or closure of the business.
- Applied to the “Hunt Club” in Melbourne, FL – private dwelling that
hosted swinger parties.
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- Can apply if any money is collected and alcoholic beverages are
provided.
- Applies to ‘cover charges’ and expected ‘donations’
- Can result in civil or criminal liability.
- Alcoholic beverage violations can support RICO offenses (in Fla.)
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- Gathering of like-minded individuals for social purposes cannot be
legally prohibited.
- Unlicensed operation of a business in a residential zone can be
prohibited.
- Often a fine distinction between the two.
- Website/promotional materials can be the downfall of the club – may show
intent to conduct a business at the home.
- All promotional statements should be reviewed by counsel and compared to
prohibited business definitions.
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- The courts are not always the answer.
- Occasionally, a minor tweak in operation can satisfy primary concern.
- “Three votes is better than a good argument.”
- Use of experts in administrative/legal disputes.
- Mediation, arbitration and informal settlement negotiations.
- Petition, referenda & initiative options
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- Videotaped swinger activity distributed online NOT entitled to First
Amendment protection, Theater v. Palm Beach County Sheriff, Case No.:
02-80462 (S.D. Fla. 2003)
- PROTECT Act – includes new federal crime of producing obscene material.
- Associational/privacy rights may not encompass swinger activity.
- Broad enforcement of criminal lewdness laws (i.e. - Brevard County
Sheriff raid on Trapeze II).
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- Article I § 23 of Florida Constitution – Greater privacy rights than
federal Constitution.
- Lawrence v. Texas – future decisions.
- Court opinions may depend partly on the commercial/private nature of the
venue involved.
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- No direct rulings on lifestyle issues
- Lawrence v. Texas shows promise.
- Can ‘morality’ serve as a basis for governmental regulation now?
- O’Connor’s Departure has added a vote for the conservative block.
- Roberts & Alito firmly with the right wing vote.
- Next president may appoint 2 or more justices.
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- § 2257 Compliance
- Regulatory status
- Future of Connections Distributing, Inc. on rehearing
- Obscenity enforcement
- Age verification & harmful materials
- FTC Deceptive Trade Practices compliance
- Copyright & Trademark protection/infringement
- Online Agreements
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- Investigate surrounding area prior to opening lifestyle venue.
- Open dialogue with City Officials early if complaints arise.
- Watch your website/promotional material for legal traps.
- Engage counsel to review local ordinances, State Statutes, and federal
regulations.
- Become educated on legal issues affecting online content.
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Notes
