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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
