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Judge Biery on Local Strip Club Ordinance: 'Does Size Matter?' 

Here at the Current, we honestly get giddy whenever Chief U.S. District Judge Fred Biery issues a new ruling in a case we’re watching. It’s always hands down the finest comedy of the day. Today’s ruling, in which Biery denied a request by local strip clubs to keep the City of San Antonio from enforcing new regulations, was no exception. Biery’s order in the case, which he called “The Case of the Itsy Bitsy Teeny Weeny Bikini Top” versus “The (More) Itsy Bitsy Teeny Weeny Pastie,” begins thusly:
“An ordinance dealing with semi-nude dancers has once again fallen on the Court’s lap. The City of San Antonio wants exotic dancers employed by Plaintiffs to wear larger pieces of fabric to cover more of the female breast. Thus, the age old question before the Court, now with constitutional implications is: Does size matter?”
At issue is an ordinance COSA passed last year amending the city’s human display laws. Local regulations had already required that clubs with topless dancers register as a “human display establishment,” which can’t operate within 1,000 feet of schools, residential zones, churches or other places of worship. Clubs got around the pesky human-display classification by covering dancers in the bare minimum – pasties and a g-string. Consequently, not a single club sought a human-display permit from the City. Council last year voted to end that loophole, passing a new ordinance requiring dancers to wear full bikini tops. If they chose not to, clubs would have to register as a sexually oriented business, which are subject to tighter regulations, like background checks for employees and with ID badges and licensing for dancers. Over a dozen strip clubs sued the City early this year, claiming the new ordinance stifles their constitutional right to free expression. In an innuendo-filled ruling Monday (“the court encourages reasonable discovery to intercourse as [the parties] navigate the peaks and valleys of litigation,” “Plaintiffs seek an erection of a constitutional wall separating themselves from the regulatory power of city government,” and so on), Biery denied the clubs’ request to keep COSA from enforcing the new rules until the matter goes to trial. That means the bikini rule now stands. San Antonio strip clubs have been under pressure from the City for a decade, the crackdown starting in 2003 when Council passed an ordinance imposing annual fees on dancers, managers, and club owners, requiring each pay $50, $100, and $375, respectively, to register with local police. In 2005, Council prohibited full-nude dancing and imposed the so-called “three feet rule,” which effectively outlawed lap dances. City law also mandates that tips to dancers be placed in a jar or “delivered hand-to-hand without touching and with the hand of each person extended at least one and one-half feet away from the body of that person.” Underlying this push is COSA’s argument that sexually oriented businesses contribute to the downfall of neighborhoods, resulting in reduced property values, drugs, prostitution, and violent crime. While Biery ruled in COSA’s favor, he doubted the City’s bikini rule really makes much of a difference:
“While the Court finds these businesses to be nefarious magnets of mischief, the Court doubts several square inches of fabric will stanch the flow of violence and other secondary effects emanating from these businesses. Indeed, this case exposes the underbelly of America’s Romanesque passion for entertainment, sex and money, sought to be covered with constitutional prophylaxis. Alcohol, drugs, testosterone, guns and knives are more likely the causative agents than the female breast, proving once again that humans are a peculiar lot. But case law does not require causation between nudity and naughtiness.”
Read the rest of Biery's ruling (footnotes and all!) here:

Biery, Strip Club Ruling


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