For the past two years we have periodically written to you about the two bookstores
within the City of Lauderhill, that the City classified as adult establishments and tried to close
down.  The first establishment, University Video Enterprises, Inc. was only shut down for a
matter of hours by the City, while Thee Fantasy Shoppe II was permanently closed. 
    
Both entities filed suit against the City of Lauderhill.  In the case of University Video
Enterprises, Inc., their suit involved an injunction to keep them open and not have the city's adult
entertainment code applied to them, while challenging  the constitutionality of that code.  As to
Thee Fantasy Shoppe II, since they had been permanently closed by the City, their suit involves
damages along with a declaration that the City's Adult Entertainment Code, licensing
requirements, licensing suspension revocation hearing and zoning were unconstitutional.

In the case involving University Video Enterprises, a settlement was reached with the
City approximately 8 months ago where University Video Enterprises was not going to be
classified as adult entertainment and was going to be allowed to continue to operate in the
manner that it had been.  Further, University Video Enterprises, Inc. received attorneys' fees for
their troubles from the City.

Since Thee Fantasy Shoppe II was suing for damages, this case has not been settled.
However, on June 27, 2008, the Honorable Joan A. Lenard, United States District Court Judge
granted most of Thee Fantasy Shoppe II"s Motion for Summary Judgment.  In her ruling, Judge
Lenard found for Thee Fantasy Shoppe II on numerous grounds.

Judge Lenard found that the City's adult entertainment licensing scheme was
unconstitutional as it vested too much discretion in the City officials and allowed for
unacceptable delay by the City in granting a license.   Further, the City requiring that adult
entertainment be located in an I-1 zone was also unconstitutional as a special exception was
needed to located in the I-1 zone.  Judge Lenard found that the requirements of the special
exception also gave the City too much discretion and also allowed for unacceptable delay. 

The Court also ruled on the City's requirement that the proposed establishment not be in
violation of any provision of the City's Code, or any building, fire or zoning code, statute,
ordinance or regulation.  The ruling as to this matter was that this was also unconstitutional
because it would allow the City to decide which statutes or ordinances it wanted to apply to adult
entertainment and allow the city to make the unilateral determination whether those codes or
statutes had been violated.  In addition, other provisions of the licensing scheme were also
declared unconstitutional. 

Judge Lenard also found that the defects in the licensing scheme for adult entertainment
were so pervasive, that she was unable to sever the unconstitutional parts and leave remaining
those parts that were constitutional.  Rather, because of how pervasive the unconstitutional parts
were, she declared the entire licensing scheme unconstitutional.

Although Judge Lenard ruled on behalf of Thee Fantasy Shoppe II, on almost all grounds,
she still has set the issue of damages to be determined through mediation.  If mediation does not
come to a resolution of the matter, then a trial will be held on the issue of the proper damages.
Regardless of the amount of damages, Thee Fantasy Shoppe II should also be awarded attorneys'
fees.

Lastly, on due process grounds, other than First Amendment grounds, the Court ruled that
the City's suspension revocation of business licenses prior to a hearing being held was also
unconstitutional.  The Court noted, that the City's interest in closing businesses that did not have
licenses or valid licenses according to the City, was overshadowed by the business's rights to
have a due process hearing before their businesses were taken away.

We will keep you informed of what transpires as to the damages part of this case in the
upcoming months.  However, in early September, Club Eden is scheduled to go to trial on its
challenges to the Town of Davie's zoning, licensing and adult entertainment scheme.  Many of
the arguments ruled on by Judge Lenard in Thee Fantasy Shoppe II are similar to those presented
in the Eden litigation.  We will keep you informed of what transpires in that litigation as that
comes to past.
                      
For those of you who follow the intricacies of First Amendment law and adult
entertainment juris prudence, you might remember the case of Alameda Books v. City of Los
Angeles.  This case made it all the way up to the United States Supreme Court, where the Court
ruled for the first time that the adult entertainment establishment had the right to contest the
city's factual finding as to whether or not adult entertainment establishments caused adverse
secondary effects.  The Supreme Court ruling in Alameda Books led to the wonderful decision in
Daytona Grand v. City of Daytona Beach, at the District Court level which unfortunately was
overturned by the Eleventh Circuit Court of Appeals.  Other good decisions for adult
entertainment from around the country also were based upon the dictates of the Alameda Books
case at the United States Supreme Court. 

The Alameda Books case was remanded by the United States Supreme Court back to the
Federal District Court for the District Court to have a trial based upon the Supreme Court's
decision.  However, prior to trial Judge Pregerson granted Alameda Books Motion for Summary
Judgment, relying upon Justice Kennedy's ruling at the United States Supreme Court. 

Justice Kennedy's decision pointed out that there must be proportionality.  In essence,
what Justice Kennedy was saying was you can easily do away with all adverse secondary effects
of adult entertainment, by closing down all adult entertainment.  However, there would be no
First Amendment expression left and therefore the remedies of clearing up adverse secondary
effects would not be in proportion to the harm to the First Amendment.

Judge Pregerson who found in Alameda at the trial level, that the city's regulation for
preventing two types of adult uses even if owned by the same business or if a part of the same
business could not be in the same structure was unconstitutional.  The Judge found that adult
arcades based upon the city's ordinances would not survive and the city would have no adult
arcades.  Therefore, since adult arcades and this form of First Amendment expression would not
survive, the ordinances lacked proportionality.

In the next month Daniel Aaronson and James Benjamin will travel to San Francisco to
the First Amendment Lawyers Association Summer Meeting.  We will have the opportunity to
speak with the lawyer responsible for this victory in Alameda Books and learn the intricacies of
the decision and how it came to pass.  In addition, James Benjamin will be attending the
Gentlemen's Club Exposition in Las Vegas, Nevada at the end of August.

In the upcoming editions, we will certainly inform you of what transpired at these two
events. 

  On Tuesday, October 16, 2007, Florida SEA, (Florida Sunshine Entertainment Association) and the Florida State ACE (Association of Club Executives) Chapter held a meeting in Branden, Florida just outside Tampa.  The meeting was well attended by over thirty representatives of adult entertainment establishments from across the State of Florida.  Angelina Spencer, the Executive Director of the group could not be there as she was fighting the good fight in the battle against the statewide statute that was just passed in the State of Ohio.  Angelina has been living up in Ohio for the last several months to fight that statute’s passage and its devastating effect on adult entertainment in the State of Ohio.

The meeting was moderated by Jamie Benjamin, from Benjamin & Aaronson, P.A. and Luke Lirot, a  First Amendment lawyer from Clearwater, Florida.  Also in attendance were Brandon Samuels and Macy John.  Brandon is one of the owners of the Scarletts chain of clubs and Macy works for his management companies.  Brandon has generously donated Macy’s time and energy to administrating a contact and e-mail distribution system that Brandon designed. 

The problem was that the club owners and other adult business owners in Florida were not organized into a system where they could instantaneously communicate with each other and to the entire group.  Brandon volunteered to establish a system where anyone in the adult entertainment industry who is a member of Florida SEA can instantaneously communicate with all other members.  The administration can instantaneously communicate upcoming meetings and other vital information that must be noticed to the entire membership on a moments notice.  This system is vital to the continued organization of the group. 

The most important topic discussed at the meeting was how to continue to organize and raise money to fight any and all upcoming statewide and local legislation that would negatively effect adult entertainment.  Benjamin warned the group, that Rhonda Storm who is now a member of the State House of Representatives is a sworn enemy of adult entertainment and her history as a former Hillsboro County Commissioner included a commitment to battle against adult entertainment.  Last year was Storm’s first session in the Legislature where she introduced ridiculous and hateful legislation against adult entertainment as a freshman representative. 

This year, it is not if, but when she will introduce more of the same in order to try and hurt adult entertainment.  It is vital to insure the continued existence of your businesses to organize and step forward to fund lobbying efforts and campaign contribution efforts so that the adult entertainment industry through Florida SEA can become a recognizable force in the Florida Legislature.

The adult entertainment industry cannot be left behind.  Other industries do it well.  The Teamsters Union, the Steel Workers, the trade organizations from the plumbers, the computer manufacturers, the touch screen voting machines, the insurance industry, the organizations of doctors, nursing organizations, auto workers organizations, car dealership organizations, and you name it have formulated political action committees and trade organizations that participate in the political process by hiring lobbyists and giving money to candidates. 

WHY DO THEY DO THIS?   So they can be heard on their issues by the people who make the laws in both state and local governments.  The more political clout organizations have, the more access they have to these politicians who are the ones that pass laws that can hurt... or help various industries.  The adult entertainment industry cannot be left behind.
 
In the next few weeks each of you will be contacted by a representative from Florida SEA.   I beg you to please become active members in the organization.  If you do not, your business is in jeopardy of going out of business because of tough new laws passed by legislators like Rhonda Storm.

The next Florida SEA meeting will be in early December at a location to be announced.  We will keep you up to date as to when that meeting will be.  You must attend and support your industry if you wish to continue to survive.

    The highlight of the local scene is the bold attempt by the City of Miami to interfere with the First Amendment rights of an internet based adult business called Cocodorm run by a local company called “Flava Works, Inc.”.  All of the excitement started sometime in May when packages containing downloads from the internet and allegations of adult entertainment and unsafe sex were distributed to the neighbors surrounding the private house in Miami where the residents lived.  These packages were also distributed to all of the media outlets.  It is assumed that these packages were created by a hostile competitor who wants to bring down this popular adult website.

The house itself sits in a residential area in an old part of Miami just north of downtown.  Within eyesight of the house, prostitutes regularly sell their wares and drug deals happen on the street corners.  It is a typical near inner city type of community.  When one looks at the residence itself, all you see is a single family residence.  There are never multiple cars parked there.  There are never large parties or large groups of individuals there at any time.  There are simply a group of gay single men who live there. 

The only difference between this house and any other house in this or any other community is that it is wired with numerous internet cameras throughout the house.  The images that are captured on those cameras are sent out through the internet.  People can buy a subscription to the website and obtain access to what the cameras in the house show.  What they show are a group of individuals living there, having sex and doing all of the other things that people do in the privacy of their own home.  Not one person from the public goes to the actual geographic location of the residence to obtain any adult entertainment whatsoever.  There is no commercial enterprise on the premises.  People buy the content of the website either through the internet or by obtaining DVD’s either through the internet or by sending a check to a company office located elsewhere. 

The overbearing, dictatorial, bullying, and unreasonable code enforcement staff of the City of Miami decided that they wanted to get rid of Cocodorm.  After the initial violations were alleged by the City, James Benjamin was hired to represent Cocodorm.  Immediately upon the violations being alleged, Benjamin attempted to contact the City and explain that this issue had already been decided by the Eleventh Circuit Court of Appeals in Atlanta, Georgia almost seven years ago.  In that case, fellow First Amendment lawyer Luke Lirot of Tampa, handled the case for a company called Voyeurdorm.  The case was exactly the same as the one facing the folks at Cocodorm here in Miami.  In that case, Lirot was able to persuade the Eleventh Circuit Court of Appeals that all the business activity that took place, took place in “cyberspace” over the world wide web and not at the physical location of the Voyeurdorm in Tampa.  The Eleventh Circuit Court of Appeals ruled that zoning ordinances did not apply to a situation that was a mirror image of Cocodorm.

Jamie Benjamin told the administrators of this case and even sent a copy to the Assistant City Attorney who prosecutes cases before the Code Enforcement Board.  They completely ignored clear and concise Federal law right on the subject.  In fact, Miami’s Director of Code Enforcement, De Mola arrogantly testified in Court that he did not even consult with the City Attorney concerning the Voyeurdorm case he received from Jamie Benjamin before continuing with the prosecution and attempt to close down Cocodorm.  During over twenty-four hours of hearings that spanned several weeks, it was evident that neither the Board nor the City Attorney, nor the attorney advising the Board had a clue of what they were doing or how to apply this clear law to the exact same set of facts presented to them.  The Assistant City Attorney and the staff of the Code Enforcement Department for the City of Miami bullied their way through the hearings in front of a Board made up mostly of lay people who were not well versed in how to apply law.

It was embarrassing that any City government should be run this way.  One of the reporters who was in attendance commented to Jamie Benjamin that she had never in her life seen a more unprofessional City Attorney or a more biased Board.

The results from this Board were not unexpected.  These type of issues are not usually won at this level of quasi-governmental,  far from judicial hearings.  The place to be is the United States District Court.  We are going to be there very soon and a Federal District Court Judge will simply take the Voyeurdorm case previously decided on these issues themselves and apply it to Cocodorm.  The boys at Cocodorm will be able to continue on in their constitutionally protected activities forevermore. 

This should be some sort of warning to those of you who intend to continue operating First Amendment constitutionally protected businesses and are attacked by local authorities be it City or County Code Enforcement or the police themselves.  First Amendment practitioners like Benjamin & Aaronson or others that concentrate in the area of protecting your First Amendment rights are indeed Liberty’s last champion.  We will make sure the government does not trample on your rights.

On January 20, 2006, United States District Court Judge Antoon for the Middle District of Florida, gave Daytona Grand d/b/a Lollipops possibly the most significant victory for adult entertainment in this country in a number of years. Unfortunately, the Eleventh Circuit Court of Appeals reversed that decision at the end of June, 2007. This reversal, sets a standard that is almost impossible for an adult entertainment establishment to meet as far as whether adult entertainment establishments cause adverse secondary effects. Further, the Court’s ruling on zoning issues, also means that it will be rather difficult for adult establishments to find places to locate, that are economically and physically viable.

All hope is not lost. The decision by the Eleventh Circuit Court of Appeals is not final. In fact, Daytona Grand represented by Daniel Aaronson and Gary Edinger out of Gainesville have filed a Motion for Reheairng En Banc. What this means, is that instead of allowing a three judge panel to make the decision for the Eleventh Circuit, rather Daytona Grand is asking for all of the judges of the Eleventh Circuit to make the ruling. The Petition for this Rehearing En Banc in pending in front of the Eleventh Circuit and since many of the rulings within Daytona Grand now conflict with the cases of Peek-A-Boo and Flanagans out of the Eleventh Circuit, there is great hope that in fact the entire Eleventh Circuit panel will take the case.

If the Eleventh Circuit’s entire panel takes the case, the ruling in Daytona Grand at the Eleventh Circuit is subject to being changed by the entire panel including being overturned. Therefore, all hope is not lost and there is still a chance that Judge Antoon’s decision at the District Court level will be upheld.

Why is there hope? The three judges that ruled at the Eleventh Circuit on the Daytona Grand case, were not any of the judges that had been party to the rulings in both Peek-A-Boo and Flanagans. In fact, one of the judges was a visiting judge from an international commerce court. Therefore, only two of the judges of the entire Eleventh Circuit have actually put their names to the Daytona Grand decision. It is sincerely hoped, that the judges that put their names on the Peek-A-Boo and Flanagans decisions will be as outraged as we are with this decision, vote to have it heard en banc, and ultimately reaffirm Judge Antoon’s decision.

In essence, the nails are not in the coffin, there is still hope and there is the chance that Daytona Grand will have the chance to fight again in front of the Eleventh Circuit. If that does not occur, and the Eleventh Circuit does not decide to hear this matter en banc, Daytona Grand is more than willing and able to take this matter up to the Supreme Court of the United States. In fact, regardless of how the Eleventh Circuit ultimately rules as to whether they want to hear this matter en banc or not, and whether they overturn the previous ruling by the three judge panel, it is anticipated that one of the sides in this litigation will try to take this case up to the United States Supreme Court.

So all in all, the ruling from the three judge panel of the Eleventh Circuit was not good news, yet the fight is not over. Daytona Grand intends to have its rights vindicated along with the rights of the citizens who live in the Eleventh Circuit of Florida, Georgia and Alabama.

It is hard to forget the day after William Jefferson Clinton was elected to be President of the United States in November of 1992. While we were driving to work, the next morning, Rush Limbaugh was on the air. He was going through a mantra of the winners and losers on the previous night elections. As to who was the biggest winner on that day, he voiced, that it was him. He explained that with Clinton being in office, he would have between four and eight years of material to work with and that his job would be much easier.

Remembering what Rush Limbaugh said, we can only fee the same way about having George W. Bush as our President. There never has been a lack of something to write about. There has always been material, as his presidency has been the most outrageous possibly in U.S. history. The problem is, it is almost like information overload. With the war in Iraq; with countless violations of the Constitution; with usurping of people’s rights, with flagrant disregard for international law and treaties, on any given day what do we write about. The answer is it is hard to write about any of them when you want to write about all of them.

This article is supposed to be about First Amendment issues and First Amendment freedoms. However, with this Administration there has been an assault on everyone of our rights and all of our freedoms. We have had our phones and computers wiretapped. We have had our treaties with other nations broken in the name of security. We have attacked another country that posed no threat to us and have done it on the basis of lies, conjuncture and theories that did not pan out. We have had an Administration that has grabbed more power than any Executive Branch in the history of this country. It flaunts the rule of law and creates its own law. In fact, Vice President Cheney has now established himself as outside of the Executive Branch of government; outside of the Legislative Branch of government and somehow a fourth branch of government with responsibility over all and answering to none.

We have had to watch an administration out a CIA operative in the name of political vendetta. We have watched an administration official be convicted of obstruction of justice and perjury only to be pardoned by the President who ultimately he was protecting by his perjury and obstruction of justice. We have watched an Attorney General blatantly lie to Congress.

We even have had a Supreme Court that for the first time has decided not to protect a woman’s health by allowing her to have an abortion, but rather now has mandated that that abortion procedure would be criminal even if it saves her life. That same Supreme Court on a case by case basis has sided with government over people, corporations over people but never with people.

We have a Senate and Congress that continually expresses its doubt for this war in Iraq and the President’s actions, but never steps up to the plate with binding resolutions or legislation to thwart the administration’s grab for power and zest for endless war. We have a Congress that seems to flex its muscles, only to be constantly bullied by the President which causes them to slink away in defeat.

The President and this administration believe in the unitary executive. They would have you believe that that means believing in a strong President as one of the three branches of government. In actuality what they mean is that they believe in a dictator elected by the people but with all the powers of a king. That is exactly what they have tried to set up George W. Bush as. King George.

Since our legislators seem to be too weak to fight the king and the Courts having been stacked by the King, it is now up to us the people to demand our democracy back. We don’t really know how it is done, because efforts like what we are asking for, just seem to grow on their own. But somewhere, somehow it is time that the American people at the grassroot level decided to take back this country. It is time that those of us who read our history books and civics books while going to school actually made this country become what we read about as being. Those civic and history books were not written for the fun of it but rather to teach us how our government was supposed to behave. It is time that we remembered our lessons of the sixth grade and forced this country to become a democracy once again and not this republican totalitarian regimen.

Although there is no Earth shattering news on the local First Amendment or adult front, there are cases still progressing through the Court systems here in South Florida dealing with those issues.  In the case out of the Town of Davie, Eden v. The Town of Davie, by the time this article is read, discovery will have been completed by all sides in the case.  In fact, depositions have been taken of all of the witnesses including experts in central Florida and California.  The trial is scheduled in April 2007 on this case.

Shortly after you read this article, discovery is to be completed in the two cases out of Lauderhill involving “The Fantasy Shoppe II” and “University Video Enterprises, Inc.”.  In those cases, the City of Lauderhill unilaterally determined that both of these establishments were adult entertainment establishments and in the case of “The Fantasy Shoppe II” closed their doors causing them to never to be reopened again.  In the case of “University Video Enterprises, Inc.” code citations were handed out although the City has subsequently backed away from those allegations.  In those cases, a central issue will be what is the definition of an adult bookstore in the City of Lauderhill and is it a constitutional definition.  The two stores have contended that it is not constitutional as it furthers no substantial governmental interest and by its own terms it is unconstitutionally vague and overbroad.

As to the case involving doors on or off booths in Miami-Dade County, as we reported months ago, the three adult bookstores lost at the District Court level, but the case is pending before the Eleventh Circuit Court of Appeals with Briefs due shortly.

Lastly, as to updates on important cases that affect South Florida, oral argument is scheduled for mid March in the case of Daytona Grand v. The City of Daytona Beach.  Although this is not a Southern District of Florida case but rather a Middle District case, the impact of this ruling will not only be felt in the Middle District or the Southern District of Florida, but actually across the country.  For those of you who do not recall, this is a case in which the adult dance establishment won and the City is appealing that victory to the Eleventh Circuit Court of Appeals.  A victory at the Eleventh Circuit Court of Appeals will show governments that they cannot trump up false justifications for infringing upon adult entertainment and First Amendment freedoms.

On another note, we would be remiss if we did not mention the University of Florida football team winning the National Championship.  We traveled out to Phoenix for the game, and although our luggage was lost, James Benjamin came down with the flu, we had middle seats throughout our trips from and to Phoenix, we had to travel from Phoenix to Milwaukee to Fort Lauderdale to get back, it was still a wonderful trip.  At the game, there had to be at least two to three to one Ohio State fans versus Gator fans.  The Gator fans were very quiet before the game with the Ohio State fans acting as if  they had already won the National Championship and that we did not belong in the game playing against them.

Obviously, they were wrong.  However, the saying he who laughs last, laughs best did not apply.  By the time the game ended there was little opportunity to gloat.  The sea of scarlet and grey had vanished and all that was left was orange and blue.  It was a great night.  A great trip.  A great season.  Go Gators!!

    Last month a client of ours was called in front of a Special Magistrate for the Town of Dania to answer charges involving code violations.  That client, of course, was an adult entertainment establishment and the purpose of the proceeding was to start a process to close down that client.  Although we always feel that these types of proceedings are stacked decks against us, the reality of just how stacked the deck is truly came to light.

James Benjamin along with Cincinnati based attorney, Lou Sirkin, went to a code enforcement hearing in Dania during the week of December 13th.   Just prior to the hearing starting, a city attorney from another city, walked in the hearing room.  Mr. Benjamin asked that city attorney from another jurisdiction, why he was there.  The response was that he was the special magistrate hired to hear our case.  When questioned by Mr. Benjamin as to the propriety of having a city attorney from one jurisdiction act as a special magistrate (Judge) involving adult entertainment and First Amendment freedoms in another jurisdiction, Mr. Benjamin was informed that this occurs all the time.

Fortunately for our client, it did not happen this time.  Benjamin & Aaronson happened to have had a personally contentious relationship with that city attorney.  Based upon that personal contentious relationship, that city attorney from the other jurisdiction sitting as a special magistrate (Judge), was forced to recuse himself and continue the hearing until another special magistrate could conduct it early next year. 

The problem with this whole scenario is, how can an adult entertainment establishment get a fair shake in front of a special magistrate, when that same special magistrate as a city attorney  in another city is doing his best to close down adult entertainment facilities in his city.  How can there even be a glimmer of due process and fundamental fairness when should that special magistrate rule in favor of the adult entertainment establishment in one jurisdiction, he knows that that ruling may in fact help adult entertainment survive proceedings in that city attorney/special magistrate’s jurisdiction?  The answer is of course there can be no fair hearing.

Due to this revelation and because of it, Benjamin & Aaronson intend in all cases where a city attorney from one jurisdiction is acting as special magistrate/Judge in another jurisdiction, to ask and even demand that a new special magistrate be appointed.  In a case out of the State of California, the Federal Court held that there was no fairness or due process in a hearing in which the city selected the special magistrate and paid for that special magistrate and had that special magistrate employed in numerous cases.  The Court held that the special magistrate obviously would have an allegiance to the city, not only because the city had hired it in this case, but also that the city was going to use that special magistrate in future cases.  The Court noted, that obviously, the special magistrate would have a conflict, knowing that his future employment could depend upon his rulings for the city.

Apparently, in South Florida the practice is even more egregious.  Not only is the special magistrate hired by the city, and not only is he paid by the city and obviously depending on the ruling may or may not get future employment,  more egregiously, those special magistrates are city attorneys from other jurisdiction who have vested interests in the outcome for their city in the way they rule as special magistrates in the other jurisdiction.  It is hard to see a practice that is more fundamentally unfair and a violation of due process than the one afforded to adult entertainment establishments in South Florida.

On another note, the litigation involving Club Eden and the City of Davie continues on.  Discovery deadlines in that case, have been extended to January 22, 2007 with both sides required to finish all pre-trial discovery by that date.  The trial in that matter is scheduled for April 2007, but only time will tell whether it truly will take place in April 2007 or at some later date.

The litigation involving the City of Lauderhill versus two establishments in the Town that the city contended were adult, but the establishments contended they were not, proceeds on.  Discovery cut off deadlines in that case are towards the end of February, 2007.  These cases along with the Club Eden case are on track to meet that deadline, with trials scheduled for the Lauderhill matters for later in 2007. 

As to the doors off the booths case in Dade County, pitting three adult bookstores versus Miami Dade County, this case is on appeal.  Due to delays in getting transcripts and other documents, deadlines for filing briefs have been extended and a ruling by the Eleventh Circuit Court of Appeals is many months away.

Again, we will attempt to keep you informed of all of this litigation as each case progresses.  Of course, when new cases arise and new issues come to the front, we will do our best to inform you of them.

On another note, we hope you all had a wonderful holiday season and wish you all a happy and healthy 2007.

    In 2001, the City of Dania Beach passed an Ordinance requiring adult establishments to operate exclusively in their marine district.  The Ordinance gave the adult establishments three years to move from that 2001 date.  The three year time limit came and passed with no word from the City and no enforcement.  All of a sudden in September, the five adult establishments, that being one dance club and four bookstores were all served with notices that they had until the end of September to leave their premises or face code violations and prosecution.

The letters that these stores received, made mention to the 2001 Ordinance, but failed to mention that the City early in 2006, passed a much more comprehensive adult entertainment code.  With the passage of the 2001 Ordinance and the 2006 Code, essentially all of the aspects of adult entertainment are now being regulated by Dania Beach.

What this means, is that the adult bookstores and dance club in Dania Beach will have to comply with the Ordinances and Code and therefore move from their currently location and adopt the new regulations as part of their doing business, or they will have to file suit.  In upcoming issues, we will inform you of what the adult establishments chose to do and of course inform you of the Court’s rulings as the process goes on.

On another note, last month United States District Court Judge Alberto Jordan ruled in the case of the adult bookstores that had sued Miami-Dade County for their doors off booths Ordinance.  Unfortunately, Judge Jordan did not agree with the adult bookstores’ contention and ruled in favor of the County.  This ruling therefore validates the County’s assertion that it was constitutional to regulate adult booths by requiring that doors come off those booths.

However, the three video stores that filed suit originally, have now filed an appeal of Judge Jordan’s decision.  This appeal, from a practical sense, means that the issue dealing with doors being required to be off adult video booths in adult bookstores is still going on without a final determination.  Of course, we will keep you informed of how the appeal is going and when the appellate court rules and what that decision is.

Lastly, the City of Lauderhill seems to be on a tirade against any establishment that may even be remotely adult inside its city.  Currently going on is litigation involving two video stores that contended that they were not adult, but the City of Lauderhill classified them as being adult.  One of the stores is simply seeking to have the Court to declare it to be non-adult and to further declare that various portions of the Lauderhill Code were unconstitutional and the actions of City Code Enforcement officials were also unconstitutional.  The other store, unfortunately was forced out of business due to the City’s actions.  This store is seeking damages from the City.

More important than the lawsuits, are some of the basis for these lawsuits.  Apparently, Code officials from the City of Lauderhill believe that they have the power to walk into an establishment, demand that it close, change the locks on the establishment, kick out the patrons and threaten arrests.  For establishments that do not have constitutionally protected expression and speech and materials on their premises, this alone is a violation of due process and the City’s Code.  But for establishments that do have constitutionally protected First Amendment rights, this type of action is more than egregious, it is a total affront to the First Amendment. 

For those of you in the adult entertainment industry, or for those of you that have First Amendment protected expression on your premises, should any code enforcement official come in and do something similar as mentioned above, we implore you to contact your lawyer at once.  By and large code officials do not have the power to just unilaterally shut down an establishment, but rather must go through proper procedures such as license revocation or suspension procedures that afford some type of due process.

As always, we encourage and ask any of you that may have any adult entertainment or First Amendment stories that would be beneficial to all of our readers to please contact us.  The purpose of our article is not just to promote ourselves, but rather to inform.  We do not pretend to know all that is going on in South Florida.  There are many issues and many cases that slip by.  So again, if there is something important that the world needs to know, please contact us so that we may share it.

   The City of Miami Beach has a unique take on adult entertainment.  Their Code provides that having just one piece of adult material on the premises makes the location an adult book and video store.  Yet, the City has chosen to interpret their own Ordinance more liberally and allows up to 150 square feet of floor space to be devoted to adult products before an establishment is classified as adult.

What is more unique about the City’s determination of an adult store versus a non-adult store, is that it does not matter how large the store is.  Therefore, a retail establishment with 10,000 square feet is only allowed to have 150 square of adult fare before it is considered to be adult entertainment.  Yet, a store of 3000 square feet can have almost half of its square footage dedicated to adult material and not be considered an adult store.  The rationale behind this 150 square foot line of demarcation must be the belief that regardless of the size of the establishment, having more than 150 square feet of adult material causes adverse secondary effects and having less that 150 square feet of adult entertainment does not cause adverse secondary effects.  Although this analysis strains logic, it is what it is.

Yet, during the weekend of June 9 through June 11, the Miami Beach Convention Center was home to the adult entertainment industry show “Exotica”.  Not only did the City give its approval to this convention, police officers could be seen throughout the Convention Center providing security.  Not only did the City of Miami Beach give approval to this convention, but the Miami Beach Convention Center is run by the City of Miami Beach.

So although the City of Miami Beach believes having more than 150 square feet of adult fare causes adverse secondary effects, they apparently believe that having thousands of square feet of adult fare in their own convention center does not cause adverse secondary effects.  The truth of the matter is, that their second position is correct.  There were no adverse secondary effects caused by having Exotica at the Miami Beach Convention Center.  No additional crime occurred around the Convention Center or in the neighborhoods nearby.  There was no outbreak of lewdness.  The jail cells were not full of prostitutes as those who are opponents of adult entertainment would have you believe would occur.  No, rather an adult oriented convention went off without hitch in the City of Miami Beach.  The people that attended were like the attendees to all other conventions on Miami Beach.  They brought business to the local community.  They put funds in the local economy.  They went and enjoyed the exhibitions without causing any trouble. 

Rather than putting down the city for allowing Exotica, we applaud the City for its assistance in allowing the convention to take place.    With this successful convention behind them, it is now time that the City of Miami Beach and all other municipalities in South Florida realize that adult entertainment does not cause adverse secondary effects.  It is now time for city commissioners throughout South Florida to be intellectually honest and acknowledge that their opposition to adult entertainment is not based upon adverse secondary effects, but upon moral grounds.  It is now time that the municipalities throughout South Florida realized that adult entertainment actually brings in money to the community as opposed to taking money out of the community.  It is now time that the government officials in South Florida realized that although they may make some political points by attacking adult entertainment, they in actuality are weakening their economic base, causing unneeded litigation and spend tax payer’s money when there is no need to do so. 

On other notes and in other  news, in South Florida, currently pending are suits by Eden against the Town of Davie, and two bookstores in Lauderhill who have sued the City over determinations that they are adult and must be closed.  As the litigation in these suits proceed, we will keep you more informed and let you know of the progress in each.  For those of you who do not remember, there also is the current suit by Hustler of Hollywood against the City of Miami Beach, believe it or not, involving that 150 square foot rule.

     We Won!  Who won?  What was won?  Well, after waiting seven months for Judge John
Antoon, III's ruling in the case of Daytona Grand "Lollipops" v. City of Daytona Beach, Judge
John Antoon III ruled on January 20, 2006, that both the 1981 Ordinance and the 2002 Ordinance
were unconstitutional.

Who won?  Well, certainly Daniel Aaronson, the trial attorney for "Lollipops", certainly
Benjamin & Aaronson and Bret Hartley who have represented "Lollipops" for the last several
years, certainly the other adult clubs in the City of Daytona Beach, and as important, the adult
entertainment industry in the Eleventh Circuit which comprises Florida, Alabama and George
and yes the adult entertainment industry nationwide.  Quite honestly, the import of this decision
cannot be overstated. 

Although this is not the first time that the adult entertainment industry has won a case
involving the lack of adverse secondary effects and therefore lack of substantial governmental
interest in ordinances, this may in fact be the first time that the adult entertainment industry has
won a case after a trial on the merits.  As important, is some of the language in Judge Antoon's
ruling, that can and will be used by the adult entertainment industry not only in this part of the
country but throughout the country.  A brief recap of the history of this case and the ruling of
Judge Antoon shows just how important this case is.

In 1981 the City of Daytona Beach passed their anti-alcohol and nudity ordinance,
prohibiting alcohol and nudity to be in the same place.  This ordinance had been upheld as
constitutional on several occasions by various courts.  Yet, Judge Antoon, III ruled that under the
current framework and status of the law the 1981 Ordinance was not constitutional any longer.
The significance of this aspect of Judge Antoon's ruling is that Judge Antoon recognized as
Daniel Aaronson asserted throughout the litigation, that after Alameda Books and Peek-A-Boo,
the law had changed, Ordinances that once were deemed to be constitutional could now be
attacked under the new framework, and that under the new framework the 1981 Ordinance was
unconstitutional.  Judge Antoon's ruling agreed with these premises, and his opinion may just
open the door for attacks in other jurisdictions of Ordinances that have been on the books for
years that may or may not have been upheld as constitutional previously.

In declaring both the 1981 and the 2002 Ordinances unconstitutional, Judge Antoon also
looked at the evidence presented for the passage of the Ordinances by the City and even the
evidence that they brought forth at trial for the justifications of the Ordinances.  As Judge Antoon
wrote "that gone are the days when a municipality may enact an ordinance ostensibly regulating
secondary effects on the basis of evidence consisting of little more than the self-serving
assertions of municipality officials".  In writing this, Judge Antoon was reflecting on the fact that
at trial Daniel Aaronson called two recognized experts in the field of adverse secondary effects,
Dr. Dan Linz and Dr. Randy Fisher.  On the other hand, the City in its pre-enactment evidence
for both ordinances and even at trial, brought forth no expert testimony, but rather as the Court
noted just self-serving assertions of municipal officers.  Judge Antoon obviously ruled that local
studies of an imperical nature, certainly outweigh baseless statements made by local officials, not
supported by data or expertise.  This should give hope to all of us especially in the Eleventh
Circuit, but even nationwide, that other judges will follow suit and look at the pre-enactment
evidence by cities of anecdotal comments as being just that and instead rely on scientifically
proven methodology by experts in the field of adverse secondary effects.

Further, although the city had submitted into evidence various police reports and crime
data, the Court again agreed with Daniel Aaronson's position, that without any comparisons of
that data, having just police reports means nothing.  As the Court stated "absence the context that
such a comparison might provide, the City's data is, as Plaintiff's assert "meaningless".
Hopefully, other courts again will follow suit with this rationale and not allow cities to get away
with just putting police reports into evidence as justification for their ordinance, but rather
require comparisons as to whether these police reports do in fact conclude that adult
entertainment establishments cause adverse secondary effects or whether without the
comparisons the data is meaningless.

Judge Antoon, III's ruling contains numerous lines and quotations that will be beneficial
for the adult entertainment industry.  However, one of the most important analysis is that he did
is contained in a footnote in the opinion when he is analyzing the affect of a study done by Dr.
George on the affects of alcohol when coupled with viewing sexually related materials.  The City
put Dr. George's report into evidence for the proposition that when you have alcohol and nudity,
it creates sexual aggression and therefore alcohol and nudity create adverse secondary effects.
Judge Antoon, III wrote as follows: "If Dr. George's laboratory studies were accepted as
constitutionally sufficient evidence of a link between secondary effects and the combination of
drinking alcohol and viewing nude entertainment, the studies, given their highly general nature,
would presumably function as legal basis for any municipality to enact an alcohol and nudity
ordinance.  In the Court's estimation, such a result would render the legal precedent culminating
in Alameda Books and Peek-A-Boo mere mockery".  "More importantly than Judge Antoon's
dismissing of Dr. George's report, is Judge Antoon's analysis of why Dr. George's report should
be dismissed.  Judge Antoon in essence was saying that the cases of Alameda Books and Peek-A-
Boo set a high enough standard that quite frankly, the normal garbage that city's use to justify
their ordinances, that cities have been getting away with, for years, are no longer sufficient after
Alameda Books and Peek-A-Boo.   If the city is going to win these types of cases they must show
actual adverse secondary effects and not just throw in any garbage the way they have been doing
for years.

As was said at the beginning, this case was a victory for all of us in the adult
entertainment industry.  This case will be used around the country to help influence other rulings
to go the same way.  This case may help lead to victories in other jurisdictions, but for right now,
the victory in Daytona Beach is amazingly sweet and alcohol with nudity in Daytona Beach is
alive and well.

       On July 1, 2001, a new State Statute went into affect.  This statute makes it unlawful for any adult establishment to be within 2500 feet of a public or private school, with two exceptions.  The first exception allows those establishments existing as of July 1, 2001 to remain where they are and the second allows the municipality where the adult club is located to waive the 2500 requirement. 

    Many of us in the adult entertainment and First Amendment fields have believed that law is unconstitutional.  However, an attack on this law would be difficult because first one would have to attack either the city or the county ordinances that also deal with distance separations and be successful in those challenges, before this issue would be ripe.

    Last month however, the Booby Trap in South Miami was put in the position of having to challenge that State statute.  The reason for this, from a procedural standpoint, is that the City of South Miami had no adult entertainment ordinances of its own.  Therefore, the only prohibition against the Booby Trap opening up where it did, would be and was the State statute.

    Many of you may have seen television clips dealing with this matter and others of you may have read the same in the newspapers.  Unfortunately, whether the electronic media or the print media, neither vehicles seemed to fully grasp the arguments and issues and although the reporting was intensive, the stories never seemed to be directly on point. 

    Most of the stories dealt with the issue of whether the Booby Trap is within the 2500 feet of the school or not.  Yes, this is one of the issues, but it is by no means the major issue.  As to this issue, the bottom line is that the Booby Trap is within 2500 feet of a school or outside of 2500 feet of a school depending upon whether the measurement is from property line to property line, property line to front door, door to door, as the crow flies, or pedestrian right-of-way.  The State statute does not speak to how the measurement is done or is to be conducted which brings us to two of the challenges for the Statute and its application against the Booby Trap that Benjamin & Aaronson brought.  One, the State statute is unconstitutionally vague because it does not speak to how the measurements are to be done and where they are to be measured from or 2) since the State statute is silent as to how the measurements are done and since the Booby Trap under some of the measurements is outside of the 2500 feet, does that mean that the Booby Trap must be classified as being legal? 

    The other issue, pertaining specifically to the Booby Trap, is whether or not the location had adult entertainment prior to July 1, 2001.  Booby Trap through Benjamin & Aaronson have contended and do contend that in fact adult entertainment was taking place on a continuing basis since 1995.  The City disputes this.  This however, brings up  other constitutional issues dealing with the statute.  Since the statute says that you have to be in existence as adult prior to July 1, 2001, the issues remain as: How often did you need to be adult entertainment prior to July 1, 2001; How soon in time before July 1, 2001 did the establishment have to have adult entertainment; and does the establishment have to have adult entertainment after July 1, 2001 to now be allowed to have adult entertainment; and if so how often after July 1, 2001 did it need to have adult entertainment?

    As to the pure constitutional challenges, Benjamin & Aaronson have also challenged the State statute as it furthers no substantial government interest and is not narrowly tailored.  In essence, what we are saying is that the legislation was passed for no reason and if there was a reason that is legitimate, the 2500 feet distance separation is too great and is not needed to further that substantial government interest.

    As to the status of this case, we were prepared to have a preliminary injunction hearing where these issues were to be litigated.  Fortunately, the nature of some of these claims made it quite impractical and logistically impossible, to litigate these issues at this time.  Nonetheless, we were prepared to do so. 

    At the eleventh hour, the City filed a notice with the Court that they had no intentions of enforcing the State statute against the Booby Trap until the Federal District Court that we were in front of ruled on all the issues.  In turn, Benjamin & Aaronson, on behalf of the Booby Trap filed a Motion to Withdraw its request for a preliminary injunction.  The combination of these two documents postponed the preliminary injunction hearing and instead the State statute is not going to be enforced against the Booby Trap until a trial of all of these issues can be had sometime next year.  So, as of right now the Booby Trap in South Miami is open for business, up and running and showing its neighbors that there is no reason to fear adult entertainment, that we do not cause economic blight, that we do not ruin the neighborhood, that adult entertainment is just business like everybody else's business and we do not cause adverse secondary effects.