The Broward County Courthouse has been the subject of many editorials and newspaper
articles dealing with the alleged improprieties of many of the Judges.  In addition to those articles
in the mainstream press, there is also a blog that is run by purportedly some lawyers that centers
around the going ons of the courthouse.  This blog has recently come under scrutiny by the
Broward County Bar Association.  The reason why it has come under scrutiny is that some of the
posts on this blog have been quite derogatory as to the judicial system and many of the Judges. 

     Quite candidly, many of the blogs posts boarder on defamation and others of the posts are
nothing more than scandalous.  Because of the Code of Professional Responsibility, the Broward
County Bar Association believing that the blogs and the website is run by lawyers should come
under its scrutiny as to whether it is appropriate. 

     Before we go any further, we need to point out that one of our associates has been
previously the subject of some of the blogs and as a subject of it what was written about him
certainly has not been flattering.  On a personal note, we have found many of the things written
to be offensive, vile, untrue, and given the anonymity of the writers somewhat cowardly.  To say
that we are fans of this blog could be nothing further from the truth.

     It seems that the purpose of this blog was to reveal the inappropriateness of some of the
relationships between the attorneys within the Broward County practicing area and the Judges
that they come before.  Supposedly, this blog was going to unmask and therefore clean up the
court system to the benefit of the public.  In reality, what it has done is set up those who maintain
and control the blog to having now their own power base.  What they sought to destroy, they
have created in themselves. 

     This blog, somehow takes the high and mighty attitude that they are above the fray and
that truth will illuminate the dark.  Yet, this is the same blog that for no apparent reason took a
young Jewish lawyer's picture and had it morphed into a picture where he was wearing a Nazi
uniform.  How this in anyway is news worthy, is enlightening in the judicial system is beyond
our ability to comprehend.  What it was, was a shameful attack on a detractor of those in control.

     Again, many of the posts are done anonymously.  With anonymity comes power as you
can say what you want to say without repercussions of being accountable for what is said.  With
anonymity comes the bravado to say things that one would not have the courage to say if their
names were attached.  With anonymity comes the ability to slander and liable without the fear of
being held accountable to such acts. 

     With these things in mind, the Broward County Bar Association has taken aim at this
blog.  Even with all that has been said above, Benjamin & Aaronson, P.A. has let the Broward
County Bar Association know that if it comes after the blog, this blog would have its staunchest
supporters in Benjamin & Aaronson. 

     Obviously, it is not because of any preference or treatment the blog has given to
Benjamin & Aaronson.  As noted above, quite to the contrary, our staff has been attacked
wrongfully.  More important than differences whether petty or large with this blog, is the fact that
free speech must be allowed to prevail and the First Amendment protects such poor taste speech.

     If one were required to give their name upon everything that is spoken, many things that
need to be said would remain silent.  If lawyers do not have the ability to speak for fear of bar
sanctions, then those who are in the know and the most suitable to chastise the judicial system
would be muted.  Even though we disagree with this blog and its contents with every fiber of our
beings, we agree on the fact that they have the right to publish, they have the right to speak, and
that it would be wrong to have them silenced. 

     The First Amendment is too important to allow those who pervent it or abuse it to cause it
to be taken away from all of us.  Further, it is more important to champion free speech and press
than it is to silence the few who make a mockery of it.  We will remain on the side of this blog.
We remain on the side of those who use the First Amendment for dubious purposes.  We remain
on this side for one reason and that is to curtail their First Amendment rights only will lead to the
curtailment of other's First Amendment rights.  First Amendment rights should never be
curtailed.  It is the essence of our society.

     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. 

     Last weekend we attended the EXXXCOTIA Convention at the Miami Beach Convention
Center.  For Benjamin & Aaronson, it was a time to see some old friends and make some new
ones.  Most aspects of the adult entertainment industry were present in some form or another.
New porno stars, veterans, distributors, club owners, and even our friends at Xcitement magazine
were displaying nubile young things covered only in delightful body paint or other skimpy attire!
Merchandise made of everything from glass, leather, metal, and gel were sold.  Thousands of
fans were ogling at the adult wares.

The Miami Beach Convention Center collected mega money from the promoters of
EXXXOTICA and we bet that they stuffed hundreds of thousands of dollars into the coffers of
the City of Miami Beach. In an elegant office surrounded by pictures of himself and hundreds of
the famous people who have befriended him, sits Leroy Griffith who owns and operates
"Madonnas" and has been involved in the adult entertainment industry since before most of you
were born.  Leroy is quite frustrated.  His club has nudity, but it not allowed to serve alcohol. 
Those same city officials who stuck their treasury fat from the proceeds of the EXXXOTICA
convention will not allow Leroy to serve alcohol and have his entertainers perform nude on the
same Miami Beach.

It is hilariously ridiculous but understandably not so funny to Leroy.  Here, in one of the
great convention cities in America, it is OK to look at tintalating flesh in the Convention Center,
but not on the stage at Madonnas should he serve alcohol..  What a crazy place!  Those stubborn
city officials don't realize that a nude club with alcohol  on Miami Beach would do more to
attract more convention groups than possibly any other attraction other than the sand that Miami
Beach could offer.

     Every day that sworn enemy of the gentile upscale East Fort Lauderdale gay community,
Fort Lauderdale Mayor Jim Naugle, travels from his East Fort Lauderdale home past a little
convenience store called Rio Vista located in a small strip shopping center on South Federal
Highway.  One day, this little embarrassing village idiot noticed a little sign at Rio Vista
advertising that they sold X rated DVDs and other adult material.  The lame duck mayor who
cannot run again due to term limits, pops his proverbial cork and the next thing we know a code
inspector from the City of Fort Lauderdale files a half-ass citation against the convenience store
alleging it is an illegal sex shop prohibited by Fort Lauderdale zoning regulations as being too
close to a church!

At this point, the proprietors called Benjamin & Aaronson to look into the matter.  First,
there is nothing in any ordinance of the City of Fort Lauderdale that regulates any business called
a "sex shop".  Although the Code Enforcement Division of the City of Fort Lauderdale was
alerted that this charge was all screwed up and there wasn't even a valid allegation of
wrongdoing on paper against Rio Vista, the case languished for months and months until finally
and eventually someone in the city staff heeded the words of their own City Attorney's Office
and dismissed the citation.  All the while our mayor, the pride of Fort Lauderdale and our
national embarrassment, drove by our little "sex shop" two times a day while traveling to and
from work!

Within a few days a second citation was lodged against the store now alleging that it was
an illegal adult business prohibited by Fort Lauderdale Code.  The problem was that there were a
few adult items which made up a small percentage of the stock-in-trade of the store.  However,
by the very definition contained in the Fort Lauderdale Ordinance itself, did not make it an adult
business nor illegal.  The Rio Vista convenience store was no more an adult store than any 7-11
or other convenience store which had a small rack of adult merchandise amongst their other
wares to be sold.  So the little store compiled a thorough and complete floor plan, area
measurements, break down of inventory by percentages and other statistical data in the form of
an affidavit signed by the corporate President and submitted it to the City, proving the lack of the
requisite amount of material which would even come close to making this store an adult use.

On the day of the hearing before the Special Master, the City urged the suavey old retired
Circuit Judge sitting as the Special Master to look at all the evidence presented and make a
decision and dismiss the charges against the store.  Over and over the old codger questioned the
City Attorney about why the City was going forward by presenting evidence to him when they
put on the record themselves that they were satisfied that the premises did not qualify as an adult
store.  He wanted to know why he was the one who would have to dismiss the charges when the
City was putting on the record the fact that they were satisfied based on the Affidavit as it applied
to the Ordinance that the store was not adult.  Over and over again, the old Judge refused to make
any determination and relentlessly kept putting the decision back on the City.  Eventually, the
City dismissed the case themselves and both sides and the Judge left City Hall to return to their
everyday lives.  That day like every other day, the little mayor in his emperor clothes drove home
past the little sex shop which continues to piss him off to no end.

   For the past several years, three adult book and video stores in Miami-Dade County have been fighting the county in order to keep doors on their video viewing booths.  The case originally was before Judge Aldaberto Jordan, United States District Court Judge for the Southern District of Florida, who close to two years ago declared that the Miami-Dade County Ordinance was constitutional.

The bookstores took the fight up to the next level, that being the Eleventh Circuit Court of Appeals out of Atlanta.  Just last month, the Eleventh Circuit Court of Appeals affirmed Judge Jordan’s ruling thereby validating Miami-Dade County’s Ordinance to requires doors off booths.

The bookstores still have the opportunity to take the fight to the United States Supreme Court.  Whether this will be done or not will depend on each individual bookstore as to whether they want to continue the fight.  If the fight is not continued and the ruling stands, doors off the booths in Miami-Dade County will be the order of the day.

In other news, as reported earlier, Daytona Grand  has decided to take their fight up to the United States Supreme Court.  For those of you who do not remember or are unfamiliar with the matter, this is the case out of Daytona Beach in which originally Federal District Court Judge John Antoon, III declared the Daytona Beach nudity and alcohol nudity ordinances to be unconstitutional.  Unfortunately, the Eleventh Circuit Court of Appeals reversed his decision.  In doing so, the Eleventh District Court of Appeals enunciated new standards of law, totally changing the landscape for the states of Georgia, Alabama and Florida.

The Daytona Grand case, not only conflicts with decisions out of other circuits, but also conflicts with decisions within the Eleventh Circuit.  There is no way to reconcile the Daytona Grand case with the Peek-A-Boo and Flanagan cases also out of the Eleventh Circuit.  Based upon these conflicts within the Eleventh Circuit and with conflicts with other cases from other circuits, it is hoped that the Supreme Court will exercise jurisdiction.  Last term the Supreme Court declined to hear cases from around the country dealing with similar  issues involved in Daytona Grand.   It is now hoped that the Supreme Court will recognize that the state of law is so varied throughout the country that it is time that they addressed the issue of adverse secondary effects in regards to adult entertainment and what level of proof is needed for a city to prove those adverse secondary effects.

Lastly, we wish all of you a happy holiday season, good health and a happy New Year.

  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.