February 11, 1999

Table dancing, 10 feet away

By ANDREW BERGH
Special to the Journal

Will table dancers be next on the endangered species list?

That's probably what Pierce County officials were hoping in 1994 when they passed an ordinance regulat- ing erotic dance studios. And given an appeals court's recent ruling that the law doesn't violate the First Amendment right to free speech, the county's leaders may get their wish.

Some of the evils associated with erotic dance clubs are drug deals, prostitution, and simulated sex acts, according to investigations conducted in 1992 and 1993 by local law enforcement agencies.

In response to these findings, the following year Pierce County lawmakers passed a comprehensive scheme that was pointedly directed at these purveyors of live adult entertainment.

The ordinance defines "erotic dance studio" as a "fixed place of business which emphasizes and seeks, through one or more dancers, to arouse or excite the patrons' sexual desires." It sets licensing requirements for operators, managers and dancers. It sets standards for denying and revoking licenses. And it imposes penalties on those who violate the ordinance.

One would think that having to jump through a few extra hoops to own, manage or perform at an erotic dance club wouldn't be that big a deal.

But what really caused a firestorm of protest were two additional requirements.

First, the Pierce County law says dancers must be at least 10 feet away from patrons. And to further reduce the opportunity for sexual contact between entertainer and customer, the law prohibits "direct tipping" of dancers.

That means patrons can only tip indirectly through someone else.

Crying foul, the owner of Fox's, an erotic dance studio in Tacoma, and Kathy Johnson, one of its table dancers, struck back. In 1994, they filed suit in Pierce County Superior Court to have the newly passed ordinance declared unconstitutional. The two plaintiffs also sought an injunction to prevent the county from enforcing the law, as well as money damages for lost revenue and income.

Two years later, in 1996, the county successfully moved to dismiss plaintiffs' claims.

In support of its motion, the county offered a clandestinely taken videotape depicting sexual contact at two different adult nightclubs.

The county also produced a transcript of the public hearing that was held before the law got passed. At that hearing, undercover cops had graphically testified about the nature and frequency of sexual contacts between patrons and dancers at erotic dance studios.

(I'll err on the side of good taste and spare you the bawdy details. Suffice it to say, intimate touching was basically the rule, not the exception, and that many contacts led to certain business propositions.)

Johnson and DCR, Inc., the owner of Fox's, responded with a parade of horrors they said would result from enforcement of the ordinance.

Johnson testified that she and other table dancers are essentially independent contractors. In return for paying rent to nightclub owners for using space on the dance floor, they get "paid" directly by the customers.

But you obviously can't get paid if nobody shows up. And that, Johnson argued, was the problem with the 10-foot rule. Since her customers desired an experience that was as erotic as possible, they were taking their business to other studios allowing close-quarters dancing.

DCR had its own tale of woe. Even though adult nightclubs typically charge admission fees and sell non-alcoholic drinks, their primary source of revenue, DCR said, is rent from dancers. (This actually makes sense, as you can only charge so much for a diet Coke.)

So if the 10-foot rule (plus the "no direct tipping" rule) puts the dancer out of commission, DCR reasoned, it's only a matter of time before the nightclubs shut their doors.

In sum, Johnson and DCR argued that if left intact, the Pierce County ordinance would eventually "destroy the market" for alcohol-free erotic dance clubs. The law thus violated their First Amendment rights to free speech, the plaintiffs claimed, since nude dancing is a form of expressive conduct.

With the appeals court unmoved by this argument, table dancing took it in the shorts -- and for a very simple reason.

It's true, of course, that the First Amendment protects free speech. But not all conduct is expressive, said the court. And since table dancers like Johnson can perform the same dance 10 feet away from customers, the court ultimately ruled that free speech rights weren't threatened by the Pierce County law.

So there you have it -- the naked truth about table dancing exposed to the entire world.

Previous columns:

• When Dad must pay support for the child of another man, 01-28-1999
• Caught in the jaws of justice, 01-07-1999
• Stiff defense nulls first offense, 12-10-1998
• The deadman's statute gains a new lease on life, 11-26-1998
• What? Say that again?, 11-19-1998
• Shocking currents of justice, 10-29-1998
• A testimonial toast!, 10-08-1998
• When water is an illegal drug, 09-10-1998