Recent Broward Law Blog Features

Tuesday, February 3, 2009

Signs, Signs, Everywhere a Sign

County Wants Strip Club Sign Taken Down

By Norm Kent

As I reported last week, the First Amendment Lawyers Association is meeting in New Orleans, and one of the cases they are celebrating is the victory Jamie Benjamin and Danny Aaronson won in reaffirming the legal principle that a 24/7 dorm is not necessarily a business so as to make it come within city zoning requirements. They are talented lawyers.

The key cases on point, the’ Voyeur Dorms’ cases, were won in Orlando and Tampa. The recent case was referred to as ‘Son of Voyeur Dorm’ and involved Miami zoning. So many things that seem new are a replay of what already was.

Anyway, flash forward today to Nassau and Queens County, New York; Rockaway Boulevard by JFK Airport. Nassau County has filed a law suit against a strip club in Queens, arguing that the club's risque billboards featuring a nearly naked woman are a public nuisance and should be removed.

The suit, filed Monday in State Supreme Court in Mineola, names the operators of the Platinum Club and the owner of the property, and asks that the two signs be taken down. "The impact of the offense is on the citizens of Nassau County," said Nassau County attorney Lorna Goodman. So even though the sign is not even in Nassau, she is suing on behalf of their community.

It is really too bad Ms. Goodman is not part of the First Amendment Lawyers Association. If she had been, she would have gotten the same email I did from our list serve. She would have seen that a South Carolina United States District Court Judge had just basically invalidated an identical ordinance the day before.

Goodman said the image violates a section in New York's penal code that prohibits the display of graphic images that appeal to a "prurient interest in sex." It's too sexy a sign, she says. New York City Councilman James Sanders Jr., who represents the area that contains the club, said he welcomes the suit and added that the city planned to file an amicus brief. As if that is all either New York City or Nassau County has to worry about.

Bans on commercial expression tend not to survive First Amendment scrutiny. Ordinances restricting the content of signs are more likely to fail than not. I never particularly liked the sign on West Broward Boulevard of the naked hairy guy selling carpet, but then I never asked the City of Fort Lauderdale attorney to sue to get it removed either.

Meanwhile, in South Carolina, Judge Cameron Mcgowan Currie entered the Order granting the adult nightclub an injunction against a similar sign ordinance for overbreadth. The case is Carolina Pride vs. McMaster. It is on the PACER system. The opinion outlines how the city’s ordinance fails the four pronged test for limiting commercial advertising. Someone needs to email it to the Nassau County attorney.

The same thing has been tried here, years ago, in Pompano, in Oakland Park, and other cities, usually without success. If it is a lawful business; if the sign does not provide for visual distractions which impair motorists; if it does not impede a substantial state interest; and the restriction on speech is greater than it needs to be, the ordinance is doomed to fail. It is the way of the law.

Once again we are witness to the warriors of morality waging their battles against sin. They want to impale the breadth of the first amendment upon their legislative swords. It happens in New York and it happens in Broward County. It is the way we have been.

Constitutionally protected businesses, whether they are adult clubs or rock clubs, cannot be targeted by statutes which are in effect, an attempt to destroy the businesses themselves. There is more visual eroticism on MTV than the Rockaway Boulevard sign, more sexually enticing displays at a Madonna concert.

In South Carolina Monday, a judge entered an injunction allowing the signs on I-95 to remain up pending a final hearing. The decision, though, will be heard in a Nassau County, New York, courtroom very soon, and undoubtedly, on a day as yet unknown, somewhere in Broward County. It is the way of the world.

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