Suggesting that adult businesses are responsible for human trafficking, Florida Governor Ron DeSantis signed legislation preventing anyone under 21 from dancing or working in any adult business, including clubs and even retail stores. ED legal correspondent Larry Kaplan interviews Gary Edinger, who is representing Jacksonville clubs against this draconian law.
(NOTE: This story appears in the July 2024 issue of ED Magazine.)
Why let the facts get in the way? Despite the paucity of evidence tying adult nightclubs to sex trafficking, the City of Jacksonville and the State of Florida are determined to prohibit entertainers under the age of 21 from dancing in adult nightclubs.
Florida Governor Ron DeSantis recently signed legislation preventing dancers and other workers under 21 from working in adult businesses statewide, including clubs and retail stores.
Last year, US District Judge Timothy Corrigan of the Middle District of Florida upheld a similar Jacksonville ordinance prohibiting exotic dance performers under 21. Fourteen bikini bars, one juice bar, and several exotic dancers are challenging that ordinance. According to the complaint, the city’s age restriction impacted as many as 100 performers.
On June 6th, a panel of the 11th US Circuit Court of Appeals heard oral arguments on the clubs’ appeal of Judge Corrigan’s ruling. Florida First Amendment attorney Gary S. Edinger represents the Jacksonville clubs and entertainers in that ordinance challenge.
Edinger’s brief emphasized the fact that “there had never been an arrest for human trafficking at an adult club in Jacksonville.” The brief goes on to explain: “In a misguided effort to crack down on human trafficking, the city of Jacksonville has imposed a unique ban which targets only speech rights without establishing any real nexus to the hypothesized crime; it restricts only the speaker and not the offender.”
City lawyers argued that the ordinance does not infringe on First Amendment rights but aims to combat the potential for human trafficking in clubs – whether or not there is a present record of such crimes.
ED Magazine Legal Correspondent Larry Kaplan spoke with Florida First Amendment attorney Gary S. Edinger about the nature of the Jacksonville ordinance and the long history of litigation with that city.
ED: Has the city always been at odds with the adult clubs? What led up to this lawsuit?
Edinger: Jacksonville has been at war with its adult clubs since at least the 1970s (Erznoznik v. City of Jacksonville was an early case involving drive-in theaters back when there still was such a thing). My fight with Jacksonville started around 1995, and it was a rare year since then when I did not have an active federal suit against the city on behalf of its clubs or bookstores.
ED: What is the history of this lawsuit before it got to the Appeals Court?
Edinger: This case started in 2019 when the city began arresting performers for “costume violations.” Persons accused of violating city codes are supposed to receive a notice to appear (NTA) – essentially a ticket. About a dozen years earlier, I had sued the city for precisely the same police action and obtained a Federal consent order barring the practice and requiring the city to issue an NTA rather than arresting performers. When we filed the 2019 complaint, we alleged that the city was in contempt of court for violating the old consent order.
Shortly thereafter, the city amended its code to impose a licensing requirement for dancers, which also barred performers under the age of 21. We challenged that new ordinance and several provisions from the original adult code. We obtained two preliminary injunctions that delayed the implementation of the dancer provisions until last year. Much of the original adult code was also thrown out, particularly the various fines and penalties. While an adult code is still in place, it is largely unenforceable because the city is barred from imposing those penalties.
We prevailed on about 85% of our claims. Still, Judge Corrigan upheld the under-21 ban and ruled against us on two technical attacks on the newest licensing provisions (prior restraint arguments involving maintaining the status quo and prompt decision-making).
ED: Can you tell us about how the oral argument went?
Edinger: About as well as an argument could go. The panel was extremely interested in the issues, so the argument lasted 10 minutes over the allotted time. Two judges seemed particularly concerned about whether the under-21 law represents a content-based restriction on speech. We had argued that the ban on performers under 21 was subject to strict scrutiny because it was not a traditional time, place and manner restriction. We also argued that the law could not survive intermediate scrutiny because it wasn’t narrowly tailored. The panel’s questions didn’t focus on narrow tailoring. Instead, they asked me whether the law could survive in light of Reed v. Town of Gilbert and asked the city’s attorney why it was not obviously content-based.
A good argument does not automatically translate into a successful appeal. There are several pitfalls for us out there. One is a recent Fifth Circuit case out of Texas, which dismissed an appeal for lack of standing and mootness as the performers had all “aged out.” That’s a common problem, given how slowly federal cases proceed. However, the clubs in Jacksonville argued that the law impacted them as producers and promoters of exotic dance so that the case would survive whether or not any dancers were still under 21.
And, of course, it’s entirely possible that the judges intended to rule against the clubs and were just toying with me at oral argument for sport!
Note: In March, the Florida legislature passed the corresponding statewide age restriction (HB 7063). The bill, scheduled to take effect on July 1, tackles a range of human trafficking concerns, referencing the decision in the Jacksonville case as well as litigation over age restrictions in Louisiana and Texas.
Two other states, Texas and Louisiana, have laws imposing age limits for employees and entertainers of adult establishments. Several other states are considering such legislation.
Under the new Florida law, people under 21 cannot work in adult entertainment establishments. Employing or allowing people under 21 to work in the establishments could result in second-degree felony charges.
Edinger advises that he plans to challenge the new Florida law. That suit should be filed when or immediately after the law takes effect on July 1.
Gary S. Edinger has a general civil practice handling everything from corporate transactions to defamation suits to wills. However, the bulk of his practice is devoted to First Amendment litigation for adult clubs, retail stores, billboard companies, political activists and controversial speakers of every kind. Mr. Edinger is a partner in the Benjamin, Aaronson, Edinger and Patanzo PA First Amendment Law Firm. Contact Gary S. Edinger at (353) 338-4440 or email GSEdinger12@gmail.com.
Larry Kaplan has been the Legal Correspondent for ED Publications for 24 years. Mr. Kaplan is a broker in the sale and purchase of adult nightclubs and adult retail stores and the Executive Director of the ACE of Michigan adult nightclub state trade association. Contact Larry Kaplan at (313) 815-3311 or email larry@kaplanclubsales.com.
