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Posted on 10/02/2002 7:33:11 PM PDT by Tumbleweed_Connection
It's the last dance for Babe's.
The attorney for the totally nude dance club located in Wichita County has filed a petition with the U.S. Supreme Court asking the court to review and overturn an April opinion by a federal appeals court that upheld restrictions placed on the club by the County Commissioners Court.
The petition was filed Sept. 13 with the Office of Clerk of the Supreme Court.
Repeated attempts to contact Gerald Hopkins, the attorney representing William Essary, the owner of Babe's and LLEH Inc., were unsuccessful Friday and Monday.
Assistant District Attorney Doug Baker said Monday he will be filing the county's response to the petition within a week or so, but doubts the Court will agree to hear the case.
"Four judges have to agree to hear the case. If he (Hopkins) can't convince four judges to hear the case, it's effectively over," Baker said.
The petition to the Supreme Court is not unexpected, he said.
"I kind of figured he was going to do this," Baker said.
Essary had filed suit against the county in early 2000, claiming the new regulations made it impossible for his business to remain profitable and were designed to drive him out of business.
In its April opinion, the Fifth Circuit Court of Appeals reversed most of the rulings stemming from a September 2000 hearing before federal District Judge Jerry Buchmeyer that overturned county regulations concerning sexually-oriented businesses operating inside Wichita County.
In both courts, the case centered on how much a government can regulate or control free speech - nude dancing - in order to protect the general public from negative effects of that speech, such as crime or disease.
Essary bought a former liquor store on South McKinney Road in eastern Wichita County in June 1999, remodeled it and opened for business in early November 1999. On Dec. 6, 1999, the Commissioners' Court passed regulations that required sexually-oriented businesses to be located at least 1,500 feet from any childcare facility, school, private home, hospital, public building, park or church, and also required any dancer performing in the nude to do so with at least a six-foot buffer zone between themselves and any patrons.
In February 2000, the Sheriff's Department began enforcing the regulation and filed complaints against several of the dancers as well as the owner. However, those facing charges were allowed to turn themselves in and were almost immediately released after posting bond.
There were other regulations as well, but these were the two most crucial ones, at least according to both Buchmeyer and the Fifth Circuit. Buchmeyer ruled a three-foot buffer would be constitutional, but a six-foot buffer zone was not. He also ruled the 1,500-foot distance rule was unconstitutional because the county was unable to prove there was any legitimate reason to require such spacing.
The Fifth Circuit overturned Buchmeyer's ruling in April 2002, saying the county had a right to enact such controls on such entertainment because the regulations do not specifically ban nude dancing in the county, but focuses on the "sources of the evils the [County] seeks to eliminate" without banning or restricting free speech in any significant manner. However, the appeals court did not rule on regulations pertaining to "partially-nude" dancing or required disclosure forms.
Baker said he was confident that even if the Supreme Court did agree to hear the case, they would uphold the appeals court's decision.
"The Fifth Circuit is usually a pretty wise court," he said.
Web News Editor Jeff Hall may be contacted at (940) 763-7596, (800) 627-1646, ext. 596, or by e-mail at hallj@wtr.com.
I am no fan of strip clubs, but this seems excessive to me.
You people who don't listen to John Denver songs drive me nitso.
Let's see here. Where could he possibly have been a Wichita Lineman?
Do think it just might have been somewhere in Kansas?
Let's get Dorothy and Totto to help us us with this...
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