Las Vegas Sun

October 21, 2018

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Judge agrees that erotic dance law is too vague

A judge stripped away Las Vegas' law preventing erotic dancers from "fondling and caressing" patrons during lap dances because it was "too vague" on Friday.

District Judge Sally Loehrer's ruling was requested after city attorneys appealed Las Vegas Municipal Court Judge Betsy Kolkowski ruling that the city's erotic dance code was vague and unconstitutional as she dismissed case against 13 dancers who work at the controversial Crazy Horse Too.

The central issue came down to what exactly constitutes "fondling or caressing" done to sexually arouse a patron.

Loehrer took issue with the fact city attorneys could not explain what touching was legal and what kind of touching was illegal under the law that forbids fondling or caressing to sexually arouse a person.

She asked whether a dancer's hand on the shoulder or hand of the patron could be considered illegal if the patron became aroused since the definition of a dancer as per city code is a person who dances to sexually arouse a patron. Essentially any touch that aroused would be illegal under the ordinance as in the books.

"Why else would anyone go in those establishments?" Loehrer asked the city attorneys. "They're not going for the lighting or the drinks. If people go in there I would assume they are going in to be erotically aroused."

Loehrer allowed, however, that she has "never seen any (lap dances)," adding that that if she lives to be 120 years old she still won't have seen one.

The judge also wondered if a dancer using a boa, scarf or feather to touch a patron could be considered "fondling or caressing" with the intent to sexually arouse a patron. Deputy City Attorney Edward Poleski couldn't say it would or wouldn't be.

For over an hour James Colin, who was representing 12 of the dancers, John Rogers, who was representing one of the dancers, Poleski, Assistant City Attorney Bernard Little and Loehrer tryed to define what constituted fondling and caressing.

Poleski said the city crafted the ordinance in line with a 1986 ruling by the 9th U.S. Circuit Court of Appeals.

At the heart of that case was a Washington law prohibiting affectionate touching between dancers and patrons. At the adult club in question all dancing was required to take place at least 10 feet from the patrons and on a stage raised at least two feet from the floor. Tipping was not permitted.

The city attorney said the appeals court issued its decision saying "fondling and caressing" in order to sexually arouse a patron was illegal but didn't go any further toward defining what those acts were or weren't. Las Vegas followed that model.

He said the 9th Circuit determined that preventing "fondling and caressing" for the purpose of sexual arousal was not a violation of the artistic expression as guaranteed by the First Amendment of the U.S. Constitution.

Colin, however, said the fact that a dancing distance requirement of 10 feet was involved made it an essentially moot point in the case before Loehrer because there is no such distance requirement in Las Vegas.

Colin successfully argued that the inability of the city attorneys to define what kind of touching between dancer and patron was fondling or caressing was all the proof needed to show how "broad, vague and unconstitutional" the ordinance was.

In the end Loehrer determined if herself and four attorneys couldn't figure it out none should "expect some bimbo woman out there strutting their stuff " to understand it either.

Loehrer, who would later clarify she wasn't "trying to infer" all erotic dancers were "bimbos" saying some are very bright and do it so "they can go to college." She later added, however, that if erotic dancers took an IQ test, most of them "wouldn't be up in the Mensa range."

The judge reasoned it would seem to be "a simple thing for the city to define what fondling and caressing is and isn't."

Poleski said the ruling could affect a dozen or so similar cases currently in the city's legal system. He said he would be considering filing an appeal of Loehrer's ruling to the Nevada Supreme Court.

Until then it would seem Loehrer's ruling would prevent any cases charged for illegal "fondling and caressing" under the erotic dancer code from being charged.

"My position would be to tell the police to stop (charging dancers with the ordinance)" Colin said.

Colin said ultimately the city would have to revisit and redraft the ordinance to clarify what is and isn't acceptable during a lap dance for it to stand up in a court of law.

In addition to the cases appealed to Loehrer on Friday, her ruling will also affect seven cases in Municipal Court Judge Cedric Kearn's courtroom. Kearns had sought guidance from the District Court, saying it was unclear to him whether a municipal court judge had jurisdiction over such an issue.

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