Catching a break this spring

Well … it’s almost spring.

The Shark Lounge is a Daytona Beach “bikini bar” that, as the term suggests, offers patrons the opportunity to buy alcoholic beverages while watching female performers dance in bikinis. (The patrons don’t wear the bikinis, you understand.) Bikini bars typically operate where full-fledged adult entertainment or strip clubs cannot.  This might be because the site is not zoned for adult entertainment, or because the chosen format (e.g., one where alcoholic beverages are served) is not permitted by adult entertainment regulations.

Anyway, every so often (as apparently happened at Shark Lounge), a performer will “pull[] aside her bikini bottom and expose[] herself.” Assuming the patron who catches a glimpse is not an undercover police officer, the world probably keeps turning. In this case, however, a few performers “pulled” their move to Daytona Beach’s finest. The question becomes whether the club’s management was wilfully blind to a practice, or whether a few rogue dancers were exploiting the cover of a fleeting event. An acquittal, or a liquor license, usually hangs in the balance.

Last week a Florida circuit court held that the Shark Lounge did not “recklessly, knowingly or intentionally” cause or allow some of its dancers to expose themselves:

[T]he City contends that the operators are liable as a matter of law for the performers’ violations of law, even if the operators of the bar did not directly cause or permit the wrongdoing. In essence, the City is arguing that the presence of illegal activity on the business premises justifies code enforcement action against the operator, whether the operator knows of or controls the perpetrator. This notion is not supported by our concepts of due process. In order for the City to pursue code enforcement action against the owner or operator of a business for illegal activity that occurs at the business, the City must show that the owner/operator either knows of the activity or controls the activity and takes no action to prevent it. See, Red Eyed Jack, Inc. v. City of Daytona Beach, 165 F.Supp.2d 1322 (M.D. Fla. 2001). Here, the evidence shows that the business operator was unaware of the particular violations in question. In fact, these particular violations occurred in such a way that the business owner could not have seen or prevented these violations. Code Enforcement against the business owner for crimes by an errant employee/contractor run afoul of our concepts of due process. Lady J. Lingerie v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999). The Court recognizes the City’s legitimate interest in curtailing the secondary effects often associated with such illegal activity, including increased crime, decreased property values and neighborhood blight. While the creative use of code enforcement may be a better way to encourage business compliance with city codes, particularly when, as in the past, anti-nudity code violations were rampant and encouraged in Daytona Beach, no such evidence of business complicity can be found here.

Shark Lounge was more-than-ably represented by Gary S. Edinger, a friend and mentor of sorts.

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