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Court Strikes City's Adult Entertainment License Law

By William Vogeler, Esq. on May 03, 2018 | Last updated on March 21, 2019

The way the appeals court tells it, the Gentleman's Playhouse decision is just a license case.

In American Entertainer, LLC v. City of Rocky Mount, the U.S. Fourth Circuit Court of Appeals describes a dispute over the city's licensing requirements for adult entertainment. The strip club said the local ordinance gave the police chief too much discretion to deny licenses.

The club also complained about First Amendment violations, age restrictions and other concerns, but the appeals court wouldn't have it. Stripped to the basics, the decision is about a business license.

'Sexually Oriented Businesses'

Rocky Mount, a North Carolina city famous for connections to novelist Jack Kerouac and jazz man Thelonious Monk, is home to more than 50,000 residents. Concerned about other forms of entertainment, the city enacted a licensing law for adult businesses based on "serious objectionable operational characteristics."

Specifying "sexually oriented businesses" included "fondling or other erotic touching of human genitals, pubic regions, buttocks or female breasts," the law authorized the police chief to issue or deny business licenses. American Entertainment, which has owned and operated the Gentleman's Playhouse there since 2002, sued when the city tried to enforce the law.

A trial judge threw out the case, but the Fourth Circuit had a different take on it. The appellate judges said the trial court was right about everything but the license.

"Although mindful that Rocky Mount has a valid interest in ensuring compliance with all laws, we agree with American Entertainers that the denial provision vests impermissible discretion in the police chief to choose on a case-by-case basis which laws apply in reviewing a particular application and thus is too broad to survive constitutional scrutiny," the appeals court said.

Prior Restraints

The appeals panel said licensing schemes preclude expression until certain requirements are met, and that makes them prior restraints.

Because Rocky Mount's ordinance authorized the police chief to preclude expression too broadly, it amounted to a prior restraint. The appeals court said said it was insufficiently "narrow, objective, and definite" to pass constitutional muster under Shuttlesworth v. City of Birmingham.

The Fourth Circuit struck the licensing scheme and remanded to the district court to determine how to sever it from the rest of the ordinance.

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