Ward v. County of Orange

Page 1325

55 F.Supp.2d 1325

William G. WARD, d/b/a Bourbon Street South, Plaintiff, v. COUNTY OF ORANGE, Defendant.

No. 98-428-CIV-ORL-19B.

United States District Court, M.D. Florida, Orlando Division.

April 29, 1999.

Steven Gerald Mason, Law Office of Steven G. Mason, Orlando, FL, for plaintiff.

Joel D. Prinsell, Orange County Attorney's Ofice, Orlando, FL, Linda Sue Brehmer Lanosa, Orange County Attorney's Office, Litigation Unit, Orlando, FL, for Defendant.

ORDER

FAWSETT, District Judge.

This cause came before the Court on the following matters:

(1) Defendant's Motion for Partial Summary Judgment as to Plaintiff's "As Applied" Claims Based on Ripeness or Lack of Jurisdiction (Doc. No. 16, filed January 19, 1999); Defendant's Memorandum in Support of Motion for Partial Summary Judgment (Doc. No. 97, filed January 19, 1999); and Plaintiff's Response to Four Motions for Summary Judgment (Doc. No. 147, filed February 10, 1999);

(2) Defendant's Motion for Partial Summary Judgment regarding Definition of "Adult Performance Establishment" (Doc. No. 98, filed January 19, 1999); Defendant's Memorandum of Law in Support of Motion for Partial Summary Judgment (Doc. No. 99, filed January 19, 1999); and Plaintiff's Response to Four Motions for Summary Judgment (Doc. No. 147, filed February 10, 1999);

(3) Defendant's Motion for Partial Summary Judgment as to the Shifting of the Burden of Proof (Doc. No. 100, filed January 19, 1999); Defendant's Memorandum in Support of Motion for Partial Summary Judgment as to the Shifting of the Burden of Proof (Doc. No. 101, filed January 19, 1999); and Plaintiff's Response to Four Motions for Summary Judgment (Doc. No. 147, filed February 10, 1999);

(4) Defendant's Motion for Partial Summary Judgment as to the Constitutionality of the Orange County Adult Entertainment Code (Doc. No. 102, filed January 19, 1999); Defendant's Memorandum of Law in Support of Motion for Partial Summary Judgment as to the Constitutionality of the Orange County Adult Entertainment Code (Doc. No. 103, filed January 19, 1999); and Plaintiff's Response to Four Motions for Summary Judgment (Doc. No. 147, filed February 10, 1999);

(5) Plaintiff's Motion for Summary Judgment (Doc. No. 133, filed January 26 1999); Plaintiff's Memorandum in Support of Motion for Summary Judgment (Doc. No. 134, filed January 26, 1999); and Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment (Doc. No. 152, filed February 19, 1999);

(6) Plaintiff's Motion for Review of Magistrate Judge's Discovery Rulings (Doc. No. 160, filed March 1, 1999) and Defendant's Response to Motion for Review (Doc. No. 162, filed March 11, 1999);

(7) Defendant's Motion with Memorandum in Support to Strike Late-Filed Affidavit of Kelly Wellnitz (Doc. No. 161, filed March 4, 1999) and Plaintiff's Response to Defendant's Motion to Strike (Doc. No. 163, filed March 16, 1999);

(8) Plaintiff's Motion with Memorandum in Support to Exclude Consideration of Defendant's filings addressing B.G.'s Bar and Crazy Girls for purposes of Summary Judgment (Doc. No. 164, filed March 18, 1999) and Defendant's Response to Plaintiff's Motion to Exclude (Doc. No. 165, filed March 30, 1999);

(9) Notice of Conflict and Unopposed Motion by Defendant for a Trial Date after the First Week of the May Trial Term (Doc. No. 166, filed March 31, 1999);

(10) Defendant's Motion Requesting Court to Decline Supplemental Jurisdiction (Doc. No. 174, filed April 12, 1999); Defendant's Memorandum in Support of Motion Requesting Court to Decline Supplemental Jurisdiction (Doc. No. 175, filed April 12, 1999);

(11) Request by Defendant with Memorandum in Support for Judicial Notice (Doc. No. 179, filed April 12, 1999);

(12) Plaintiff's Motion to Continue Trial Due to Health Problems (Doc. No. 183, filed April 19, 1999) and Defendant's Response to Motion to Continue Trial (Doc. No. 184, filed April 21, 1999).

I. BACKGROUND¹

Plaintiff, William G. Ward, is the owner of a "swimsuit club"² operating under the name Bourbon Street South. According to Mr. Ward, the employees of his club do not perform in the nude.³ (Doc. No. 6, Ward Aff., at 1). In fact, Mr. Ward claims that he "would not care if the hostesses wore long dresses down to their knees or ankles." See id. He also maintains that no alcohol is served at Bourbon Street. See id. at 2.

The simple goal of Bourbon Street, according to Mr. Ward, is the entertainment of customers. See id. In this regard, customers must purchase "Sweetheart Party Packages," ranging in price from twenty dollars to two hundred dollars. See (Doc. No. 1, Compl., Exh. 1). These packages entitle customers to, among other things, nonalcoholic beverages and "slow dances" with Bourbon Street performers, who are called Sweethearts. Mr. Ward theorizes that customers are willing to pay up to two hundred dollars for their clothed Sweethearts to join them in consuming nonalcoholic beverages and slow dances because "[p]eople like to talk to people." See (Doc. No. 6, at 2). He also noted that Sweethearts "make the customers feel good about themselves." See id.

Mr. Ward argues that his club is no different from any other mainstream dance studio with respect to the sexual gratification of the customers. In particular, he complains that Bourbon Street provides no more sexual gratification than Arthur Murray's Dance Studio:

If an older woman wishes to learn to Waltz or "la bamba," she can go to Arthur Murray's and pay to have a man teach her to dance. Of course the woman finds this enjoyable and entertaining, otherwise she would not pay the fee. Does this mean that she is sexually gratified? ... If talking to a woman and dancing with a woman (slow dancing or otherwise) is sexually stimulating then virtually everything in life is sexually stimulating.

See id. at 4. Ultimately, he wonders how a performance can be classified as sexually stimulating "[i]f there is no sex involved." See id.

Defendant, Orange County, presented affidavits painting a much different picture of the activities occurring at Bourbon Street from the one rendered by Mr. Ward. For example, an agent of the Metropolitan Bureau of Investigation ("MBI"), a task force including, inter alia, Orange County law enforcement officers, averred that the Sweethearts at Bourbon Street "would rub their bodies against their male customers, press their genitals against those of the customers, expose their breasts, expose the lips of their vaginas, expose the cleavage of their buttocks, allow the customers to fondle their buttocks and exposed back, and often times would place their hands underneath the customers' shirt or fondle the customer's buttocks" while "slow dancing" with customers. See (Doc. No. 43, Winsett Aff., ¶ 4(e)). Additionally, Sweethearts would dance on an elevated stage when they were not slow dancing with customers. See id., ¶ 4(g). During these solo dances, the Sweethearts "simulated or actually engaged in masturbation of themselves or displayed their buttocks, genitals, or breasts." See id.

Orange County also submitted the affidavit of Frank D'Amico, a former employee of Bourbon Street. See (Doc. No. 44, Exh. A). Mr. D'Amico was employed by Bourbon Street for fourteen months. See id. During his employment, Mr. D'Amico "observed female dancers have their hands inside men's pants or have a towel over a male's penis and proceeded to masterbate [sic] him. Also[,] male customers were permitted to fondle females['] breasts and their pubic area."⁴ Id.

Another former employee of Bourbon Street, Ramona Alma Fields, asseverated that she masturbated male customers while they digitally fondled her vagina.⁵ (Doc. No. 57, Exh. 3-A). Ms. Fields claims that she was instructed to do so by the management of Bourbon Street. See id. Ms. Fields also stated that management observed her masturbating customers almost every night that she worked. See id. Furthermore, Ms. Fields claims that she saw a dancer engage in sexual intercourse with a customer inside Bourbon Street and that she saw other dancers perform fellatio on customers.⁶ See id.

Frequently, dancers displayed the cleavage of their buttocks during slow dances and solo dances. (Doc. No. 45, Scholer Aff., ¶¶ 10, 13-14). A dancer also displayed the "right outer lips of her vagina" to an MBI agent. See id., ¶ 13; see also (Doc. No. 57, Exh. 3-A, Fields Aff.) (stating that dancers revealed their vagina by pulling their panties back). On a different occasion, a dancer displayed her "untaped nipples" to an MBI agent. See id.; (Doc. No. 45, Scholer Aff., ¶ 18); see also (Doc. No. 57, Exh. 3-A, Fields Aff.) (stating that dancers revealed their breasts to customers). Finally, Mr. Ward admitted that the dancers at Bourbon Street were instructed on the "seventeen basic dance steps, including `ring around the posies,' `ride the pole,' `thee babydoll kick,' `cat crawl,' `pole tricks,' `the L'pose', and wave $100 move.'" See (Doc. No. 167, at 13).

The managers and employees who worked at Bourbon Street were employed by Centerfold Management Team, Inc., which is not a party to the lawsuit. See (Doc. No. 167, Pretrial Statement, Admissions, at 12). Moreover, such employees were not directly employed by Mr. Ward and, instead, were paid by Staff Leasing Corporation with which he contracted for services. See id. In addition, the dancers at Bourbon Street were independent contractors who were not paid a salary or wage by Mr. Ward. Finally, Mr. Ward did not file Form 1099s with the Internal Revenue Service for such dancers. See id.

Mr. Ward has not applied for an Orange County adult entertainment license from Orange County.⁷ See id. at 11. In addition, code inspectors from Orange County have never cited Mr. Ward or Bourbon Street for a violation of the Adult Entertainment Code. See id. at 15. Moreover, Orange County's Code Enforcement Board has never held a code enforcement proceeding or taken any action against Mr. Ward or Bourbon Street. See ...