In a setback for cities trying to crack down on adult businesses, a state appeals court on Thursday tossed out convictions against seven Anaheim lap dancers, saying the city's strict ordinance against touching patrons is illegal.
In a precedent-setting ruling, the court said Anaheim went too far by making touching a criminal act punishable by jail time. Anaheim's ordinance is considered one of the toughest in the state, and the case was being watched closely by other cities attempting to regulate adult businesses.
The decision cast doubt on the more than 30 convictions city prosecutors have won against lap dancers and strip-club employees over the last three years. How the ruling affects ordinances in other cities is also unclear.
Under the ruling, cities that ban touching can only enforce the law by modifying the permit of the business involved and not by charging individuals with criminal acts.
"Anaheim would be better served if law enforcement concentrated instead on unsafe amusement rides," said attorney Roger Jon Diamond, who represented the dancers.
Anaheim officials expressed disappointment at the ruling and denied that they were singling out adult businesses for unfair scrutiny.
"We enforce the law equally to all businesses," Senior Assistant City Atty. Patrick Ahle said.
The appeals court also threw out prostitution convictions against the lap dancers, saying the jury was wrongly instructed by the trial judge not to consider whether lap dancing is a form of artistic expression.
State law does not require that sexual intercourse occur for prostitution charges to be filed.
"First Amendment concerns naturally arise when performers are criminally prosecuted," the court said. "Erotic performances, even such relatively tame ones as Sally Rand's fan dancing, Gypsy Rose Lee's striptease, and Patrick Swayze's dirty dancing, are inevitably designed to sexually arouse or gratify."
According to court records, undercover police visited the Sahara Theater in a strip mall in Anaheim on two days in May and September 1997. Using hidden cameras, they videotaped the employees performing $10 lap dances on customers. The scantily clad dancers brushed their bodies against the fully clothed patrons.
The city later charged seven dancers with violating city ordinance and state prostitution laws. Two managers were also charged with aiding and abetting, and were convicted. The appeals court reversed all convictions and ordered the prostitution charges retried with instruction to jurors to consider artistic expression.
Anaheim officials are now deciding whether to appeal to the state Supreme Court.
Employees at the Sahara Theater welcomed the news.
"We're making men happy," said Laura Davis, 27, who's worked as a strip dancer for six years. "It's supposed to be a fantasy; that's what they come here for."
USC law professor Bruce H. Gross said Anaheim's law might have been intended to send a message.
"Anaheim is the home of Disneyland and Knott's Berry Farm," he said "They want tourism and they don't want anything that bothers tourism. They are trying to make a statement."