Court Throws Out Anaheim Adult Business Convictions

ANAHEIM —  In a setback for cities trying to crack down on adult businesses, a state appeals court Thursday tossed out convictions of seven Anaheim lap dancers, saying that 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 closely watched by other cities trying to regulate adult businesses.

The decision cast doubt on the more than 30 convictions that city prosecutors have won against lap dancers and strip club employees over the last three years, though it remains unclear how it affects ordinances in other cities.

Under the ruling, cities that ban touching can only enforce those laws by suspending or modifying the business’ license, 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.

The appeals court also threw out the prostitution convictions of the lap dancers, saying that the jury was wrongly instructed by the trial judge not to consider whether lap dancing is a form of artistic expression.

“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.”

The city charged seven dancers at the Sahara Theater with violating the city ordinance and state prostitution laws. Two managers were charged with aiding and abetting. The appeals court reversed all the convictions and ordered the prostitution charges retried with instructions to jurors to consider artistic expression.