On July 1, 2001, a new State Statute went into affect. This statute makes it unlawful for any adult establishment to be within 2500 feet of a public or private school, with two exceptions. The first exception allows those establishments existing as of July 1, 2001 to remain where they are and the second allows the municipality where the adult club is located to waive the 2500 requirement.
Many of us in the adult entertainment and First Amendment fields have believed that law is unconstitutional. However, an attack on this law would be difficult because first one would have to attack either the city or the county ordinances that also deal with distance separations and be successful in those challenges, before this issue would be ripe.
Last month however, the Booby Trap in South Miami was put in the position of having to challenge that State statute. The reason for this, from a procedural standpoint, is that the City of South Miami had no adult entertainment ordinances of its own. Therefore, the only prohibition against the Booby Trap opening up where it did, would be and was the State statute.
Many of you may have seen television clips dealing with this matter and others of you may have read the same in the newspapers. Unfortunately, whether the electronic media or the print media, neither vehicles seemed to fully grasp the arguments and issues and although the reporting was intensive, the stories never seemed to be directly on point.
Most of the stories dealt with the issue of whether the Booby Trap is within the 2500 feet of the school or not. Yes, this is one of the issues, but it is by no means the major issue. As to this issue, the bottom line is that the Booby Trap is within 2500 feet of a school or outside of 2500 feet of a school depending upon whether the measurement is from property line to property line, property line to front door, door to door, as the crow flies, or pedestrian right-of-way. The State statute does not speak to how the measurement is done or is to be conducted which brings us to two of the challenges for the Statute and its application against the Booby Trap that Benjamin & Aaronson brought. One, the State statute is unconstitutionally vague because it does not speak to how the measurements are to be done and where they are to be measured from or 2) since the State statute is silent as to how the measurements are done and since the Booby Trap under some of the measurements is outside of the 2500 feet, does that mean that the Booby Trap must be classified as being legal?
The other issue, pertaining specifically to the Booby Trap, is whether or not the location had adult entertainment prior to July 1, 2001. Booby Trap through Benjamin & Aaronson have contended and do contend that in fact adult entertainment was taking place on a continuing basis since 1995. The City disputes this. This however, brings up other constitutional issues dealing with the statute. Since the statute says that you have to be in existence as adult prior to July 1, 2001, the issues remain as: How often did you need to be adult entertainment prior to July 1, 2001; How soon in time before July 1, 2001 did the establishment have to have adult entertainment; and does the establishment have to have adult entertainment after July 1, 2001 to now be allowed to have adult entertainment; and if so how often after July 1, 2001 did it need to have adult entertainment?
As to the pure constitutional challenges, Benjamin & Aaronson have also challenged the State statute as it furthers no substantial government interest and is not narrowly tailored. In essence, what we are saying is that the legislation was passed for no reason and if there was a reason that is legitimate, the 2500 feet distance separation is too great and is not needed to further that substantial government interest.
As to the status of this case, we were prepared to have a preliminary injunction hearing where these issues were to be litigated. Fortunately, the nature of some of these claims made it quite impractical and logistically impossible, to litigate these issues at this time. Nonetheless, we were prepared to do so.
At the eleventh hour, the City filed a notice with the Court that they had no intentions of enforcing the State statute against the Booby Trap until the Federal District Court that we were in front of ruled on all the issues. In turn, Benjamin & Aaronson, on behalf of the Booby Trap filed a Motion to Withdraw its request for a preliminary injunction. The combination of these two documents postponed the preliminary injunction hearing and instead the State statute is not going to be enforced against the Booby Trap until a trial of all of these issues can be had sometime next year. So, as of right now the Booby Trap in South Miami is open for business, up and running and showing its neighbors that there is no reason to fear adult entertainment, that we do not cause economic blight, that we do not ruin the neighborhood, that adult entertainment is just business like everybody else’s business and we do not cause adverse secondary effects.