We Won! Who won? What was won? Well, after waiting seven months for Judge John
Antoon, III’s ruling in the case of Daytona Grand “Lollipops” v. City of Daytona Beach, Judge
John Antoon III ruled on January 20, 2006, that both the 1981 Ordinance and the 2002 Ordinance
were unconstitutional.
Who won? Well, certainly Daniel Aaronson, the trial attorney for “Lollipops”, certainly
Benjamin & Aaronson and Bret Hartley who have represented “Lollipops” for the last several
years, certainly the other adult clubs in the City of Daytona Beach, and as important, the adult
entertainment industry in the Eleventh Circuit which comprises Florida, Alabama and George
and yes the adult entertainment industry nationwide. Quite honestly, the import of this decision
cannot be overstated.
Although this is not the first time that the adult entertainment industry has won a case
involving the lack of adverse secondary effects and therefore lack of substantial governmental
interest in ordinances, this may in fact be the first time that the adult entertainment industry has
won a case after a trial on the merits. As important, is some of the language in Judge Antoon’s
ruling, that can and will be used by the adult entertainment industry not only in this part of the
country but throughout the country. A brief recap of the history of this case and the ruling of
Judge Antoon shows just how important this case is.
In 1981 the City of Daytona Beach passed their anti-alcohol and nudity ordinance,
prohibiting alcohol and nudity to be in the same place. This ordinance had been upheld as
constitutional on several occasions by various courts. Yet, Judge Antoon, III ruled that under the
current framework and status of the law the 1981 Ordinance was not constitutional any longer.
The significance of this aspect of Judge Antoon’s ruling is that Judge Antoon recognized as
Daniel Aaronson asserted throughout the litigation, that after Alameda Books and Peek-A-Boo,
the law had changed, Ordinances that once were deemed to be constitutional could now be
attacked under the new framework, and that under the new framework the 1981 Ordinance was
unconstitutional. Judge Antoon’s ruling agreed with these premises, and his opinion may just
open the door for attacks in other jurisdictions of Ordinances that have been on the books for
years that may or may not have been upheld as constitutional previously.
In declaring both the 1981 and the 2002 Ordinances unconstitutional, Judge Antoon also
looked at the evidence presented for the passage of the Ordinances by the City and even the
evidence that they brought forth at trial for the justifications of the Ordinances. As Judge Antoon
wrote “that gone are the days when a municipality may enact an ordinance ostensibly regulating
secondary effects on the basis of evidence consisting of little more than the self-serving
assertions of municipality officials”. In writing this, Judge Antoon was reflecting on the fact that
at trial Daniel Aaronson called two recognized experts in the field of adverse secondary effects,
Dr. Dan Linz and Dr. Randy Fisher. On the other hand, the City in its pre-enactment evidence
for both ordinances and even at trial, brought forth no expert testimony, but rather as the Court
noted just self-serving assertions of municipal officers. Judge Antoon obviously ruled that local
studies of an imperical nature, certainly outweigh baseless statements made by local officials, not
supported by data or expertise. This should give hope to all of us especially in the Eleventh
Circuit, but even nationwide, that other judges will follow suit and look at the pre-enactment
evidence by cities of anecdotal comments as being just that and instead rely on scientifically
proven methodology by experts in the field of adverse secondary effects.
Further, although the city had submitted into evidence various police reports and crime
data, the Court again agreed with Daniel Aaronson’s position, that without any comparisons of
that data, having just police reports means nothing. As the Court stated “absence the context that
such a comparison might provide, the City’s data is, as Plaintiff’s assert “meaningless”.
Hopefully, other courts again will follow suit with this rationale and not allow cities to get away
with just putting police reports into evidence as justification for their ordinance, but rather
require comparisons as to whether these police reports do in fact conclude that adult
entertainment establishments cause adverse secondary effects or whether without the
comparisons the data is meaningless.
Judge Antoon, III’s ruling contains numerous lines and quotations that will be beneficial
for the adult entertainment industry. However, one of the most important analysis is that he did
is contained in a footnote in the opinion when he is analyzing the affect of a study done by Dr.
George on the affects of alcohol when coupled with viewing sexually related materials. The City
put Dr. George’s report into evidence for the proposition that when you have alcohol and nudity,
it creates sexual aggression and therefore alcohol and nudity create adverse secondary effects.
Judge Antoon, III wrote as follows: “If Dr. George’s laboratory studies were accepted as
constitutionally sufficient evidence of a link between secondary effects and the combination of
drinking alcohol and viewing nude entertainment, the studies, given their highly general nature,
would presumably function as legal basis for any municipality to enact an alcohol and nudity
ordinance. In the Court’s estimation, such a result would render the legal precedent culminating
in Alameda Books and Peek-A-Boo mere mockery”. “More importantly than Judge Antoon’s
dismissing of Dr. George’s report, is Judge Antoon’s analysis of why Dr. George’s report should
be dismissed. Judge Antoon in essence was saying that the cases of Alameda Books and Peek-A-
Boo set a high enough standard that quite frankly, the normal garbage that city’s use to justify
their ordinances, that cities have been getting away with, for years, are no longer sufficient after
Alameda Books and Peek-A-Boo. If the city is going to win these types of cases they must show
actual adverse secondary effects and not just throw in any garbage the way they have been doing
for years.
As was said at the beginning, this case was a victory for all of us in the adult
entertainment industry. This case will be used around the country to help influence other rulings
to go the same way. This case may help lead to victories in other jurisdictions, but for right now,
the victory in Daytona Beach is amazingly sweet and alcohol with nudity in Daytona Beach is
alive and well.