On May 3, 2010, the Detroit City Council passed an ordinance that tightened the rules for strip clubs that operate within the Detroit city limits:
The ordinance prohibits nudity and only allows dancers to perform topless.
The ordinance requires that topless dancers remain on a fixed stage at least 18" high, in full view of the entire club. (No lap dances, no VIP rooms.)
The ordinance prohibits a dancer from touching a patron or a patron’s clothing. This prohibition on touching appears to apply at all times, even when the dancer is off stage and fully clothed.
The ordinance prohibits clubs from being open after 2AM.
The ordinance imposes strict licensing requirements for all club employees, not just dancers.
This ordinance does not affect those clubs operating outside the city limits. (You can find a list of the clubs inside and outside city limits on my home page.)
Although it was technically effective immediately upon passage, enforcement of the ordinance did not begin until late August 2010.
On August 27th, just after enforcement began, the Penthouse Club filed a complaint in the Michigan Eastern District Federal Court. The complaint attacks the license fees imposed by the ordinance because they are excessive and because they only apply to entertainers in adult entertainment establishments (strip club dancers) and no one else. It attacks the limitations imposed on dancing--no VIP rooms, no contact even when clothed--as not being justifiable under the "secondary effects" doctrine and as being overbroad.
Complaint filed in 6th District Court by The Penthouse Club
September 3, 2010
Motion for a Prliminary Injunction filed in 6th District Court by The Penthouse Club. The attached brief lays out the arguments that Penthouse makes, hoping to convince the judge that they will ultimately prevail in this matter and that, therefore, a preliminary injunction should be issued temporarily prohibiting the enforcement of the ordinance.
A Motion to Seal and a Motion to Strike are filed, asking the Court to seal and strike (delete) the previous Ammended Complaint from the record. Apparently the Penthouse lawyer never meant to send this in and he says that it contains errors and "misidentifies the parties" in the lawsuit. It seems that the Starvin' Marvin's guys don't want to be part of the suit after all.
The City of Detroit files its Answer and Affirmative Defence to Penthouse's original complaint. This filing includes 94 exhibits, which are all listed at the end of the document I've posted here. I have not downloaded and posted the exhibits themselves, however. If you really want to read any of those, you can find them in the Court's Electronic Case File system. (See the Court Records section below for instructions on how to access that.)
A status conference is scheduled for November 2, 2010, at 2:30 PM in front of Judge Cohn at the Theodore Levin U.S.
Courthouse, 231 West Lafayette Boulevard in Detroit.
November 5, 2010
Judge Cohn issues a scheduling and consolidation order:
Which consolidates a case that Timothy Murphy, the lawyer for the Penthouse Club, filed on behalf of the Erotic City club, together with the Penthouse case. (The original case number for the Erotic City Case was 10-cv-13943.)
Which gives the plaintiffs (Penthouse and Erotic City) 14 days to add a count to their complaint which challenges the fees charged under the ordinance.
Which gives the defendent (City of Detroit) 45 days in which to file a motion for summary judgement against the complaint.
Which tells the plaintiffs (Penthouse and Erotic City) that they'll need the permission of the Court if they want to depose the members of the City Council in this case.
November 19, 2010
Penthouse and Erotic City file their amended complaint, adding a challenge to the fees charged under the ordinance.
The City files a Motion for Judgement on the Pleadings asking the court to dismiss all or parts of the case against it based on the pleadings (the briefs) that have been filed so far. The City says that some of the provisions that the Clubs complained about when they filed their complaint don't apply to adult cabarets and therefore the Clubs can't contest those things, i.e., the clubs don't have the necessary "standing" for those issues. As to the rest of the stuff in the complaint that does apply to adult cabarets, the City says that what it is doing is constitutionally permissable. They cite a bunch of precedents to support that position, including the case filed (and lost) against the Grand Rapids ordinance.
The Court has scheduled a hearing on the Motion for Judgement on the Pleadings for April 27th at 2:00pm before District Judge Avery Cohn. The hearing will be at the Theodore Levin US Courthouse, 231 W Lafayette Blvd., downtown Detroit.
The City has until March 25th to file a response to the Response that Penthouse and Erotic City filed on 2/22.
March 24, 2011
The City files their response to what the clubs said in their brief against throwing the case out. The City says:
The club's lawyers haven't done a thorough job:
Previous case law (precidents) require that the clubs not only prove that some of the information about the "secondary effects" that the City Council relied on when it passed this ordinance was incorrect in order to throw out the ordinance, they have to prove that all of it was incorrect. The City says that the clubs' lawyers have only done a partial job. They haven't refuted every study that the City used.
The club's lawyers are using old, out-of-date, crap studies to refute the City's "secondary effects" studies:
Since Dr Lintz's material on the flaws in "secondary effects" studies that cities use to justify strip club ordinances has been rejected by so many other courts in so many other cases, it should all be ignored by this court too.
The club's lawyers are incompetent:
Since they have not cited any cases that support the other claims they have made, those claims should be ignored.
The next step is the hearing on the Motion for Judgement on the Pleadings scheduled for April 27th at 2:00pm before District Judge Avery Cohn. The hearing will be at the Theodore Levin US Courthouse, 231 W Lafayette Blvd., downtown Detroit.
Be there, or be square.
July 14, 2011
The ruling on the Motion for Judgement on the Pleadings has been filed. It is a "Stipulated Order" which suggests that this ruling was worked out between the atorneys for the City and the clubs before being signed off by the judge. The order throws out everything except for the questions about club and employee license fees. Are these constitutional and do the amounts charged match up with what the ordinance itself requires? The ruling also allows the validity of the “secondary effects” analysis done by the City Council to be examined at trial.
August 16, 2011
The final ruling granting the City's Motion for Judgement on the Pleadings has been filed. In this ruling the Judge finds that the clubs did not meet their burden of proving that all of the “secondary effects” information that the City relied on was invalid. The ordinance is upheld.
All that remains is the accusation that the fees that are part of the ordinance were not based on a reasonable assessment of the costs they are meant to recover. That bit may still go to trial. A status conference will be held October 3rd to set the schedule for that.
October 4, 2011
At a status conference held on 10/3 the judge sets March 30, 2012, as the cut-off date for discovery in the case concerning the validity of the fees that are part of the ordinance and schedules a pretrial conference for May 8, 2012.
October 18, 2011
The clubs file an amended complaint that describes the problems with the fees that the City is charging. These issues with the fees are the sole remaining issue in this case. The clubs maintain that these fees have not been set in accordance with the way the Ordinance says they should be set. They also contend that these fees represent a prior restraint on free speech, i.e. sexual expression, in violation of the First Amendment.
January 26, 2012
The City files its answer to the amended complaint. They respond that the fees were, in fact, set properly, in accordance with the provisions of the Ordinance. They further state that there is no restraint on free speech since there are no SOB (sexually-oriented business) fees or licenses required if the club does not sell alcohol. It's only when sexual expression is served up alongside alcohol that fees must be paid.
May 9, 2012
After a status conference with the parties the Judge orders the City to file a report that details the expenses that the City actually incurred to administer and enforce the ordinance during 2011. This would tend to show whether or not the fees being charged for the SOB licenses meet the provisions of the ordinance, which says that the fees are intended to cover the City's costs. The report is due in 30 days.
After a status conference with the parties the Judge sets March 25th as the trial date on the questions about the validity of the fee amounts the City is charging for licensing.
I have made the important case documents available in the table above. These documents come from the US District Court’s Case Management/Electronic Case File system. The CM/ECF system can be accessed on the internet via PACER, Public Access to Court Electronic Records. You must register with PACER and there is a fee of 8¢ per page for each search you perform and each court document you read. After you have registered you can find this case in the Eastern District of Michigan’s CM/ECF system. The case number for this case is 10-cv-13435.
“Laura Lee Demery, Inc.” is the name of the corporation that owns this club. Laura Lee Demery, as the President of that corporation, signs the annual report filed with the State of Michigan. David Draper's office is the registered agent for the corporation. Draper is an attorney who represents several strip club owners. Including the Haidar brothers (the Starvin' Marvins strip club chain.) Does Laura Lee really own this club? Who knows. The 1998-2003 annual reports filed with the State list her as President, Secretary and Treasurer, and give her address as:
Laura Lee Demery
3656 Seagull Bluff Drive
Virginia Beach, VA 23455-1722
Lawyer: Timothy P. Murphy
20816 East 11 Mile Road, Suite 111
St Clair Shores, MI 48081-1578
The Penthouse Club
Owner: Alan Markovitz
Markovitz is also the owner of the Flight Club and TUSCL, The Ultimate Strip Club List web site that recently ranked Flight Club as the #1 club in the country. Markovitz published a book about himself called Topless Prophet, The True Story of America's Most Successful Gentleman's Club Entrepreneur. It was released in 2010 and you can find it in our Library.
Lawyer: Timothy P. Murphy
20816 East 11 Mile Road, Suite 111
St Clair Shores, MI 48081-1578