ACLU/NCA defends club relocation bill

ACLU of the National Capital Area
1400 20th Street, NW #119
Washington, DC 20036
202/457-0800

June 11, 2007

The Honorable ____________, Member
Council of the District of Columbia
1350 Pennsylvania Avenue, NW
Washington, DC 20004

Re: 17-109: Relocation of Clubs Featuring Nude Dancing
Consideration on Second Reading

Dear Councilmember ________:

The District of Columbia is obligated as a matter of law and fairness to facilitate the relocation of the clubs displaced by the construction of the new baseball stadium. Please consider the following as you prepare for the Second Reading on Bill 17-109.

Nude dancing such as was performed at the displaced clubs is protected by the First Amendment. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 1981. While clubs featuring nude dancing are subject to legitimate zoning limitations as to where they may locate – just as other businesses are, zoning may not be employed to prevent their continuing to operate. “[W]hen a zoning law infringes upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial government interest.” Schad, 452 U.S. at 68.

The ACLU believes that the displaced clubs should be able to relocate to any commercially zoned district in the city, and not only to areas zoned CM for light industry. Today, clubs featuring nude dancing co-exist without difficulty with other retailers in downtown areas, and there is no reason to believe that the clubs displaced from the ballpark area will operate differently. That a number of them cater to a predominantly gay clientele is not a legally permissible basis for treating them differently.

We particularly object to the provision added to Bill 17-109 prohibiting more than two of the displaced clubs to locate in any ward. The premise of that restriction – like the moratorium on the issuance of additional licenses – is that these establishments create dangerous or other undesirable conditions. We reject that proposition. These clubs have operated peacefully and have been a positive feature of city life for many of our fellow residents. There is no more reason to subject them to a quota system than there is to have a quota on the number of video rental stores in a given ward. And as Judge Posner has noted, “The Constitution does not look down its nose at popular culture even if its framers would have done so.” Miller v. Civil City of South Bend, 904 F.2d 1081, 1098 (7th Cir. 1990). Bill 17-109 should be returned to its unamended form as it was reported out by the Committee on Public Works and the Environment.

However, if you believe that the amended version of Bill 17-109 is the best possible compromise, before giving it your vote, please assure yourself that under its terms the clubs will in fact be able to reopen. We are especially concerned that sites appropriate for relocation may be rezoned to exclude the clubs.

The District of Columbia took the land on which these clubs operated so that other businesses could take their place. It has a clear obligation — not only to the club owners, but also to their patrons — to ensure that the doors of the displaced clubs can reopen.

Thank you for the consideration of our views.

Sincerely,

Johnny Barnes
Executive Director

Stephen M. Block
Legislative Counsel