Topless dancers perform as legal challenges continue

NORFOLK

Topless dancers in at least two local clubs are continuing to entertain au naturel despite revised state regulations mandating nipple coverings.

The owner of both clubs is involved in a federal lawsuit challenging the state's restrictions on just how much his dancers can bare. The suit, filed by the owners of six local nightclubs, also challenges rules on advertising happy hours and prohibiting gang members and "persons of ill repute" to rendezvous at a club.

At a hearing in the case Tuesday in U.S. District Court, a federal magistrate judge reserved decision on whether Virginia's revised rules, including those pertaining to nude dancing, are constitutional. Two related cases pending before the federal appeals court could decide the matter for him.

"It's an interesting case, but I can't promise too quick a decision," U.S. Magistrate Judge F. Bradford Stillman said at the end of the two-hour hearing.

The group of South Hampton Roads nightclubs sued the state Alcoholic Beverage Control Board last year, claiming its revised rules, and related laws passed by the General Assembly, remain unconstitutional.

Virginia Beach attorney Kevin Martingayle won key court decisions over the past two years that have struck down laws intended to regulate lewd behavior and excessive noise at nightclubs.

The Virginia General Assembly last year passed new laws designed to overcome the constitutional violations. It removed words such as "immoral," "lewd," "indecent," "profane" and "lustful" because of the prior court ruling that they were overbroad and difficult to define.

The new laws and related ABC regulations allow for exceptions to the nudity restriction for "artistic" performances, which the attorneys for the clubs argue is equally difficult to define.

"Who judges whether art or expression has 'serious artistic value'?" the lawsuit asks. "At what point does a nude theatrical performance stop being 'serious,' how is that determined and by whom?"

Martingayle and attorney Neal Insley are fighting parts of the revised regulations on behalf of the clubs Have a Nice Day Cafe in Norfolk, Headlights in Chesapeake, and Chicho's, Crazy Charlie's, Hammerheads and The Peppermint Beach Club at the Oceanfront. Headlights is the only club involved in the suit that offers topless dancing.

The revised state law, which took effect last July 1, prohibits "strip teasing, topless entertaining, or entertainment that has employees who are not clad both above and below the waist." A related law prohibits club employees from appearing "nude or partially nude."

Those laws, however, apply only to establishments with mixed beverage licenses - clubs that sell liquor.

The ABC board revised its own regulations, which prohibit the display of "genitals, pubic hair or anus by an entertainer, or any portion of the areola of the breast of a female entertainer." The regulation would apply to clubs with only a beer and wine license, according to Jennifer Farinholt, an ABC spokeswoman.

The Chesapeake clubs Headlights on George Washington Highway and J.B.'s Gallery of Girls on North Battlefield Boulevard have ABC licenses to sell only beer and wine. Both are owned by Robert "Buddy" Brown, who's been fighting the nude-dancing issue for more than a year. And both continue to present dancers without nipple coverings, often called pasties.

At J.B.'s this week, bare-breasted women danced on a raised platform as patrons tossed dollar bills onto the stage.

Brown said Wednesday that his dancers are "in compliance with state code right now."

"There is a problem with the wording of some of the regulations," he added, but he declined comment further because of the pending lawsuit.

The state attorney general's office, which is defending the suit on behalf of the ABC Board, argues that the new laws and regulations comply with prior court decisions and the U.S. Constitution.

"There is no doubt that there are negative secondary effects of alcohol consumption," Assistant Attorney General Catherine Crooks Hill told Judge Stillman on Tuesday.

"The whole point is to protect the citizens of the commonwealth," she said, adding they are "not meant to quash free speech."

Violators can be charged with a misdemeanor and possibly have their alcohol license revoked. The same goes for violations of the happy hour and rendezvous regulations. The attorneys argue that the prohibition on advertising happy hour is a free speech violation. They also say club owners have no way of knowing whether criminals or persons of ill repute are gathering at their clubs.

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com