Is it possible for an exotic dancer in a strip club to touch customers in a non-sexual way?
That question was at the core of discussion Wednesday as the Nevada Supreme Court took up the question of where to draw the line - literally - between strippers and their customers.
The case is Las Vegas City Council's appeal of a district court judge's order throwing out a city ordinance barring dancers from "fondling or caressing" to sexually arouse a patron.
Municipal Court Judge Betsy Kolkowski dismissed charges against 13 dancers from the club Crazy Horse Too last year, saying the law was to vague to enforce. That ruling was echoed by District Judge Sally Loehrer who said the ill-defined ban on "fondling and caressing" was unconstitutionally vague.
Deputy City Attorney Ed Poleski asked the court to reinstate the ordinance saying law's purpose is to prevent prostitution, drug violations and fraud. He said the federal 9th U.S. Circuit Court of Appeals found nothing particularly vague about the phrase "fondling and caressing." He agreed dancers have a constitutionally protected right to express themselves artistically.
"You can express yourselves, but you can't touch patrons in a manner intended to be sexually arousing," he said.
"Why is the patron there?" asked Justice Bill Maupin.
"I agree: They're there to be sexually aroused," said Poleski said.
Maupin and other justices made it clear they're fighting with the absurdity created by the law.
Justice Nancy Becker also said the purpose of the clubs and of such things as lap dances is sexual arousal of the customer.
"Frankly, I don't know what other purpose there is to a lap dance," she said.
Her comments echoed those of Judge Loehrer when she tossed out the ordinance: "Why else would anyone go in those establishments? They're not going for the lighting or the drinks."
Jonathan Powell, representing the dancers, argued nothing in the law prohibits physical contact between dancer and patron. He said the original proposed ordinance banned all touching and this language was the compromise so it isn't intended to prohibit all touching. He told the judges the confusion they feel is exactly why the issue is before the court. He said the law isn't clear enough that dancers and patrons or even police know where the line is. The terms "fondling" and "caressing" are not defined in the ordinance.
He cited an example of one dancer who was charged because a customer grabbed her, even though she didn't initiate physical contact.
Justice Michael Douglas asked whether the same no-touch rules applied to male strip revues performing for women, but Powell said he didn't know.
Becker suggested the city council could have avoided the confusion by following the Washington state law which simply bars all physical contact with patrons, keeping dancers a minimum of 10 feet from patrons.
Powell agreed, when asked, that the Las Vegas City Council has the right to regulate the clubs to some degree, but said he can't envision language that would be immune to a constitutional challenge.
Dancing, including exotic dancing, is protected under the First Amendment as free speech.
"So we get back down to the proposition that, while the city can regulate this, it can't," Maupin said.
The court took the case under submission.
-- Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.