The Metropolitan Sexually Oriented Business Licensing Board celebrated its sixth birthday this year.
For more than half a decade, the board has been registering “entertainers,” investigating strip clubs and doling out suspensions on behalf of Metro’s infamous “three-foot rule.”
But it hasn’t been without growing pains. A court case filed by Deja Vu nightclub in 1997 delayed the board’s formation from the onset. A court-mandated injunction was set on Metro’s new sex codes for seven years, before the U.S. District Court lifted it in 2005.
But even though the SOBLB has been up and running for six years, it still has its detractors. A court case currently in the hands of the Tennessee Court of Appeals shines light on some potential legal issues with the law and its enforcement.
The origins of regulating “sexually oriented” ventures in Music City date back nearly 150 years. According to The Hidden History of Nashville by journalist George Zepp, prostitution ran rampant in Nashville during the Civil War.
Union military officials who were occupying the city enacted a prostitution-licensing program in 1862. Women had to present “surgeon’s certificates,” attesting to their good health, to get approved. The move made Nashville a pioneer in regulating a legal sex trade.
Fast-forward 147 years.
On June 7, 2009, a man and a woman walked into Christie’s Cabaret in downtown Nashville. Entertainer No. 1090 and Entertainer No. 25 approached them.
In a private area, the entertainers gave the couple lap dances.
The action was a clear violation of Metro Code 6.5.140 which states: “No customer shall be permitted to have any physical contact with any entertainer on the licensed premises while the entertainer is engaged in a performance of live sexually oriented entertainment.”
Unbeknownst to the entertainers, the act was being videotaped. The man was actually a private investigator working undercover, and the woman accompanying him was his assistant.
According to Christie’s legal defense, the entertainer’s estranged ex-husband hired the private investigator amid a divorce and child custody battle.
The investigator handed the video over to the SOBLB. Shortly thereafter, the entertainer and Christie’s were cited for the violations. The ordinance holds clubs responsible for violations that take place on the premises, and Christie’s received a 36-day suspension of their operating license.
Christie’s appealed the decision in a lawsuit filed in Davidson County Circuit Court, citing a “flawed process” in the hearings.
Among their complaints:
City employees never investigated the alleged conduct, and the SOBLB shouldn’t be able to issue citations based on third-party investigators.
The SOBLB and the Metro ordinance have been “enforced in an arbitrary, capricious manner” and “no other business in the city is subject to this type of ordinance enforcement,” the complaint reads.
The SOBLB compressed violations against the entertainer, but didn’t for the club, unfairly ruling that “the petitioner had a higher duty to supervise the entertainer than she did in not violating the city’s ordinances regarding adult entertainment.”
In Metro’s reply to the complaint, the city contends that the case was valid and the rulings are legal. According to the board, it heard testimony from the investigator, his assistant and the entertainers — all of whom corroborated the video evidence.
Christie’s also had a say at the hearing. The company’s representatives made a motion to dismiss the case, cross-examined witnesses, and made a closing argument. Metro said that adds up to a fair hearing.
Metro also claims a decision can only be “arbitrary” when there is no evidence in the record to support it, but the evidence shows a violation took place.
Davidson County Circuit Court agreed with the city and denied a reversal of the board’s penalty against Christie’s on March 24. Christie’s appealed to the Tennessee Court of Appeals, and oral arguments were heard in the case on Dec. 6.
But what makes the case particularly unusual is that Christie’s Cabaret no longer has a physical location in Nashville. The club closed after its Eighth Avenue property was gobbled up by the Music City Center project last year.
The appeals court questioned whether the case was now moot — but Christie’s attorney, Price Harris, argued that if the company wants to locate to Nashville again, they don’t want the penalty to tarnish their record.
Harris also made a broader argument that attacked the entire process of the SOBLB. In the current structure, the inspector presents evidence to the board, asking whether they should proceed with a citation. When the citation is issued, the board holds an administrative hearing to decide the case.
According to Harris, the same court shouldn’t be allowed to make both decisions. For instance, when the police issue a speeding ticket, a judge determines the validity of the ticket — not the police.
As of press time, the appeals court hadn’t issued an opinion on the case.
Christine Gibson was working for the sheriff’s office in 2006 when she spotted a job posting for the inspector position at the SOBLB. She thought the position aligned perfectly with her law enforcement background and administrative skills.
Five years later, she’s still at it — and she has noticed a slight change of sentiment among entertainers in the city.
“When I came on board, I was still fielding complaints from the dancers that they didn’t like the three-foot rule because the customers aren’t paying as much,” Gibson said.
“Now, everybody is aware of the law, they are more accepting and compliant. Some of the dancers are saying they appreciate the law because they feel safer.”
But Gibson still keeps busy with violators.
“The ones that are [not complying] are making more money because the clients are paying them more to do the illegal things, which upsets the girls that are doing the right thing,” Gibson said.
“If every club and every girl was on the same playing field, it would be a much better business because it would be fair across the board.”
And while the SOBLB strives to make adult businesses fair, the court of appeals will have the final word on whether the board itself is legally sound.