WASILLA -- Did the Matanuska-Susitna Borough trample a local bar owner's First Amendment rights when it shut down a provocative dance performance by scantily clad men in his establishment?
It may have, according to the Alaska Court of Appeals.
The District Court in Palmer has 90 days to decide if it did, according to an appeals court decision July 25.
Bob Stevens, owner of the now-defunct Fish Heads Bar and Grill on the Palmer-Wasilla Highway, on Nov. 12 and 13, 2004, put on a performance of the Chippendale's dancers. A borough code enforcement officer cited him for operating an "adult cabaret" without a special-use permit. Stevens fought but lost his case in Palmer District Court.
The appellate court found two problems with Magistrate David Zwink's decision.
"We conclude that there is a significant question whether (even under the facts alleged by the borough) Stevens's conduct constituted the operation of an 'adult cabaret' as defined in the borough ordinance," the court wrote.
Moreover, "there is a significant possibility that the borough ordinances violate the First Amendment."
LIVING IN LAS VEGAS
Stevens now lives in Las Vegas, but he was reached Wednesday on a visit to Wasilla. He said he hasn't seen the decision.
Informed of the freedom of expression issues the appeals court raised, Stevens said, "of course it has First Amendment problems."
"For God sakes, it's the Chippendale's dancers," Stevens said. "It's not porn; it's not nudes. It's choreographed dancing with music."
The appellate court ruling, written by Judge David Mannheimer, refers readers in a citation to the Wikipedia entry on Chippendale dancers. They "are a group of men who provocatively dance for a primarily female audience. They are best known as being shirtless, muscular and wearing little else but bow ties, white cuffs and tight black leather or spandex pants," according to that entry.
A borough code compliance officer testified in the case that he watched the performance at Fish Heads; "the two Chippendales dancers presented themselves clothed only in garments that resembled athletic supporters," according to the appellate court.
Borough Attorney Nicholas Spiropoulos declined comment on the decision, citing rules barring him from talking about pending litigation. Borough Manager John Duffy did not immediately return a call for comment.
DEFINING CABARET
According to the ruling, the borough codes on record in November 2004 barred unpermitted adult cabarets and defined "cabaret" as a business that offered adult entertainment. Later, in 2005, the borough amended their codes to say a cabaret is any business that offers such entertainment "any time or any number of times," the court wrote.
The appellate court asked the district court to decide whether under the ordinance the one-time performance "was enough to convert his bar and restaurant into an 'adult cabaret.' "
That the borough amended its codes, the court wrote, "suggests the drafters believed that the older definition of 'adult cabaret' did not cover businesses which presented single or isolated offerings of live adult entertainment."
If Stevens did violate the code as written, it brings up a constitutional issue, the court wrote.
The court cited case law establishing that performances featuring nudity, including erotic dancing, are protected under the First Amendment.
Under the borough's interpretation of its codes in Stevens' case, the court wrote, "the borough could seemingly initiate legal action against a restaurant or playhouse that held a spring promotion in which live models were dressed in fashion gowns or prom dresses."
Further, the case law says that adult ordinances must allow for reasonable alternative areas for such entertainment.
Within the area the code affects, the court wrote, it seems there aren't any alternatives. The codes required permit applicants to show their performances will not cause problems in the borough. But the codes also seem to presume that all adult businesses do cause problems, the court wrote.
PRESERVING THE 'CORE'
According to the court, the borough argued that the law applies only to the "core area," a term generally used in borough ordinances to refer to the area between the Wasilla western border and the Palmer eastern border, excluding the municipalities of Palmer and Wasilla. A cabaret could be held outside that area.
The appellate court asked that the district court determine if that alternative is "reasonable."
In June 2006, the state Alcoholic Beverage Control Board took away Stevens' liquor license, citing borough noise complaints. Stevens said he later closed Fish Heads as a result.
The attached bowling center is back up and running, Stevens said Wednesday, but he's rented it out to another operator while he tries to find a buyer for the building. The bar space is now a bingo hall. Stevens is the former owner of the long-dead Lost Abbey teen club in Anchorage.
If the District Court doesn't overturn its previous ruling, Stevens said, he'll keep pushing the case as far as he can. And he plans to appeal his noise ordinance violations as well. The court may request an extension to the 90-day deadline.
"I will never stop, ever," Stevens said.
He said he sees nothing wrong with the dancers he presented.
"It's a class act," Stevens said. "Granted, it's not for everybody but that's why we live in America."
Find reporter Andrew Wellner online at awellenr@adn.com or call him at 352-6710.
