The City of North Miami Beach has again extended the deadline for Swinging Richards to comply with their law banning nudity in alcoholic beverage establishments, this time until July 15.
However, despite negotiations, discussions, and even a city council meeting, the sides appear no further to a consensus or resolution. In fact, the legal issues have been more clearly defined.
First, it is clear that the City of North Miami Beach has in fact allowed nude heterosexual clubs to operate with impunity for years. Joined into the battle are nightclub G Five and Dean's Gold, straight clubs that are now also impacted by the city's pronouncement nudity must end.
The fact that straight clubs existed and operated without enforcement activity strengthens the legal argument of Swinging Richards that the newfound attention to this issue by the city may be driven by the fact they are operating a gay club. It would enhance their claim they have been singled out for prosecution because they are gay, but now the city is targeting straight nude clubs as well.
The real question should be who at the city dropped the ball and allowed straight clubs to be nude for so long in violation of their own law? And now should they be allowed to enforce a law they let lapse against everyone? There in fact is a long-standing legal doctrine that if a city absolutely ignores its own laws and never enforces them, for a period of over ten years, and people or businesses rely on that, the law is effectively abandoned. This would mean that while the city might be able to pass a new law and set a date for compliance, certain clubs would be grandfathered in and protected as they are now.
Second, Swinging Richards has won extensions without even a lawsuit. Both the city and the club agreed that in exchange for a voluntary dismissal without prejudice, which means the club can re-file the litigation, the parties would continue talking amicably without being burdened with legal time constraints and pleadings. In other words, it is cheaper to just talk right now.
Third, city attorney Darcee Siegel, while positing the parties are far apart, is suggesting the appropriate resolution is not the arrest or incarceration of management for violating liquor laws, but rather having the club simply face zoning violations before the city's code enforcement board. This is a process, which if begun after July 15, would still take months for sanctions to kick in.
Fourth, there is an indication that the state agency supervising nightclubs, Alcohol, Beverage and Tobacco is taking a close look at the club, for secondary activity which might be outside the scope of other laws. If you look online, you can see if there has been some enforcement activity initiated against a club. ABT, which has broad supervisory authority, will typically investigate a club for illegal acts of underage drinking, allowing prostitution, or even not selling branded cigarettes.
Administrative action by the state agency for illegal behavior requires substantial proof, none of which has as yet been alleged against any of the North Miami Beach clubs, straight or gay.
However, ABT does have the power of emergency suspensions in the public interest, or summary revocations of liquor licenses for cause.
Meanwhile, the full frontal male nudity will go on at Swinging Richards, for at least 30 more days, and likely some time beyond that.