COLUMN: The Law in Real Life: Town Missteps in Ruling Against Dance Classes

COLUMN: The Law in Real Life

by Linda Holmes, J.D.

Town Missteps in Ruling Against Dance Classes

Sept. 9, 2008

If it’s been a few years since you saw Footloose, you might have lost track of the battle against sexy dancing, but it roared back to life recently when a Pennsylvania dance instructor was denied a permit for her dance studio because she wanted to teach pole dancing.

Pole dancing, of course, is most famous from strip clubs, where it’s performed by women who are, logically enough, stripping. Pole dancing as an activity for other women, usually advertised as a fun and sexy form of exercise, has boomed in recent years, after being featured in The New York Times and on Oprah. It’s taught at regular health clubs and private home parties — perhaps a bachelorette party, or perhaps just with friends, like naughty Tupperware.

So when Stephanie Babines set up her dance studio to offer pole-dancing instruction (among other dance and fitness classes), she was following a trend. But the Adams Township, Penn., zoning board denied her application for an occupancy permit on the basis that hers was an “adult business.”

Of course, zoning battles involving “adult” businesses and exotic-style dancing are not new. The difference: Generally, those battles involve either nudity or at least customers who are paying to watch. The commerce in those cases is in sexual gratification. But Babines teaches pole dancing, along with hula, belly and salsa dancing, to women who keep their clothes on the entire time. According to the complaint Babines filed with the assistance of the Pennsylvania American Civil Liberties Union, no spectators are allowed in her classes.

Dance Classes Not ‘Adult Entertainment’

It’s important to get this fact out of the way: Babines offers more than fully clothed pole-dancing classes. Her website advertises other services, including massages, in-home parties with “adult novelties,” and other things that more likely would fit within the “adult business” definition as most people understand it — albeit on the tame, “ladies’ night” end of the spectrum. But, according to her complaint, Babines subcontracts all of these services to other businesses, and they are unconnected to her studio, which is only for classes.

Code enforcement officer Gary Peaco, who initially denied the permit, never interviewed Babines about her plans or investigated beyond her website. He later explained (seriously) that (1) her website’s color scheme was pink and black, which he believes are strip-club colors, and (2) her logo features a high-heeled shoe. That was enough. Peaco has opined that because the dances contain “sexual innuendo” and are “provocative,” she was running an “adult business.” The chair of the zoning board publicly said Adams County doesn’t allow the same things allowed “in San Francisco and other places.”

There’s an easy joke along the lines that dancing with some sex in it is not called “adult entertainment” but, rather, “dancing.” Anyone who has seen the TV show Dancing with the Stars knows that the tango, the rumba, the mambo and many other dances contain copious amounts of “sexual innuendo.” As do, of course, most dances that are popular at proms and clubs.

The U.S. Supreme Court has upheld the restrictive zoning of “adult businesses” as a permissible “time, place and manner” restriction, largely because of the “secondary effects” these businesses are believed — not without dispute — to cause. Strip clubs, adult bookstores and the like, the thinking goes, create an atmosphere that invites crime and violence.

But Babines’ studio is nothing like a strip club or adult bookstore in this respect. Why would crime flare up around a dance class where spectators are not allowed, liquor is not served and everyone’s clothes are on? What could possibly follow from teaching dancing you could just as easily stay home and watch on Oprah?

Stretching the Law Thin

The absence of a plausible argument in favor of secondary effects makes it far less likely that an ordinance broad enough to cover Babines’ business could pass First Amendment scrutiny. Whether someone considers them flaky or not, her beliefs about the power of dancing to transform women’s self-image are a huge part of her marketing. Even assuming that the women in the class are studying a seduction technique and not a workout, the class would amount to sex education, and declining to permit a teaching facility simply because it teaches sexual techniques to adults in private seems far more constitutionally suspect than zoning adult bookstores away from schools.

But the bigger problem for the township is that there’s no way the dance studio qualifies as an adult business under the ordinance at issue anyway. The first three kinds of adult businesses regulated in it — adult bookstores, adult mini-movie theaters and adult movie theaters — are certainly not applicable. The fourth type of business is an “adult cabaret,” which can be defined one of two ways. One requires performances by strippers or go-go dancers as “entertainment for observation by patrons,” and that does not apply. The students are not observing the dancing as “entertained patrons”; they are students in a dance class.

Thus, the only potentially applicable language is the most general: “an establishment devoted to adult entertainment, either with or without a liquor license, presenting material distinguished or characterized by an emphasis on matter depicting, describing, or relating to sexual activities or anatomical genital areas.”

So, in order to classify the studio as an adult business, it must be considered “devoted to adult entertainment.” And for that to apply, one would have to conclude that teaching a style of dancing that is specifically understood to be sexy — even as a class with everyone’s clothes on — is “adult entertainment.” If it’s true of pole dancing, then it could certainly be true of salsa and tango dancing.

Ruling Crumbles Its Own Foundation

One also would have to conclude that teaching pole dancing or lap dancing techniques “present[s] material distinguished or characterized by an emphasis on matter depicting, describing, or relating to sexual activities.” Pole dancing, of course, is explicit sexual entertainment when performed by nude women in the context of a strip club or by a woman sexually engaged with her partner in private, but so is tap dancing, twirling a baton or eating an ice-cream sandwich. How would one ever decide what activities are suitably “provocative” to trigger the ordinance if it truly were so elastic?

Courts have found it difficult enough to determine what is adult entertainment when explicit content is used as a jumping-off point. One can at least look at a nude dancer and see that she’s nude. As silly as ordinances can sound when they describe what body parts can be exposed, you’ve got to start somewhere.

Here, there seems to be no place to start. There’s no nudity. There’s no sexual activity. There is only the sense that the kind of dancing being taught is intended, when deployed in some other out-of-class setting, to provoke a sexual response. If that’s the standard, then classes in flirting would be adult entertainment. And honestly, isn’t makeup partly designed to provoke a sexual response? Aren’t sexy clothes? Is a class in dressing sexy an adult business simply because it’s “provocative”?

It’s clear that the zoning board wants nothing to do with Babines, but it’s unlikely that denying her permit is legal under the ordinance or, for that matter, constitutional. Take heart, ladies of Adams County. The pole soon will be yours.

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.