Renegade attorney John Herbison loves to stick it to Metro. And by all accounts, he’s doing a good job. Last month, Herbison, the attorney for the plaintiff Deja Vu of Nashville and adult entertainment mogul Jerry Pendergrass, delivered the Metro Council and legal department another staggering defeat when a federal judge threw out a 1997 ordinance that attempted to regulate strip clubs.
For more than two years, Herbison, along with a few other out-of-state top-notch First Amendment lawyers, have kept Metro tied up in court over the ordinance. Not much is likely to change if the Council decides to re-introduce more regulatory legislation on their client’s businesses.
Pointing to the current Metro fiscal crunch, Herbison says, ”Given the budgetary constraints I would hope the government has higher priorities than regulating what hours a person can rent a videotape and whether or not a patron does or does not get a table dance.“
But the author of the 1997 ordinance, popular Councilman at-large Chris Ferrell, says that if Metro’s lawyers decide against appealing the judge’s ruling, he will probably draft a new ordinance that addresses the court’s concerns.
”I didn’t get into this to do it halfway,“ Ferrell says. ”We need to pass a law without violating constitutional law. That’s all I’m trying to do, and sooner or later we’ll do that.“
On the surface at least, Ferrell may not have far to go. The ordinance has two notable regulations. One specifies that dancers come no closer than 3 feet from patrons, while the other mandates that sexually oriented businesses close by 3 a.m. The court didn’t agree with the plaintiff’s argument that those specific provisions were unconstitutional, but rather quibbled with the ordinance’s procedural sections, such as what could disqualify someone from applying for a license. Much, if not all, of that could be fixed.
But Council members might well be tiring of this seemingly endless legal battle. ”There are more and more Council members that are starting to question the value of this legislation,“ Council member John Summers says. ”The mayor’s talking about spending $1 million on affordable housing. We may end up spending nearly half of that defending a law that’s unconstitutional.“
Some Council members, many of whom are increasingly sensitive to any expenditure of taxpayer dollars, became especially aggravated when they got their mitts on a memo from Metro attorney Shayna Abrams to Chris Ferrell. In her final sentence, one that Legal Director Karl Dean now says was inappropriate, Abrams, who has handled the litigation for the city, tells Ferrell that sooner or later ”sexually oriented businesses...are going to lose, provided the Council does not lose the will to fight.“ To some, Abrams crossed the line from lawyer to lobbyist with that comment.
”It seemed like it was a little preachy to me and a little out of place,“ at-large member Leo Waters says. ”We look to the legal department to give us objective information to make decisions. This seemed more emotional and less objective.“
Council members say they’re frustrated with their advice from the legal department, which initially assured everyone that the legislation, modeled after a similar ordinance in Chattanooga, would hold up in court. This letter, on top of more than two years of embarrassing legal hurdles, didn’t help.
Meanwhile, Herbison relishes his latest victory. Asked whether there are sensible and constitutional regulations the Council can impose on his client’s businesses, he says, ”If the Department of Law ever wants to sit down with me and draft a law that addressed the government’s legitimate concerns and not put lawful businesses out of operation, I’d offer my input.
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