601 Penn. Ave., NW Suite 900, S.
Washington, DC 20004
Director: Ms. Angelina Spencer
(202) 220-3019 or (239) 248-1016
National Newsletter: April 5, 2010 Volume 2 Number 4
TX Supreme Court Hears “Pole Tax Case”
INSIDE THIS The state Supreme Court heard arguments on March 25 to determine the fate of Texas' embattled “pole
ISSUE tax” on strip club patrons, 2007 legislation, which instituted a $5 fee for each person at a nude dancing
establishment where alcohol is served.
1 Texas Supreme
Court Hears “$5
“Pole Tax” Case A state district judge in Austin and the 3rd Court of Appeals have agreed with the Texas Entertainment
Association, an ACE State Chapter affiliate, that the tax is unconstitutional.
Defense Act” The state Attorney General's Office and comptroller have disagreed. Over $13 million in fees sit in
Advances limbo until the matter is decided.
The state has the right to ban nude dancing outright, as well as alcohol, Texas Solicitor General James
Ho told the panel during his remarks. So it makes sense that Texas should be allowed to impose lesser
Gets House restrictions in the form of a fee, he argued. “It is undisputed ... this fee is substantially discouraging
Hearing this businesses from combining live nude dancing with alcohol consumption,” he said, comparing the fee
week! to a traffic ticket issued to discourage speeding. He described alcohol and nude dancing as a
nd “combustible combination.” Dancers still have the same freedom of speech as always, as long as the
4 2 Circuit
dancing takes place in an establishment where alcohol isn't served, Ho said.
Win for NY
Club on Zoning Austin-based attorney Craig Enoch, who represents the strip clubs, pointed out that courts have long
Law held nude dancing to be a form of expression protected by the First Amendment. If the state really
believed nude dancing and alcohol spur crime, lawmakers could have attempted to ban them outright,
5 Texas TABC
he argued. But allowing the practice to continue with a fee is hypocritical of such a stance, he said.
Human The practice, he said, is less like issuing traffic tickets than like allowing people to yell “fire” in a
Trafficking crowded theater — for a fee.
Justices did not outright state their individual opinions on the issue but some questions to the attorneys
did provide hints as to the direction in which some might be leaning.
Website Justice David Medina asked how a $5 fee could put someone's First Amendment rights in jeopardy.
“I could see if it was $100 but it's only $5,” he said.
The tax would add up to roughly $500,000 per year per taxed establishment, Enoch responded.
8 Stop the Gloom
& Doom The fight over such legislation is not likely to end once the court's decision is handed down, said state
9 Premier Rep. Ellen Cohen, D-Houston, who authored the bill and who attended Thursday's session with
Industry members of the Texas Association Against Sexual Assault and San Antonio's Rape Crisis Center.
Discounts “If the court rules against us, there will be a blueprint that tells us what we need to do” with the next
bill, said Victoria Camp, deputy director of the assault group that stands to benefit most from the tax.
A decision is not expected for months.
Board of Directors
Michael Ocello Kansas Community Defense Act Advances
Chain Kansas legislators approved a bill in March aimed at the adult entertainment industry.
The Men's Club Corp. Senate Bill 514, “the Community Defense Act”, approved by the House on a 106-16 vote, would place
Treasurer restrictions on the location of adult clubs and their activities. The sponsors said it cleans up activities
Pure Gold Club Chain
Kathy Vercher viewed as immoral in their communities.
Spearmint Rhino Inc.
Odyssey Entertainment Rep. Joe Patton, a Topeka Republican, said he had questioned whether the state should be involved in
David "Slim" Baucom
MAL Entertainment regulating sexually oriented businesses until he read numerous studies about their effects on
Fantasy Castle communities. "All the studies showed this hurts communities, increases crime, hurts property values,"
Don "Weasel" DalPonte
Weasel's Showclub Patton said. "If you want to do this kind of work, do it in a way that doesn't destroy our communities --
Scores of Chicago that's the whole point."
Eric Langan The bill would prohibit clubs, adult stores and other sexually oriented businesses from locating within
Jim St. John 1,000 feet of schools, libraries, public parks, licensed day-care centers and houses of worship. Sexually
Deja Vu Consulting
Don Waitt oriented businesses would have to close from midnight to 6 a.m. Nudity would be outlawed, and dancers
Glenn Smith could be seminude but would have to remain at least 6 feet away from patrons.
Jennifer Shamy Some critics of the bill said the measure would shut down such businesses and put at least 2,500 Kansans
Debbie Diaz out of work.
Club O, Chicago
FALA Advisory Board
Dan Silver But Patton said the bill only imposes "narrow" regulations and prevents sexually oriented businesses --
New Brittain CT
Jamie Benjamin called "SOBs" by the measure's backers -- from clustering in communities. "They tend to do that," Patton
Ft. Lauderdale FL
Allan Rubin said. "They create an economic dead zone. When crime goes up, they create a combat zone."
Brad Shafer But Rep. Stan Frownfelter, a Kansas City Democrat who voted against the bill, said Kansans have a
H. Louis Sirkin better way than the bill to get rid of sexually oriented businesses. "If people don't want to go, they don't
Randall Tigue have to go," he said. "The best way to run them out of business is not to go to them."
Los Angeles, CA The Bill has advanced to the senate where even more taxpayer money can be spent arguing the mores of
Ft. Lauderdale FL exotic dance rather than tending to more meaty issues such as the Kansas budget.
Warren, New Jersey
Jeff Scott Olson
Las Vegas, NV
ADULT ENTERTAINMENT NEWS AROUND THE COUNTRY:
MISSOURI: The House of Representatives Small Business Committee will hear
testimony on Senator Matt Bartle’s Community Defense Act on Wednesday, April 7
NEW YORK: An appeals panel of the Second Circuit has given a partial win to TJS of New
York, the corporation that owns the Oasis adult cabaret, holding that the question of where the
club could relocate in response to the town's zoning laws is dependent on the number of sites
available at the time suit was filed, rather than the time of the enactment of the ordinance.
The location 490 West Jericho Pike, was already in use as an adult nightclub when Smithtown
enacted its first adult zoning ordinance in 1994, which law limited any new "adult entertainment"
uses to three types of tracts: shopping center business, light industry or heavy industry—which
anyone who knows the geography of Long Island knows are few and far between.
The owners sued the town over the ordinance, even though the club itself would be
grandfathered in under the law as a non-conforming use. Habitat argued in its suit that the
ordinance, which required a 500-foot distance between adult businesses, and between such
businesses and any "residence district, park, playground, school, church or similar place of public
assembly," was unconstitutional because it did not allow from a reasonable number of locations
in the town where new adult businesses could open.
While that suit was pending, in 2000, Smithtown amended its ordinance to require the 500-foot
separation to be measured from building to building rather than property line to property line—a
clear improvement—and to remove an unconstitutional "special exception" requirement, and the
town and Habitat reached an agreement where the club agreed to make a "diligent good-faith
effort" to find a property to which it could relocate.
But in 2002, Habitat was bought by TJS of New York, which changed the club's name to Oasis,
and about a year later, in June of 2003, when Smithtown sued to close the club, TJS sued for a
declaratory judgment and a permanent injunction against enforcement of the town's ordinance.
The trial of the case featured competing experts as to whether the ordinance provided sufficent
alternative locations for the club, but TJS also litigated the question of when those alternative
locations had to be available: At the enactment of the ordinance or at the time its lawsuit was
filed. The town supported the earlier date, while TJS argued for the latter.
The judge in the case, Sandra J. Feuerstein, ruled in favor of Smithtown on the date-of-
availability issue, but the Second Circuit panel, in a unanimous decision, reversed on that issue
and remanded the case.
In so ruling, the Second Circuit considered a number of other major decisions that implicated
availability: Young v. American Mini Theaters, City of Renton v. Playtime Theatres, City of
Littleton, Colo. v. Z.J. Gifts D-4 and Topanga Press v. City of Los Angeles. The court's conclusion
was that none of them was exactly on point in terms of when alternate sites had to be available,
but that most of them—notably Renton—spoke of such availability in the present tense, and that
was sufficient for the panel's ruling.
Smithtown, on the other hand, had expressed concern that a "current availability" decision might
leave the ordinance open to continued attacks, but the court noted that that would only occur if
there were significant changes in the surrounding community which might alter the town
boundaries, or increase or decrease its population. The court also noted that requiring courts to
consider contemporary site availability might allow some communities to survive a First
Amendment availability challenge if the community had made more sites available after its
ordinance was enacted.
But while that ruling was a victory for TJS, another part of the court's decision might easily take
TJS had argued that the number of available sites should be limited to properties that included
only the "classes of businesses that were similar in physical characteristics to an adult
entertainment business, such as 'CVS Pharmacy, Wendy's and Blockbuster Video'," and that it
should exclude large (and expensive) tracts best suited for "big box" stores like WalMart.
The appeals court disagreed, ruling that "TJS’s objections to the physical size of sites and to the
nature of the businesses currently operating at certain sites ultimately reduce to complaints about
economic impact and commercial viability," and that any sites that were part of the "general
commercial real estate market" could be considered, even if those sites would be "unprofitable or
commercially unviable for adult businesses like TJS."
"An adult entertainment establishment must compete for commercial real estate like any other
market participant," the panel ruled. "And, like for other market participants, the physical size or
nature of the business may affect the availability of commercially viable sites or the willingness
of property owners to sell or lease to them. There are, in short, inevitable impediments to a
business's relocation. But obstacles such as the possibility of 'making due with less space than one
desired,' or 'having to purchase a larger lot than one needs,' do not render property unavailable for
the purpose of constitutional analysis. Alternative sites need only be available, not attractive."
So whether TJS wins at its next hearing may depend largely on which experts can be marshalled
to examine and comment on allegedly "available" sites.
No date has yet been set for that future hearing.
TEXAS: TABC is co-sponsoring a Texas Summit on the Trafficking and Exploitation of
Children, this time in Houston. TABC’s own Sgt. Michael Barnett will be presenting on how
TABC collaborates with community partners and enforces the sign posting law in bars. In 2005,
Sgt. Barnett worked a case in Houston that resulted in the rescue of about 120 women and girls
who had been enslaved, forced into prostitution, and were being physically abused and
psychologically tortured. This horrendous activity was taking place in TABC-licensed cantinas in
This purpose of this event is educate the community on the state of the anti-trafficking movement
in Houston, and what solutions exist to end this crisis. The presentations will include discussion
on the social services and legal services that exist for victims as well as what legislators and law
enforcement have accomplished thus far. It will be a comprehensive look at where we have come
and where we are going in this fight and we feel that everyone's participation will be valuable.
Please take a look at the agenda below, and follow this link to register.
Date: Thursday, April 15, 2010
Time: 9:00 AM - 3:00 PM
Location: United Way of Greater Houston - 50 Waugh Drive - Houston, TX
CHILDREN AT RISK in partnership with the Boone Family Foundation, the Embrey Family
Foundation, Houston Rescue and Restore Coalition, the Baylor School of Social Work, Catholic
Charities of the Archdiocese of Galveston-Houston, Concerned Women For America, Covenant
House, Harris County Juvenile Probation Department, Harris County Protective Services for
Children and Adults, Harris County Sheriff’s Office, Houston Coalition Against Human
Trafficking, Human Trafficking Rescue Alliance, Redeemed Ministries, Tahirih Justice Center,
Texas Alcohol Beverage Commission, Texas Baptists, Texas Municipal Police Association, and
the YMCA of Greater Houston, presents the:
TEXAS SUMMIT ON THE
TRAFFICKING AND EXPLOITATION OF CHILDREN
April 15, 2010
United Way of Greater Houston
50 Waugh Drive
Houston, TX 77007
4.25 MCLE credits, pending
CEU credits, pending
Breakfast and Lunch included
$50 Non-profit Attorneys, Government Attorneys, and
Independent Contractors From the Law Firm of Jackson-Lewis
In this time of economic crisis, the Obama Administration has released details of its proposed
budget for the fiscal year 2011. While job creation may be the first thing that comes to mind
when determining how to strengthen economic security, the proposed budget contains significant
investments in targeting the misclassification of independent contractors. It reads: “As
part of the 2011 Budget, the Departments of Labor and Treasury are pursuing a joint
proposal that eliminates incentives in law for employers to misclassify their employees;
enhances the ability of both agencies to penalize employers who misclassify; and restores
protections to employees who have been denied them because of their improper
classification.” According to this proposal, it would increase Treasury receipts by more
than $7 billion over 10 years. The 2011 Budget for [the Department of Labor] includes an
additional $25 million to target misclassification with 100 additional enforcement
personnel and competitive grants to boost States’ incentives and capacity to address this
problem. While full details of this proposal have yet to be released, it is clear the Obama
Administration is determined to make misclassification of workers a top priority. If
employers are unsure of a worker’s proper classification, they should seek advice from
Allan S. Rubin, Jackson Lewis LLP, 2000 Town Center, Suite 1650, Southfield, MI
48075, (248) 936-1900 -firstname.lastname@example.org
Pat Trueman, a long-time friend of CCV, offers a new tool in the fight against
pornography. “This is a tremendous tool for citizens who either struggle with
pornography or want to talk with law enforcement about prosecuting federal and state
obscenity laws,” says CCV president Phil Burress. Read on for the full story.
Pornography Harms Website Launched
Contact: Patrick Trueman, 703-938-1776; pornharms.com
MEDIA ADVISORY, The devastating harm from pornography is becoming more
evident with each passing day. Now a website has been launched to provide ready access
to credible, peer-reviewed research documenting that harm. "Pornography Harms, is a
one-stop location for sound research, news articles and opinion pieces demonstrating the
harm from pornography," said Patrick Trueman, creator of the site. The site will be of
great help to researchers at all academic levels and the press and concerned public.
Trueman, the former chief of the U.S. Department of Justice Child Exploitation and
Obscenity Section, expressed strong concern for the direction of America due to the
prominence of pornography in the daily lives of our citizens. "Since the advent of the
internet, pornography has flooded homes, businesses, public libraries, and even schools.
The results have been devastating to the social and family fabric of America," Trueman
Trueman observed that, for nearly two decades, a large segment of America's children
have had ready access to Internet pornography. "Pornography, in other words, is altering
minds, destroying taboos, and reordering society," Trueman said.
Addiction to pornography, Trueman noted, is now common among men, women, and
even many children, bringing life-long consequences. Pornography use is a significant
factor in divorce; a contributing cause of the spread of prostitution and the sexual
trafficking of adults and children.
Trueman credited a multi-disciplinary group of professionals and concerned citizens from
around the country for the research work on Pornography Harms.
"Pornography is a neglected pandemic and it will remain so until knowledge of its
destructive forces is widely understood and disseminated. The Pornography Harms
website is dedicated to this task of education," Trueman said.
Positive panels, positive events, positive vibe …
Positively EXPO 2010!
The 18th Annual Gentlemen’s Club Owners EXPO will feature a
new location, new Awards, new parties and a new attitude.
No matter what news station you turn on, chances are you’re going to hear about
how bad things are; how bad the economy is, how bad the government is, how
bad virtually everything is. But at the 2010 Gentlemen’s Club Owners EXPO
this August 22-25 at The Mirage Hotel & Casino in Las Vegas there’s going to be
a different approach, a different attitude. Forget doom and gloom—at this year’s
EXPO, you’re going to get some good news for a change.
“Every aspect of this year’s convention is going to reflect our ‘Positively EXPO’
theme,” says EXOTIC DANCER (ED) Publications’ Publisher, Don Waitt. ED
Publications has produced the Annual EXPO for the past 18 years. “We will
have an agenda of panel sessions, special events, parties, exhibits and an
Awards Show that will focus on the positive ways to motivate club owners, their
staff and the entertainers. Think the smiley face’s ‘Have a nice day!’ and Bobby
McFerrin’s song, ‘Don’t Worry Be Happy!’ Its time we let our hair down, had
some fun, and talked about how to positively improve club operations and
increase sales at EXPO 2010.”
To breathe even more fresh air into the EXPO, the convention has been moved
to The Mirage Hotel & Casino, which means new restaurants, nightclubs and
surroundings, and the lowest room rate of the past 10 years. There’s also a
poolside Hawaiian Luau Party planned and a “Swinging Sixties” rock-and-roll
party on tap, as well as exclusive membership meetings for ACE, the Association
of Club Executives. There will be a continuing focus on club staff as well, with
specialized training and motivational workshops and new Awards Show
categories for other key staff positions.
Also, ED Publications is pleased to announce the return of the STOREROTICA
“What’s New Marketplace” Convention & Tradeshow, which was a part of the
Annual EXPO from 2007-2009. When combined, the Annual EXPO and Annual
STOREROTICA conventions represent the largest convention and tradeshow for
all adult retail venue owners and operators including adult retail stores,
lingerie boutiques, erotic toy and apparel stores and adult nightclubs. It’s the
only event of its kind in the world — don’t miss it!
For more info on the 2010 Gentlemen’s Club Owners EXPO, including early
registration discounts for attendees and tradeshow exhibitors, call (727) 726-
3592 or visit www.EDPublications.com today. To book your room at The Mirage,
call (800) 499-6311 and ask for the discounted Club Owners EXPO rates.
ACE National Member Discount Providers:
Direct Mail at a Great price:
By mailing your brochure right in the envelope that has ED Club Bulletin Magazine in it,
you save money and you also reach thousands of new buyers who are not on your
company mailing list. Pay just $1,700 to mail 6,000 full-size promo pieces—that’s about
half the price of mailing a small regular letter.
Call Gary Daugherty or Lacy Empkey in our Marketing Department today at (727) 726-
3592 to be included in the next ED Club Bulletin Magazine mailing, or log on to
Pure Risk Solutions is an insurance agency that was
formed with a goal of offering a different option for club
owners. We felt it was time to get back to the basics by
focusing on Client Service. Qualities like hard work,
integrity, responsiveness, and an ever-growing knowledge
base are the foundation of our service culture. With that
strong foundation, we seek to help increase the resiliency
of our clients and their futures. We look forward to our
increased involvement with ACE National, ACE State
Chapters, and their members. We will work hard to
provide you the right insurance program at the best pricing
possible. Thanks for the opportunity of being a partner in
John M. Jacquat, CLCS
Pure Risk Solutions
South East Business Markets can work with you in a variety of ways to help you
save and make money! They also have state chapter association plans! Give Ken
Morgan a call and tell him ACE referred you.
Southeast Business Markets
t: 704-419-9922 I f: 704-332-3737
Agilysys Premier Discount Provider.
Agilysys is a leading provider of innovative IT solutions to corporate and public-sector
customers, with special expertise in select markets, including retail and hospitality. The
company uses technology — including hardware, software and services like POS systems
— to help customers resolve complicated IT needs. Headquartered in Cleveland,
Agilysys operates extensively through the U.S. and China. Ms. Pamela McConnell is
Surcharge Disclosure Notification Decals Reminder
Recently there has been a growing number of lawsuits filed against ATM owners for
not displaying a decal “Notifying the user” of a surcharge on the ATM. A person
will find an ATM without the decal; make a transaction, then take a picture of the
ATM without the decal. They will then submit to several law firms that are
pursuing these types of cases who will then file suit under the Federal Banking Laws
If you are a big enough “target” the lawyers will try to make the case into a “class”
with every person who has used the ATM without a decal as a member. As the law
reads now, it does not even matter if the decal has been pulled off and you can prove
it. Settlements have been between $5,000 and $500,000 so far for failure to disclose.
Federal law (REG E) currently states an ATM “must” disclose that there is a
surcharge fee on the outside of the ATM AND give the customer an opportunity to
cancel (opt out screen) prior to completing the transaction along with disclosing the
surcharge amount on the customer’s receipt.
The “opt out screen” alone is NOT compliant with the wording of the current law.
Cabe & Cato goes one step further; we use the “Welcome Screen” of the ATM to
notify the customer of the surcharge fee, since you can’t pull off the screen.
Please make sure your ATMs have the decals in place to avoid any “decal chasers”
coming after your club. If you are missing decal notify your ATM processor.
Warren Cato, CEO
Toll Free: 800-653-3189
Agilysys Major Account executive in charge of Entertainment. Pamela has been helping
operators of clubs for over 20 years to reduce costs and increase sales through software
applications. Pamela has worked for years with Agilysys to help capture additional guest
spend through gift cards and VIP loyalty solutions. In addition, Pamela is a 20-year
member of Hospitality, Financial Technology Professionals. Some successful Agilysys
Point of sale installations are Pure Nightclub, Light Group, Nikki Beach Club and Club O
in Chicago. You may call Pamela at 954-415-1885 or email her:
ATTENTION ACE MEMBERS: PUT MONEY INTO YOUR POCKET AND
HELP YOUR ASSOCIATION!
ACE National is proud to announce its discount program with BEST CARD, LLC, which can
save club owners hundreds or thousands of dollars per year in credit card processing fees. This is
NOT an agent. They offer club owners a range of services. If you’d like more information about
this program please contact Mr. Brad Gibbons: 303-514-7555