NightMoves Online | Florida Strip Clubs Prepare Suit to Overturn Under-21 Worker Ban

Industry plans First Amendment suit before law takes effect

Courts found similar laws constitutional in Texas, Jacksonville

(the photo is unrelated and is just to get your attention!!)

DEEP DIVE

Chris Marr

Senior Correspondent

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloombergindustry.com

Florida’s adult-entertainment industry is preparing to challenge the constitutionality of a new ban on hiring dancers and other staff under 21, following the enactment of similar laws that have spurred First Amendment suits in two other states.

The Florida age requirement is part of an anti-human trafficking law set to take effect July 1. The bill signed by Gov. Ron DeSantis (R) (HB 7063) May 13 imitates a Texas law recently upheld as constitutional, plus a Jacksonville, Fla., ordinance that drew a mixed ruling in federal district court and now awaits review by the US Court of Appeals for the Eleventh Circuit.

The measures pit policy makers’ stated goal of preventing those under 21 from being coerced into sex work against the constitutional rights of business owners, performers, and other employees. The Florida and Texas laws apply not only to those who wear little to no clothing while performing, but to all workers at adult entertainment businesses including retail stores that sell “sexually-oriented” videos, books, or magazines.

Opponents of the restrictions say they’re a poor way to combat sex trafficking, as only roughly 1% of reported trafficking incidents involve strip clubs. But supporters of the age limits argue performers under 21 are especially vulnerable to exploitation and that the data isn’t reliable because most incidents go unreported.

Florida is “number three in the nation for human trafficking, sex trafficking,” said Aaron DiPietro, lobbyist for Florida Family Voice, an affiliate of the Family Research Council that advocated for the bill. “It is a serious problem, and it requires looking at the issue from multiple angles.”

But according to Angelina Spencer-Crisp, a former dancer who manages trade associations for adult clubs and conducts trafficking-prevention training, the law misses the mark by ignoring more common sites of trafficking, like hotels and the internet.

“I don’t see the state passing any laws that prevent 18, 19, and 20-year-olds from being in hotels,” she said. “They don’t want to hear the evidence. This is an election year, and this is awesome fodder to get conservatives to the polls.”

The Florida House and Senate passed the measure with nearly unanimous bipartisan votes, although behind-the-scenes opposition delayed its passage until the final days of the session, DiPietro said.

Age limits and other regulations around adult entertainment vary by city and state, but many places allow clubs to hire performers starting at age 18. The industry is concerned the Family Research Council could use its broad presence, with affiliates operating in 38 state capitols, to spread the under-21 ban and other restrictions, Spencer-Crisp said.

Litigation in the Works

The Florida attorney representing the challengers to Jacksonville’s ordinance said he’s also planning litigation against the new statewide law, which has many of the same legal defects as the local law.

In both cases, the legislation isn’t “narrowly tailored” to have minimal impact on free speech while accomplishing lawmakers’ goal of fighting human trafficking, said Gary Edinger, an attorney at Benjamin Aaronson Edinger & Patanzo PA in Fort Lauderdale.

“We have our feelers out all around the state,” for people who want to join in challenging the law, he told Bloomberg Law. “I have been formally retained by a club and a performer. We will be filing a suit before July 1.”

Rather than help prevent sex trafficking, banning under-21 dancers in some instances might push people into underground performing or sex work where they’re at a higher risk of exploitation, Spencer-Crisp said.

“They can’t tell me how they’re helping the victims,” she said. “You’ve probably ripped the economic rug out from underneath them.”

Florida Rep. Tobin Rogers “Toby” Overdorf (R), who sponsored HB 7063, said he’s skeptical of the free-speech claims against the under-21 limit, saying it’s like any other job-related restriction the government imposes.

“I don’t think there’s a First Amendment issue. It’s for a line of employment,” he said.

State and federal laws, including the Fair Labor Standards Act, set age limits on the types of jobs that are considered hazardous, with some restrictions for people under 18 and more restrictions under 16.

But Florida relaxed its limits this year on employment of underage workers more broadly—a policy trend that more than two dozen states have considered since 2021. A pair of new Florida laws loosened the work-hour restrictions and expanded the ability for 16- and 17-year-olds to work on construction sites.

Florida’s new trafficking law and the Jacksonville ordinance impose criminal liability on club owners if they hire under-21 staff or performers. The state law makes it a misdemeanor for adult entertainment businesses to hire someone under 21, or a felony if they perform or work while nude.

The Florida measure targets human trafficking with several other provisions, such as mandating reporting procedures and posters that list a hotline for victims to call at locations including airports, hotels, massage businesses, and medical practices. It also requires organizations contracting with the state government to certify they aren’t using forced labor.

Narrow Tailoring

The lack of narrow tailoring is the crux of Edinger’s argument at the Eleventh Circuit in his case against Jacksonville’s ordinance, he said. That appeal is set for oral arguments June 6.

A federal judge ruled against the Texas plaintiffs on that very issue in an April 30 decision.

Judge Robert Pitman of the US District Court for the Western District of Texas found the Texas law was narrow enough to achieve the government’s interests in preventing trafficking without overly burdening First Amendment rights. Pitman said young dancers at adult entertainment venues are especially vulnerable to trafficking and that other types of club jobs such as janitorial or bookkeeping work don’t involve free expression that triggers First Amendment protections.

A federal district judge also found the Jacksonville ordinance didn’t violate the First Amendment, but rejected the city’s enforcement mechanism as unconstitutional partly because of vagueness around what a violation would entail.

A similar Louisiana law banning under-21 performers in certain adult entertainment businesses that serve alcohol also survived a legal challenge in 2018, when the US Court of Appeals for the Fifth Circuit allowed it to take effect.

Florida “does have solid legal basis” for the new statewide age-limit law, DiPietro said.

But not all age restrictions on strip clubs have been successful in court challenges.

The Georgia Supreme Court in 1998 overturned a law blocking customers younger than 21 from adult entertainment businesses as a content-based infringement of First Amendment rights. And the US Court of Appeals for the Tenth Circuit in 2002 rejected a local Colorado law with an under-21 age limit for customers and performers.

Beyond the First Amendment arguments, Edinger said he also could challenge the Florida law with claims about overbreadth and vagueness under the Due Process Clause of the Fourteenth Amendment, as prior cases involving strip club regulations have done.

The state will struggle to justify why age limits on employees at adult retail stores are permissible, because there’s no record of sex trafficking in those businesses, he said.

“They mostly look like lingerie stores with adult toys,” Edinger said. “The idea that trafficking would occur there is just ludicrous. There’s no nudity, There’s no dancing.”