December 1, 2009
A judge has upheld a decision to suspend the liquor license of a Colorado Springs nightclub where several women bared their breasts during a “Girls Gone Wild” filming last year.
Attorneys representing the owners of 13 Pure, 217 E. Pikes Peak Ave., had argued the city liquor board’s 10-day suspension of the nightclub’s liquor license was severe. They also maintained it was a First Amendment right for women to expose their breasts.
“But the District Court eventually rejected those arguments, including the arguments that 13 Pure had a free speech right to have its customers remove their clothes,” city prosecutor Scott Patlin said today.
The liquor board didn’t “exceed its jurisdiction or abuse its discretion” by suspending 13 Pure’s license, Fourth Judicial District Judge Theresa Cisneros said in a court order.
“Both the suspension and the sanction were overwhelmingly supported by the record,” she said. “The court further finds that the ordinance in question is not unconstitutional.”
Attorney Michael W. Gross, who represented the nightclub owners, said his clients are considering their options, including an appeal. The deadline to appeal is Thursday.
Colorado Springs police conducted an undercover operation at 13 Pure on Aug. 13, 2008, after learning about the “Girls Gone Wild” filming through the nightclub’s MySpace page. Camera crews “requested and encouraged” women to flash their bare breasts, according to Cisneros’ court order.
“The police officers observed several young women in the crowd expose their breasts,” court documents state.
“At least one young woman openly fondled the breast of another young woman at the nightclub. Still another young woman took her shirt off completely, exposing her breasts. Some of the acts were captured on videotape and other acts were described by witnesses,” documents state.
“It was a situation that got a little bit out of hand,” Gross said today.
The liquor board’s punishment of 13 Pure for the rowdy but harmless behavior was “very harsh,” said Gross, a Denver-based attorney who specializes in First Amendment law. In addition to the 10-day suspension, which went into effect around spring break this year, the liquor board imposed an additional 60-day suspension held in abeyance for a year.
“I think the members of the board were offended by the nature of the expression,” Gross said. “I think public nudity, coupled with dancing, is protected by the First Amendment as well as the Colorado Constitution. It’s been an area of dispute for years, what the line is between conduct and expression.”
But Patlin, who was the liquor board’s legal adviser at the time, said it wasn’t necessarily an issue of nudity as much as it was about nudity in a licensed liquor establishment.
“There are exceptions for adult entertainment in the law, but the law differentiates between entertainers and patrons of the establishment,” he said.
“Even if (13 Pure) had hired adult entertainers to do this, they couldn’t have done all of the things that the patrons were doing that were caught on video,” Patlin added. “Some of the stuff that was going on was even prohibited in an establishment offering adult entertainment.”
Gross said the “community standard” in Colorado Springs is stricter than in other cities across Colorado.
“I’m not going to call anybody prudes, but everybody is entitled to their own opinion,” he said. “This did happen in an establishment that promoted a party and people were having a good time. This did not occur in the middle of a church, in the middle of a street, or near a school. I don’t think anybody was there who didn’t want to be there.”
When asked if he was personally offended by the women’s behavior at 13 Pure during the “Girls Gone Wild” filming last August, Patlin responded, “Not particularly.”
“Although,” he quickly added, “if I were to walk into a bar expecting to sit down and have a drink with my wife and found this going on, I think that would be very awkward.”
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