Defending “Eroticism,” Cheaters’ Suit Against Ormond Disputes City’s Capricious Annexation

Its owners’ claims to the contrary, there is little question that Cheaters, the blastingly pink “bikini bar” on U.S. 1, about 825 feet south of the intersection with I-95, is a sex club by any definition of the term: men will go there not to talk about zoning theory or the dichotomy of being and nothingness, but to ogle women on the verge of nakedness and find various ways to attain sexual release. Judging from the club’s other incarnations in Cocoa Beach and in Providence, R.I., lap-dancing and private rooms enable a lot more than ogling.

Ormond Beach city government’s claims to the contrary, there is also little question that, while Cheaters has followed all laws on the books, the city has gone out of its way–literally, as it’s jumping its boundaries–to harass and intimidate the club to prevent it from operating, even though it is located in unincorporated Volusia County. The city last week unilaterally made the first move to force the 1.4-acre property where Cheaters is located into annexation. The city is calling it a “voluntary” annexation, and plans to complete the process by Oct. 7. Cheaters is refusing to be annexed. Ormond Beach, which extends water lines to homes and businesses beyond its limits, then invoked a standing if arbitrary rule common among Florida cities (Palm Coast among them): no annexation, no water.

The water to Cheaters ceased flowing. Ormond Beach had always provided water to the previous business there, Saddle Jack’s Bar & Grill. The city also claims it has the right to exercise an agreement it had with Saddle Jack’s, dating back to December 2006, that gave the city the right to annex the property any time it became contiguous with Ormond Beach’s city limits. The city never exercised that agreement, and Saddle Jack’s was foreclosed in August 2009. In effect, Cheaters argues, the agreement died with that foreclosure. Cheaters’ owners say they never saw the agreement when they bought the property.

As water had flowed to Saddle Jack’s for as long as it operated, there appears to be little question that the cut-off on Thursday was the result exclusively of the city’s decision to impose a moral, rather than a strictly legal and fairly applied, standard on the prospective business: Ormond Beach, along with a vocal group mobilized from a local church, don’t want it there.

Flagler Beach attorney Dennis Bayer, who successfully fought a strippish club called “Liquid” on Flagler Beach’s A1A in 2006, is volunteering his services for the opposition. Ormond Beach is represented by Cobb Cole, the Daytona Beach law firm. There’s a significant difference between the location of Liquid and that of Cheaters. Liquid, at 2444 S. Ocean Shore Blvd–between S. 24th and 25th streets–was in the middle of Flagler Beach’s children-and-dreamcatchers neighborhoods, across from the beach. Cheaters is located on a segment of U.S.1 where the ugliness and rustiness is hard to match elsewhere in Volusia County, and where truckers and mufflers, not children, roam.

Nevertheless, Ormond Beach has designs on sprucing up the place. Cheaters, in its view, would be another obstacle. And the congregation at mammoth Calvary Christian church, epicenter of Cheaters’ opposition, is full of voters, as truck cabs are not. So Ormond Beach is proceeding with its legally suspect assault.

The Cheaters owners–David Tapalian of Providence, R.I., and Chris Tadros, of Pembroke Pines–countered with a lawsuit filed in federal court on Sept. 23. (Read the full complaint.) The owners are looking to reverse the city’s decision to cut off water and sewer service.

The suit essentially disputes Ormond Beach’s authority over the club. It deems the water and sewer annexation agreement invalid. It asserts that a full search of the property records during the owners’ due diligence, before buying the property, “uncovered no record of the existence of the water, sewer and annexation agreement prior to purchasing the subject real property.” The city produced no annexation documents that it signed itself before Cheaters took possession of the property. It ratified that agreement only on Sept. 7, the suit states. “By the time the city moved to accept and ratify the water, sewer and annexation agreement,” the suit states, “that agreement was stale and unenforceable” (though the agreement also includes this line, which would be of import to Cheaters: “The city further agrees that it shall continue to provide water and sewer services to the property in the unlikely event the city does not annex the property.”)

The suit adds that the city’s ratification of that agreement “was not part of an orderly scheme of municipal growth and had nothing to do with the extension of public utilities, which occurred years ago. Rather, the city attempted to revise the Agreement out of a desire to regulate and control Plaintiff’s business in an effort to censor and curtail Plaintiffs speech.” The suit charges that the city has no legal basis to stop water service (Cheaters’ bill-paying was in good standing), and that it would cause the business to collapse.

Keeping a strip club from operating is what has attracted the city’s and some residents’ attention. But the suit raises a question that goes beyond the nature of the business the city is objecting to: should a city have the arbitrary power hurriedly to exercise annexation authority over some properties but not others, depending on the nature of the business in contention? The question raises issue of property rights and regulatory authority that–if Ormond Beach was successful–would set a precedent that blurs the line between a city’s objective, as opposed to capricious, authority.

On the other hand, the suit, in describing Cheaters, also strains credibility. The suit describes the business as a “gentlemen’s club” that “features live exotic dance performances in a night club setting featuring a full service bar.” The suit claims the business “is not an adult entertainment establishment or sexually oriented business because the performers wear coverings over their breasts, buttocks and pubic region at all times.” The same could be said of a Rotary Club luncheon: it’s not whether erogenous zones are covered, but to what extent, and to what end. The Vargas Girls were all covered, too, but Alberto Vargas‘ aim wasn’t to illustrate the virtues of catechism.

The suit prefers to define Cheaters as a “bikini bar,” with dancing at the bar equated to free expression protected by the First Amendment. Federal courts have repeatedly supported that line of argument. Ormond Beach, on the other hand, according to the suit, “opposes exotic dance performances and seeks to censor the message of eroticism conveyed” by the dancers. The line is the first intimation that the club has anything to do with something more than drinking and socializing. In fact, it would have mostly to do with drinking and sex.

On a message board about Cheaters’ Providence business, a patron called Marc wrote: “Obviously, the main place you will spend your money is in the private rooms. You will be satisfied but i do not think that the owners keep the place as sanitized as they should so i recommend not making contact between your skin and the couch. Always maintain a layer of cloth between you and the couch. Until they make more appropriate changes to their philosophy of how to keep the place sanitized, i will only go there occasionally. If they improve on the cleaniness (sic.) of the place, then i would go there more often. Still, you will leave satisified (sic.) but be prepared to drop around $200 for a good private show.”

Another, called Beantown, wrote: “You get more contact here talking to a woman at the bar than you do in most clubs during a lap dance, and in the private rooms, anything goes for probably half the women working there, and the others will still make sure you leave happy. So come here alone, have an open mind, be ready to spend some money, and leave relaxed and happy.”