Legal experts question Florida regulators’ action over this Miami bar’s drag shows

Experts say criminal charges could be a tough sell.
People wait in line to check into their reservations for a Drag Brunch at R House Wynwood in Miami, on Saturday, April 9, 2022.
People wait in line to check into their reservations for a Drag Brunch at R House Wynwood in Miami, on Saturday, April 9, 2022. [ DANIEL A. VARELA | Miami Herald ]
Published Aug. 9, 2022|Updated Aug. 9, 2022

When Florida’s top business regulator targeted a daytime Wynwood drag queen show seen by children as a public nuisance, it proclaimed that the restaurant was violating a series of Florida criminal laws against “lewdness.”

So if that’s the case, will anyone face criminal charges?

The Florida Department of Business and Professional Regulation maintains the case is only being handled as a license compliance matter. Miami police and the Miami-Dade State Attorney’s Office say no complaints have been sent to them for prosecution. Gov. Ron DeSantis has vowed to hold accountable businesses that expose children to “sexualized content,” but hinted at further action, saying “the agencies in Florida are going to respond” if there’s evidence.

The desire for charges has nonetheless been front of mind for some conservative influencers who have called on DeSantis to “jail” the performers. LGBTQ-rights activists and legal scholars say the possibility could have ripple effects on free speech, and shed light on Florida’s outdated and vague laws on lewdness that in decades past led local governments to routinely criminalize drag shows.

Despite the state agency’s citation of criminal laws, experts say criminal charges would be a tough sell without more than just a scantily clad drag queen holding a child’s hand or the exposure of breasts with pasties covering the nipples. In the adult entertainment industry, obscene acts generally include touching, sexual manipulation or exposing an erection — none of which happened at R House.

“Mere nudity is not a crime. The introduction of children in a lewd and lascivious context clearly aggravates the situation, but it still has to be lewd and lascivious and not mere nudity,” said Louis J. Terminello, a former investigator with Florida’s Division of Alcoholic Beverages and Tobacco who now teaches about legalities of the nightlife industry at the University of Miami School of Law.

“There may be additional penalties and additional statutes that you could violate, but prancing around holding the hands of a young girl, that to me is not a crime,” said Terminello, who while not involved in this particular matter, as chair of Greenspoon Marder’s hospitality and alcohol group has handled hundreds of administrative proceedings brought by the Division of Alcoholic Beverages and Tobacco over the last 30 years, many for lewd and lascivious conduct.

The state, however, argues that the performance at R House was unlawful because there was nudity involved that was presented in a “vulgar or indecent manner.” A performer exposing their breasts “covered only by ‘small’ pasties” in front of young children should be enough to revoke the business’ liquor license, according to the state complaint.

Related: DeSantis administration targets Miami bar with drag show attended by kids

The complaint’s thrust focuses on the presence of children. Most drag shows are held in bars at night, where children aren’t allowed. But drag brunches, an often-boozy daytime affair held at restaurants, occupy a gray area — and performers have pointed out that parents, not entertainers, are the ones who bring children to the shows.

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Alex Saiz, a Miami defense lawyer and director of legal services for the Florida Justice Center, says the nonprofit legal aid organization would represent for no charge any performers who get arrested. But Saiz says he doesn’t think it will get that far.

“It’s all about getting publicity and wins,” Saiz said. “DeSantis’ people aren’t stupid. They don’t want to turn drag queen performers into a cause célèbre by having them arrested and taken to criminal court.”

DeSantis has said the action by the Department of Business and Professional Regulation could “basically” put R House out of business if it has its liquor license revoked. The department said in a statement it does not have information regarding any other investigation by another state entity on the matter, but the governor suggested that could be a possibility.

“There may be more. If there’s evidence of that, the agencies in Florida are going to respond. We take the well-being of children very seriously. We want to make sure that we have a state and we have communities where kids can be kids,” DeSantis said at a newsconference last week.

Drag queens draw national attention

Across the nation, Republican lawmakers have embarked on a series of campaigns against cultural wedge issues such as transgender rights. Some conservative activists have railed against drag performances, saying that exposing kids to performers is akin to child abuse.

The presence of children at drag performances has become a rallying cry for some conservative activists across the country, who argue the issue needs to be treated as child abuse and businesses should be held accountable. DeSantis, widely considered to be a top 2024 presidential contender, has led the nation against what conservative critics call “gender ideology,” including by endorsing and signing legislation that empowers parents to intervene if they suspect their kids are being taught about gender identity and sexual orientation in the classroom.

Related: Parents upset DeSantis signed bill on gender lessons at their school

Republicans across the country have suggested policies to limit children’s attendance at drag events or remove children from their parents if they bring them to drag shows. Even drag events that are advertised as “family-friendly,” like book reading for kids at libraries, have been targeted by right-wing extremist groups such as the Proud Boys.

DeSantis, who is running for reelection this November, has made education a prominent wedge as he focuses on amplifying a “parental rights” movement that his critics say is code for intolerance to ideas like LGBTQ student rights and a full teaching of the nation’s racist past.

It was earlier this month that DeSantis, at a news conference, announced that his administration was targeting the liquor license of R House, a well-known Wynwood drag venue that hosts weekend brunch events — with a kids menu — that became the ire of conservative activists.

The administration began its investigation after a video, amplified to a national audience by Canadian conservative activist Lauren Chen, showed a partially clad drag performer leading around a little girl during a brunch performance. The child had a dollar bill in her hand and the performer had several bills sticking out of her bottoms.

The department’s administrative complaint described the “sexual nature” of the brunch performances as “pervasive;” one bikini-clad dancer danced above the face of a man laying on the ground, while another dancer “gyrated on a raised platform while ‘pole dancing.’ " A state investigator attended several performances, noting one performer “climbed on the back of (a) child’s bench, squatted and gyrated a couple of feet above the child’s head.”

The department, in its complaint, cited its ability to revoke the liquor license of a place that breaks laws against “public nuisances” — citing one statute that makes it a second-degree misdemeanor to engage in “nuisances that tend to annoy the community, injure the health of the citizens in general, or corrupt the public morals.”

It also cited a criminal law against disorderly conduct, and one against the “unlawful exposure of sexual organs” — a first-degree misdemeanor, a crime if done in a “vulgar or indecent manner.” First-degree misdemeanors, in Florida, are generally punishable by up to a year in jail, while committing a second-degree misdemeanor can lead to a term of up to 60 days behind bars.

Kat Wilderness performs for guests during a drag brunch at R House Wynwood in Miami, in April.
Kat Wilderness performs for guests during a drag brunch at R House Wynwood in Miami, in April. [ DANIEL A. VARELA | Miami Herald ]

What is “lewdness” legally?

The complaint finally cites Florida’s prostitution law, which prohibits the operation of “a place, structure, building or conveyance for the purpose of lewdness.” So what exactly is lewdness? Under Florida law, it’s defined as “any indecent or obscene act.”

“The nature of the performances described above, particularly when conducted in the presence of young children, corrupts the public morals and outrages the sense of public decency,” the state complaint against R House states.

But those definitions of indecency — especially in 2022 — are particularly vague and open to interpretations, and can vary from community to community, according to legal experts.

“If you’re twerking, then is that simulated sexual activity? Lewd activities occur every day in television and movies and shows, and there is no age restriction on people watching these things,” said civil rights lawyer Bruce Rogow, who in 1972 succeeded in getting a federal court to strike down as unconstitutional a Miami Beach law banning female impersonations.

“You have (WAP) being a hit record. The stuff that’s out there is certainly more publicly available without age restrictions.”

The Florida Department of Children and Families did not respond to a request about whether any complaints had been filed to the agency. Rogow and other legal experts say the complaint conflicts with DeSantis and Florida Republicans’ signature efforts on “parental choice” in revising school textbooks and lessons.

“It’s interference with parents’ rights to decide how they want to raise their children and what they want their children exposed to,” Rogow said.

Miami Beach Mayor Dan Gelber, a former federal prosecutor and former member of the Florida Legislature, told the Herald earlier this month: “This governor seems to be so much about parental choice. This action seems a little inconsistent with that. Apparently, you can teach a child to be homophobic and racist, but you can’t take kids to risqué … (drag) shows.”

But conservatives, like Chen, disagree. “Parental rights don’t extend to abusing your child,” Chen said in a video posted on her YouTube channel; she’s also urged law enforcement to “take action against these performances” and floated the possibility of “new laws” being crafted to deal with “this whole drag queen situation.”

Longtime targets

Florida governments have a long history of targeting drag shows — and, in fact, the complaint cites a 1947 Florida Supreme Court decision that recognized that “men impersonating women” during a “suggestive and indecent” performance can constitute a public nuisance.

The ruling centered on Fort Lauderdale’s famous Ha Ha Club, which was ordered shut down by the city for hosting “vile and obscene shows.” The club was run by a legendary nightlife figure, Charles “Babe” Baker, who later went on to run a similar venue in Miami, Leon and Eddie’s.

Terminello, the former state alcohol and beverage investigator, argued that relying on a 75-year-old law is telling.

“As a good prosecutor, I would hate to rely my whole case on a 75-year-old case. What did the world look like 75 years ago, as opposed to today?” Terminello said.

The Supreme Court’s 1947 ruling preceded a wave of city ordinances criminalizing so-called “femmic” clubs in South Florida — spurred by publicity.

In 1952, the Miami Herald ran a series of stories on adult entertainment, calling the drag clubs “a magnet” for the “low element.” The Miami City Commission passed its ordinances, with the sponsoring commissioner instructing the police department to “harass these places in every way possible.” Miami Beach followed suit. Broward County’s sheriff responded: “If they start moving into Broward County, we’ll make it rough on them.”

The law remained on the books — and occasionally enforced — until 1972, when the American Civil Liberties Union filed suit against Miami Beach as it was preparing to host the Democratic Party convention. U.S. Judge William Mehrens ruled that Miami Beach’s laws were vague because deciding whether female impersonators were acting lewd was up to the “personal discretion and personal interpretation of the police officer.”

Rogow, who spearheaded the ACLU challenge, says today’s climate is history repeating itself.

“The underlying current has to do with cross-dressing and female impersonation,” Rogow said. “They can dress up the complaint in whatever precedent they can find, but the bottom line is that this is triggered by hostile feelings toward gay rights.”

For its part, the Department of Business and Professional Regulation’s complaint insisted that even if the brunch performers “were biological women,” the nature of the performances would “still constitute” a public nuisance, particularly if young children are involved.

In years past, South Florida police agencies would occasionally raid female strip clubs over “lewd acts” performed on stage — like in 1996, when 21 topless dancers from Mint Lounge in Northeast Miami-Dade were charged under the prostitution statute for massaging themselves and doing “other things” to themselves on stage.

But these days, those types of cases are rare — at drag shows even rarer.

Criminal charges would require an investigation by a police agency; the state Division of Alcohol Beverages and Tobacco has arrest powers. In previous years, the division has made arrests for everything from making illegal moonshine to selling booze to spring breakers drinking while underage. In June, agents arrested a Gilchrist County convenience store clerk for illegally selling alcohol and tobacco products.

The Miami-Dade State Attorney’s Office, which declined to comment on the possibility of future lewdness-related charges in the R House case, would ultimately be tasked with filing formal charges. In criminal court, the legal standard — beyond a reasonable doubt — is more stringent than administrative hearings.

“I thought only Saudi Arabia and Iran had morality police,” said attorney Aubrey Webb, a former Miami-Dade prosecutor. “The State Attorney’s Office shouldn’t waste its resources playing morality police to the governor, especially in Miami-Dade County, where there’s a high rate of violent crime, fraud and homicides.”

David Ovalle reported from Miami, and Ana Ceballos reported from Tallahassee.