BusinessTN

As a student at a Christian law school in Virginia, Scott Bergthold never anticipated that his professional vocabulary would someday include words like "edible panties...fantasy outfits, and whips and paddles." But as founder of the nation's only law firm specializing in drafting and defending adult business ordinances, the Chattanooga attorney has become the point person for municipalities struggling to balance public grievances against porn stores and strip clubs, and those businesses' First Amendment rights. And while industry attorneys say he represents a moral agenda, not a legal one, Bergthold says he's not trying to shut anyone down. He's just helping regulate the SOBs -- sexually oriented businesses, that is.

Bergthold has established his legal niche as more suburban and rural communities play unwitting host to what were once considered big-city businesses. With nonexistent or outdated SOB laws, smaller municipalities are often ill-equipped to draft ordinances free of constitutional potholes and legal loopholes, especially given the expertise and dexterity of the competition. "Because of the small number of people who practice in this area and the relative specialty that's involved," Bergthold says, "when something happens in Delaware or Washington State, people know about it pretty quickly. Either they're trying to use that case to their advantage, or they're defending against it." Since launching his practice in 2001, Bergthold has tracked case law nationwide, writing some 200 municipal ordinances incorporating language that has weathered judicial scrutiny, and winning 13 of his last 16 appellate court cases.

A typical court-tested ordinance is the "six-foot rule" separating strippers from cabaret patrons, officially to prevent solicitations for paid sex acts. Prostitution, like crime, disease and declining property values, are among the traditionally recognized "adverse secondary effects" of SOBs. These effects are the declared targets of legally successful municipal regulation, Bergthold says. It is unconstitutional to ban adult businesses, overtly or effectively; however, "if they are making their money by paid sexual contact, it's likely that a regulation that prevents paid sexual contact will negatively impact their moneymaking on that activity."

Marc Randazza, a San Diego-based First Amendment attorney who represents SOBs, calls separation requirements "brilliant" -- with a caveat: "You know the way some people say Hitler was brilliant because he had a brilliant plan?" Randazza rejects such regulations, beginning with their premise. Adverse secondary effects, he says, are "a fairy tale" based on flawed data and an obsolete concept of SOBs, whose typical patron is no longer the loner in a trench coat. He believes tighter ordinances are all about shutting down "that type of thing," and he considers the rights of the SOB -- an expedient target for politicians -- a firewall against more insidious breaches of the First Amendment.

"If you're sitting on the city council," Bergthold counters, "you're hearing the threat of lawsuits from the plaintiff on one side. On the other, you're hearing people who live in the community say, 'Hey, this is right across from Taco Bell, where all the junior high students hang out after school.' Typically, cities are trying to balance those competing interests." Regardless the ultimate agenda of his clients, Bergthold's goal is simple -- to draft bulletproof regulations. And on that count, his work has resulted in more than one sorry SOB.