Janini

Here we review misdemeanor convictions of seven "lap dancers" and two "theater managers," as aiders and abettors, for alleged local ordinance violations and prostitution per section 647, subdivision (b) of the Penal Code. All must be reversed.

In Tily B., Inc. v. City of Newport Beach (1998) 69 Cal.App.4th 1 , 81 Cal. Rptr.2d 6 , we upheld the power of municipalities to revoke the licenses of adult businesses that bumped up against local ordinances prohibiting erotic touching. We accepted Newport Beach's assertion that its ordinance was a non-criminal, local business regulation. In this case, though, the City of Anaheim, in its own zeal to discourage disfavored entertainment forms, [1] has crossed the line between regulation and criminalization. The Anaheim City Council may regulate establishments offering lap dancing, but its power to wield a criminal sanction for erotic entertainment violations of a "sex-oriented business permit" is preempted.

Use of the Penal Code against dance performers is a sensitive proposition as well, but for a different reason: Theatrical dancing is a well-recognized art form protected by the First Amendment. Unfortunately, the trial…