No Fine[r] Time To Dance

December 1, 2007

December 2007

By Jennifer Perkins

IJ Arizona Chapter client Dale Bell simply wants to run his business without government interference.

The Institute for Justice Arizona Chapter (IJ-AZ) recently secured a crucial ruling that client Dale Bell will not have to pay daily fines for refusing to act as the dance police at his popular restaurant.

On October 9, 2007, Pinal County Superior Court Judge William O’Neil presided over the first hearing in IJ-AZ’s challenge to the county’s absurd ban on outdoor dancing. Before adjourning the hearing, Judge O’Neil granted IJ-AZ’s request for a stay of fines. With this victory, Dale, owner of San Tan Flat, a country/western steakhouse, may continue allowing his patrons to dance without the fear of crippling fines. Without the stay, Dale could have lost either his business, due to mounting daily fines accruing to almost $200,000 per year, or his dream if forced to change the character of his business to avoid the threat of fines. Judge O’Neil’s decision keeps Dale’s American Dream intact while he seeks vindication of his economic liberties.

San Tan Flat opened its doors in 2005 after Dale spent two years jumping through bureaucratic hoops and literally building his business with his own hands. The steakhouse is a resounding success, but it raised the ire of government officials. The county started harassing Dale by, among other things, passing a strict new noise ordinance and sending deputies to San Tan Flat to take readings up to three times every night. San Tan Flat never violated the noise ordinance, so the county cited Dale in September 2005 for running a forbidden outdoor “dance hall” merely because his patrons are inspired to dance to the restaurant’s live music.

In January 2006, a Pinal County Hearing Officer imposed fines of $700 per day because Dale refused to stop his patrons from dancing outside, finding that the dancing somehow changed the restaurant into a dance hall. Dale appealed the ruling to the Pinal County Board of Supervisors, and the county did not enforce the fines during that process.

Judge O’Neil acknowledged that Dale faced significant potential harm from the daily fines including the possible loss of his business, while the county presented no corresponding potential harm to any legitimate government interest, underscoring a crucial issue in this case: Allowing outdoor dancing at San Tan Flat does not present any public health or safety threat.

So is this prosecution really about dancing outdoors?

Certainly not.

Pinal County recently acknowledged its real goal is to stop Dale’s live, amplified, outdoor music, absurdly (and falsely) claiming Dale provided no notice that he planned to offer outdoor music. In reality, Dale submitted site plans to the county with a clearly marked stage that was obviously intended for live music. (Ridiculously, opposing counsel speculated it could have been for mimes and puppeteers.) Additionally, the “dance hall” ordinance does not ban outdoor music. The county’s reliance on it to stop Dale’s music reveals the extent of government abuse at issue: Unable to find a bona fide noise ordinance violation, the county is throwing vast taxpayer resources into litigating against Dale for allowing outdoor dancing.

The October 9 hearing presented an additional key issue for Judge O’Neil’s consideration—whether Dale should have the opportunity to present his case in a jury trial. The judge has not yet ruled on this question.

This hearing was merely the opening skirmish in IJ-AZ’s battle for Dale Bell’s economic liberty, and it concluded with a resounding victory. More work remains, but the Institute for Justice is proud to vindicate the rights of this entrepreneur and others across our nation.

Jennifer Perkins is an IJ Arizona Chapter staff attorney.

Also in this issue

Victory For Minneapolis Taxi Entrepreneurs

Sign of the Times: IJ Defends Intertwined Rights of Property & Speech

Red Tape, Did You Know?

Dana Berliner:

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