Justice Prevails: County Ordinance Can't Bar Strippers From Prancing About in Pasties and a G-String

Virginia Court of Appeals has held that a Henrico ordinance banning public nudity is unconstitutional as applied in Boyd v. County of No. 0377-02-2, 2003 WL 21321076 (Va. Ct. June 10, 2003).

Plainclothes police officers had issued summonses to 10 striptease dancers at the Gold City Showgirls nightclub for violating Henrico County Code § 13-107 barring public nudity. The dancers had each stripped down to pasties and a G-string at the time of the summons. The ordinance, though, had been enacted in 1983 primarily for the purposes of combating the gross evils of mooning, skinny dipping, and public urination.

At trial, the Commonwealth and the defendants stipulated to the admission of the transcript of evidence in a parallel case in the United States District Court, Virginia Legal Matters (C ont.) Colonial First Properties, LLC v. Henrico County, 166 F.Supp.2d 1071 (E.D. Va. 2001). In that case, the Commonwealth's Attorney had conceded that he would not prosecute people who wore "contemporary swim wear" or "short shorts.," even though those dubiously fashionable items would constitute technical violations of the ordinance.

The evidence in the federal case also showed that the owners had apprised the chief of police of the proposed mode of dancing prior to opening. The chief of police, the County Attorney, and Commonwealth's Attorney later came to the conclusion that the dancing would violate the ordinance but failed to inform the owners of this decision. Finally, at the state trial, police officers testified that the enforcement of the ordinance would be made on "a case-by-case basis," and would depend on "what type of G string [a person] was wearing."

Given the above, the Court of Appeals primarily relied upon Grayned v. City of Rockford, 408 U.S. 104 (1972), in holding that the ordinance was unconstitutionally vague because it did not give the defendants a reasonable opportunity to know what was prohibited and vested total discretion in the hands of those charged with enforcing it.

The court also held that nude dancing is expressive conduct under the First Amendment and that the ordinance was not narrowly enough drawn so that the incidental restriction on expressive conduct is no greater than necessary to prevent or deter mooning, etc.

But Kids, Please Don't Try this at Home: Outsider Reverse Veil-Piercing Allowable under Virginia Law

In C.F. Trust, Inc. v. First Flight, LP, No. 022212, 2003 WL 21308837 (Va., June 6, 2003), the Virginia Supreme Court answered two questions certified from the Fourth Circuit Court of Appeals: (1) is outsider reverse veil-piercing allowable under Virginia law?, and (2) if so, what standards must be met?

Traditionally, a plaintiff who attempts to pierce the corporate veil asks the court to disregard the existence of a corporate entity so that the plaintiff may reach the assets of a corporate insider, usually a sole or majority shareholder. Outsider reverse veil-piercing is where the plaintiff seeks to reach the assets of the corporation or other business entity to satisfy claims or a judgment obtained against a corporate insider individually.

The court held that outsider reverse veil-piercing is not logically different from traditional corporate veil piercing because in both instances a plaintiff requests that the court disregard the normal protections accorded a corporate structure to prevent abuses of those protections.

Accordingly, the court held that outsider reverse veil-piercing may be allowable under the same conditions as in a traditional veil-piercing: (1) where a shareholder controls or uses a corporation to evade a personal obligation or to perpetrate a fraud, and (2) the unity of interest and ownership is such that the separate personalities of the corporation and the individual no longer exist and to adhere to that separateness would work an injustice. See Greenberg v. Commonwealth, 255 Va. 594, 604, 499 S.E.2d 266, 272 (1998); O'Hazza v. Executive Credit Corp., 246 Va. 111, 115, 431 S.E.2d 318, 320 (1993).