TALLAHASSEE, Fla. — As an appeals court considers the constitutionality of a 2023 Florida law aimed at preventing children from attending drag shows, it also is looking at another question: Is the case moot after an Orlando restaurant that challenged the law closed and said it plans to reopen elsewhere?
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An attorney for operators of the restaurant, Hamburger Mary’s, filed a brief Monday at the 11th U.S. Circuit Court of Appeals arguing that the case is not moot. The brief said Hamburger Mary’s, which closed the Orlando location in June, has continued to produce drag shows with other venues and plans to host shows when it reopens in Kissimmee.
The brief said Hamburger Mary’s provided information in June to Florida Department of Business and Professional Regulation Secretary Melanie Griffin, the defendant in the case, about the plan to reopen.
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“Once reopened, HM (Hamburger Mary’s) intends to operate the restaurant using the same drag-centric business model and age policies as its Orlando location,” attorney Melissa Stewart wrote in Monday’s brief. “Because the act (the 2023 law) charges Secretary Griffin with state-wide enforcement of the law, HM will face the same concrete risks of unconstitutional enforcement at its Kissimmee location as it did in Orlando.”
A three-judge panel of the Atlanta-based appeals court heard arguments in the case in October but on Nov. 26 directed both sides to file briefs about Hamburger Mary’s plans to reopen and whether the “current appeal is moot in light of those plans.” Attorneys for the state will file a brief by Jan. 21.
The state appealed in 2023 after U.S. District Judge Gregory Presnell issued a preliminary injunction against the law because he said it violated First Amendment rights.
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The law, dubbed by sponsors the “Protection of Children” bill, would prevent venues from admitting children to adult live performances. It defines adult live performances as “any show, exhibition, or other presentation that is performed in front of a live audience, which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement or specific sexual activities, … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”
Regulators would be able to suspend or revoke licenses of restaurants, bars, and other venues that violate the law. Also, it would prohibit local governments from issuing public permits for events that could expose children to the targeted behavior.
While the law does not specifically mention drag shows, it came after Gov. Desantis’ administration cracked down on venues in South Florida and Central Florida where children attended drag shows. It also came amid a series of controversial laws passed by Republicans in Florida and other states about transgender-related issues.
In issuing the preliminary injunction, Presnell wrote that the law “is specifically designed to suppress the speech of drag queen performers” and the state “already has statutes” that protect children from seeing obscene performances.
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“Defendant professes that a statewide preliminary injunction would ‘harm the public by exposing children to ‘adult live performances,’” Presnell wrote. “This concern rings hollow, however, when accompanied by the knowledge that Florida state law, presently and independently of the instant (2023) statutory scheme, permits any minor to attend an R-rated film at a movie theater if accompanied by a parent or guardian. Such R-rated films routinely convey content at least as objectionable as that covered by (the 2023 law).”
Hamburger Mary’s said in 2023 that it had run “family-friendly” drag shows for 15 years. In the brief Monday, Stewart wrote that Hamburger Mary’s has faced “frustrating delays” but continues to plan to reopen in Kissimmee.
The brief partially quoted a legal precedent that said a case is moot only when it is impossible for a court to grant “effectual relief” to the winning party.
“Not only is it possible for this court to grant HM effectual relief, it is more essential than ever for HM’s future,” the brief said. “Reopening any restaurant in a new location is a monumental task; HM is reopening Hamburger Mary’s amidst litigation that will determine whether its core business model is legal in the state of Florida.”
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