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By Betsy Z. Russell

BOISE – The Idaho State Police have agreed to settle a lawsuit from a New Meadows restaurant/bar that was targeted in a sting operation and hit with fines and a liquor license suspension after it hosted a burlesque show.

The Intersection BBQ Bar & Grill, which serves lunch and dinner seven days a week, is popular with locals and visitors in the town of 500 is the only local venue for live music and performances, was hit with a $5,000 fine and a 15-day suspension of its liquor license in August of 2015. Its ticketed dinner show with a special burlesque performance drew two undercover ISP detectives, among the sold-out crowd of 80, checking for compliance with an Idaho law that’s since been held unconstitutional and changed.

The violation: Performers’ costumes allowed the lower portion of the female breast, not including the nipple area, to be visible to dinner show guests, in a place where alcoholic beverages were being sold. Both detectives purchased beers with their dinners.

Under the settlement, the federal lawsuit has been dismissed; a court order dismissing it was filed on Thursday. And ISP agreed to pay the Intersection’s owners $17,000, to reimburse them both for the $5,000 fine and for their lost revenue during their 15-day liquor license suspension.

“I’m pleased for my clients that they been made whole,” said Deborah Ferguson, the restaurant owners’ Boise attorney. “Their First Amendment rights were violated.”

Two earlier lawsuits challenged the same law. First, Meridian Cinemas sued ISP after an ISP sting operation resulted in citations for serving beer to undercover officers during a showing of the film “Fifty Shades of Grey.” That lawsuit settled after the Idaho Legislature agreed to repeal portions of a state liquor law restricting the showing of explicit films at businesses licensed to sell liquor – something the 9th Circuit had already explicitly declared unconstitutional.

Then the Visual Arts Collective, a performance venue in Garden City, was cited in similar fashion after two undercover ISP officers attended a burlesque show there. The VAC sued, and the state settled, agreeing to pay back the fines and losses and put the lawsuit on hold pending another change in Idaho’s liquor laws, to remove liquor license-related restrictions on live performances that violated free speech protections.

This year, the Idaho Legislature changed that portion of the law as well. Idaho law still bans nudity and explicit live performances at strip clubs and other adult-entertainment venues that are licensed to serve liquor. But there’s now an exemption in the law for “any theatrical or artistic performance which, when considered as a whole and in the context that it is used, expresses matters of serious literary, artistic, scientific or political value.” The exemption also requires the performance to be held at a theater, concert hall, art center, museum, event center or other location that’s not mainly in the business of explicit live adult entertainment.

Ferguson said her clients were satisfied with the change in the law. “Hopefully it will be enforced effectively the way it’s written and intended,” she said. “It doesn’t concern obscenity.”

“The law as it had been written really had some very Draconian, Victorian language that was very, very particular about what parts of the body could and could not be shown, and clearly violated the First Amendment,” Ferguson said.

While the Visual Arts Collective’s lawsuit settled upon passage of the law this year, the Intersection’s continued, because its owners still were facing losses from the 2015 enforcement action under the now-repealed law. “They still had actual damages from that illegal law being enforced against them,” Ferguson said.

Col. Ralph Powell, ISP director, said in an emailed statement, “We at Idaho State Police are pleased to see this chapter placed behind us and to see that our Legislature has brought the Idaho Code into alignment with our federal Constitution. Our role as a law enforcement agency is to uphold the laws that are on the books. Moving forward, we’ll work to fairly and aggressively enforce the amended law. And as stewards of our public funds, we want to avoid these types of expenditures in the future.”

This year’s legislation, SB 1144, was signed into law and took effect immediately on April 6.