By Terrence McCoy
By Scott Fishman
By Deirdra Funcheon
By Allie Conti
By New Times Staff
By Ryan Pfeffer
By Deirdra Funcheon
By Kyle Swenson
They came with hoods on and guns drawn in the middle of the night. They brazenly swept past the signs cautioning, "If nudity or sexual activity offends you, please do not enter." They proceeded down the purple-walled hallway of the private club, past two more signs warning of impending non-PG activity, plunging straight into the den of hedonism. They didn't even stop for towels.
Behind the closed doors, the 15 or so SWAT team members, acting on the basis of an anonymous tip and an undercover investigation, found the evidence: mattresses and Jacuzzis and naked bodies and sex. Lots of sex. Sex in plain view. Sex that involved more than two people.
The Broward County Sheriff's Office (BSO) tapped into a rich vein of immorality at Trapeze II, a swingers' club in unincorporated Broward County. The officers rounded up 24 people engaged in sexual activities (mostly married couples), slapped plastic handcuffs on them, snapped Polaroids, and cited the offending parties for lewd and lascivious behavior, a second-degree misdemeanor that carries a maximum penalty of 60 days in jail and a $500 fine.
"My grandmother always told me about the Nazis, the Gestapo," says Alan Mostow, the unapologetic co-owner of Trapeze II, who, along with his partner, Dennis Freeland, spent 22 hours in jail following the raid. "Now I know what my grandmother went through."
Mostow's penchant for dramatic hyperbole aside, the raid on Trapeze II earlier this month, coupled with a similar assault three weeks earlier on the now-shuttered Athena's Forum near Pompano Beach, which netted 31 arrests, signals a new crackdown on libidinous behavior in Broward County.
While the Trapeze arrests got play in the media primarily because a few of Jenne's law-enforcement brethren were among those purportedly swinging lewdly, a closer examination shows that the end result of the investigation may be trumped-up charges that, according to lawyers with experience in this area of the law, have little chance of holding up in court. Trapeze II continues to operate exactly as it did prior to the raid, and there seems to have been little purpose to the spectacle other than to garner publicity.
Charges have yet to be filed by the Broward County State Attorney's Office. Prosecutors there refused to comment on the case.
Like most other swingers' clubs, Trapeze is classified as a private, nonprofit organization, a distinction that has in the past allowed it to host activities that would be deemed lewd in a public, commercial establishment, such as a bar or a strip club. Couples pay $50 annually for a membership to Trapeze. In addition there is a nightly cover charge ranging from $10 to $75. No booze is sold on the premises; patrons wishing to imbibe must bring their own.
"They went to great lengths to be a private establishment, chartered themselves as such, and tried to do away with any trappings of being a public establishment," says Sam Halpern, a lawyer who has been hired by Trapeze to represent patrons arrested that night. "There's nobody that goes into that club -- not a soul -- that doesn't go there because they want to be there."
BSO maintains that the undercover investigation was launched after it received anonymous complaints from neighbors in the area and that there were allegations of prostitution taking place at Trapeze. Cheryl Stopnick, a spokesperson for the sheriff's office, says that even the officers do not know the identity of the people who left the tips. (Nobody was arrested for prostitution as a result of the raid.)
"If we get complaints about someone breaking the law, we have to check it out," says Stopnick. Sheriff Ken Jenne refused to answer questions from New Times last week regarding the raid. He did find time on the same day, however, to speak with the Herald. "I do not want us to cultivate the image of being the morality police. We're not," Jenne said. This statement seems to backtrack from the press release the sheriff's office sent out immediately after the raid: "BSO will continue to enforce Florida's state statutes prohibiting this type of behavior and more operations are planned for the future."
It's hardly clear, however, that "this type of behavior" -- having sex in a private club -- is prohibited by law. The Florida statute regarding lewd and lascivious behavior has so far been interpreted by the courts to mean that the act must offend another person. In a 1991 case known as Schmitt v. State, the Florida Supreme Court ruled thus: "Acts are neither 'lewd' nor 'lascivious' unless they substantially intrude upon the rights of others." It's hard to fathom who exactly -- other than an undercover cop -- was offended at Trapeze. Presumably the patrons were not offended, since they had paid a lot of money to be there. The owners and staff of Trapeze certainly were not offended. Apparently the offended parties were Ken Jenne and the sheriff's office.
Halpern, the lawyer who is representing several of the patrons arrested at Trapeze, says that he has combed the law books for another case where members of a private club were arrested for lewd behavior, but has failed to locate any. "This is a rather novel prosecution as far as I can see," Halpern says.