Dancer asks court to make it rain

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Stripping in South Carolina just became a riskier business.

A young exotic dancer who was maimed during a shootout at the Boom Boom Room Studio 54 in Columbia was denied workers’ compensation by a divided S.C. Court of Appeals panel, which ruled 2-1 that she was an independent contractor.

Until now, no state appellate court had considered the employment status of a stripper. The case of LeAndra Lewis v. L.B. Dynasty also gave the state’s second-highest court a rare opportunity to explain what it means to “make it rain” in a strip club and discuss whether nude dancers bring their own “equipment” to work.

Lewis, who was 19 and living in Charlotte at the time of the shooting, worked a strip-club circuit throughout the Carolinas. She and other nomadic dancers moved from club to club following rappers, actors and other big spenders who were in town for the night.

On the evening of June 23, 2008, Lewis showed up at Columbia’s Boom Boom Room on Two Notch Road and asked if she could dance for tips. The management checked her ID, made her pay a fee to work, gave her a paper explaining the club rules and showed her to the dressing room.

Lewis was dancing when a gunfight broke out. A stray bullet tore through her abdomen, hitting her intestines, liver, pancreas, uterus and a kidney that had to be removed. Doctors told her that she may never be able to have children because of the shooting, which left her so badly scarred that she was no longer employable as a stripper.

No sex on the job

After the state Workers’ Compensation Commission decided that she was not an employee of the Boom Boom Room and denied her claim, Lewis, who faces nearly $400,000 in medical bills, appealed to the court.

Her argument hinged on the extent of control that the club exerted over her. Her attorneys said the club and its managers told her when to take the stage, selected her music and furnished the pole, cleaning solution, towels and other equipment that she used at work. Also, Lewis could have been fired if she was caught breaking the club’s rules, which prohibited having sex and fighting on the job, among other things.

“Everything that happens there happens only if they say it is so and allow it to be so,” said one of Lewis’ appellate attorneys, Blake A. Hewitt of Bluestein, Nichols, Thompson & Delgado in Columbia. “The club is the controlling center for profit and loss.”

That argument was apparently impressive, though not persuasive, to Chief Judge John C. Few. He took a moment to compliment Hewitt and his law firm partner John S. Nichols for their “creative presentation” when he wrote the majority decision.

But describing Lewis as an “itinerant artistic performer,” Few determined that she clearly was an independent contractor because she was not asked to dance at the Boom Boom Room, didn’t get a paycheck from the club and was free to leave whenever she wanted. Judge Thomas E. Huff concurred.

“With respect to furnishing equipment, the club did nothing more than allow her onto its premises,” Few added. “From the standpoint of both the Boom Boom Room and its customers, Lewis brought her own ‘equipment’ for her work.”

Few noted that the Boom Boom Room never paid Lewis – she made all her money from tips – and the club’s only involvement in her cash flow was to keep plenty of $1 bills available for customers who wanted to “make it rain” on strippers.

“This procedure allowed a customer who was particularly happy with a dancer’s performance or who wanted to encourage a more enthusiastic performance to pay the club $100 or more and get the same amount back in one dollar bills,” Few explained. “When the customer threw the ones in the air, he was said to ‘make it rain.’”

In his dissent, Judge Paul E. Short Jr., contended that Lewis was an employee because she had to abide by the Boom Boom Room’s rules when she was dancing or risk being banished from the club.

“I find the Club exercised the sufficient amount of control over Lewis in the performance of her work to establish an employment relationship, and the Appellate Panel erred in finding Lewis was an independent contractor,” Short wrote.

He added that other states, including Oklahoma and Virginia, have decided in similar cases that an employment relationship exists between clubs and strippers.

In North Carolina, Asheville workers’ comp lawyer Ron L. Moore was not aware of any case law on the issue, but predicted that N.C courts would side with the majority in Lewis.

“One of the factors our courts look at is whether the claimant is regularly employed by the other party,” he said. “In this case, I think she would be considered a casual employee, which is typically not considered to be working in the course of employment.”

‘Road map’ for employers

Strippers who are injured on the job often are at the mercy of the workers’ compensation system because most clubs do not carry comp insurance – the Boom Boom Room included, according to Hewitt.

“It’s one thing suing the Cheetah Club or the Gold Club, well-run strip club operations, but you run into all these clubs that are fly-by-night operations, LLCs owned by other LLCs, and you can’t even find them to serve them,” he said.

Hewitt, who joked that he’s become well-known at his parents’ church for his work on the Lewis case, plans to ask the court to reconsider its decision. Columbia attorney Lisa C. Glover, who defended the S.C. Uninsured Employers’ Fund against Lewis’ claim, said she was pleased with the ruling but declined further comment.

If the court’s opinion stands, it could help employers dodge workers’ comp claims, said J. Tyler Lee, a personal injury lawyer at McWhirter, Bellinger & Associates in Columbia who did not work on the Lewis case.

“This is a business that profits from these ladies’ skills, their art, and they shouldn’t be allowed to profit without having to face the consequences when one of them gets hurt,” he said. “I think [the decision] is going to provide a road map for employers to avoid liability under workers’ comp. But that may backfire on them.”

If workers’ comp is taken out of play, a rejected claimant will be more likely to turn around and sue the employer. That’s exactly what is happening in Lewis: Hewitt said his firm is currently pursuing a premises liability suit against the Boom Boom Room.

“The regular civil suits are harder to win,” he said, “but you could potentially get way more money in the long run.”

The 10-page decision is Lewis v. L.B. Dynasty, Inc., Lawyers Weekly No. 011-126-12. The ruling can be found at sclawyersweekly.com

OPINION BRIEF

Case name: LeAndra Lewis v. L.B. Dynasty, Inc.

Court: S.C. Court of Appeals

Judge: ChiefJudge John C. Few, with Thomas E. Huff concurring and Paul E. Short Jr. dissenting.

Attorneys for plaintiff:  Blake A. Hewitt and John S. Nichols (Columbia) on appeal; Charles B. Burnette III (Rock Hill) at trial.

Attorney for defendant: Lisa C. Glover (Columbia)

Issue: Is a stripper who was hit by a stray bullet at a club entitled to workers’ compensation?

Holding: No, because she was an independent contractor and not an employee of the club.

Potential effect: This is the first time an S.C. appellate court has considered the employment of status of strippers, and its ruling could help certain employers avoid workers’ comp claims.