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Drag bar Hamburger Mary’s is suing the state of Florida — here’s why

The restaurant's co-owner John Paonessa says he believes the public’s reaction to Senate Bill 1438 had an instant effect on business.

Hamburger Mary's Bar & Grille, a drag-themed burger restaurant chain, has sued the state of Florida over Senate Bill 1438, alleging that it has impacted its business.

On May 22, Hamburger Mary’s Orlando filed a lawsuit against the state of Florida, Governor Ron DeSantis and Melanie Griffin, the Secretary of the State Department of Business and Professional Regulation, over Senate Bill 1438, which was signed into law in April. Also known as “Protection of Children,” the law, which officially goes into effect July 1, would fine or suspend the licenses of hotels and restaurants that allow children to attend “sexually explicit adult performances.”

“The language used in the statute is meant to be and is primarily vague and indistinct,” reads the filing, which lists Hamburger Mary’s Orlando owner John Paonessa as the suit's authorized representative. “It does not mention ‘drag’ by name but it is so broad as to include this art form in the State’s interpretation under the newly created or amended laws in question.”

Hamburger Mary’s has several locations across the country, including four in Florida, but the only location involved in the suit is the one in Orlando. Opened in 2008, the bar and restaurant is owned by Paonessa and Mike Rogier. The location’s Instagram shows several past advertisements for events like Broadway-themed brunches, game nights, cabaret dinner shows and other events.

“Plaintiff offers ‘family friendly’ drag performances announced on Sundays where children are invited to attend,” reads the suit. “There is no lewd activity, sexually explicit shows, disorderly conduct, public exposure, obscene exhibition, or anything inappropriate for a child to see.”

Although the bill doesn’t include the word “drag,” it does refer to “prosthetic or imitation genitals or breasts,” which are often used by drag performers, primarily under clothing. “Prosthetic breasts are commonly used by men impersonating women as part of the art,” reads the suit.

In the past, DeSantis has used similar wording to the bill to refer to drag shows, including in July 2022, when the governor filed a complaint over a drag brunch at Miami business R House, calling it “sexually explicit.”

This instance is mentioned in the suit, including that the Department of Business and Professional Regulation alleges R House had broken the law. “The allegations are that drag shows are tantamount to lewd exhibition, operating a lewd establishment, public exposure, obscene exhibition, breach of the peace and public nuisance,” the suit reads. 

R House’s ownership told NBC News in an emailed statement on July 28, 2022 that it was aware of the complaint and said that it was working with the department through its attorney.

“We are an inclusive establishment and welcome all people to visit our restaurant,” R House told NBC News. “We are hopeful that Governor DeSantis, a vociferous supporter and champion of Florida’s hospitality industry and small businesses, will see this as what it is, a misunderstanding, and that the matter will be resolved positively and promptly.”

Although the current status of the complaint is unclear, according to an FAQ on R House’s Instagram page, all drag shows at the establishment now have an “18+” restriction.

The plaintiffs allege the defendants are seeking to “explicitly restrict, or chill speech and expression” protected by the First Amendment “based on its content, its message, and its messenger," reads the suit. “Legislators and the Governor have made it clear that this law was created to prevent children from drag shows.”

The plaintiffs are seeking that the defendants be permanently prevented from enforcing the law, and are seeking unspecified award costs, including payment for lawyer’s fees and additional damages that “the Court may deem just and proper.” reached out to the state of Florida, DeSantis and Griffin, who did not immediately respond.

Paonessa tells that he believes the public’s reaction to SB 1438 had an instant effect on business.

“When it was first announced that the governor had signed the bill, we saw a pretty immediate reaction from our customers who had reservations already on the books,” Paonessa says. “Many of them, especially for our Sunday show, bring their kids, and since they couldn’t bring the kids, they canceled.”

Paonessa says his bar lost about 20% of its bookings after the bill was signed. He also says that even though he hasn’t heard from DeSantis or the other defendants since filing, the social media accounts for Hamburger Mary’s have seen an uptick in negative comments.

“We didn’t have any trolling before, but there certainly has been a lot of trolling after the fact. We’re very blessed with a very loyal base of customers and they’ve been battling with a lot of the vitriol,” Paonessa says, adding that he’s seen an increase in hateful comments about his business, customers and drag queens. “It’s certainly been the biggest downside of filing this lawsuit against the state — what’s being said and what’s actually happening at Hamburger Mary’s.”

A fundraiser for the restaurant’s legal fees set up by a patron of Hamburger Mary’s was posted on GoFundMe titled “Legal Defense Fund for Hamburger Mary Orlando!” and has already raised $36,865 of its $35,000 goal at the time of publication. Paonessa says he appreciates the support.

“We’ve received such an overwhelming response from everywhere, nationwide, and as far as even overseas,” he says, adding that people have been sending letters of support and leaving kind voicemails. “That’s the fuel that keeps us going, knowing that we are doing the right thing and people are supporting us. There’s been such a good overwhelming response in the positive and that really is so heartwarming to us.”

And for those who have never been to a drag show, Paonessa offers this advice:

“I would say, go see a drag show and experience it for yourself,” he says. “Make your own decision. Most people will leave with a positive feeling."