Making Public Policy on Sexually Oriented Businesses: Consensus seems to favor statewide regulation
(from Maine Townsman, December 1995)
by Jo Josephson, Staff Writer
In the early 90's it was a question for elected officials in the Portland area. Now it is confronting their northern cousins: What to do-or not to do-with the presence or potential presence of sexually oriented businesses (i.e. adult bookstores and relaxation spas) in our municipality?
The current responses by elected officials to the recent threat from such businesses have ranged from "doing nothing," to instituting a moratorium on new businesses, to adopting an ordinance that will either regulate or outright ban the businesses, to urging the Legislature to "do something."
This article focuses not on the ordinances or laws that have been passed or are under current consideration throughout Maine, but on some of the thinking behind the making or not making of policy at the local level regarding adult businesses, primarily the unlicensed massage parlors, otherwise known as relaxation spas.
In doing so, this article focuses on what officials in three central and northern municipalities--Presque Isle, Dedham and Bangor--have to say about:
- The role of municipalities in regulating morality.
- The role of the community as a regulatory body.
- The banning of such businesses vs. the regulating of them.
- The local enforcement of ordinances in this arena.
- The role of the state.
It should be stated at the outset that the opinions expressed here are those of the individuals quoted and do not necessarily reflect those of the entire elected or appointed body in that municipality.
What if someone opened an adult bookstore in your community and no one came through the door? They would fold up their tent and steal away!
That's what happened in Presque Isle (pop. 10,452) last summer.
But not before the Presque Isle City Council, responding to those in the community who were adamantly opposed to such establishments, began work drafting an "obscenity" ordinance to regulate and thus restrict such businesses, says City Manager Tom Stevens.
"In the end, the council did not have to take action on the bookstore because the community did; as such, the community and not the council became the regulatory body," Stevens told the TOWNSMAN.
"They did it for us," says Stevens, adding that after the shop closed, the proposed ordinance was rejected by a majority of the council. As Stevens sees it, "If we don't need to regulate, why add another ordinance?"
Stevens' perspective on such establishments did not develop overnight. At the time his council was wrestling with the wording of the proposed ordinance, he took advantage of his attendance at the annual New England Management Institute in Orono to consult with his colleagues from the southern part of the state and hear from them what they had learned earlier.
They impressed on him the fact that if his council put an ordinance on the books, they better be prepared to spend the money to enforce it. And if need be, defend it should it face a court challenge.
At the same time, they suggested that such an ordinance could bring about a "chilling" effect, discouraging any and all potential adult business establishments from moving into town and setting up their tent.
If Stevens, who describes Presque Isle as a community having a "high social fabric," has any advice to give to other municipalities, it is this: "Get a feel for your town." As he saw it, it was the moral character of the community and the marketplace that censored the adult bookstore and not any proposed ordinance.
But if that is not the direction you are headed in, if you are intent on an ordinance, says Stevens, then "get a feel for how far your council is prepared to go."
Understand that if you decide to go with an ordinance you better have an attorney put it in a language that will stand up in courts. Understand that if you pass an ordinance that you need the resources to enforce it," says Stevens.
The courts and enforcement aside, Stevens says that elected officials considering adopting such ordinances will ultimately have to ask themselves the basic question underlying such ordinances: "Should we regulate morality for adults?"
In the course of drafting their proposed ordinance, Stevens says the Council struggled with the language and asked itself: "What are we trying to regulate? If it is morality, then what is our definition of morality?"
"It's not an easy question to answer; depending on our backgrounds, your definition of morality may be quite different from mine," says Stevens.
Adult bookstores aside, Stevens says he takes a less laid-back approach to those so-called relaxation spas that are making the headlines this year throughout Maine.
"These businesses have a different twist. Unlike bookstores, they involve body contact. And when they appear on the horizon in Presque Isle, as Stevens expects them to in the near future, he expects they will provoke a different kind of discussion and action by the council.
Stevens, who describes himself as a strong home rule advocate, says, "My call on this kind of business (relaxation spas) is that because we are such a mobile society that this is not a home rule issue, but rather a state issue, and as he sees it, regulating the spas should be associated with the state's prostitution law.
What if you are a rural community, with no downtown, no police department, and are situated between three major cities (Bangor, Brewer and Ellsworth) that have recently banned so-called relaxation spas in their communities.
And what if a school bus, converted to a mobile massage parlor, dubbed "Tiffany the Magic Bus" sets up shop on a lot off one of your rural roads around the same time voters, at a special town meeting, adopt a 180-day moratorium on such businesses.
That's what happened earlier this month in Dedham (pop. 1,262), where voters at a special town meeting voted 63 to 7 to temporarily ban such establishments until an ordinance was in place.
Rick Leavitt, Dedham's code enforcement officer for the past three years, admits to being skeptical about local action on such issues. He is skeptical, he says, because being the town's code enforcement officer, he will have to enforce the ordinance. And that is something he does not look forward to doing.
"As the town's code enforcement officer, I am here to enforce land use and building standards, not the morality of the community, for I am neither a priest nor a cop; I am only the code enforcement officer," says Leavitt.
Leavitt also says he is skeptical of such ordinances being passed at the local level because people will vote emotionally and not rationally on such ordinances. He blames the media in part for this.
As he sees it, such establishments have always been around and the choice to patronize such a business should be left to the individual. But if such a business is to be made illegal, then it should be done at the state and not the local level.
But given the almost unanimous vote at Dedham's special town meeting to endorse the moratorium, Leavitt is currently working on a draft ordinance to regulate such businesses. It is fashioned after South Portland's ordinance and indirectly bans from town, through stringent regulations, such establishments.
Leavitt says he believes that if the town were to outright ban such establishments it could open itself up to a discrimination suit, so he prefers to go the regulation route.
Emotional voting aside, Leavitt says he is also concerned about the precedent that could be set by towns adopting local ordinances that ban businesses because they are a "certain type of business."
So he asks: "What happens the next time a business wants to open in a town and the neighbors don't like it?
From Leavitt's perspective, towns should stay away from ordinances that regulate morality and stick to ordinances that deal with land use and building standards.
Leavitt notes that while the mobile massage parlor has complied with the moratorium and is not open for business, it has met all of the town's existing land use and building standards for opening a business in Dedham.
It should be noted here that the Hallowell (pop. 2,953) City Council recently chose the route of regulation, amending its existing adult business ordinance to include not only adult bookstores but relaxation spas as well, relegating them to certain parts of town.
What if a number of relaxation spas have been operating in your community for a number of years? And the city council passes an ordinance banning them, but only after they became a public issue, when it was learned that the sessions were being videotaped by the owner?
That's what happened in Bangor (pop. 32,516) this past September.
As Bangor City Manager Edward Barrett told the TOWNSMAN, while some councilors preferred not to regulate the businesses, believing that it was an issue the state should address, once a series of serious problems arose in connection with the spas, like the videotaping, the council felt it had a responsibility to listen to the community and take action.
Barrett says the council voted to go with outright banning of such establishments rather than relegate them to an "okay" area in the city.
"We did not want to create a so-called red light zone," says Barrett, "because we believed that is not what the community wanted. We also did not think it was a viable alternative to banning because it would create a whole new set of problems."
"Banning is the easiest approach; it's simple and straightforward," says Barrett.
Barrett also told the TOWNSMAN that he did not think that the outright ban approach would be difficult to uphold, noting that it was in keeping with the so-called "prevailing community standards" approach that has withstood scrutiny by the U.S. Supreme Court in related issues.
At the same time that the Bangor City Council voted unanimously to ban sexual contact (any touching of the genitals or anus) for the purpose of arousing or gratifying sexual desire in return for pecuniary benefit, it also passed a resolution asking the Legislature of the State of Maine to "undertake the necessary steps to amend the existing definition of prostitution as set out in State law to include "paid sexual contact."
In its resolution "Calling Upon the State Legislature to Clarify the Definition of Prostitution," the Bangor City Council notes that by closing the current loophole, the state would "avoid the proliferation of varying local regulations and eliminate the problems posted by relocation of establishments providing such services from one community to another, based on varying local ordinances."
It should be noted that since passage of the Bangor resolution, an emergency bill has been accepted by the Legislative Council seeking a statewide ban on "paid sexual contact." Sponsored by State Rep. Edward Povich (D-Ellsworth), it will be considered during the Second Regular Session of the 117th Legislature.
Officials in at least one municipality-Bucksport (pop. 4,927)-say they are awaiting action on Povich's bill. Bucksport has recently approved a moratorium on accepting any applications for massage parlors. Town Manager Roger Raymond says his town council is awaiting the outcome of Povich's bill before going to the local drafting table.
The ABC's Of Regulating Adult Businesses
by Richard P.Flewelling, Senior Staff Attorney
Whether, and to what extent, municipalities may regulate "adult" businesses depends in large part on whether the inventory or entertainment they offer constitutes protected "speech" under the First Amendment to the U.S. Constitution. Over the years, the U.S. Supreme Court has defined "speech" to include not just words but a broad range of communication, including expressive conduct. Thus, for example, constitutional protection extends not only to many erotic materials, such as books, magazines and videos, but also to nude and exotic dancing. Conduct with no expressive content, however, such as massage, is not considered "speech," and obscenity, which is, is nonetheless not protected because, according to the courts, it is not what the Framers had in mind. "Obscenity," though, is a narrowly defined term and, under the U.S. Supreme Court's Miller test, includes only speech that (1) taken as a whole, appeals to the prurient interest of the average person, applying contemporary community standards; (2) depicts or describes sexual acts or conduct in a patently offensive way; and (3) taken as a whole, lacks serious literary, artistic, political or scientific value.
The significance of all of this is that while conduct that is not speech may be prohibited, and material or performances that are obscene may be banned, much of the remaining offering in adult entertainment is constitutionally protected and may only be regulated, not prohibited. Furthermore, because free speech is deemed a fundamental right, regulations affecting it must advance a substantial governmental interest that is content-neutral, and they must be narrowly tailored so that they infringe on this right no more than absolutely necessary. Needless to say, the legality of a particular ordinance will depend on whether it conforms to these limitations as applied to a specific set of circumstances. Nevertheless, there are several generally accepted alternatives in regulating adult businesses.
Zoning Ordinances. Zoning may prohibit adult businesses in certain zones and relegate them to other, less desirable zones so long as adequate alternative locations are available and the purpose of doing so is to combat the "secondary effects" of such businesses (e.g., crime, lower property values, etc.). Where they are permitted, they can also be required to be set back a reasonable distance from schools, churches, other incompatible uses and each other. Many consider this to be among the most effective overall approaches.
Special Amusement Ordinances. Any entertainment, including dancing, at a licensed liquor establishment requires a special amusement permit from local officials under current state law. Nude dancing may be prohibited in such establishments by special amusement or "public indecency" ordinance, even though dancing is otherwise protected "speech," because of the judicial deference given to the regulation of liquor. A similar prohibition would probably not stand if applied to nonlicensed establishments such as "juice bars."
Paid Sexual Contact Ordinances. "Sexual contact" (manual stimulation) for hire is not presently a crime or a violation of current laws regulating legitimate massage therapy, hence, fake massage "parlors" and "spas" are legal unless prohibited by "paid sexual contact" ordinance. Such ordinances carry only civil penalties and must be prosecuted locally, although this particular problem may be temporary (see accompanying article).
Obscenity Ordinances. There is no state-wide obscenity law, but local obscenity ordinances may ban the sale or distribution of materials and performances that meet the Miller obscenity test (see above). Again, however, prosecution and punishment is a local civil matter, and some jurisdictions have found this option to be of limited value.
When considering whether or not to regulate adult businesses, weigh the alternatives carefully, avoid political grand-standing, work closely with legal counsel, and be prepared to commit substantial resources to enforcement. Making the wrong choices in this field can be expensive, embarrassing and ineffective.