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HomeMy WebLinkAbout1981-09-14 81-266 ORDINANCE81-]66 Intro3uced by Ccu cilos Soucy, September 14, 1961 ryry_pp .,CITY OF BANGOR (jptay LE,) XjY[{jjplCpi Amends, Chaptez IV, Article 11, Sections 3, of the __..... Ordinances of the City of Ranger -- Regulation of Live entertainment in _Preauses,Liceused for the Sa„\epf A}pohojiq deVerages Be if ordai i by CUM Courted of the CUM of Bongos.. as fd umt T THAT the provisions of Chapter IV, Article 11, Sectioa 3 of the Ordinances of the City of Bangor he amended by adding a new subsection 3.3, as follows: 3.3 Live butertaimerat Regulated. No licensee shall peanit entertainment on the licensed premises, whether provided by professional entertainer(s), employees of the licensed premise r any other person, when the entertainment involves: (a) the performance of acts, or simulated acts, of sexual intercourse, masturbation, sodomy, beastielity, oral copulation, flagellation, or any sexual acts which are prohibited by lav; (b) the actual or simulated] touching,assing, r fondling on the breasts, buttocks, a us, or Recitals; (c) the actual or simulated displaying of the genitals, pubic hair, better”, anus, or any portion of the female breasts at or below the areola area thereof; (d) the permitting by any licensee of any person to upon the licensed promises who exposes tany public view any portion of his or her genitals or anus. For the purposes of this subsection, the teras "displayiag" or expose" shall mean unclothed or u¢costumed and not covered by 'a fully opaque material 1ity ORDINAMCE la 6Costed September 14,1981 Motion to refgr to public safety AmsMing GhpL.N Art 13 owns. and consider next meeting ( TITI Bae.3 of the ,) passednv to 6 yea 2 no rel N 10 NY -06 C lmazoes of the City aBangor Regulation of live entertainment in p isca licensed H voting yea Baldflooi, Brwntea, c(TyLt, UFLYfRI ae ca,soncy,weposth,Wood g Voting No Mc %ernes Zendzian for sale of Alcoholic beverages Intra anl riled t Absent Porter. . � � IIL i 'CaxiLaYt ity lark IN CITY COUNCIL September 30, 1981 Indefinitely Postpone failed to pass ' by the following yes and na votes. - CoamilaYs voting yea; McKernan, Porter. wood and zendzian. Councilors voting - Baldacci, Brountas, Gass.,. Soucy and Weymouth. Vote to save the question passed by the following yes and no votes. Councilors voting yes: Baldacci, Brountae, Gass McKernan, tarter, sandy, Weymwth, wood and zendzian. Mating for passage passed by the following yes and no vote's. Councilors v tierrrr$$$$$$ yes: ealdacci, Brduntas, Gass, Sancy and Wey th. Coun ibis - voting PJYte[, W and 2endzian. �m�e�Ke/r L/Ltw�ll/ 1t. w IiM�FI�. ITY CLERK .. SI_ -act �i- act September 10, 1981 TO: Bangor City Council FROM: Robert B. Miller, City Solicitor RE: Regulation of Live Entertainment On the agenda for the next regular maeting,Of the City Council, there will appear two ordinance amendments relating to the regulation of live entertainment. One of theamendments relates t0 live entertainment in establishments having Special Amusement Permits. The other relates t0 live entertainment in bottle Clubs. Both items have been requested by the Police Department, and are intended to deal specifically with nude dancing in such establishments. As many members of the Council may b ea , the issue of nude or ami -node entertainment in establishments in which liquor,reed c has been a s Of considerable litigation throughout the country. Ovr the years,the courts. have taken a position that all nudity cannot be prohibited. Some entertainment involving nude persons has been shielded from regulation on the basis that it is protected under the freedom of speech and expression provisions of the First Amendment to the United States Constitution. Recent decisions have somewhat eroded this barrier by balancing the First Amendment protections against the clear authority of the States to regulate the sale Of alcoholic beverages under the Twenty First Amendment to the United States Constitution. Three recent decisions, one by our Maine Supreme Judicial Court and two by the United States Supreme Court, essentially set the current. standards for such regulations and a relevant to yourconsiderationof the two proposed ordinance amendments. On October 3, 1980, the Maine Supreme Judicial Court issued its decision in Gabriele v.- Tow of Old Orchard Beach, .420 A.2d 252 (Me. 1980). Io a decision written by Justice Warrick, the Court considered an attack on e local ordinance whichregulated nude live entertainment in businesses licensed to sell alcoholic beverages for consumption an the premises. After. jurawing previous decisions of the United States Supreme Court and other isdictions on the question of nude dancing in facilities serving alcoholic beverages, the Court stared; We take it to be thus settled, n , that pursuant to powers conferred by the Twenty-first Amendment, the - prohibition (without regard to considerations of obscenity) of live topless dancing by a female in a bar or tavern - more particularly where such activity occurs rely as such without being part of a larger Context reasonably classifiable as a musical or theatrical production or performance - is consistent with the First -Fourteenth Amendment protections of speech. In the present case the topless dancing by a female presented as live entertainment in plaintiff's bar was nude dancing being presented merely as such. Thatit may have occurred on a slightly elevated area designated a "stage!' did Out transform it into a lin musical or theatrical production or performance involving a sufficient communication of content to - bring obscurity into play as a factor necessary to be valuated in the determination .whether or not the - prohibition of such nude dancing effected a un stitutional abridgement of speech. Monte, in the circumstances s of the instance case, the prohibition of the nude dan dancing presented aslive entertainment in the plaintiff's tavern wpowers of conferred by the Twenty-first Amendment which didn of transgress the independent protections afforded speech or expression by the Pirat-Fourteenth Amendments. I_id., at 257. This decisions, unless -superseded Eby -action -of --the United -States— - Supreme Court, established-thestandard in the State of Nein .for such astrictions on nude dancing -in :places serving alcoholic beverages. -As a result of this decision, several Maine communities have adopted restrictions similar to the Old Orchard Beach ordinance. Moat. If not all, have limited their ordinance amendments to the, provisions dealing with special amusement permits. It is my understanding that such provisions a in effect locally in Old Town and Brewer. A similar provision has also also been adapted by the Waterville. City .Council- subject to.referaudum.approval. Both of the proposals before you are also identical -to the Old Orchard provisions. Ater the Old YSrcha£d decision and earlier this year, the United - States -Supreme, Court issued two decisions relating; to nude dancing in commercial establishments: On lune •1,.1981, --the Court,-lesued-its decision in Shade v. Borough of Mount Sabre , U.S. , 68 L.Ed.2d 671, 101 S.Ct. (1981). This case involved an adult bookstore which introduced a coin- operated mechanism which permitted customers to watch a live dancer, usually nude, performing behind a glass panel. The Mount Ephraim Zoning Ordinance was construed to prohibit such activity, together with all other live entartaiament. The Court found -the -ordinance to be constitutionally infirm and in violation of the rights guaranteed under the First and Fourteenth Amendments to the United States Constitution. The court stated that Borough had .failed to advance.sufficieut justification for the exclusion of broad categories of expression which tame within the First Amendment's protection. In a nutshell, the key element In this decision was the broad prohibition against all live entertainment under the sonfts restrictions, which would include live nude dancing In a legitimate theatrical production or other protected forma of entertainment. - Just three weeks later, the United States Supreme Court Issued its decision in New York State Liquor Authoritv v. BellanrU.S. , 69 L.6d.2J 357, 101 S.Ct. (1981). In that case, the State of New York had mended its alcoholic beverage control to prohibit nude dancing in establishments licensed by the State to sell liquor for on -premises consumption. - Owners of several nightclubs, bars and restaurants which had for years offered topless dancing challenged the statute as a violation of the First Amendment inasmuch as it prohibited all topless dancing on all licensed premises -- not just the type of dancing that might be considered obscene. In a Per Curfem opinion, the United States Supreme Court held that the Nem York statute did not violate the First Amendment since the statute was within the State's power conferred by the Worry - First Amendment to regulate the sale of liquor within its boundaries. The Court went on to state the State's power to ban the sale. of alcoholic beverages entirely included. the lesserPowerto ban the sale of liquor - n prem where topless dancing occurred. The Court also stated that whatever artistic or communicative value that might attach to topless dancing w e by the State's of its broad powers under the cTwenty-Ficat Amendment. In essence, the Salience decision has curved out a broad exception to prior decisions invalidating ordinances restricting or prohibiting nude dancing where the activity takes place in a commercial establishment selling liquor. Authority for municipalities to regulate entertainment in facilities which sell liquor: is found in.28 M.H.S.A..5 J02, Until recent years this activity -was regulated by the State Liquor Commission. To 1977, the State Legislature delegated the responsibility and authority for such regulation to the municipalities. As a part of such delegation of authority, the Legislature specifically authorized municipalities to adopt ordinances oi Hiles and regulations governing the music, dancing or entertainment permitted in such licensed promises. Inasmuch as the permits are limited to premises where liquor is sold to be crammed he the premises, there appears to be littlequestion in my mind that licensing authority is merely an extension to municipalities 'of -the -State's Twenty -First Amendment powers. Likewise, since authority to set standards for such permits has bear specifically.delegated-to-the local -authorities-by y the State legislature, if the City Council finds the proposed regulation of live entertainment to be appropriate, there appears little question as to. the Council's authority to Impose them. This was the approach in the Old Orchard case, and I find nothing in the two recent declaims by the United States Supreme Court that would seem to restrict or limit such authority. - The Council's authority to impose such restrictions on bottle clubs is less clear. Authority for City Council to regulate bottle clubsis found in another provision of the statutes relating to alcoholic beverages, 28 M.H.S.A. 51 2(1-A), 4. General authority for such regulations also, in BY judgment, come under the City's general police powers and its authority under `Tune rule." One material difference between premises licensed for special amusement permits and bottle clubs is the lack of any "sales" of alcoholic beverages in the latter promisee. Whether the State's authority to regulate liquor order the Twenty-Firau Amendment Includes its authority to regulate or delegate the regulatoryauthority of bottle clubs is not clear. However, because alcoholic beverages are being c umed on the premises the police concerns are equally applicable. If the Council decides to add the proposed amendment to our bottle club regulations, you should b ee that its s authority i not as clear cut as under the special amusement permit Provisions. I would be glad to provide the Council or a co®ittee thereof with a more detailed discussion of the legalities of such legislation. Im addition, I would be glad to discuss at greater length what I understand to be the legal parameters w such restrictions. R.E.M. Cc.- City Manager City Clerk Chief Woodhead