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