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HomeMy WebLinkAbout1981-09-14 81-267 ORDINANCE61-26] introduced by Councilor Soucy, September 14, 1981 CITY OF BANGOR (TITLE.) t(GrYM=Cpy Amend,Lng phapter IV, Article 12 of the Ordi Aces of _,,,,,,_ - the City of 'Savor -- Neeulation of Live 8ntertaLwent in Settle Clubs Be it ordained by Gee City Comwal o(Gu OF o(Banpar, at /ollam: THAT the provisions of Chapter IV, Article 12 of the Ordinances of the City of Bangor be emended, as follows: Seo. 12 Live Entertainment Regulated.. No licensee shall permit entertainment an the licensed premises, whether provided by professional entertainer(s), employees of the licensed premises, or any other person, when the entertainment involves: (a) the performance of acts, or aisolated acts, of sexual intercourse, masturbation, aodamy, beastiality, oral copulation, flagellation, o any sexual acts which are prohibited by law; (b) the actual or simulated touching,cssing, r fondling on the breasts, button" ,a , or genitals; (c) the actual or simulated displaying of the genitals, pubic hair, buttocks, antm, or any portion of the female breasts,jat or below the a rola area thereof; (d) the permitting by any licensee of any person to remain in r upon the licensed premises who exposes to say public view any. parties, of his or her genitals or anus. For the purposes of this subsection, the terms "displaying" or expose" shall mean unclothed o costumed and not covered by a fully, opaque material. un and be it further ordained THAT the existing Sections 12, 13 and 14 be redesignated as Sections 13, .14 and 15 respectively. In city 6camil SePt.u.1981. OBOWNCE -Motion to refer: to Public Safety CgmHttee donsider next meetirN ( TITIE,) Amending CDPt. ry Art. 12 Passed Vote 6 -Yes 2 No 1 Abaent, of a ordinances of the city of BeneOP Votins; yes BaldacolsBrountaes wlation of Live interteLwent in Voting Me Kecuthtbbod Voting No Mo HermnaZeMalen Bottle clubs Absent Porter - IntroLxBi wtl (t L# G/ 4stse CAL City k - vx iD IN CITY COUNCIL September 30, 1981 - Notion to Indefinitely Postpone failed to pass by the following yes and m votes. Coinailere voting lest McKernan, Porter, Wood and Zendzian. Councilors voting no: baldacci, Biountas, Gasst Soucy and Weymouth. Lay an the table until the let meeting in govemEer. C 41 CIw ClNsN u. In City Council November 9,1981 fiefered to Ccde and ordinance Covmittee consider next�Amtibg 481 SLP 10 A9:46 ClyOF enn,: CITY QERK In City Council November 23.1981 Indefinitely Postponed ` 6 yy� (� 'Sit9 Clerh'�— �a£BTfrl November 9, 1901 To: Bangor City Council FROM: Robert E. Miller, City Solicitor RE: Regulationmf Live Entertainment in Bottle Clubs presently pending on the agenda of the City Council is An item (Council Ordinance. 81-267) which would regulate live entertainment in bottle clubs. The. Council has already adopted an ordinance regulating live entertainment in premises licensed to sell liquor. Authority for such action was Outlined in a Memo to you from me, dated September 10, - 1981. General authority to regulate the sale of liquor comes from the Twenty First Amendment to the United States Constitution. Hanover, I find nothing that extends its impact to sitwtiona where liquor s being conwumed in private premises.- Additionally. the Maine State Liquor Commission does not regulate bottle clubs as a part of its liquor enforcement activities, and the provisions of the enabling legislation on local special amusement permits is limited to premises selling liquor. See 28 M.R.S.A. 9 7021 Chapt. N, Art. 11, Ordinances of the City of .Bangor. Thus, I have concluded that the regulatory authority accruing from the Twenty First Amendment does not apply to bottle clubs in theState of Mine. Likewise, the U. S. Supreme Court's. decision n New York State Liquor Authority v. Bellan U.S. , 69. L.F.d.2d 357, 101 Sup.C[. _ (1981), discussed in my previous Meow in support of such authority, would have Limited application to the issue at hand. This is not to say that a municipality may Out regulate nude entertainment under "Home Rule" or its general police powers. 'However, if such controls are to be upheld, they most be structured e s to . not interfere with rights protested by the First AmendmentWithrespect to freedom of speech or expression or in violation of the rights established under the Fourteenth Amendment to the United States Constitution or related State conetitatiooaI provisions. In the late 1970's the Town of Old Orchard Beach was faced with considerable problems -with -a tavern featuring s'toplese'waitresses.- Although— the promisee in question was involved with the sale of liquor, the Town was not in a position to regulate the activity under any Twenty First Amendment authority.At -that time, the "special amusements" in premises selling liquor were still being regulated by the State Liquor Commission, and therefore the State's authority under.the Twenty First Amendment had not been delegated to the municipalities. The Town of Old Orchard took the second beet approach to such problems. and adopted an ordinance controlling nudity in all premises coming within its licensing jurisdiction. The a of its authority was under the general police powers granted under the Baine and United States Constitution, and delegated to municipalities in order to promote the general health, welfare and safety of the community by the legislature. See 30 M.R.S.A. 5 2151. The ordinance was challenged by the owneand ultimately considered by the Maine Supreme Judicial Court in Embattle v. Town of Old orchard Beach, 390 A.24 1065 (Me. 19]8). - The ordinance stated that its purposewas to 'regulate nudity as a form of commercial exploitation and to regulate dress s a form of conduct add not to impede the free exchange and expression of admen." The provisions made it unlawful for any person while acting as a sales person, waiter, waitress, entertainer, or in my other capacity in a business subject to license under local ordinances to remain on the premises unclothed o accustomed. Exceptions to the regulation were established for "theater or imilar establishment which is primarily devotedto theatrical performances or the presentation of movies." The first challenge to the ordinance was A claim that it was basically overly broad as prohibiting activities protected by. the First Amendment to the United States Constitution. The Maine Court concluded that precedent in the United States Supreme Court did n.at protect nodeentertainment per as. After reviewing the ordinance, are Court concluded that it was obviously the Intent of the drafters to not prohibit different forma of expression in a theatrical context. Concluding that the regulation did not violate either the First or Fourteenth Amendments to the U. S. Constitution or similar State constitutional provisions, the Court stated: 'The town has a legitimate Interest in preserving the quality of its urban environment. A. scheme of regulation designed to control the commercial exploitation of nudity in order to enhance the general welfare. is cot arbitrary bee sure It distinguishes between a forum where the purpose of the display of nudity is prinar£ly commercial in nature and a fo[umwhere the display of nudity is inextricably linked to the exchange of Ideasand free expression." ibid,,at 1072. Based upon the above, it appears to me that the Council does not have the authority to regulate nude entertainment In bottle .clubs under its general "lice powers. If such regulation er a dealt", than I would recommend adoption of amendments in the attachment regulations are modeled after the Old Orchard provisions.. The Council might also want to consider, instead of enacting a regulation of nude entertainment in bottle clubs, Yo adopt a more comprehensive— standard similar to that found in Old .Orchardwhich would also apply to "topless" establishments. I have talked with legal counsel for the Town, and am advised than both this ordinance and its regulations on special movement e permits a currently i effect. If this more expanded approach is deemed desirable, thanI would recommend that the bottle club proposal be Indefinitely postponed and that a sea ordinance proposal banning all nudity in an premises licensed by the City be presented at a future meeting. R.E.M. It Attachment an: City Manger. police Dept., City Clerk Proposed Amendments to Council ordinance 91-267 (1) That the last sentence in the proposed Subsection 12 be deleted; and (2) That Subsection 12 be amended with the fallowing; 12.1 purpose. no purpose of this ordinance is to regulate nude entertainment as a form of commercial exploitation and not. to impedethe free exchange and expression of ideas. The conduct regulated is that which the City Council clearly finds to be offensive to the general welfare, public safety, order and morale of the City of Under and its citizen. 12.2 Definition. (a) Theater. As used in this ordinance, ^theater^ means - (i) a building, playhouse, bell, or other place having a permanent stage upon which movable wary and theatrical or vaudeville orsimilar performances are given and permanently affixed eats so arranged that a body of spectators can havenobstructed v of the stage or (ii) _ a building, room, hall, or other place whose primary function is to present movies a motion pictures. and which has _a permanent movie -screen and permanently affixed ants a arranged that a body of spectators can have an unobstructed view of said screen, r (iii) an Open air or "drive-in" movie having a permanently affixed movie scream and permanently affixed devices for broadcasting the sound -tracks of movies or motion pictures inside of the patrons' vehicles. (b) Displaying or expose. For purposes of this ordinance, the terms "displaying" or "expose" shell mean unclothed or uncostumad and not covered by a fully opaque material. 12.3 exception. _ (a) This ordinance dose not apply to (i) a theater o similar establishment _vhichls_ primarily _ devoted -to theatrical performances or the presentation of movies; r (£f) any act authorized or prohibited by any statute in the State of gains.