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.