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Page 1 of 22 Regulating Adult Entertainment Establishments in Maine January 10, 2005 Maine State Planning Office Matthew Nazar Regulating Adult Entertainment Establishments in Maine January 10, 2005 Maine State Planning Office Matthew Nazar, Director, Land Use Program Last year, Maine’s Legislature made it under the broad home rule authority, and be legal for municipalities to regulate “adult unrelated to zoning discussed below. If you entertainment establishments” through zoning intend to adopt this type of ordinance, make without an adopted, consistent comprehensive sure that the State Legislature or Federal plan,. However, if a municipality has a Constitution has not preempted the local comprehensive plan, the regulations must be authority to do so. For additional information consistent with that plan. Towns may regulate on the preemption, read “Preemption the operation of adult amusement stores, adult Doctrine,” Maine Townsman, June 1991. video stores, adult bookstores, adult novelty Zoning. A “zoning ordinance” is a stores, adult motion picture theaters, on-site type of land use ordinance that divides a video screening establishments, adult arcades, municipality into districts and that prescribes adult entertainment nightclubs or bars, adult and reasonably applies different regulations in spas, establishments featuring strippers or each district. Many adult business regulations erotic dancers, escort agencies or other are zoning ordinances, regulating the location sexually oriented businesses. For the rest of of the businesses within the municipality. this article these are jointly referred to as Unlike most zoning ordinances, 30-A “adult businesses”. M.R.S.A. § 4314 and 30-A M.R.S.A. § 4352 So what does this mean for Maine exempt zoning that regulates adult businesses towns? What can towns legally regulate? It’s from having to exist within the context of a not as simple as it may sound, so let’s explore comprehensive plan. Because of this some of the possibilities. Much of what will exemption, any municipality in Maine can be discussed in this article is related to federal, adopt a zoning ordinance regulating adult state, case law. The author is not an attorney, businesses. As stated earlier, though, if your so this article should not be considered legal municipality has an adopted comprehensive advice, but rather as guidance if your town is plan, your adult business ordinance must be considering adopting this type of regulation. consistent with that plan. Remember, always have your municipal attorney review any ordinance you propose. Freedom of Speech The First Amendment of the U.S. Legislative Authority Constitution prohibits Congress from passing Home Rule. 30-A M.R.S.A. § 3001 any law that abridges the freedom of speech. gives municipalities broad authority to adopt The Fourteenth Amendment extends that ordinances. But, where the Legislature has prohibition to states and municipalities. preempted or otherwise limited local Speech has been defined by the U.S. Supreme authority, municipalities may have limited or Court to include more than just words. It also no authority. Knowing what preemption is includes actions or movements that and how it may impact municipal authority to communicate, including most performances enact ordinances is vital to ensuring that local before an audience, such as burlesque or other ordinances are enforceable. Many ordinances dancing. The test for identifying protected that a municipality may want to adopt to speech is known as the “O’Brien Test”, which regulate adult businesses may be adopted discussed later. First, there are some limits on Regulating Adult Entertainment Establishments page 1 of 22 January 10, 2005 what constitutes speech that should be U.S. is Miller v California 413 U.S. 15 considered. (1973), in which the Court stated that Massage parlors can, according to the obscenity depends on: courts, be banned altogether, because a massage is conducted with no expressive or 1. whether the average person, applying communicative content. See Plaza Health contemporary community standards, Clubs, Inc. v New York 430 N.Y.S.2d 815 would find that the work, taken as a (1980, citing several U.S. Supreme Court whole, appeals to the prurient interests; dismissals). Maine law regulates massage 2. whether the work depicts or describes, in a therapists through 32 M.R.S.A. § 14301 patently offensive way, sexual conduct through 14311. specifically defined in the applicable law; Nude dancing has seen limits placed and on it by the U.S. Supreme Court over the past 3. whether the work, taken as a whole, lacks thirteen years. In both Barnes v Glen Theater, serious literary, artistic, political, or Inc., 501 U.S. 560 (1991) and City of Erie v scientific value. Pap’s A.M., 529 U.S. 277 (2000), the U.S. Supreme Court upheld local ordinances Frankly, it would be very difficult for a requiring dancers to wear at least pasties and a community to identify something that is G-string during performances. In the Glen obscene based on those criteria. Who’s the Theater case, the Court said that the ordinance “average person”? What are “contemporary was “narrowly tailored” to meet the community standards”? This has been an requirements of the “O’Brien Test” protecting elusive topic for decades. In 1964, U.S. free speech. However, Justice Souter Supreme Court Justice Potter Stewart indicated that he upheld the ordinance in the famously stated, "… I know it when I see Glen Theater case only because of the goal of it…" on the topic of obscenity and preventing the “secondary effects” of nude pornography. If you feel that you could make entertainment. Those effects would likely be such a determination, take great care with the hard to demonstrate for a community theater details and get significant advice from your version of The Full Monty. So clearly municipal attorney. defining what you intend to regulate is critical. Maine has not legislated an outright The Erie ordinance appeared to recognize the ban on obscenity as some states have, but need for this distinction and did not apply to there are a number of state laws that regulate “legitimate” theater, but that aspect of the obscenity. These include the states slightly ordinance was not explored by the Court. modified version of the above definition, Maine law speaks to the issue of found in 17 M.R.S.A. § 2911 through § 2913. nudity through 17-A M.R.S.A. § 854 The statutes are primarily concerned with regulating indecent conduct. While this law protecting minors from obscene material. does not prevent nude dancing, it limits such Again, obscenity is not protected speech, and performances by requiring that they occur in a a municipal ordinance can ban it, but such an place where they cannot be observed from a ordinance would likely be very difficult to location outside the performance location. enforce because proving something is obscene Obscenity is the final layer to peel is difficult. away when discussing protected speech. The O’Brien Test flows from U.S. v Obscenity is speech, but it is not protected. O’Brien 391 U.S. 367 (1968). It lays out the Unfortunately, the problem is identifying test used by courts to determine the obscenity. The seminal obscenity case in the constitutionality of an ordinance regarding Regulating Adult Entertainment Establishments page 2 of 22 January 10, 2005 freedom of speech cases. O’Brien involved a own study of secondary effects. In City of draft card burned in protest, not an adult Renton v Playtime Theaters, Inc., 475 U.S. 41 business, but the four-part test outlined in the (1986) the U.S. Supreme Court made it clear case is the foundation of all free speech cases that it’s okay to cite studies of secondary since then. The test states that an ordinance effects, even if those studies were done in will be upheld only if: other municipalities. A quick search of the internet using your favorite search engine for 1. It is within the constitutional power of the the phrase “secondary effects of sexually government. This means all constitutional oriented businesses” will turn up hundreds to powers, other than the free speech thousands of references, articles, and studies question, of course. by a variety of groups. Referencing the 2. It furthers a substantial governmental secondary effects in detail in a purpose interest. The term “substantial” is statement is important to ensuring that the important here. The courts do not give reason for regulating the use is clear. Without government the benefit of the doubt in clear statements about the secondary effects these cases, and have the opportunity to that cause you to regulate adult businesses, the second guess legislatures regarding the justification for the ordinance is severely importance of the ordinance. weakened. 3. The governmental interest it furthers is The courts have provided some further unrelated to the suppression of free speech guidance on secondary effects by ruling in or expression. This is often called the Tollis, Inc. v San Bernardino Cty, 827 F.2d “content neutral” requirement. In other 1329 (9th Cir 1987) that there was no evidence words, the desire not to have Neo-Nazi or of secondary effects from the single showing Satan worship literature in town is not a of an “adult” film at a theater. An ordinance valid reason for an ordinance. that defined a theater as an “adult theater” 4. The restriction of free expression is no based upon one showing was deemed too greater than is essential to the furtherance broad and struck down. of that substantial interest. This is the Regulating the location of adult “narrowly tailored” test. The municipality businesses is perhaps the first issue that many cannot restrict speech any more than is people think about. We know that these absolutely necessary to achieve its interest. businesses are protected by the First and Fourteenth Amendments to the U.S. Regulation Constitution, but does that mean we have to So with all of those criteria and allow them anywhere in town? No.
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