Legislature(2003 - 2004)
05/07/2004 08:27 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 367(FIN)am-LICENSING ADULT-ORIENTED BUSINESSES
MR. HEATH HILYARD, staff to Representative Lesil McGuire,
sponsor, told members that HB 367 has undergone numerous
iterations with regard to the provisions included. When
Representative McGuire began to work on this bill, she was
looking at the concept of both business and occupational
licensing: business licensing for the clubs and occupational
licensing for entertainers. However, due to fiscal
considerations and numerous objections raised, the bill focuses
only on business licenses. That focus is the most fiscally
responsible and the element most agreed upon.
MR. HILYARD said the version that passed the House also
specifies the types of sexual contact prohibited. Some Title 4
provisions, which pertain to regulating alcohol establishments
and prohibit such specified sexual contact, were incorporated
into CSHB 367(FIN)am and apply to establishments that do and do
not serve alcohol. In addition, the House Labor and Commerce
Committee raised the age of patron and entertainer to 21.
However, after discussions in the House Judiciary Committee and
on the House floor about an ongoing case in Missouri, the House
dropped the age down to 18 to alleviate any constitutional
concerns. The bill also provides for particular restrictions so
that applicants for business licenses cannot have been convicted
of certain sex and drug offenses. It also requires notification
to community councils or other non-profit community
organizations. He offered to answer questions.
SENATOR OGAN noted the bill talks about sharing a residential
unit inhabited by minors and asked if that has been discussed.
MR. HILYARD said as a result of interim deliberations when this
bill was being drafted, several people expressed concern about
massage parlors and escort services in residential areas that
might share entryways with places that minors enter and exit so
that was added as a precaution. He said he is not aware of any
existing problem with strip clubs.
SENATOR OGAN asked if this bill addresses a situation where a
mother works as a prostitute at home.
MR. HILYARD said it does not, to his knowledge, only because
prostitution is illegal on its face at this time. Representative
McGuire's interest was to regulate activities that are not
currently illegal or that the law is silent on.
SENATOR OGAN asked if all activities in adult oriented
businesses will have to take place in the open so that a
business cannot have private rooms for viewing pornography.
MR. HILYARD said he believes that is correct. CSHB 367(FIN)am
addresses the interior layout of these establishments so that
all areas are visible from the entrance.
SENATOR OGAN asked Mr. Hilyard if he anticipates any First
Amendment issues arising from that requirement. He said that
technically, an adult oriented business does not differ from a
hotel that offers sexually explicit materials on a pay-per-view
basis.
MR. HILYARD acknowledged that Senator Ogan's concern about the
First Amendment is a good point and is one of the reasons the
House backed away from requiring participants to be 21. The
State of Missouri enacted a provision to raise the age of
dancers from 18 to 19 last year and that is currently in federal
court.
He explained that the First Amendment does not provide a
guaranteed constitutional right to be entertained. However, the
courts have said, particularly in Barn v. Glen Theater, that the
act of erotic dancing is covered but that right is not as
important as other core rights such as political speech.
Representative McGuire believes that the House has gone to the
extent possible in this particular version to alleviate any
First Amendment concerns.
SENATOR OGAN asked if the bill addresses private rooms in adult
oriented businesses that do not have entertainers.
MR. HILYARD said this version does not. Representative McGuire
backed away from trying to regulate bookstores or other such
businesses because there are very few in the state and because
Assemblyman Dan Sullivan sponsored a zoning regulation in
November that addressed those types of establishments in
Anchorage.
SENATOR OGAN asked if requiring a partition in adult book or
video stores would cause a First Amendment problem.
MR. HILYARD said he did not believe so because the issue has to
do with the expressive act of dancing and whether the right to
be entertained falls under the First Amendment. He deferred to
Senator French for more information.
SENATOR FRENCH said this is an unclear area and one would not
know until the U.S. Supreme Court decided the issue.
SENATOR FRENCH then asked the minimum age at which one can
legally buy tobacco products.
MR. HILYARD replied 19.
SENATOR FRENCH said he asked that because this bill is the
result of some community activists who were concerned that
minors were frequenting or working at these establishments. He
participated in a community council discussion the previous
evening. That council was very unhappy that the minimum age in
the bill was raised to 21 and then dropped back down to 18. He
said he appreciates the huge amount of work Representative
McGuire has done on this bill and then suggested that the
committee raise the age to 19 as that would alleviate the
problem of 18-year-old high school students going to or working
in strip clubs. He said he believes that would withstand a
constitutional challenge and that it would be worth challenging.
SENATOR FRENCH then moved to raise the age of participation or
employment in an adult oriented business to 19 [Amendment 1].
CHAIR SEEKINS objected for the purpose of discussion.
MR. HILYARD said Senator French is absolutely correct with
regard to the community council's concern: that high school
students are both working in and visiting these establishments.
However, with regard to raising the age to 19, Representatives
McGuire and Gara have discussed the issue at length and felt
that would be difficult to get through the legislature and the
courts. He did not believe Representative McGuire would oppose
raising the age but she is concerned about the case underway in
Missouri. He said she also looked at the Alaska Constitution and
was concerned that if the bill would not meet federal
constitutional scrutiny, it would have more difficulty meeting
state constitutional scrutiny.
SENATOR FRENCH asked if Representative McGuire considered
including a severability clause to moot that one provision and
make the default age 18 if the court decision is adverse.
MR. HILYARD said the House Judiciary Committee adopted a version
that included a severability clause but it was pulled out when
the House dropped the age back to 18.
SENATOR FRENCH moved to amend Amendment 1 to add a severability
clause.
SENATOR OGAN spoke in support of the amendment.
CHAIR SEEKINS announced that without objection, the amendment to
Amendment 1 was adopted.
MR. HILYARD asked Senator French if he intended to raise the age
to 19 for both patrons and entertainers.
SENATOR FRENCH said he intended the age of 19 to apply to both.
CHAIR SEEKINS said that was his understanding. He then noted
that without further discussion or objection, Amendment 1 as
amended was adopted as a conceptual amendment.
CHAIR SEEKINS then announced he would take public testimony but
placed a two-minute time limit on each participant's testimony.
MS. CARA NYQUIST, an Alaska attorney, stated support for HB 367
and informed members she submitted written testimony. Regarding
the First Amendment, she believes the age for patronage and
employment could be 19 or 21. She reviewed the constitutional
issues and found the case law to be clear that states have a
duty to regulate these types of businesses. She said she
believes the committees have heard a lot of testimony about the
local effects of these unregulated businesses. She believes this
legislation is distinguishable from similar laws in other
jurisdictions that are being challenged. In those jurisdictions,
the legislatures did not make an extensive record of testimony
on the local effects. She said she does not believe this bill is
about a moral agenda, it originated as the result of stories
told by young people about some shocking things that are going
on in these establishments.
MS. ANDREE MCCLEOD stated opposition to CSHB 367(FIN)am because
it was poorly researched and presented and doomed from the
start. She said one thing she has learned while researching this
bill is that women are not the people being exploited. The
impetus for this bill was information compiled by unknown
individuals at secret meetings held during the interim. That
information cannot be substantiated. She is aware that the
director of the Covenant House and some of her clients were
involved. She learned that during the intake process at the
Covenant House, the more perverse the story told by the client,
the more services are provided. This correlation is ripe for
abuse. When the clubs got involved, a true examination of CSHB
367(FIN)am began.
MR. DALE FOX, Executive Director of the Cabaret, Hotel and
Restaurant Retailers' Association (CHARR), said CHARR is opposed
to CSHB 367(FIN)am in its current form as it believes the
legislation is a solution looking for a problem. He referred to
the purpose and findings of the bill and said the authors of the
bill have borrowed from other states where such problems exist.
The findings refer to law-abiding people being accosted and
harassed on the street, which does not happen in Alaska. The
findings also refer to the proliferation of pornographic litter,
which does not happen in Alaska. He noted that prostitution is
also suggested as one of the reasons for this bill, however
prostitution is already illegal. Regarding the issue of age, he
said the legislature could establish a minimum age based on the
age it believes people are mature enough to be tried as adults.
SENATOR OGAN countered that he has spent time patrolling with
Anchorage Police Department officers in Anchorage at night and a
lot is going on.
MS. CAROL HARTMAN, co-owner of Fantasies, an adult-oriented
business, said the adult-oriented club industry is being singled
out because of one circumstance. She said if the legislature is
going to take action, the same restrictions should apply to all
18 year olds seeking employment. [Most of Ms. Hartman's
testimony was inaudible.]
MS. KATHY HARTMAN, co-owner of Fantasies, told members that
Fantasies is an 18 and over gentlemen's club. Its clientele is
made up of people of all ages and all walks of life. She said
this bill is the result of [complaints made by] a woman who
danced in the 1980s, when all clubs were regulated by the ABC
Board. The problems she discussed have already been taken care
of. Clubs are licensed and required to have annual inspections.
All dancers must be employees, not contractors. Laws are on the
books to deal with drug use, prostitution, sales, sexual
assault, wage and hour issues, and employment of minors. She
maintained that high school students are not hired in her club
and that if that is a problem, parents, teachers and counselors
should be addressing that problem, not the legislature. The
Alaska Supreme Court has already determined that erotic dancing
is constitutionally protected under the federal and state
constitutions.
SENATOR OGAN said he wants to know whether Bethany Carrera's
murderer, when found, ever attended adult-oriented clubs.
CHAIR SEEKINS closed public testimony, due to no further
participants.
SENATOR FRENCH commented that he is impressed by the work done
by the House on this bill.
SENATOR OGAN moved SCS CSHB 367(JUD) from committee with
individual recommendations.
CHAIR SEEKINS announced that without objection, the motion
carried.
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