Legislature(2003 - 2004)

05/07/2004 08:27 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ 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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