Wednesday, September 17, 2008

“My neighborhood bar is adding showgirls… Now What?”



Which state agency in Oregon regulates lewd and nude entertainment? Well, to tell you the truth… none. The Oregon Supreme Court ruled nude dancing and other forms of sexually explicit entertainment as a constitutionally protected form of free expression in 2005 following State v. Ciancanelli and City of Nyssa v. Dufloth/Smith.

When this ruling went into effect, the OLCC no longer had any authority to regulate nude or lewd activities in businesses that hold a liquor license.

The OLCC does not have statutory authority to deny a proposed licensee based on their entertainment format. In Oregon, this form of entertainment has the same constitutional protection as religious expression and political expression.

Any decision to grant or deny a liquor license must be based on OLCC’s statutory authority - and that authority is limited.

The OLCC does not have the authority to:
• Deny based on public sentiment – even if a large number of people oppose the business.
• Override local zoning ordinances – business zoning is determined by the elected officials in local cities and counties.
• Consider concerns about property values, traffic or parking – local zoning sets the standard for where businesses can be located.
• Deny based on speculation about events that might happen if the business is licensed – ONLY concerns related directly to documented problems in the area or problems at other businesses operated by the license applicant will be considered.
• Deny based on concerns that children may walk or ride bikes past the business.

Information regarding problems associated with the current operation of the business, or about existing problems in the area where the business is located can be considered. This can include information on recent problems at the business location involving alcohol over-service or alcohol service to minors, recent problems involving noise, unlawful activities, fights, disorderly activities or disturbances. We can also consider problems with unlawful activities or disturbances caused by patrons outside of the current licensed business - if the problems are related to the sale or service of alcohol.

The OLCC can consider—and will consider—the new business owners’ record of alcohol violations at their other OLCC licensed businesses. If the OLCC finds that the applicants have a poor record of compliance, and are not an acceptable risk for complying with liquor laws, we can deny their license or put restrictions on their operation. Each license application is evaluated on a case-by-case basis. The commission looks at how recent the violations occurred as well as the frequency and seriousness of the violations.

In some cases, the OLCC can consider information regarding adverse impacts on some types of facilities located within 500 feet of the proposed business, if the proposed business will have an adverse impact on the primary function of the facility. These facilities include a licensed childcare, elementary or secondary school, a church, a hospital, a nursing care or convalescent care facility, a park or children-oriented recreational facility, or an alcohol/drug treatment facility. This only applies to new businesses, or if there is a change in ownership and operation at an existing business. In these cases, the business owner may be able to overcome objections through an operating plan that minimizes the potential impacts on the facility.

For more on the Oregon Supreme Court’s ruling on State v. Ciancanelli: http://www.ojd.state.or.us/SCA/WebMediaRel.nsf/cf8ce3ca456548d988256c8d007729db/751e7239afaa88d68825708b005169e6?OpenDocument

5 comments:

  1. So nude=lewd? That's kind of a broad generalization, no?

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  2. What evidence would a "facility" need to provide OLCC to show adverse impact?
    How have "facilities" in the past been able to successfully demonstrate adverse impact? In what form did they provide the information?

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  3. The terms nude and lewd aren't meant to be synonymous. You can be nude, without being "lewd" and vice versa.

    For many years, the OLCC had rules that allowed nude entertainment, but prohibited lewd/lascivious activity (sexually explicit or graphic acts, including touching, etc.)

    However, those rules went away after the Supreme Court case in 2005.

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  4. Regarding adverse impact....
    The affected facility operator would need to provide evidence, not speculation or concern, that the proposed establishment would have substantial negative effect on the primary function/operation of that facility. The proposed liquor licensed establishment would have to interfere or conflict with the specialized activities of the facility in order to establish an adverse impact.

    Keep in mind that adverse impact is only considered if the proposed licensed business is within 500 feet of a licensed child care facility, elementary or secondary school, church, hospital, nursing care facility, park or child-oriented recreational facility, alcohol or other drug treatment or rehab facility.

    If there is a potential adverse impact, the owner of the proposed business can show good cause to overcome the adverse impact. Good cause means showing that the business is properly zoned, is consistent with character or environment of the area, and/or it will not unreasonably affect the facility. The business owner can also submit a plan that shows how they will manage their business and customers to minimize a potential adverse impact.

    Submissions to the OLCC showing adverse impact should come from the facility operator in written form.

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  5. I am a dancer, does this mean that if my club suddenly says that customers can touch me my only recourse is to quit? The law is actually in their favor with this?

    Next question, how do we go about changing this? I've been dancing for six years and I know a lot of dancers. With VERY few exceptions, the women I know would highly object to this, if they knew it was true.

    ReplyDelete