How We Got Here

Prior to the passage of HB 23 in 2006, the 1,308 townships in Ohio had very little authority to address the problems associated with sexually oriented businesses (SOBs) within their jurisdiction.   The House-passed version of HB 23 on a vote of 92-5 not only included home rule authority for townships, but also statewide standards for all SOBs regarding their hours of operation and the distance required between employees and patrons. The Senate-passed version of HB 23 removed the statewide standards, and was eventually accepted by the House and signed by Governor Taft.

The Initiative Process

Numerous studies identifying the negative secondary effects of this industry point to a compelling state interest for these two statewide standards: hours of operation and no physical contact. Therefore, in response to a voter-initiated petition by more than 220,000 Ohio citizens, the General Assembly took up a bill entitled the “Community Defense Act” (CDA) on January 2, 2007 in accordance with constitutional guidelines for such.  The Senate passed SB 16 by a bi-partisan vote of 24-8; the House passed SB 16 by a bi-partisan vote of 73-24. The effective date of SB16 is scheduled for September 4.

The Why and What of SB 16

CDA places two regulations on all sexually oriented businesses, thereby establishing a uniform minimum industry standard in Ohio law to address the problems associated with SOBs.  Numerous government studies (available upon request) have chronicled these problems, which include the following:

• Increased crime, especially, but not limited to, those sexual in nature;
• Decreased property values, both residential and commercial; and
• Urban blight, the general downgrading of the surrounding areas.

The U.S. Supreme Court, the 6th U.S. Circuit Court of Appeals, and other federal courts have consistently upheld the rights of governments to implement the two regulations of this proposed legislation:

1.  No physical contact

Employees who regularly appear nude or semi-nude and while in such a state would be restricted from having physical contact with patrons. Violation of this provision is either a fourth-degree or a first-degree misdemeanor, depending upon the location of the prohibited contact.

The prohibition of touching between patrons and nude or seminude employees serves to prevent various crimes such as the exchange of money for prostitution or drug transactions. Courts have recognized that governments may reasonably find that separation requirements serve the interest of reducing these secondary problems of adult establishments. Court cases upholding various no-touch rules include:

§ "While on the premises, no performer or adult cabaret dancers shall have physical contact with a patron and no patron shall have physical contact with a performer or adult cabaret dancer, which physical contact involves the touching of the clothed or unclothed genitals, pubic area, buttocks, cleft of the buttocks, perineum, anal region, or female breast with any part of any other person's body either before or after any live entertainment by such performer or adult cabaret dancer." Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005)

§ "No employee who regularly appears within view of patrons in a semi-nude condition in a sexually oriented business shall knowingly or intentionally touch a patron or the clothing of a patron in a sexually oriented business." Sensations, Inc. v. City of Grand Rapids, 2006 WL 2504388 (W.D. Mich. 2006) (Order Denying Preliminary Injunction); R. 73, entered 10/23/2006 (Opinion Granting Motions to Dismiss)
 
§ "[T]hat entertainers maintain a minimum distance of five feet from areas on the establishment's premises being occupied by customers, for a minimum of one hour after the entertainer appears semi-nude on the establishment's premises." 729, Inc. v. Kenton County, 2006 WL 2842884 (E.D. Ky. 2006)

§ "No dancer shall fondle or caress any patron and no patron shall fondle or caress any dancer."  Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986). The law also prohibited direct-tipping, stating, "No patron shall directly pay or give any gratuity to any dancer [and] no dancer shall solicit any pay or gratuity from any patron."

§ "It shall be a violation of this chapter for an employee who regularly appears in a state of semi-nudity in an adult entertainment establishment, to knowingly or intentionally touch a customer or the clothing of a customer while on the premises of the establishment." Fantasyland, Inc. v. County of San Diego, 373 F. Supp. 2d 1094 (S.D. Cal. 2005)

2.    Hours of Operation

Sexually oriented businesses would be required to remain closed between the hours of 12:00 midnight and 6:00 am, with the exception of those holding a liquor permit, which may remain open until the hour specified in their permit, but may not offer nude entertainment between the hours of 12:00 midnight and 6:00 am. Violation of this provision is a first-degree misdemeanor.

Federal Courts have consistently found that “access to adult establishments was not unduly restricted” by legislation that required adult businesses to close at midnight - see Richland Bookmart I, 137 F.3d at 441 - upholding the closing law because adult businesses could still be open many hours during the week, thereby passing First Amendment muster. Other cases upholding such regulations include:

§ Déjà Vu of Cincinnati, LLC v. Union Twp. Bd. of Trustees, 411 F.3d 777 (6th Cir. 2005), cert. denied (2006), 546 U.S. 1089 – closed 12:00am to 12:00pm, no Sundays

§ Richland Bookmart, Inc. v. Nichols, 278 F.3d 570 (6th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3001 (June 11, 2002)(No. 01-18) – closed 12:00am to 8:00am, no Sundays or legal holidays

§ Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123 (3rd Cir. 1993) – closed 10:00pm to 10:00am, no Sundays or state holidays

§ Ctr. For Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1159 (9th Cir. 2003) – closed 1:00am to 8:00am, Mon-Sat, 1:00am to 12:00pm on Sundays

3. Local control maintained; Attorney General assistance provided

Beyond these statewide standards for SOBs, local governments have the right to enact their own zoning and licensing regulations that may be broader and/or more strict than the state law. SB 16 provides for direct assistance in drafting and defending local regulations. Further, if the law is challenged and found unconstitutional, the local government is indemnified for damages and the AG is held accountable.

Further case law supporting SOB regulation

Noteworthy cases include (copies available upon request):

§ City of Erie v. Pap’s AM 529 US 277 (2000)
§ City of Renton v. Playtime Theatres, Inc. 475 US 41 (1986)
§ Barnes v. Glen Theatre, Inc. 501 US 560 (1991)
§ Bamon Corp. v. City of Dayton 923 F.2d 470 (6th Cir. 1991)

Ohio is not alone

Several states already have various statewide regulations to regulate SOBs, including Alabama, Georgia, Illinois, New Jersey, and Pennsylvania.  Regulations worth noting exist in the following states:

§ Delaware:  Hours of operation limited to 10:00am–10:00pm, Mon-Sat, no Sundays or state holidays

§ Arizona:  Hours of operation limited to 8:00am–1:00am, Mon-Sat, 12:00noon-1:00am Sundays

§ Tennessee:  No full nudity allowed on premises, 6ft distance required between performers and patrons, employees must be licensed, no direct tipping or touching allowed.

§ Other states: Nearly a dozen states have some type of zoning rules which require SOBs to be X feet from protected properties like homes, schools, etc., while numerous states prohibit the typical lapdance under "lewdness" laws. Indiana, Iowa, and Tennessee ban nudity, while Pennsylvania requires peep booths to be open to prevent anonymous sexual encounters inside or in between adjoining booths.