In a flurry of late-night deal making, the majority of the anti-adult business provisions of House Bill (HB) 353 were written into HB 972, "Intoxication-Related Traffic Offenses," by the state Senate, which it then passed just before midnight Thursday. Then the revised bill was sent back to the House, which passed that amended bill just after noon today. (see the previous story abut HB 353 here)
"We got so screwed by so many people that made promises that didn't keep them," reported Nellie Symm-Gruender, a Missouri retailer and part of the adult industry lobbying team that was tracking the legislation, which first saw life as Senate Bill 32.
"They stripped it off of 353 because all the prosecutors were very nervous about having this on a crime bill because of something we have in Missouri called the Hammerschmidt decision," Symm-Gruender continued, "and Hammerschmidt basically says, if an amendment is not germane to the subject of the bill, it can be overturned. So what happened last night, he attached it to a DUI bill."
The "he" is state Sen. Matt Bartle, who has led an unwavering anti-adult campaign since he first introduced SB 32 in February.
While the anti-adult provisions of HB 972 are not quite as bad as the language in previous versions, it is reportedly still onerous enough that retailers and cabaret owners will almost certainly be challenging it in court.
Unfortunately, the text of HB 972 is not yet available, so the information which follows is subject to correction when the final copy of the bill is in hand.
"There were two provisions removed from HB 972," said Travis Brown, partner in the lobbying firm of Gaines Brown Consulting LLC, which has been retained by several adult businesspersons to work on the legislation. "Sec. 67.2540 of HB 353, all the definitions, that was left in, and also the majority of Sec. 67.2552, except they took out the tipping provision in item 3, and item 6, the hours of operation limitation. Other than that, I think it was pretty much the same."
The language in HB 353 which has been stricken from HB 972 is:
"3. It shall be a class A misdemeanor for an employee, while semi-nude in a sexually-oriented business, to solicit any pay or gratuity from any patron or customer or for any patron or customer to pay or give any gratuity to any employee, while said employee is semi-nude in a sexually-oriented business."
And, "6. No sexually-oriented business may remain open at any time between the hours of midnight and ten a.m. on weekdays and Saturdays. Such businesses shall be closed on all official state or federal holidays and Sundays."
"Also, under the Senate substitute originally proposed by Sen. Bartle, there was a Sec. 311.488, which is the liquor law of the state of Missouri," Brown continued. "That would have said, 'The Supervisor of the Division of Alcohol and Tobacco Control shall not issue a license to sell intoxicating liquor or non-intoxicating beer to a sexually oriented business as defined by 67.2540.' So they were trying to take away the cabarets' liquor licenses, and we were very concerned about that for obvious reasons. That did not make it; it was stripped out in the conference committee report of HB 353, and also was not in the version of HB 972 that was passed."
Cabarets still face plenty of problems under HB 972, however, including the requirement that nude and semi-nude employees must remain at all times at least 10 feet from customers, and on a stage two feet high, behind a two-foot high railing. How the dancers are supposed to collect tips from that position is currently unknown.
"The cabaret owners who were there were pretty upset, said it was going to kill them, destroy them," said Symm-Gruender. "It's going to be really difficult for them."
Adult retailers fare somewhat better, though AVN has received conflicting reports of an altered definition of a "sexually oriented business" in the final version of the bill. Apparently, businesses which derive less than 30 percent of their revenue from adult materials are now exempt from the definition, but it will be necessary to see the final passed definition to determine if unconstitutionally-vague phrases like whether a "substantial portion" of the store's merchandise being adult-oriented are still defining characteristics. Also, while previous versions of the language seemed to prohibit adult arcades altogether, the passed version reportedly now allows arcade booths to exist, but requires their interiors to be completely visible, with no curtains or doors to block the view – and no glory holes whatsoever.
"What we're going to do immediately is, we're going to hire a lawyer who's a Hammerschmidt specialist," Symm-Gruender stated. " There are people who are what they call Hammerschmidt specialists, and what we'll try to do is get the specific adult portion of this overturned on the basis that it's not in the same genre as the rest of the bill."
"That other language deals with aggravated offenders and chronic offenders, people that have had multiple DUIs, so they added [the anti-adult provisions] to that," Brown elaborated. "But one thing that they did not do structurally to the bill was add a severability clause. So we think it's good that it doesn't have a severability clause, because the whole bill would go down if it were challenged."
"Besides the constitutional challenge, in the state of Missouri, our Constitution says you cannot pass a bill with more than one title," he continued. "If you've expanded the original subject in the title of the bill, we have a Supreme Court ruling that's very widely used, known as the Hammerschmidt ruling, and the Hammerschmidt ruling comes into play where they take a bill that was about, for instance, intoxication-related traffic offenses, and then all of a sudden throw a completely unrelated subject onto it. Now, Sen. Matt Bartle's argument is that it's all crime and that [adult businesses are] nothing but a crime industry, which is obviously something the courts would take issue with. So a legal review will be performed to see if this is in violation of the Hammerschmidt ruling in the state of Missouri."
"The other thing to note is, after this was passed in the final hours of today, the original language [of HB 972] was brought up in another bill, without the adult language," Brown noted. "That bill is SB 37, and they passed that language after 972 went through, and that's significant because it's clear that our state prosecutors wanted the aggravated offender language, and they're pretty savvy with the law and how law should be interpreted, so it's our belief, our contention that they were so concerned about the constitutionality or the Hammerschmidt violations that were evident in HB 972 that they felt compelled to pass their language again to be safe. And the way our law works, the most recent law revision always supercedes, so their aggravated offender language from SB 37 should prevail in the event that HB 972 is challenged and [the anti-adult portions] taken out."
HB 972 will now go to Missouri's governor for signature, and opponents like Symm-Gruender and Brown have no doubt that it will be signed into law .. and that's when their legal bill will really start to pile up.
Keep checking with AVN.com for the latest news on this attack on free sexual speech.
