Want to rent an adult video, visit a dance club, hire an escort – no sex need be involved – or rent a room at a motel that offers in-room adult movies in Missouri? Get ready to pay a five-buck tax every time you walk through the door. And the owners of any of those kinds of establishments or services can get ready to fork over a 20-percent gross receipt – not gross profits, but gross receipts – tax, all of which is supposed to go into the "State Schools Money Fund."
It's all part of Senate Bill 32, introduced by Sen. Matt Bartle on Dec. 1, 2004, and amended in early February to clean up a bit of the language – but none of the problems.
"This bill will affect and probably shut down about a thousand Missouri businesses, and that's the objective; he [Bartle] said that's his purpose," warned Dick Snow, an adult retailer and founding member of the Missouri Association of Club Executives (ACE). "It will have a tremendous negative economic impact on the state, and that has gotten some traction in the Republican part of our legislature. The tax part of the bill and the fact that it eliminates these jobs and takes away the livelihood from about 10,000 people has dawned on many of the Republican legislators, particularly the moderate ones that are not really happy about government regulation and bad taxes."
This incredibly bad – and in many sections blatantly unconstitutional – omnibus bill takes boilerplate language hammered together by several conservative religious legal groups and uses it to try to make Missouri perhaps the country's most inhospitable state to adult businesses, their owners and their employees.
"Bartle has said publicly he doesn't expect to collect a dime in taxes; his whole purpose of this bill is to put these places out of business," Snow said. "His intention is to 'run these businesses out of the state,' is what he said."
One major problem is the new "definitions" section, which details the criteria under which a business is branded as "adult," and which includes the catch-all, "A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing specified sexual activities or specified anatomical areas, and be defined as an adult bookstore, adult novelty store, or adult video store. Such other business purposes shall not serve to exempt such commercial establishments from being defined as an adult bookstore, adult novelty store, or adult video store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials that are characterized by the depiction or description of specified sexual activities or specified anatomical areas." [Emphasis added.] And if anyone thinks a "principal business purpose" is defined under this law, think again. They'll leave that to the courts – but chances are that any business that devotes more than 10 percent of its inventory or services to "adult uses" will find itself labeled "adult business" in any court proceedings.
"I'm not familiar with any state or city ordinance that's as sweeping as this one is, that just includes every single element that these evangelical sites put out there for legislators to use," Snow assessed. "And I've never seen a legislator that's as completely committed to their language as this Bartle guy."
Snow described Bartle, who represents Lee's Summit, as "a suburban Kansas City Republican. My understanding is that a lot of his base is from one of those mega-churches. His staff and his volunteers are pretty much from this mega-church. That's what I've heard in Jefferson City."
Snow also reported that Bartle's hometown newspaper, the Lee's Summit Journal, criticized Bartle for sponsoring the bill, and editorialized that he "needed to take a cold shower."
As for the ordinance itself, adult bookstores get off relatively lightly compared to strip clubs, which will have a tough time finding dancers with regulations like 67.2552, which creates a 10-foot setback rule, and some new crimes: "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, "It shall be a Class A misdemeanor for an employee, while semi-nude, to touch a customer or the clothing of a customer." It's unlikely that even dancers who are independent contractors will be considered exempt from this no-touching and no-tipping legislation.
One of the gravest problems with the bill is its revamping of the nuisance laws, violation of which is good for a $1000 fine and/or a year in jail for the first offense – and the bill adds a large number of acts which, if observed in or around a business, subject that business to immediate and permanent closure.
Acts that constitute a nuisance now include "any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists, or any place, in or upon which lewd, indecent, lascivious, or obscene films or plate negatives, film or plate positives, films designed to be projected on a screen for exhibition films, or glass slides either in negative or positive form designed for exhibition by projection on a screen, are photographed, manufactured, developed, screened, exhibited, or otherwise prepared or shown, and the personal property and contents used in conducting and maintaining any such place for any such purpose." (Newspapers and magazines are exempted from the definition, in an obvious attempt to forestall First Amendment objections.)
And let's not forget: "No sexually oriented business, except for an adult motel, may remain open at any time between the hours of ten p.m. and ten a.m. on weekdays and Saturdays. Such businesses shall be closed on all official state holidays and Sundays." After all, we can't offend the Lord on His day of rest!
Those are just some of the problems with SB32. Fortunately, the Missouri Association of Club Executives is poised to fight this onerous legislation both through lobbying and in the courts. In their favor are previous Supreme Court victories in Lawrence v. Texas and City of L.A. v. Alameda Books, which requires that restrictions like the ones in SB32 accomplish some legitimate governmental purpose and not infringe too heavily on free speech rights as they do it – two criteria SB32 clearly fails, and a preliminary injunction against enforcement of the Act, when and if it's passed, seems likely.
