Kansas Bill Tries to Regulate Adult Businesses Out of Existence

TOPEKA, KS—Seems as if it were just a couple of weeks ago that prominent First Amendment attorney J. Michael Murray warned attendees at the AVN Adult Entertainment Expo that, "There's now a cottage industry; there's a couple lawyers, one in particular, who goes around the country writing these ordinances, getting city councils to pass them and when the clubs, in the case of nightclubs or bookstores or video stores, sue, then they hire that lawyer to defend these ordinances. They have now achieved a level or expertise that is not of the same caliber that the law departments had, which didn't have experience." Wait a moment! It was just a couple of weeks ago—and this week, Kansas has become the most recent state to attempt to enact just such a "Community Defense Act," known here as SB 147—and Murray's right: Its author (we're guessing Scott Bergthold) has learned a lot about what will fly legally and what won't—and the weasel words that can be used to get around existing laws that prevent such censorship. For example, take the bill's definition of an "adult bookstore or adult video store." Legal eagles may recall the controversy several years ago when New York City tried to zone adult businesses out of Times Square, and one major bone of contention was whether the city could use the square footage of the store that was devoted to adult materials to label the store "adult," and after the stores moved in a lot of non-sexual movies, t-shirts and other souvenir-oriented items to bring the percentage of adult stuff down, the city then tried to target them based on the gross sales that came from the adult material. But the new Kansas bill has all of that covered. Should the bill pass, any business in Kansas that has either "a substantial portion of its displayed merchandise"; "a substantial portion of the wholesale value of its displayed merchandise"; "a substantial portion of the retail value of its displayed merchandise"; "derives a substantial portion of its revenues from the sale or rental, for any form of consideration, of such items"; "maintains a substantial section of its interior business space for the sale or rental of such items"—that is, maintains an "adult section" in the store— or "maintains an adult arcade" is by definition an adult business. And if any of that seems to target, likely unconstitutionally, the content of the speech available at that business, well, that'll be something Kansas' attorney general can argue in court. SB 147 also contains an "hours of operation" provision, prohibiting the businesses from being open between midnight and 6 a.m. because, y'know, all those "secondary effects" that no one's been able to prove. Similarly, any "nightclub, bar, juice bar, restaurant, bottle club or other commercial establishment" with employees who "regularly" spend any of their time on the premises appearing "semi-nude" is an adult business—and those that are appearing "semi-nude" are prohibited from touching any patron or his/her clothes, and must remain on a stage that's six feet from any patron and at least 18 inches off the floor—"in a room of at least 600 square feet." And in case you were wondering what "semi-nude" means, it's "the showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point or the showing of the male or female buttocks"—which is pretty clear regarding tits—there are exemptions for low-cut dresses and bikinis—but entirely unclear about asses. For them, you'd have to look at the definition of "specified anatomical areas," a phrase that's used throughout this bill. Such areas include "human genitals; pubic region; buttock; and female breast below a point immediately above the top of the areola" that are "less than completel and opaquely covered" as well as "human male genitals in a discernibly turgid state, even if completely and opaquely covered." (Jeez, they can't even say "hard-on"!) Remember how you may have gone to a Spencer's Gifts to pick up a vibrator or dildo or similar sexual device? Under Kansas' new bill, Spencer's would now be considered a "sexual device shop," though a pharmacy or medical clinic that carried them would not be. Other no-nos in Kansas after this bill passes will be arcade booths that make any area "invisible" to the store's "operator"; owning an adult business if you've been convicted of a variety of mostly penny ante offenses; complete nudity, drinkable alcohol, "controlled substances," gambling, prostitution ("promoting the sale of sexual relations"), "commercial sexual exploitation of a child" (which we're guessing is kiddie porn) and "promoting obscenity" anywhere in an adult business. And anyone who's found to engage in "habitual violations of any law regulating sexually oriented businesses" is really in deep shit, since SB 147 enacts a sheaf of new "nuisance" laws. And finally, there's the question of where such businesses can be located—and again, the drafter of this legislation has learned his lesson well. "No person shall establish a sexually oriented business within 1,000 feet of any preexisting accredited public or private elementary or secondary school, house of worship, state-licensed day care facility, public library, public park, residence or another sexually oriented business," New Section 4 of the bill reads. "For purposes of this subsection, measurements shall be made in a straight line, without regard to intervening structures or objects, from the closest portion of the parcel containing the sexually oriented business to the closest portion of the parcel containing the preexisting elementary or secondary school, house of worship, state-licensed day care facility, public library, public park, residence or another sexually oriented business." That last is the sneaky part, because while a person might have to walk entirely around the block to get from the exit of that school or church or library, park or home to the entrance of the adult business, that no longer matters; it's whether they're across the backyard fence from one another. And while New Section 4 also says, "This subsection shall not apply to any sexually oriented business lawfully established prior to the effective date of this act," New Section 7 would require that, "Sexually oriented businesses that do not have stages or interior configurations which meet at least the minimum requirements of sections 5 and 6, and amendments thereto, shall be given 180 days from the effective date of this act to comply with the stage and building requirements of sections 5 and 6, and amendments thereto." And if they don't? Then New Section 10 kicks in: "Any person violating or refusing to comply with any of the provisions of sections 1 through 11, and amendments thereto, shall be guilty of a class C misdemeanor. Each day that a violation is permitted to exist or occur, and each separate occurrence, shall constitute a separate offense." We're fairly certain that if this new bill gets enacted, it'll face a myriad of court challenges—but they won't be cheap, and after all, the taxpayers of Kansas, which is facing a major budget shortfall, will be footing Bergthold's bill if, as expected, he's hired to defend the law. The full text of SB 147 can be read here.