CITY CANNOT BAN CONDUCT PROPOSED AT STRIP JOINT

Portions of this column were published Tuesday as a letter to the editor. Because key points and legal references were omitted, the column is being published in its entirety. The Southeast Missourian's policy limits letters to one double-spaced typewritten page or the handwritten equivalent. All letters are edited to make them as brief and germane as possible. From time to time the Southeast Missourian also publishes guest columns on topics of current interest. The recent application for a liquor license by a strip-tease bar has become a controversial issue in Cape Girardeau. Spradling's column is in response to an editorial that was published Monday.

It is rare that I find it compelling to write the Southeast Missourian and express my views concerning an editorial appearing in your paper. However, the editorial written by the Southeast Missourian in its Jan. 23 edition requires a response due to the irrational nature of the editorial.

The editorial suggests that the city council in dealing with the liquor license application for Regina's House of Dolls should have deliberately rejected or postponed a decision so that the city could enact ordinances to prohibit or regulate the conduct that may occur in the nightclub. In fact, your editorial went so far as to irresponsibly suggest that the city council vote down the liquor license, let the applicant sue the city, and see what happens. Obviously, the Southeast Missourians is not paying the legal bills for the city of Cape Girardeau. Not only would the council be wrong in voting something down that is legal, it would be irresponsible to expose the city to damage awards and awards of attorney's fees when the council could not justifiably sustain its position. See for example, (ital) Mirshak v. Joyce, (end ital) 652 F. Supp. 359 (N.D.Il. 1987).

It is obvious the editorial writer has no constitutional background and if he did, the assessment contained in the editorial would be significantly different. First of all, the city cannot ban the type of conduct proposed by Regina's House of Dolls. It can regulate the conduct through appropriate ordinances. The U.S. Supreme Court, in the case of (ital) Barnes v. Glen Theater Inc., (end ital) 501 U.S. 560 (1991) made it very clear that a city cannot ban live performances involving semi-nudity. The court declared that nude dancing is "expressive conduct" within the outer parameter of the First Amendment's protection of freedom of speech. What the court did allow is placing reasonable time, place and manner restrictions on the form of expression. It upheld a restriction that required the dancers to wear pasties and G-strings. This requirement is similar to what is required under the state liquor license regulations in Missouri. The court held, however, that any further clothing requirement would likely have been an unreasonable limit on the free expression of the "erotic message" conveyed by the dancing. Therefore, based on the current state of law in the United States, Semi-nude dancing is constitutional and cannot be banned by the city. However, the city can restrict the time, place and manner of the conduct, which in essence the city has done through the liquor license.

There are additional actions the city may take to regulate this industry, which will be under consideration. For the Southeast Missourian to have suggested that the council flagrantly defy the current state of the law by denying a liquor license would be impermissible and constitute irrational, irresponsible actions on the part of the city council. When I became a lawyer over 20 years ago, I took an oath to uphold the Constitution of the United States and the laws of the state of Missouri. When I became a city councilman in 1988 and as mayor in 1994 I took a similar oath to uphold the Constitution of the United States and the Constitution of the state of Missouri. This responsibility the council and I take very seriously. Obviously, the writer for the editorial has not taken such an oath, because if he had, that person would not be suggesting such folly. The city council will be examining the Blue Springs ordinances and other ordinances that exist regulating the strip bar industry. However, it must be pointed out that regulating the strip bar industry and issuing a liquor license are not dependent on each other and to suggest otherwise, as the editorial seems to suggest, again misses its mark.

Our ordinances, under Chapter 5 of the Code of Ordinances of Cape Girardeau, set out the qualifications and conditions of the issuance of a liquor license. Most of these conditions follow the state law on issuance of liquor licenses. License applications require information concerning the premises that is to be used for the operation of the business and the premises must comply with all building codes and health codes and meet other requirements, as required. The editorial begs that if the city has no leeway in issuing a liquor license, then it should be handled administratively. Some cities do handle the issuance of liquor licenses administratively through a liquor control commission. The city of Cape Girardeau has opted for a different procedure and wants to ensure that the requirements are met before a license is issued.

The editorial also misses the mark when it declares that the city ordinances as written allow churches to have the last word on taverns as neighbors if the tavern is within 200 feet of the church. Our ordinances do authorize churches and schools to object to a tavern within 200 feet, but our ordinances also authorize the issuance of a liquor license by the council, even though the consent has not been obtained from the church or school. Again, the editorial misses its mark on what the city can and cannot do. If a church has a veto power over the location of a tavern that power is unconstitutional. See (ital) Larkin v. Grendel's Den Inc., (end ital) 459 U.S. 116 (1982).

Finally, the editorial states that the city of Scott City is moving forward with an ordinance to ban such strip clubs outright. Certainly, any city can enact such a silly ordinance. However, I must remind the Missourian and anyone else that cares to read this article, such an outright ban completely flies in the face of existing Supreme Court precedent, and I would think it would be foolhardy to suggest that the city of Cape Girardeau should embark upon such an illegal task. See (ital) Schad v. Borough of Mt. Ephraim, (unital) 452. U.S. 61 (1981) holding the banning nude dancing from a community by zoning laws is unconstitutional.

The Missourian's editorial concludes: "What it boils down to is this: If the city thinks its hands are tied on strip joints, why not change the rules?" The city has never said its hands are tied on strip joints. The city has said that if a strip joint qualified for a liquor license, it must be issued. Regina's House of Dolls qualified for the liquor license. The rules concerning liquor license applications cannot be changed because the state law sets the rules that we go by. As to regulating strip joints in general, the city council will be reviewing ordinances in the very near future to see whether or not they should be adopted to regulate the time, place or manner of strip joints under the constitutional guidelines set forth in (ital) Barnes v. Glen Theater Inc. (unital) and other constitutional precedents.

Al Spradling III is the mayor of Cape Girardeau.