BATH, Maine — A proposal to open a strip club in the city prompted the City Council on Wednesday to support a moratorium that temporarily prohibits licenses and permits for so-called “adult-use establishments.”
The council voted 6-2 for the six-month ban, which requires a second vote later this month before it can go into effect. It also raises the question of whether the city can or should regulate this type of business.
Codes Enforcement Officer Scott Davis on Wednesday said a person involved with a strip club in Bangor has expressed interest in bringing a similar business to the Riverside Sports Pub in Bath.
“We have an adult business ordinance that’s geared towards retail stores,” which concerns display and sale of “adult devices and materials,” he explained. “It’s really geared toward an adult bookstore or a porn shop, and I’m of the opinion it doesn’t apply to nude dancing.”
City Solicitor Roger Therriault said there are two competing interests at work in this issue.
“You’ve got a constitutional right to expression and you’ve got a state statute that says that you can call a time-out on certain types of regulations. And the question is whether or not the constitutional situation is trumping the state statute,” Therriault said.
“My view of it is that if you adopt that position, then you can’t have any moratorium at all, and we would be in a situation where we couldn’t do anything to get the time necessary to take a look at this.”
In an April 26 memorandum to the council, Therriault said “there is significant confusion” regarding the ordinances, rules and regulations that apply to such businesses.
He recommended the moratorium so that city staff and the Planning Board could “review this complicated area of the law to make sure that the City properly regulates and locates these types of uses, while not infringing on the constitutionally protected rights of such establishments.”
“The vast majority of adult entertainment is constitutionally protected and therefore must be regulated, and not prohibited,” Therriault said.
He said a municipality can regulate these businesses with zoning ordinances designed to “combat secondary effects” and to provide reasonable setbacks from schools, churches, and residences.
The conflict between the city’s right to enact a moratorium and the constitutional freedom of expression was significant for some councilors.
Councilor David Sinclair, who voted with Councilor Andrew Winglass against the moratorium Wednesday, echoed Therriault’s opinion that a municipality cannot completely ban such establishments.
“My concern is that the proposed moratorium does exactly that for a period of time,” Sinclair said.
He said the business provides a form of expression entitled to some protection under the First Amendment, although he supports eventual regulation of such expression.
“The city has, in some respects, unfortunately been caught with its pants down, if you’ll pardon the phrase, with respect to regulating this kind of business,” Sinclair said. “And I understand the want to put the brakes on; I just don’t think it’s permissible.”
Councilor Carolyn Lockwood said she had heard from several constituents that are Bath business owners who are concerned about the club. Council Chairman Bernard Wyman said he had also received a call from someone who opposes a strip club in the city.