The Kittery Town Council voted to levy a $200 fine for Amazing Intimate Essentials over a town ordinance violation regarding its viewing booths during a disciplinary hearing with the adult entertainment shop’s legal representatives Wednesday night.
The fine is the maximum amount the store and its parent company, Capital Video Corp., of Cranston, Rhode Island, is responsible for after a first-time offense.
Police Chief James Soucy on Nov. 9 issued citations for indecent conduct to two males who occupied the same viewing booth, a violation of town ordinance. At the time Soucy reported the two men were “engaging in indecent conduct together.”
Under town ordinance, Amazing Intimate Essentials is permitted to operate booths in the shop, but the ordinance states, “No more than one individual is allowed to occupy a viewing booth at any one time.” The council was tasked with determining if employees were being negligent in not intervening to stop the men from entering a booth together.
“I would see a negligent failure by the company to supervise because it is undisputed there was only one employee at this Kittery facility and that’s a common practice. From the TV monitors you cannot see in those booths and see if there is one or two people in those booths,” Councilor Matt Brock said. “The same employee, as was the testimony of the chief, was on Nov. 8, the employee was warned of a prior complaint of two people in a booth and the very next day the chief came back and found two people in a booth. I look at those facts and I say this is not a system which is really set up to ensure (reasonable) compliance with the ordinance.”
Judi Lalli is a district sales manager for Capital Video and testified it is company policy to allow only one person in viewing booths in various stores and employees are to ask customers who violate the policy to leave. Though she is not the district sales manager for the Kittery store.
Steve Langsdorf, the attorney representing Capital Video Corp., said though he did not dispute the incident occurring, he argued neither the employees of the shop nor Capital Video should be held responsible because he believes the town failed to prove the employee working at the time was acting negligently and it led to the customers violating the ordinance.
“You have to prove there was an act or omission by the employee which constituted or allowed a violation,” said Langsdorf, of the August law firm Preti and Flaherty. “It’s extremely clear what’s required to hold somebody plausible, the owner or operator.”
Councilor Frank Dennett pointed to the language in the ordinance saying, “an act or omission as a result of the operator’s negligent failure to supervise the employees’ conduct to assure compliance.”
“Very technically, if there was compliance, assurance has been given,” said Dennett. “But if there is no compliance and the assurance has not taken place, then there is failure to supervise.”
Kittery attorney Duncan McEachern, representing the Town Council, said the three councilors would have to decide for themselves if they thought they could perform their quasi-judicial obligations during the hearing and all three opted to preside over the hearing.
Thomson was the lone councilor of the six-member council who pushed for suspending the viewing booth license for 14 days, but his amendment to the original fine motion was rejected. Councilor Jeff Pelletier was absent.
“The $200 fine is equivalent to 40 lattes at Starbucks,” said Thomson. “I realize this is the first violation before us, but I also feel that a fine of $200 really ends up in the bottom line as a cost of doing business.”
Though the council opted not to suspend, Councilor Gary Beers warned the representatives of the company that a second violation could result in a suspension or revocation of the viewing booth license.
“As this is the first documented violation of (the ordinance) a suspension of operating rights is not imposed but a warning is issued to the licensee,” said Beers. “Another violation within 12 months of November 9, 2017 may well result in not only a fine, but a suspension or revocation of operating rights.”
Langsdorf said his clients had yet to decide if they were going to appeal the decision in court, but also said he had some reservations as to how the proceeding was carried out.
“I have some questions about how this was all handled,” said Langsdorf. “We’re also not sure of the constitutionality of the ordinance in the first place.”
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