Decriminalize Prostitution Now Coalition
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Proposed Model Gentlemen's Club Code

By Bob McCormack

I am a law school graduate and a frequent customer of gentlemenís clubs. After reading of the various travails visited upon the industry all over the United States, in particular, the lamentably heavy-handed attempts at regulating here in the Phoenix area, I have drafted an admittedly rough-hewn model code. The idea is that this could serve as a starting place for lobbying efforts at the state legislative level. This code is designed with the Arizona situation in mind, but it could be modified for states that already have more liberal provisions, such as those that already allow full nudity with alcohol. Additionally, a business should be allowed to hold two or even all three types of licenses, such as Showgirls and Fantasy Island. I have probably made it a little too detailed, but the idea was to spell out clearly what was not allowed, leaving everything else legal. Nothing in this proposal would require holders of any class of license to offer everything they legally could. Operators of any class of adult entertainment business could decline to provide certain activities if they thought such conduct was not consistent with their image, or would drive away the type of entertainer or customer they wished to attract to their business.

MODEL GENTLEMEN'S CLUB STATUTE

I. Businesses offering live adult entertainment, including, but not limited to, topless, nude or exotic dancers of either sex, shall be classified into three types. They are 1) nightclubs or cabarets that serve alcoholic beverages, 2) nightclubs or cabarets that do not serve alcoholic beverages, 3) establishments that provide private room dancing or modeling, also known as salons or incall escort agencies. These will be named Class A, B & C adult entertainment businesses respectively, and each one shall be issued a specific license for its kind of activity. Specific employees or entertainers, however, are not required to obtain any license.

II. Class A establishments may operate at the hours that all holders of liquor licenses may operate. Entertainers at Class A establishments may perform topless, which is defined as "uncovered except for the genital area and the anus." [Note 1]. In simpler terms, topless entertainers must wear a g-string or bikini bottom while performing. [Note 2]. While on stage, topless dancers may accept tips from patrons by hand, in a garter, the waist-band of the g-string, or between their breasts. Topless dancers may also perform table or couch dances for customers. During a table or couch dance, the dancer should remain standing, rather than sitting on the customer's lap, but may make incidental contact with the customer. In keeping with the erotic message conveyed by topless dancing, topless entertainers may move and display their bodies in a sensuous manner and shall not be restricted from caressing and touching their own bodies to communicate this erotic message. [Note 3]. Customers are not allowed to touch or caress topless dancers on stage, and should keep their hands off during table or couch dances; however, the dancer may brush her body against the customer's hands during table or couch dances, or take the customer's hands in her own and place them on non-sexual parts of her body. Additionally, customers are not allowed to expose genital areas or buttocks except when using the restroom.

III. Class B establishments may be in operation 24 hours a day. Entertainers at Class B establishments may perform nude on stage. While on stage, nude dancers may accept tips from customers by hand, in a garter, in the elastic of an item of lingerie, or between their breasts. Entertainers may perform table or couch dances while nude. During a table or couch dance, the dancer should remain standing, rather than sitting on the customer's lap, but may make incidental contact with the customer. Additionally, entertainers at Class B establishments may perform lap dances while topless. While performing a lap dance, the dancer may sit in the customer's lap and may embrace the customer. The dancer may make extensive contact with the customer during a lap dance, but is not permitted to touch the customer's genital area by hand. To encourage a sense of privacy, topless lap dances should be performed in a separate, more secluded area of the business. However, this area should not be so removed from the general customer seating that management is unable to observe the activity that is occurring. In keeping with the erotic message conveyed by nude dancing, nude entertainers may move and display their bodies in a sensuous manner and shall not be restricted from caressing and touching their own bodies to communicate this erotic message. Customers are not allowed to touch or caress nude dancers on stage, and should keep their hands off during table or couch dances; however, the dancer may brush her body against the customer's hands during table or couch dances, or take the customer's hands in hers and place them on non-sexual parts of her body. During topless lap dances, customers may embrace or caress dancers without restriction, except they may not touch dancers in the genital area or near the anus. Additionally, customers are not allowed to expose genital areas or buttocks except when using the restroom.

IV. Class C establishments may operate 24 hours a day. Entertainers at Class C establishments may be completely nude and may contact customers without restriction except they may not engage in any act of prostitution. Prostitution is defined as any one of the following: 1) an act of vaginal intercourse, 2) an act of anal intercourse, 3) an act of oral-genital contact, 4) any other activity performed by the entertainer designed to achieve a sexual release by the customer. [Note 4]. Entertainers are not restricted in their movements and may display and stimulate their body erotically. Entertainers may perform fantasy scenarios with customers that include the use of unusual costumes and accessories. Customers at Class C establishments may also be completely nude and are not restricted from displaying and stimulating their body erotically. Customers may contact entertainers in any matter except acts of prostitution as defined previously in this section are prohibited.

V. Once this statute is enacted, it pre-empts cities and counties from enacting other ordinances regarding adult entertainment and voids all local ordinances that are already in existence. To preserve some measure of local control, counties and municipalities may decide where adult entertainment businesses will be allowed to operate within their borders, but they may not prohibit them completely. Additionally, they may not change the laws governing the operation of such establishments, nor may they add any further restrictions beyond the provisions of this code.

VI. Class A, B & C business licenses must be renewed bi-annually, and the appropriate agency shall receive public comment at that time on whether the license shall be renewed. Evidence of community problems or a clear pattern of failing to follow the rules could result in the failure to grant a renewal application. Holders of adult entertainment licenses should be presumed to be acting lawfully in the absence of substantial evidence to the contrary. Therefore, while police agencies are authorized to investigate legitimate complaints, the continuous use of public resources to harass and intimidate operators and employees of adult businesses is prohibited.

[Note 1]. The Supreme Court has said in Barnes that states may require exotic dancers to wear "g-string and pasties;" however, I am not including pasties in the Model Act. Here in Arizona, topless dancers must put clear liquid latex over their nipples. They really dislike that, so I think we should lobby for true topless. Covering nipples of adult entertainers does not benefit public safety or morality in any way.

[Note 2]. Perhaps requiring genital areas and anus to be covered by a g-string or bikini bottom should be construed as a requirement that all pubic hair be covered. My preference is to allow dancers who are tired of shaving or waxing to allow some hair to grow out beyond the "bikini line." They could well argue that they are not exposing any more of their bodies than other dancers with less hair.

[Note 3]. My choice of language here is intentional. The Barnes decision explicitly recognized the value of nude or near-nude dance as communicating an erotic message. While this proposed code is intended for legislative lobbying, there may be a tiny window in Barnes to mount a judicial challenge against restrictions on dancers' ability to caress and fondle their own bodies. Such a law is not a time, place & manner restriction like requiring pasties, but actually addresses the content of the erotic message.

[Note 4]. These restrictions would be lifted in the event that prostitution was no longer illegal. In such a case, individual employees would become licensed sexual providers (LSP), subject to periodic health checks. Holders of Class C licenses may still decline to provide any overtly sexual services, even if they became legal.

My final comment. Although for understandable reasons, performers who currently work at the various types of establishments described above do not wish to be compared with prostitutes and escorts, they are all workers in the sex industry. Those who oppose any form of commercialized sexuality as well as those who seek to support and organize those employed in the industry tend to view exotic dancers, porno actors and actresses, and prostitutes as working at various levels in what is essentially the same trade. I believe that the only final solution will be the acceptance and legalization of certain forms of prostitution throughout our society. After all, if actual prostitution were legal, who could get overly excited over the amount of contact between a cabaret dancer and a customer during a lap dance? With that in mind, perhaps it is time for exotic dancers and prostitutes to start working together, and that applies to those of us who support them as well.

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