In a special session on Aug. 1, the Drain City Council approved Ordinance 436 in a 3-2 vote, adding new definitions of prohibited conduct within city limits in regards to adult entertainment as well as introducing business licenses to the city’s Code of Ordinances.
The new restrictions were drafted in response to the recent opening of Top of the Bowl, a local nightclub which includes nude entertainment.
The business, which saw its soft opening early in June, caused a stir in the community when locals became aware of its inclusion of nude dancers, particularly as the business is situated about 25 feet from a neighboring church, Gateway Family Fellowship.
“If I’m reading the community accurately, they are greatly relieved to see that the city drew a line in the concrete with this ordinance,” said Councilor Jo Barker in an interview with The Sentinel. “They know it has teeth.”
The business has billed itself as a bar and restaurant with “special events,” which include sports viewing parties, poker tournaments, live music, burlesque shows and both male and female topless dancing.
However, some in the community have called foul, protesting that the establishment’s owner was not forthcoming about the intent to include nude dancing.
Proponents of the new ordinance aim to restrict Top of the Bowl’s operations as well as future adult-oriented businesses.
In establishing its purpose, the ordinance states: “The City of Drain finds that it is necessary to license and regulate all lawful business, trade, occupation, profession or calling, carried on or conducted within the corporate limits of the city by establishing a business license permit; and, to license, regulate, control, restrain, and or prohibit the nuisances caused by adult entertainment businesses that serve alcohol beverages pandering public nudity through ‘lewd exhibitions’ by establishing time, place and manner regulations for the public morals, public safety, public health and public convenience of the inhabitants of the city.”
Ordinance 436 thus creates a new chapter within the city’s Code of Ordinances for business licenses and permits, introduces several restrictions to the operation of adult entertainment businesses and lists particular grievances and concerns directed at the existing establishment in question.
The ordinance establishes that the city and community “find that public nudity is public indecency taken as a whole, appeals to the prurient interest, is patently offensive, is sexual conduct specifically defined by the applicable state law; and taken as a whole, lacks serious literary, artistic, political or scientific value.”
The section goes on to include a litany of grievances and concerns regarding the establishment including: evidence of crimes occurring in and around the business; the owner having presented “false representation or statements” to the city regarding the nature of the business’ operation; substantial moral outrage expressed by the community (in particular at the establishment’s proximity to churches); historic secondary negative effects caused by such businesses; and concerns for the safety of vulnerable citizens.
New restrictions were also introduced, which take aim at the “nuisance aspects of establishments that offer entertainment or serve alcohol beverages.”
Such regulations include limiting the alcohol content of beverages served during any form of public nudity exhibitions to 6 percent and the requirement that “pasties” for women and G-string thongs for any nude dancers be worn during such exhibitions if liquor is served.
Further, “dress-code lewd exhibitions” may only be performed two nights a week, on Friday and Saturday, from 8 to 10 p.m. Doors must be closed by 10 p.m. all days of the week.
Adult entertainment business must also prevent direct view into the venue from the outside.
In restricting the placement of adult entertainment businesses which offer “public nudity entertainment,” the ordinance sets a 500-foot buffer zone between such establishments and a list of other sites which include, but are not limited to, locations where minors may congregate, parks, medical marijuana facilities, doctor’s offices, health care clinics, churches, libraries and restaurants.
Additionally, no two adult entertainment businesses are allowed to be within 1,000 feet of each other within city limits.
The addition of business licenses is also a new development for the City of Drain, making it unlawful for any person to conduct business within city limits without first having obtained a license. With some exceptions, all businesses are required to file for a license within 90 days after Sept. 1.
Adult entertainment businesses are targeted in particular to provide a statement of whether the applicant or anyone involved in the establishment’s operation has been convicted in the past 10 years of any crimes listed in the ordinance. Fingerprints, photos and a police department background investigation are also to be included.
“They go through a little bit deeper scrutiny because they are pandering public obscenity,” explained Barker. “They are pandering public nudity; public nudity is a crime.”
All adult entertainment businesses are also subject to annual Planning Commission reviews.
The Aug. 1 city council meeting was held before a divided public audience, some of whom had rallied in support of Top of the Bowl.
Staff and city council, too, seemed to lack consensus on the issue.
As explained at the meeting’s outset by City Administrator Steve Dahl, the city’s attorney had previously suggested that “passing an ordinance banning nude or topless dancing would go against the Oregon Supreme Court view of freedom of expression.”
However, Ray Hacke, an attorney with the conservative legal defense organization Pacific Justice Institute, contested that the city would not be in violation.
Hacke, who is offering his services to the city pro bono, collaborated with Barker and Dahl to develop the ordinance.
In Saturday’s meeting, Mayor Justin Cobb stated that he had previously expressed concerns about the requirement of background checks.
“I still have those same concerns,” he said. “I think that’s a bit overreaching.”
Audience commenter Michael Welch-Cook, who cited his experience as a security guard, spoke to the unnecessary burden of background checks.
“I’d have to agree with Mr. Justin Cobb about the overreaching nature of that,” he said. “And I would have to disagree with your background checks for any and all employees that are not actually going through the OLCC (Oregon Liquor Control Commission) to be serving alcohol in the establishment.”
Welch-Cook argued that, as long as activities are done within the confines of an establishment and out of sight, they ought to be able to operate their business how they like.
Cobb pointed out that externalities have already occurred as, following the Top of the Bowl’s soft opening on June 5, there were several complaints about noise and litter.
Barker added that, “within the first weekend, the police were called out because there was a motorcycle gang blocking Highway 38. There have been unreasonable and unreasonably loud, rancorous noises disturbing the peace, the sleep, quiet, comfort and the repose of others in violation of the City of Drain Code of Ordinance.”
She also cited other violations such as the use of other private parking areas and general disorderly conduct of patrons going to other local business to cause distress.
Top of the Bowl owner Jamie Hennricks and boyfriend Rik Marin were present at the meeting. Marin, who helps manage the business, countered that the litter was cleaned up and the cans in question were due to roommates at his house, which is across the street from the establishment and unrelated to the business.
“In regards to your police reports, I went down to Roseburg and pulled the incident report. Thirteen of those complaints came from one lady,” he said. “We’ve never been contacted by the sheriff’s department for any of these complaints. … And it’s one person who made 13 of the 16 complaints.”
The establishment was issued one citation, however, when cleaning staff failed to respond to an officer’s attempt to contact owners about a noise complaint.
Community member Stephen O’Malloy then spoke in favor of the establishment.
“This is a business that has been protected by the Constitution of the State of Oregon since the State of Oregon was formed,” he said, adding that business hours needed to be taken into consideration as Top of the Bowl does not operate while any children would be present.
“We’re talking about trying to put limitations on a business that is already operating within the confines of a legal operation,” he said. “Let’s see how any of you guys feel when somebody tries to come and pick on something you guys are trying to do.”
An unnamed audience member countered that constitutional law has historical precedent for change.
“Slavery was also legal in this country before 1865,” he said. “At that time the law was antiquated and was changed — just like what we’re trying to do today — because we felt that it did not represent the moral compass of our community.”
At one point, the room erupted after a woman identifying as a dancer for 17 years attempted to make a case for her job redirecting aberrant behavior.
“I have a lot of customers who come in and ask me to be a six-year-old girl,” she said. “So, when I pretend to be that six-year-old girl, they’re getting their fantasy out and not needing to get with these girls from the church.”
Many in the audience groaned and began speaking over each other as the mayor was forced to restore order.
As the public hearing wrapped up, Top of the Bowl owner Hennricks read from a statement in which she objected to the ordinance and pointed out that the business opened before the ordinance had been considered and was thus grandfathered in.
Following these remarks, the council then passed the ordinance with Mayor Cobb and Councilor Marilyn Jones voting against.
In a previous interview with The Sentinel, Cobb had also expressed reservation about the inclusion of business licenses.
“I’m a staunch believer in very limited government control,” he said. “So enacting a business license to me just feels wrong. It’s against my better instincts to want to do this.”
The ordinance is subject to further revisions under the Community Plan Revision Process.
Following the council meeting, Marin and Hennricks spoke to The Sentinel.
“I feel there were a lot of false statements on the city council’s behalf,” said Marin. “I feel they’re really reaching for straws this time around.”
In particular, Marin took issue with the characterization of a “motorcycle gang” blocking traffic and the degree to which complaints had been leveled at the business.
Marin also dismissed the idea that the establishment is operating under the definition of “public nudity” as the business’ event room is on the second floor with no visibility from outside.
“We have blackout curtains. Even if you were on a hill with a spotting scope, you cannot see inside our building,” he said. “I just really feel that they’ve twisted it around.”
Meanwhile, Barker remains confident the ordinance’s language will stick.
“It’s the language that the courts use in their opinions,” she said.
Other disagreements still remain unresolved, such as whether Top of the Bowl’s opening before setting the ordinance “grandfathers” the business into an exception from the new restrictions.
Generally speaking, Marin and Hennricks feel they are entitled to operate their business within the confines of the law.
“And a local township should not be able to dictate what a business owner does or does not do in their business,” said Marin.
But despite the ordinance’s passage, Marin and Hennricks are intent on putting up a fight.
“If they come and try to shut us down, we’re not going to shut down,” said Marin. “And at that point we will sue the City of Drain.”
At the same time, Barker is adamant that the lack of notice regarding Top of the Bowl’s controversial business practices will come around to bite them.
“They’re going to be provided due process of law,” she said. “That was one of the biggest issues that the public had. We were not provided notice.”
However the issue unravels, two unmovable objects seem destined to collide as the new ordinance takes affect and is eventually enforced.
As if to belie her steadfast conviction, Hennricks in the end reflected on the situation with causal indifference.
“I’m not worried at all about the ordinance,” she said.
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