More usurpation of home rule coming? Ohio's GOP legislators have memory lapse?

I’ve read about the issues discussed in this Columbus Dispatch article before and discussed it with at least one moderate Ohio Republican legislator who thinks a new law, embodied in SB 16, that would replace what the Ohio Republican-led legislature passed last year, for municipalities to do on their own, is a waste of time and a further, unnecessary and undesirable erosion of the Ohio constitution’s deference to home rule.

But what really makes me get more wrinkles between my brows is, why? This same Republican-led legislature, last session, passed a law, HB 23, to help regulate strip clubs. Now, because of the lobbying efforts of the conservative group, Citizens for Community Values, headed by Phil Burress, they may regulate it from the state – and yet the other law has barely taken effect (took effect in 8/06).

How is such an effort not a waste of taxpayer time, money and trust? How does such a move not contradict the very title of the lobbying group – community values? Not statewide values. No way you’re going to sell me on believing that Ohio is simply a community of 11 million souls for the purpose of this particular law.

The Dispatch does a good job of juxtaposing Republicans against Republicans on the issue and I know there are more who disagree with the Burress-pushed legislation. But the Dispatch also concludes the article with this disappointing paragraph:

If it passes committee, Senate President Bill M. Harris, RAshland, said he would put the bill on the Senate floor for a vote. If the Senate approves it, the House likely would do the same, said House Speaker Jon A. Husted, R-Kettering.

Which committee did they say? State and Local Government Committee. The members are:

DEMS:

John Boccieri (ranking minority)
Capri Cafaro
Shirley Smith

REPS:

Gary Cates (chair)
Tim Grendell (vice chair)
John Carey
Larry A. Mumper
Tom Niehaus
Robert Schuler

10 thoughts on “More usurpation of home rule coming? Ohio's GOP legislators have memory lapse?

  1. Jason – I totally agree with you and that quote. Clinically, what he is doing is completely predictable, and, I would even say, to some degree, necessary for him to keep with recovery – he’s probably got an addictive personality and now he’s got an addiction to eradicating and/or regulating the industry that he had to swear off. Again, clinically, totally makes sense.

  2. Daniel: This part of your comment most resonates for me:”What makes a lot more sense is local governments regulating these businesses according to community standards. If a local government says there must be 6 feet of distance, then the question of “Why 6 feet?” can be answered very simply: “It’s what the community will tolerate.” Minutes of meetings of city councils, village councils, and township trustees–meetings in which local citizens have a voice–can serve to substantiate the local governments’ assertions about what the precise standards are in their communities.”As I mentioned before, classifying entertainers as employees will prevent venue owners from passing the buck on to “independent contractors” when statutory violations occur that require someone to be held accountable. If the venue itself can be implicated in a crime perpetrated between entertainers and patrons, I would imagine that the venue will tend to be very proactive to ensure compliance.”Honestly, I’m not a supporter of this industry anyway – it’s like gambling was for me. But if it’s going to exist, I tend to side with your description of how it should be regulated. Frankly, legislating this behavior is far more about the legislators than it is about the patrons and the employees and the business owners. That’s probably the most offensive thing of all.

  3. According to The Cincinnati Enquirer, Mr. Burress is a former porn addict. I guess Mr. Burress has a hard time conducting himself responsibly when it comes to sexual matters, he assumes the rest of us do too. As Aleister Crowley said, “The Prohibitionist must always be a person of no moral character; for he cannot even conceive of the possibility of a man capable of resisting temptation.”

  4. Paul – my own comment got eaten!Ok – let me see if I can recall what I wrote:I’m no public law expert by any means so take this with a pound of salt.Could what you describe happen? Yes. Should it? No. That’s why we have watchdog groups, or we try to be watchdogs. That’s why it’s so important to read the language of a bill. First, enforcement agencies should be communicating with one another.Second, it’s not fair to business owners, or anyone for that matter, to have conflicting law enforcement entities. If the law says that the locals are to implement, then that should be that. If there are loopholes that end up in court, then it’s the legislature’s fault for failing to tighten the law’s language. But then you end up with the judges deciding what the legislature intended and either nulling the law or doing what gets criticized as judicial activism, because the legislature didn’t do its work.The other problem is that the businesses lobby the legislators to make the law go one way or the other. Can they contribute to their own confusion? Sure.The only way to keep such a scenario from happening is for citizens to elect people whom they can trust will put clarity and fairness ahead of everything else.Good luck, huh?

  5. I noticed a list of facts about STD’s appeared at the end of HB 23, linking adult-oriented businesses to higher risks for STD’s. However, in terms of sheer numbers, neighborhood bars contribute far more to the spread of STD’s than these adult-oriented businesses do. I’d wager that there is a much higher correlation between alcohol consumption and the incidence of STD’s than there is between patronage of an adult business and the incidence of STD’s, yet none of our lawmakers would dare make a move to impose draconian restrictions on alcohol consumption. In terms of clamping down on vice, states across the nation still haven’t figured out an effective way for the justice system to handle sexual predators. Teenagers who are latchkey kids may be engaging in risky sexual experimentation before the parents arrive home from work, but how are lawmakers addressing problems on that front? (By the way, I anticipate posting a blog entry later in the week at “Word of Mouth” that addresses the topic of latchkey kids.) Meanwhile, SB 16 would have us believe that we are making a serious and determined efort to tackle the problems of promiscuity, vice, unwanted pregnancies, and STD’s by requiring that adult entertainers perform on a stage 2 feet off the floor and 6 feet away from patrons. Does the herpes virus have a jumping distance of 5 feet? Is that why 6 feet is the state standard? If getting a closer look is more corrupting, perhaps we should make the state laws uniform, by requiring those viewing porn to stay at least 6 feet from a TV screen or computer screen that is elevated at least 2 feet higher than the floor. For good measure, cameras used in filming porn could be required to maintain the 6-foot distance also. Should a business start making “double-yardsticks,” rulers measuring 6 feet, to aid in policing these businesses? Should penalties for coming within 3 feet of the patron at an adult establishment be more severe than the penalties for being between 5 and 6 feet away? Isn’t this more than a little bit ridiculous?What makes a lot more sense is local governments regulating these businesses according to community standards. If a local government says there must be 6 feet of distance, then the question of “Why 6 feet?” can be answered very simply: “It’s what the community will tolerate.” Minutes of meetings of city councils, village councils, and township trustees–meetings in which local citizens have a voice–can serve to substantiate the local governments’ assertions about what the precise standards are in their communities.As I mentioned before, classifying entertainers as employees will prevent venue owners from passing the buck on to “independent contractors” when statutory violations occur that require someone to be held accountable. If the venue itself can be implicated in a crime perpetrated between entertainers and patrons, I would imagine that the venue will tend to be very proactive to ensure compliance.

  6. Jill:As you probably detect from the views I’ve expressed on other posts, I have become so jaded about the government/business intersection that I believe that rules like this are always about money. The hard part is figuring out whose money is in play.So with those not-quite-so-rose-colored glasses on, let me asked you a legal question. Here’s the scenario:The state enacts a law like SB16 which is meant to prohibit certain behavior, and in that law it grants local governments the authority to implement their own laws provided that the local law is at least as prohibitive as the state law.The local strip club gets raided by some state law enforcement agency (is there such a thing?), and the state prosecutor decides to pursue the the case. The local government hears about the bust, and decides to charge the business owners as well.Who takes precedence?What if the local guys find out about the impending raid by the state and preempts it with their own arrests?And what if the local guys bring the case to trial and find the party innocent? Does the double-jeopardy rule preclude the state from bring their own case?Would it make any difference if the local guys find the party guilty of violating their local statute, but levy a meaningless punishment?You probably sense what I getting at: does this law actually give crooked local politicians the opportunity to protect the businesses this law is meant to restrict? Might this strategy be the main impetus for preserving the home rule provisions of state law?PL

  7. Daniel – thanks for that comment. You echo what one of the moderate Republican Ohio legislators with whom I’ve discussed home rule has said. Matt – why are you so far from Republicans like Daniel and others? You are almost libertarian, no?

  8. Matt -Liberals schmiberals – it was the Republican-led Ohio legislature that rejected the elimination of home rule regarding the sex industry regulations and instead gave control to the municipalities. So I don’t know what you’re referring here to as being an example of liberals wanting loacl control. The Ohio legislature was more rampant with GOPpers last session than now – if your conservatives so believe what you’re espousing, how did HB 23 get passed?If what you say is the case – “And in this case, it would be impossible to control the creation of new houses of ill repute without one, blanket state law.” then why didn’t your Republican-led far bigger majority in the last session legislature do just that??Finally, Matt – this statement of yours: “Conservatives may support states rights, but that doesn’t mean they have to endorse chaotic, confusing layers of laws passed by various local government entities.”Matt – that’s exactly what they did when they passed HB 23 last session.What are you talking about???

  9. As a candidate, I opposed statewide legislation similar to SB 16 on this issue, precisely because it deprives local governments of the authority to handle what’s in their own back yards. I see the passage in the bill that says, “(D) Nothing in this chapter shall be construed to preempt or prevent counties, municipal corporations and townships from adopting or enforcing laws concerning sexually oriented businesses that are as restrictive or more restrictive than the provisions in this chapter,” yet the local ordinances will be weakened by the existence of these arbitrarily-set statewide standards should the matter be contested in a courtroom. By remaining silent on these standards at the state level, courts would have no choice but to uphold the local ordinances because the state unmistakeably reserved the right for local governments, alone, to regulate these matters. With state statutes overlaying local ordinances, an ambiguity is created which would lead to a level of uncertainty about the outcome of courtroom challenges that may arise. In turn, this would lead to courts deciding these matters instead of local governments. If the state standards prevail in court challenges across the state, local governments will find that their hands are tied in those instances in which community standards differ from the standards incorporated into state statutes. Differing local ordinances across the state actually serve as a deterrent to the spread of these particular businesses. Under statewide standards, these businesses will have the capacity to weasel their way into any community, no matter what the community standards are, so long as the state statute isn’t being violated. Township trustees, village councils, and city councils are destined to find themselves in a quandary when they field complaints from local constituents that they are powerless to address.If the state wants to provide a deterrent to these businesses without trampling on the toes of local government, I would recommend that they use statutes that are not industry-specific, such as strict enforcement of the statewide smoking ban, frequent health department inspections, and/or a requirement that entertainers be classified as employees of the venues where they perform rather than as independent contractors. As employees, the venues will have to be more accountable for the actions of their entertainers, will have to abide by minimum wage laws, pay overtime when applicable, and provide benefits to those who work full-time. Such enforcement will have a chilling effect on exploitation of the workers, and will raise the standards that these businesses must meet, thus winnowing the field down to those venues that can uphold the highest standards. It’s likely that the state is losing money on tax collections by allowing these entertainers to be classified as independent contractors rather than employees, anyway.Citizens for Community Values is going about this the wrong way. They don’t realize that what they want to achieve can’t be obtained by using SB 16 as a tool. Am. Sub. H.B. 23 should be a sufficient tool for regulating these businesses via empowering local governments.

  10. -posted by Matt N.First of all, I find it to be hilarious when liberals want local control over various legislative manner. Why not apply that same logic to the Federal government? Maybe we should repeal the 17th Amendment, and re-print the constitution with the 10th Amendment in bold print? The Fed government does all sorts of things that it was never intended to do.And since those powers are reserved for the states, I have no problem with state legislators legislating legitimate state interests. You don’t oppose usurping home rule- You wouldn’t, for example, be ok with the city of Canton banning all abortion and homosexual acts, even though both of those are legitimate laws that states should be allowed to create and enforce. Instead, what you are doing is taking your endorsement of liberal immorality and using the “local control!” argument to make your point.The home rule part of the Ohio constitution was written for a different time. It would be insanity to grant people the right to conceal firearms, but then have it be illegal or legal, depending on what part of I-71 you were on. And in this case, it would be impossible to control the creation of new houses of ill repute without one, blanket state law.Conservatives may support states rights, but that doesn’t mean they have to endorse chaotic, confusing layers of laws passed by various local government entities.

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