Sunday, August 21, 2011

Free in Kentucky: Warning: This Blog Post Contains Analysis of Obsc...

Free in Kentucky: Warning: This Blog Post Contains Analysis of Obsc...: Today I clicked on a headline from WLKY which said, in big bold letters: "Police: Man shows naked pictures, says 'Let War begin' Ou...

Warning: This Blog Post Contains Analysis of Obscene Matter

     Today I clicked on a headline from WLKY which said, in big bold letters: 

"Police: Man shows naked pictures, says 'Let War begin' Outside Ted Nugent Show."

     The following is an excerpt from the WLKY report:
     According to arrest records, 52-year-old Willie Marchman was at the Kentucky State Fairgrounds about 11 p.m. Thursday after a concert ended at Cardinal Stadium.  Police said Marchman was showing pictures of half-naked women to passers-by and saying, "Let the war begin."
    I don’t know if you noticed the huge, glaring difference between the headline and the actual report, but for those of you who are blind or have a memory even shorter than mine, the headline says he showed “naked” pictures; the story reports that he showed “half-naked” pictures.  The report does not say that Marchman was charged with any sort of offense relating to the distribution of obscenity, but the article certainly seems to take issue with the fact that the guy had some naked or maybe not naked pictures of girls.  Let’s see if there is a difference.
     I don’t know the facts of Mr. Marchman’s case.  He may not have done anything wrong or illegal whatsoever.  WLKY may have made up every word for all I know.  So we’ll come up with a hypothetical situation:  Bob, who likes to rock and has a predilection toward scantily clad women, heads off to the Motley Crue reunion show in Lexington.  Bob reaches into his stack of girlie pictures and grabs a couple on his way out the door to the concert.  One is a picture of a nude woman, while the other is a picture of a woman in lingerie - cut out of the JCPenny catalogue.
     In the parking lot at the show, Bob gets pumped up and ready to rock.  While walking into the arena, he holds up one of the pictures of the women in order to kick-start the hearts of his fellow concert goers.  The other picture he keeps in his pocket with the intention of holding it up for exhibition during the encore.  Police arrest him before he even gets into the concert and charge him with Distribution of Obscene Matter.  We will assume that the rest of the concert goers are all at least 18 years old.  Does it make a difference which picture he held up for exhibition?  Let’s look at the KRS.

KRS 531.020 governs the distribution of obscene matter.  It reads:
(1) A person is guilty of distribution of obscene matter when, having knowledge of its content and character, he:
(a) Sends or causes to be sent into this state for sale or distribution; or
(b) Brings or causes to be brought into this state for sale or distribution; or
(c) In this state, he:
1. Prepares, or
2. Publishes, or
3. Prints, or
4. Exhibits, or
5. Distributes, or
6. Offers to distribute, or
7. Has in his possession with intent to distribute, exhibit or offer to distribute, any obscene matter.
(2) Distribution of obscene matter is a Class B misdemeanor unless the defendant has in his possession more than one unit of material coming within the provisions of this chapter, in which case it shall be a Class A misdemeanor.

     The pertinent portions of the above statute are when a person “exhibits” or “has in his possession with intent to [exhibit] any obscene matter.”  Some of you might be wondering at this point, “What exactly IS obscene matter?”  Some of you might be thinking “I don’t know how to define ‘obscenity’ but I know it when I see it.”  Either way, the definition under the KRS may help.  Let’s check it out.

(2) "Matter" means any book, magazine, newspaper, or other printed or written material  or any picture, drawing, photograph, motion picture, live image transmitted over the
Internet or other electronic network, or other pictorial representation or any statue or  other figure, or any recording transcription or mechanical, chemical or electrical  reproduction or any other articles, equipment, machines, or materials.

(3) "Obscene" means:
(a) To the average person, applying contemporary community standards, the predominant appeal of the matter, taken as a whole, is to prurient interest in sexual conduct; and
(b) The matter depicts or describes the sexual conduct in a patently offensive way; and
(c) The matter, taken as a whole, lacks serious literary, artistic, political, or scientific value

     Looks like the pictures would definitely constitute “matter,” as the word “picture” is included in the definition.  That part is simple.  Whether the photos are “obscene” or not is a more difficult question for me to answer.  Notice that subsections (a) and (b) in the definition of “obscene” both end with the word “and.”  That means that all 3 subsections have to apply.  If even one of them isn’t applicable, then the material is NOT obscene.
     Let’s take the JCPenny cut out.  First things first, I think the average person in our community, applying contemporary standards, would not find that the predominant appeal of the JCPenny cut out is to prurient interest in sexual conduct.  In fact, the predominant appeal of the picture is that of marketing a product – the lingerie.  Those girls in the JCPenny catalogue are typically just displaying a product.  They aren’t nude and they aren’t being sexually suggestive.
     What about the picture of the nude girl that Bob had in his pocket.  Pursuant to KRS 531.020, Bob did possess the picture and intended to exhibit it during the encore when Nikki Sixx wailed out that big guitar solo in “Shout at the Devil.”  But does it count as “obscene???”  A jury would probably have to answer that question.  If I was Bob’s lawyer, I would argue that the picture didn’t meet the requirements of subsection (b) in the definition of “obscene.”  Although the picture may depict a nude woman, nothing in the facts seemed to indicate that the woman depicted was engaging in any sort of “sexual conduct” – much less in a patently offensive way.  If the girl in the photo is just standing or laying there, Bob probably has a good argument.
     Since there aren’t a lot of lawyers who focus on distribution of obscenity, Bob should talk to an experienced Louisville sex abuse or sex crime lawyer.  If the lawyer has experience working with sex related charges, they should be able to provide excellent representation.

     If you have been charged with sexual abuse in Louisville, Lexington, Frankfort, Elizabethtown or the surrounding areas, you should have a lawyer that will fight for your Constitutional Rights.  Call Gruner & Simms, PLLC for a free consultation at 502.618.4949.  Visit our website at  Results.  As fast as the law will allow.

Friday, August 19, 2011

Free in Kentucky: Boozy Like a Sunday Morning

Free in Kentucky: Boozy Like a Sunday Morning: I know it's been a while since I've posted anything. My bad. I was on vacation. Just to make up for my absence - here's an extr...

Boozy Like a Sunday Morning

         I know it's been a while since I've posted anything.  My bad.  I was on vacation.  Just to make up for my absence - here's an extra informative post about booze.

         It is a known fact that 67% of everyone who wakes up on Sunday morning would like to enjoy a Bloody Mary.*  Despite this staggering statistic, no local governments in this fine Commonwealth of Kentucky allow restaurants to sell alcoholic beverages before 11:00am (and some [gasp] before 1:00pm)!!!  I am as enraged as you.  Or maybe you don’t care.  Maybe you can go eat brunch at Lynn’s Paradise CafĂ© and see people ordering delicious mimosas made with fresh squeezed orange juice and bubbly champagne, and think “it’s not for me.”  If so, we’ll get to you later.
            Or you might be asking, “Why are you talking about Alcohol Beverage Control Law at all?  Isn’t that administrative in nature, rather than criminal?  Aren’t you supposed to be talking about Criminal Law?”  All good questions.  Allow me to explain.  ABC law is administrative, but it is also quasi-criminal and sometimes straight up criminal in nature.  If you own a restaurant and you sell a bunch of booze to minors, you could lose your drink license, be fined, and face jail time.
            However, as we have discussed numerous times in this blog - just because legislators wrote a law, that doesn’t mean the law passes Constitutional muster.  In the past we have discussed laws that are Unconstitutional (and unenforceable) because they are vague or overbroad.  Today we are going to discuss the prohibition on Sunday morning alcohol sales, which are local ordinances that are Unconstitutional because they violate the Establishment Clause of the First Amendment.
            Even if you are in the 33% of people who wake up without the desire for a Bloody Mary on Sunday (I told you we’d get to you later), let me explain why you should be upset about the imposition of this Puritan-esque restriction on your life.  If you guessed I am about start ranting about the separation of church and state, you’re right.  Everyone should give a damn about their individual liberties.  And when your government takes away some of your freedoms, even if it is a freedom you wouldn’t exercise, you should question it.  Hard.
        At this point, I would normally recite the law for you.  However, this week we are talking about a LOT of different local ordinances.  I could post the ordinances themselves, such as The Louisville Metro Ordinance, §113.42, or The Lexington-Fayette Urban County Government – Code of Ordinances, §3-21(a), or the pertinent portions of the Owensboro Municipal Code, and on and on, but that would take a lot of room and time.  Just trust me.  A lot of local governments in Kentucky allow Sunday alcohol sales, but restrict sales in the morning hours.  Again, I’m as enraged as you.
           So how does the Establishment Clause fit in to this?  What is the Establishment Clause?  Break out your Constitutions because I’m about to lay down some serious law…analysis.  That sounded better in my head.
The Establishment Clause of the First Amendment states as follows:  “Congress shall make no law respecting an establishment of religion.”  U.S. Const. Amend. I.  This clause, together with the Free Exercise Clause, constitute the religion clauses of the First Amendment.  The purpose of the Establishment Clause is to prevent the government from establishing a national religion, and to prohibit any manner of state sponsorship, financial support, or active involvement in religious activity.  At least that’s what they said in Lemon v. Kurtzman, 403 U.S. 602, 612 (U.S. 1971).  
The seminal case interpreting the Establishment Clause is Lemon v. Kurtzman, as cited above.  Long story short, in Lemon, the Supreme Court held that a Rhode Island statute that reimbursed a portion of teacher salaries at religious schools, and a Pennsylvania statute that provided financial support to non-public religious schools, were unconstitutional.  Id. at 606.   The Court reasoned that the statutes in question violated the Establishment Clause.  In finding so, the Court announced “the Lemon test,” which determines whether a state has run afoul of the Establishment Clause.  For some reason lawyers like naming tests after the cases in which they were established (rather than saying “the Establishment clause test”).  I’m not sure why.
In order to pass this three-pronged test, (1) a statute must have a secular (non-religious) purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion, and (3) a statute must foster an excessive government entanglement with religion.  Id. at 612-613.   
You might be thinking, “But what about Blue Laws?  I thought the Supreme Court said that Blue Laws, under some circumstances, could be ok?”  You’re right.  But that doesn’t matter.
The United States Supreme Court held in McGowan v. State of Maryland, 366 U.S. 420 (U.S. 1961), that Maryland’s “Sunday Blue Laws” were not violative of the Establishment Clause.   The Court reasoned that the various Maryland laws prohibiting certain commercial and recreational activities on Sundays had the secular purpose of providing a day of rest for its citizenry; the fact that this day of rest coincided with the traditional Christian day of rest did not invalidate Maryland’s secular purpose.  Id. at 444-445.  Creating a day of rest was considered a health measure, and well within the legislature’s province.  The Court found such even though the various Maryland laws originated with clearly religious purpose.  It must be noted that McGowan was decided 10 years before the Establishment Clause test was announced in Lemon.  Additionally, the McGowan Court was careful to qualify their holding, stating that “[w]e do not hold that Sunday legislation may not be a violation of the ‘Establishment’ Clause if it can be demonstrated that its purpose . . . is to use the State's coercive power to aid religion.”  Id. at 453.
The current state of affairs in Kentucky is distinguishable from McGowan.  In McGowan, the Supreme Court found that proscribing certain activities in order to effectuate a day of rest was in fact a legitimate government goal, with the health and welfare of the public in mind.
The ordinances in Kentucky go one step further:  the local ordinances prohibit the sale of alcohol at certain times on Sundays.  This proscription does not meet the legitimate government interest of creating a day of rest (or a morning of rest) for workers.  Other businesses are not prohibited from operating during the Sunday morning hours.  Other legitimate products are not prohibited from being sold during the Sunday morning hours.  Only the sale of alcohol (the imbibing of which is considered “sinful” by some denominations) of is prohibited during a time traditionally reserved for the observation of religious services.
The Kentucky ordinances do have the purpose of using the state’s power to aid religion about which the McGowan Court warned.  Is there any law that is analogous?  Good question.  The purpose of a statute in New York similar to Kentucky’s ordinances was recently declared violative of the Establishment Clause.  Alcohol Beverage Control Law §105-a, which prohibited the sale of alcohol on Sunday mornings between 3:00 a.m. and noon, was struck down in New York v. Yafee, 3 Misc.3d 367 (2004).  In Yafee, the Criminal Court of the City of New York stated:
While there may be a state interest in preventing owners of "mom and pop stores" from being overworked, it is incomprehensible why the morning of rest should be on a Sunday as opposed to any of the other six days of the week. Rather than allowing retailers to choose which designated day of the week the individual retailer selects to close for a minimum amount of time, the Legislature mandated that Sunday is the appropriate time for rest. The Legislature's choice of Sunday as a day of rest was either arbitrary and capricious or in violation of the Establishment Clause. – Id. at 369.      

            Kentucky’s ordinances violate the Establishment Clause of the First Amendment for the same reasons.  There is no legitimate government purpose for choosing Sunday mornings as a time period of rest for workers who sell alcohol, and doing so clearly aids religions whose traditional convocation times are Sunday mornings, and whose tenants condemn consuming alcohol.  The reasoning presented by the Yafee Court is persuasive, and supports the conclusion that Kentucky’s ordinances are unconstitutional.
          Conclusion:  Any local ordinance that restricts the sale of alcohol during Sunday morning hours because that time is traditionally reserved for religious convocation, is Unconstitutional.
          So what am I going to do about it?  Keep your ear to the ground, sirs and ma’ams.  Ears to the ground.

        If you own a restaurant or bar and grill, and you have been issued a citation by the ABC, you should get a lawyer experienced in Alcohol Beverage Control law.  Our ABC lawyers at Gruner & Simms, PLLC have taken on the ABC and won.  We have changed local regulations to allow Sunday alcohol sales.  Our ABC lawyers are experienced and aggressive.  Let us fight for you.  Call for a free consultation at 502.618.4949, or visit  Results.  As fast as the law will allow.

*Yeah, I made that up.

Special thanks goes to Mr. Sean M. Reed, a new (soon to be licensed) attorney at Gruner & Simms, PLLC, for assisting in this blog post.

Questions answered in this blog post: Is it legal to sell alcohol on Sunday; how do I find a good Louisville ABC lawyer; what are the ABC law firms in Louisville; why don't restaurants serve alcohol on Sunday morning; how do alcohol laws get changed; how do I find a good Louisville restaurant lawyer; is ABC law criminal in nature; are Sunday blue laws legal; what does separation of church and state mean; where in the Constitution does it say that church and state are supposed to be separate?

Friday, August 5, 2011

Thursday, August 4, 2011

Strippers to Prostitutes: Lack of Lapdances Leads Ladies Left of the Law

Ok, so a little while back Louisville Metro Government passed new regulations on strip clubs in order to church the city up a bit.  Dancin’ girlies have been subjected to puritan-esque regulations requiring them to refrain from 1) nude dancing and 2) the art and science of lap-dances.

I guess the city wanted to impose a higher level of morality on Kentuckiana.  Let’s see how that’s working out...
Here with an update is “Cinnamon.”  Turn off the lights in this joint and direct your attention to Cinnamon, who will be standing on the main stage in the spotlight.  Cinnamon will be wearing a very respectable cowgirl outfit that in order to conform to local regulations.  Apparently some cowgirls wore 6 inch clear heals.  Please listen as Cinnamon reads the following excerpt from WLKY news:


Five women are facing prostitution charges after police raided an office building in Jeffersonville.
The raid happened Wednesday afternoon at 607 North Shore Drive.
The Clark County chief deputy prosecutor [informed] the Courier-Journal [that] there have been a number of complaints about prostitution in Jeffersonville and Clarksville.
He said it may be related to Louisville's tightened regulations on massage parlors and strip clubs.

Thank you, Cinnamon.  That was informative and well read.
I’d like to call your attention to the last sentence of the WLKY report.  Basically, the Clark County Chief Deputy Prosecutor (the honorable Jeremy Mull), who may just be a modern day philosopher, asserts that heightened regulations banning previously legal activity (like lap-dances and nude dancing) may have resulted in the increase of prostitution.  Which makes a lot of sense.  Cinnamon and other similarly situated girls were previously making hundreds of dollars a night doing what was admittedly scandalous, but legal work.  All of the sudden the law changes – and as a direct result, so does their income.  For the worse.  The goal of the new law was to…what, exactly?  Make us cleaner?  Tell that to the people who are trying to eat a 6-inch sub in the restaurant across from the office building full of working hookers.  Might I add that the above alleged prostitution ring was busted in the MIDDLE OF THE DAY.  

By over-regulating a legitimate stream of commerce, we have created a backlash of even more “scandalous” behavior which now takes place in a more dangerous environment.  Not to mention that prostitution occurs in a tax free environment, whereas strip clubs pay taxes.  Louisville loses any way you look at it.

Admittedly, I’ve gone on a little bit of a rant here – I’ll try to get to some actual law.  On a related note…

Human trafficking has been linked to both strip clubs and houses of ill repute.  Girls, often young and often immigrants, are exploited in both areas.  The Kentucky Revised Statutes addresses the issue of human trafficking, and you can see how closely tied human trafficking is to prostitution by examining the KRS.  The Human Trafficking statute is actually located in the “Prostitution Offenses” section (KRS 529).  It is great that our legislators have drafted laws with the intent of protecting these girls, who presumably don’t have many people sticking up for them.  It is unfortunate that the laws have some serious issues concerning vagueness and overbreadth, which may make them unconstitutional and unenforceable.  Let’s start with the Human Trafficking statute.

KRS 529.100   Human trafficking -- A person is guilty of human trafficking when the person intentionally subjects one (1) or more persons to human trafficking.

Great.  That tells us virtually nothing.  Let’s check the definition of “human trafficking” under KRS 529.010 for more clarification.  It says:

(5) "Human trafficking" refers to criminal activity whereby one (1) or more persons are subjected to engaging in:
(a) Forced labor or services; or
(b) Commercial sexual activity through the use of force, fraud, or coercion, except that if the trafficked person is under the age of eighteen (18), the commercial sexual activity need not involve force, fraud, or coercion;

Ok, that helps.  But it barely scratches the surface.  If you subject a person to “commercial sexual activity” by “force, fraud or coercion” you are a human trafficker.  Then again, what is “commercial sexual activity?”  Obviously prostitution would qualify, but what about stripping?  What about PG – 13 movies with milder sexual material or the girls who sling hot wings at Hooters?  Where do we draw the line?

According to the KRS, "Commercial sexual activity’ means prostitution, participation in the production of obscene material as set out in KRS Chapter 531, or engaging in a sexually explicit performance[.]”
So the Hooters girls are most likely exempt.  I don’t think waiting tables constitutes a “sexually explicit performance.”  But again, what about the PG-13 movies?  There are a lot of areas besides stripping that might constitute a “sexually explicit performance.”  What about a poetry reading of risque material?  Let’s check out KRS 529.010 for another definition (and I know we’re jumping all over the place here, but we’re almost done).  
(10) "Sexually explicit performance" means a performance of sexual conduct involving:
(a) Acts of masturbation, homosexuality, lesbianism, bestiality, sexual intercourse, or deviant sexual intercourse, actual or simulated;
(b) Physical contact with, or willful or intentional exhibition of, the genitals;
(c) Flagellation or excretion for the purpose of sexual stimulation or gratification; or
(d) The exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area, or buttocks, or the female breast, whether or not subsequently obscured by a mark placed thereon, or otherwise altered, in any resulting motion picture, photograph, or other visual representation, exclusive of exposure portrayed in matter of a private, family nature not intended for distribution outside the family.

At this point, I’m still a bit confused.  I want to say that a reading of poetry containing sexual material wouldn’t constitute “sexual conduct” pursuant to the first line of KRS 529.010(10), but some people might.  It is vague.  And vagueness is a problem.
Back to our original definition of human trafficking - what constitutes “force, fraud or coercion?”  Pursuant to the KRS, "Force, fraud, or coercion" may only be accomplished by the same means and methods as a person may be restrained under KRS 509.010;” which takes us to the definition section of KRS 509 -

509.010   Definitions.
The following definitions apply in this chapter unless the context otherwise requires:
(1) "Relative" means a parent, ancestor, brother, sister, uncle or aunt.
(2) "Restrain" means to restrict another person's movements in such a manner as to cause a substantial interference with his liberty by moving him from one place to another or by confining him either in the place where the restriction commences or in a place to which he has been moved without consent. A person is moved or confined "without consent" when the movement or confinement is accomplished by physical force, intimidation, or deception, or by any means, including acquiescence of a victim, if he is under the age of sixteen (16) years, or is substantially incapable of appraising or controlling his own behavior.
Again we have some problems with vagueness.  In the second sentence of paragraph (2), supra, the KRS explains that someone is moved or confined without consent when the movement is accomplished by physical force, intimidation, or deception or ANY OTHER MEANS.  Putting “any other means” really just cancels out all of the “force, intimidation or deception requirements.”  Doesn’t it?  Which, to me, says that if you can talk someone into moving to Kentucky to work at your strip club by ANY MEANS, including promising to pay them, it constitutes “force, fraud or coercion.”  Read strictly, it must include any legal or legitimate means of moving someone to another place - which is overbroad.
I think that’s enough law for the day.
In closing, it is great that our legislators are attempting to govern and eliminate human trafficking.  But the law is far from perfect.  When a law is vague or overbroad, it can be rendered unconstitutional and unenforceable.
If you have been charged with Prostitution or Human Trafficking, you need a lawyer who knows the law.  If you have been charged with any sex crime in Louisville, Lexington, Frankfort, Elizabethtown or the surrounding areas, call Gruner & Simms, PLLC and speak to a Louisville Sex Crimes lawyer today.  The initial consultation is free, so call 502.618.4949 or visit
Results.  As fast as the law will allow.

Questions answered in this blog post: How do I find a good Louisville human trafficking lawyer; what is the new law about Kentucky strippers; what is the new law about Louisville strippers; explain the Louisville lap dancing law; what are strippers allowed to do in Louisville; what is commercial sexual activity; are Hooters girls obscene?