Nearly two years ago, the OLCC enacted an administrative rule that shuts out musicians, dancers, and even electricians from clubs throughout Oregon. At that time, a group called the Concerned Women of America lobbied the OLCC to change their rules so that young women between the ages of 18 and 21 could no longer strip or lap dance anywhere that alcohol was served. In an interview with The Oregonian, an OLCC spokesperson explained, "When you mix alcohol and nudity, especially when the nudity becomes very graphic, very lewd, you have a potentially explosive situation."
But because it is unconstitutional to target a specific group for moral condemnation--in this case, dancers--the new OLCC rule had to include everyone under the age 21. Caught up in the collateral damage have been bands with members under 21, plumbers, and stand-up comedians.
"If Robin Williams or Lenny Bruce were 20 years old, they couldn't perform in an Oregon bar," says Dave Fidanque, the executive director for Oregon's chapter of the ACLU. The new OLCC rule, says Fidanque, has shut down basic constitutional values, like free-speech allowances. The rule has also derailed the careers of dozens, if not hundreds, of musicians throughout the state. The Jake Blair Band, for example, was enjoying a steady rise into the pantheon of local blues music. Consisting of two talented teenagers, the blues duo had performed at the Waterfront Festival and clubs around town. But under the new rule, which went into effect this January, they were suddenly banned from most music venues for at least five years until they turn 21.
(After a short legal tussle with the OLCC, the band is again playing in clubs around the state. A dad for one of the band members requested and received a court order that provides a waiver from the rules. However, the waiver carries the stipulation that one of their parents must be present and babysit their gigs.)
Like water backing up against a levee, several other legal complaints are building up against the OLCC. Three weeks ago, a lawsuit was filed against the organization which challenged another new rule prohibiting dancers from fondling themselves. That lawsuit also contends the OLCC has violated basic free speech allowances.
The power for the OLCC to regulate more than just the sale and flow of liquor is a holdover from the Prohibition. When Congress enacted the 21st Amendment in 1933 (which repealed alcohol prohibition), states were given permission to police the sale and consumption of alcohol with a heavy hand. But since then, fewer than half the states have retained liquor commissions and no other liquor commission has enacted such severe limitations on performers in bars, clubs, and taverns.
"States have broad authority to regulate alcohol," agrees Finanque, "but those rules have to be carried out without violating free speech protections." Currently, the ACLU is waiting for a response from the OLCC. Fidanque says that the lawsuit could drag into next spring. "We're confident they are wrong," he asserts.
An OLCC spokesperson was unable to answer questions regarding either lawsuit, saying he is prohibited from commenting on ongoing litigation.