Two Feet, Four Feet, Six Feet, a Dollar

The now-infamous strip-club bill appears to be heading nowhere in the General Assembly. Lawmakers are concerned about its constitutionality and generally annoyed that it's on their plate.

Normally this would mean that the bill is destined for a quiet committee death. But in this case, because it was initiated by a citizen petition, the burka bill will head to the ballot in November unless the legislature acts.

One possible fix for the logjam may be a couple days ago NPR reported that the House committee taking up the bill was considering amending the rule that dancers must stay six feet from patrons, reducing the range to something more workable, like two feet.

The buffer rule generally gives law enforcement a tool to ensure that patrons and dancers are not touching. I once saw on TV -- don't recall where -- a stripper on a news program demonstrating a no-touch lap dance. The patron is supposed to keep his hands behind his back. the stripper straddles but does not sit, and do we really need to know all this. The point is, as a former prosecutor, I see how difficult it would be to prosecute a club for allowing patrons and strippers to touch. Juries would be reluctant to convict for anything that looks like an accident and a dark club with flashing lights leaves all kinds of possibilities for reasonable doubt.

The point of a two-foot rule is not to prosecute someone if a dancer comes within one foot, ten inches. It is to prevent both the sort of hovering lap dance described reluctantly above and to prevent the dance of 1000 accidental touches. The theory in both being that while watching a dancer on stage may be described as entertainment, a paying a naked woman to gyrate on your lap is on the same spectrum as prostitution. Lower level, yes, but it's the same conversation at that point.

The two-foot proposal raises quandries for a number of the antagonists. For Phil Burress and Citizens for Community Values, they have to decide if they are willing to hit the mattresses over four feet of stripper buffer. Since two feet gives localities an enforecable no-touch rule, they lose one of their most compelling arguments.

For people arguing against the bill on civil liberties grounds, their argument against two feet is considerably shakier. The six feet rule probably would have been unconstitutional if it simply did not allow clubs to operate. A smaller setback requirement is probably defensible as a time/place/manner restriction if clubs can operate.

For Dancers for Democracy, the two-foot rule puts issues in uncomfortable relief. As the strip club owners complained about the six foot, dancers make the real money from tips and make the best tips when they get up close and personal. And frankly, most of Ohio isn't going to want to help out with that.

The one set of arguments that still look solid against two feet are those relating to local control. Even with the bubble reduced to two feet, it's still a one-size rule that doesn't take local factors into account. If a local government isn't having problems with the clubs in town, there's no reason that a clumsy state rule should take precedence. Currently localities have the authority to pass ordinances regulating strip clubs. Proponents of a state bubble law have yet to demonstrate that local regulation is insufficient to protect local concerns.