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Choke the Chicken 

Adult businesses fear the "Smut Shop" bill will tax them into oblivion

And on the eighth day, God created the skin flute.

Or so insinuates Howard Richman, the owner of St. Louis County adult superstore Very Intimate Playthings: "God made us with our first drive to reproduce," he theorizes. "We're animals, and that's the way our bodies work. Our society is set up so we can't take a club into a cave, bat some woman over the head and fuck her. We're civilized, and one of the things in a civilized society is proper outlets for masturbation. If we take that away, that pressure's got to go somewhere."

The way Richman sees it, Matt Bartle's Senate Bill 32 -- dubbed the "Smut Shop Restriction Bill" -- is an assault on the masturbatory rights of private citizens and could lead to an uptick in sex crimes. Worse yet, it could put him, and many others like him, out of business.

The legislation spearheaded by Bartle, a Republican senator from Lee's Summit, has cleared the judiciary and fiscal oversight committees and is steadily working its way toward passage in the Missouri State Senate. If the bill passes, adult businesses that devote 10 percent or more of their retail space to "sexually oriented materials" will be slapped with a 20 percent tax on adjusted gross revenues. In addition, a $5 charge will be collected from every patron who enters the business' premises.

Governor Matt Blunt is expected to sign the bill into law if it reaches his desk. The Missouri House of Representatives has not yet taken any action on the measure.

Richman and others say that if Bartle's bill becomes law, it will effectively rid Missouri of strip joints and retailers who sell adult videos, magazines and sex toys. Bartle dismisses this claim, saying his legislation is simply a tool to halt an adult-entertainment industry that's run amok in rural Missouri.

"When you drive through rural Missouri, you get the impression that it's porn central," says the 40-year-old Bartle, a rising conservative star who last year successfully engineered a ban on billboards advertising adult businesses. "Urban areas have ordinances where they can tightly restrict time, place and manner. Rural areas don't have the resources to fight the powerful and moneyed porn industry, so they get bullied."

In addition to the steep tax and mandated cover charge, Bartle's bill would prohibit adult venues from staying open past midnight and serving liquor and would raise the legal age of adult cabaret performers (i.e., strippers) from nineteen to twenty-one.

Missouri's adult-entertainment industry views the bill as its potential death knell and is taking no chances in Jefferson City. Organized under the banner of the Missouri Association of Club Executives, or MoACE, the industry is working vigorously to crush the legislation by emphasizing its potentially negative economic impact.

"We oppose it because it will run legal businesses and jobs out of Missouri," says MoACE executive director Ann Michael. "I think it'll cost the state 2,000 jobs. And it will have an impact in terms of local sales tax generated. [Bartle] is taking his personal position on adult entertainment and forcing it on the state of Missouri. And it's directly contradictory to the pledge he made not to impose new taxes on Missourians."

Michael is referring to the Americans for Tax Reform's "Taxpayer Protection Pledge," which Bartle signed in September. By signing, the senator pledged "to oppose and vote against any and all efforts to increase taxes."

"It probably violates it," Bartle says of Senate Bill 32's relationship to his signed pledge.

Richman's attorney, Scott Sherman, says there's more at work here than mere hypocrisy.

"Here's a low-tax guy whose first point of business in a new session is to trot out a tax bill," says Sherman. "His intention is to decrease revenue by putting these places out of business. And the state's broke."

Counters Bartle: "It's just not realistic. There are tens of thousands of people who'd love it if the porn industry was out of the state, and I'm probably one of them. But even in states where you have extremely aggressive restrictions on porn shops, the industry thrives."

Bartle, however, was quoted in a January 25 Associated Press report as saying: "The goal of the bill is to make Missouri inhospitable for these businesses."

Whatever the senator's motive, the "Smut Shop" bill raises the ire of the First Amendment Center's Ron Collins.

"The court is very clear: If there is a tax that has a discriminatory impact on expression, it's unconstitutional," says Collins, a scholar-in-residence at the Arlington, Virginia-based nonprofit. "If the purpose is to tax nonexpressive activities like the manufacturing of sex toys, that's within the legislative purview. But the power to tax expression in a discriminatory way is the power to censor expression."

"It's prior restraint on free speech, which is unconstitutional," seconds Sherman. "He's trying to do something through taxes that he can't do through the courts."

Bartle maintains he's carefully vetted his bill to make sure it will withstand any legal challenges. "For each of the major provisions of the bill, we've had courts that have upheld them," says the senator. "Their standard argument is that it violates the First Amendment. But guess what? The courts have already said no."

Sherman is also troubled by a passage in Bartle's bill that defines "sexually oriented materials" as "patently offensive to the average person applying contemporary adult standards with respect to what is suitable for minors."

The "with respect to what is suitable for minors" clause strikes Sherman as overreaching. "It's basically the Miller Test with a very dangerous twist," he says, referring to Supreme Court-established guidelines for determining obscenity. "You're not just talking about Penthouse and Hustler now, you're talking about Maxim, FHM, the Sports Illustrated swimsuit issue or R-rated movies."

Sherman also argues that this provision means places like 7-Eleven, Blockbuster, shopping-mall multiplexes and mildly risqué boutiques like Cheap TRX on South Grand Boulevard could conceivably be deemed sexually oriented businesses under Bartle's bill -- and therefore be subjected to its tariffs.

Bartle dismisses this claim as paranoia. "The Blockbusters have looked at the definition and they're comfortable with it," he maintains.

Cheap TRX co-owner Fred Neal is far from reassured. His store trades heavily in leather, costumes, T-shirts and greeting cards for mature audiences, in addition to various and sundry dildos, vibrators and cock rings on the basement sales floor.

"It would end up raising our prices," says Neal. "It depends on what you classify as 'adult merchandise.' If it's just toys and videos, that's way smaller than 10 percent of our business. Either way, it's a stupid thing. And I don't have too much tolerance for stupidity."

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