Sin Tax

If you can’t beat ‘em, tax ‘em.

That’s the tactic city leaders may now adopt in their years-long fight to keep sexually oriented businesses out of their conservative suburban community.

While the courts debate the merits of Simi Valley’s restrictive zoning rules for strip clubs, adult bookstores and massage parlors, City Councilman Paul Miller has proposed something new: taxing the patrons of sexually oriented businesses as much as $15 or $20 a visit.

“The city has a so-called bed tax, which visitors pay when they rent a room in a hotel or motel,” Miller said at a council meeting Monday night. “Given that there is a documented and proven additional workload caused by [sex-related businesses] for both the police and code enforcement, why not consider putting on the ballot for voter consideration a tax on admission to any nude dance establishment here in our city?”

Legal and government experts called the idea a first in California--and possibly the nation. While surcharges or user fees on cigarettes, alcohol, hotel beds and gambling establishments are fairly common, none could recall a tax specifically on patrons of massage parlors, strip joints, X-rated bookstores and other adult businesses.

A state senator this year attempted to tax the gross receipts of such businesses, but the proposal died in committee.

Miller’s colleagues immediately warmed to the idea of taxing the people who frequent adult businesses--should one ever appear in Simi Valley.

But the idea was denounced by the lawyer for Simi Valley businessman Phil Young, who has sought to open a nude dance club since 1993 and predicted that the courts would not uphold any move to tax one form of entertainment but not others.

“I’ve got to give them credit for trying,” said lawyer Roger Jon Diamond. “The tax would be unconstitutional and discriminatory, because you cannot discriminate.

“Simi Valley should tax the patrons of restaurants so there would be a fund of money to pay health inspectors instead,” he said. “If I lived in Simi Valley, I would worry more about the chef who sneezes in the food than . . . someone watching a dancer take her clothes off.”

Miller’s colleagues instructed the city attorney to look into the legalities of an adult business tax, which Simi Valley voters would have to approve. The council also asked the attorney to look into licensing such firms, so their owners and employees could be subject to criminal background checks.

The tax would be used to offset costs of extra police patrols and code inspections generated by sexually oriented businesses--which Miller calls “SOBs.” The levy could be much less than $15, depending on the extent of additional law enforcement required, officials said.

“This isn’t exactly a tax-loving city, but I think we may have found an issue they would support,” Mayor Greg Stratton said. “I think there would be enormous community support for it.”

The city’s zoning regulations, recently ruled unconstitutional by a U.S. District judge in Los Angeles, bar X-rated businesses from operating within 1,000 feet of a school or religious facility or 500 feet of a business catering to youths. The city has appealed that decision.

Miller’s tax proposal came after he and city staffers attended a League of California Cities conference on sex-related businesses.

The idea of taxing patrons of sex-related businesses could be a first in the country, said Scott Bergthold, general counsel for the National Family Legal Foundation, which co-hosted last week’s conference with the cities league. The Scottsdale, Ariz.-based nonprofit foundation helps cities write laws that regulate the businesses without running afoul of the courts.

The tax “is an unusual idea,” Bergthold said. “Our recommendation to cities that come up with novel ideas generally is to stay away from them, because they tend to get in trouble by not sticking with court-approved practices. . . . It’s better to use the number of options that have been tested--and upheld--in court than to try one yourself and experiment.”

USC law professor Erwin Chemerinsky said he was unsure if the tax would be constitutional.

Critics would argue that it would hamper free speech, he said. But cities could counter that taxing patrons is a less restrictive way to regulate the “secondary effects” of adult businesses--namely, crime and prostitution--than attempting to ban the establishments or limit their locations.