Recently the Supreme Court of Maryland ruled that a local county ordinance banning fortunetelling for profit was an unconstitutional restraint on free speech protections. The case can be found at this link: http://mdcourts.gov/opinions/coa/2010/84a09.pdf.
Maryland is, of course, a long ways away from Minnesota. Their cases have no binding precedent in our state. However, the case points out a real problem that can harm Minnesota cities - archaic or out of date ordinances. Ordinances regulating fortunetellers, clairvoyants, phrenologists and similar practitioners tend to be some of the oldest rules on the books. (A phrenologist studies the bumps on your head and tells you traits about your personality – this was very popular in the 1800’s). As a blanket rule, the LMC Codification Service recommends revisiting any ordinance passed before 1950 as a potentially “archaic” ordinance.
Times change. People and common practices change. Legal precedent evolves. As a result, cities need to re-evaluate archaic provisions in ordinances or code books. The story of our changing views and practices related to fortunetelling is a great illustration of the effects the passage of time can have on a city ordinance.
A Brief History of Regulating Fortunetelling:
Many old ordinances prohibiting fortunetelling appear to have been adopted out of a fear that fortunetelling was synonymous with vagrancy, begging or prostitution. Such fortunetellers practiced on the street, in city parks and often visited door to door as aggressive panhandlers.
Modern practices related to clairvoyance and fortunetelling don’t tend to focus on the street corner anymore. Instead, practitioners these days may have actual store fronts centered around “new age” bookstores, meditation or wellness centers. They may offer legitimate product lines of essentials oils, candles and healing herbs in addition to fortunetelling services. Picture peaceful music playing in the background while a study group discusses their “chakras.” After they meditate and have their chakras adjusted, customers may also take a few minutes and get their tarot or “angel” cards read.
This modern type of fortunetelling business has also been the subject of recent controversy in Macon County, GA. The background information on the store’s owner (a retired police officer) and shop offerings certainly offer a sharp contrast to the old fashioned idea of the beggar/fortuneteller. Here is a link to a newspaper article on the Macon County, GA store: http://www.macon.com/2010/04/17/1097252_fortune-telling-fight-headed-for.html.
Practical and Legal Considers with Archaic Ordinances:
When evaluating a potentially archaic ordinance there are both practical and legal considerations. Often times the practical considerations are such that the legal concerns don’t even need to be reached in deciding to amend or discard the ordinance. Here are some practical questions ordinance drafters (and the city councils there serve) should ask when reviewing a potentially “archaic” ordinance (adopted before 1950) and my hypothetical responses/musings related to a fortunetelling ordinance (in italics):
• Why did we regulate this conduct to begin with? (hypothetical answer - to prohibit fortunetelling that was really a front for begging or worse on street corners 50 years ago).
• What types of behavior or negative results were we trying to prevent when the ordinance was adopted over 50 years ago? Does the risk of those behaviors/negative results still exist? (hypothetical answer - are modern people still intimidated by beggars posing as fortunetellers? I guess I might still be intimidated if someone asked, depending on the time of day).
• Do people still commonly try to attempt the prohibited conduct? (hypothetical answer - no one has ever approached me on the street or come to my house in my entire life and offered to read my fortune).
• Has common, accepted practice related to the prohibited conduct changed? (hypothetical answer - yes, practice related to fortunetelling has changed quite a bit. Some of these places do good business as “new age” bookstores and have nice storefronts – offering classes, entertainment, and products such as candles and essential oils. They bring customers to the city, who also stop and buy goodies at the local coffee shop and gas at the corner store).
• Does state law (or some other source of regulation) now offer a better way to regulate the prohibited conduct? (hypothetical answer – I guess, if we’re really afraid of these fortunetellers operating as a front for begging or prostitution, we could pass a panhandling ordinance with the help of our attorney, and there are state laws related to prostitution already on the books. Possibly fortunetellers not operating in a shop would need a peddlers license and background check under our existing city peddlers ordinance).
• Do we feel any urgency related to regulating this conduct anymore? Have we needed to enforce this ordinance in the last 5 years? 10 years? (hypothetical answer - I just don’t see a lot of roving fortunetellers on the street. If they want to have a storefront business in town, they can follow the rules everyone else does for building appearance and maintenance and we have zoning in place too).
There are also legal considerations that need to be taken into account when evaluating archaic ordinances. Here are some important legal questions to ask:
• Do we still have the authority to regulate this area via city ordinance? Have we been superseded by state statute or federal law?
• Has the state or federal courts ruled against cities trying to enforce these types of ordinances?
• Does the ordinance regulate expressive conduct, speech or private human relations in a way that is no longer acceptable under modern state and federal court rulings? In a way that may still be acceptable but nonetheless carries a high risk of challenge in litigation?
Common Archaic Ordinances
Archaic ordinances crop up in many areas outside of fortunetelling. A few examples of archaic ordinances where the city’s authority to regulate has been superseded by state law are:
1) Ordinances on building construction and structure safety (superseded by the MN State Building Code);
2) Ordinances on “drugging” (regulating pharmacies and medical quality in an era before the FDA); and
3) Provisions on public drunkenness (now prohibited by Minn. Stat. 340A.902).
Common examples of ordinances overruled by the courts, include prohibitions related to dressing inappropriately for ones sex (typically prohibiting women from wearing men’s clothes), vaguely written loitering ordinances, restrictions on women serving on city board positions and some broadly drawn restrictions on “lewd” conduct.
Combating the “Charm” of Archaic Ordinances
Occasionally, when reviewing archaic ordinances, a person will ask me “what’s the harm?” or note that they find older ordinances “charming,” or “quaint.” I too value the past, but unfortunately, the city code or ordinance book is not the appropriate place to memorialize those yesteryears. It is important to note that repealed ordinances aren’t simply thrown in the trash. Minnesota law requires cities to maintain copies of old ordinances for their historical value. As a result, taking the provision out of the current ordinance book doesn’t mean it’s lost forever.
As we have discussed above, old ordinances can create liability for cities – particularly when the ordinance implicates speech or fundamental freedoms. But even innocuous archaic ordinances (related to horse hitching, cattle driving, suppression of riots), take up space in an ordinance book, potentially slowing down and consuming city staff time. They can also multiply copying, retrieval and maintenance costs for both paper and electronic records. Finally, archaic ordinances can create a perception that city regulation is behind the times and therefore not conducive to economic or cultural initiatives that wish to invest in the city.
Conclusion
I’m grateful to the courts of the great State of Maryland for giving us this chance to discuss the problems that archaic ordinances can create for Minnesota cities. While fortunetelling ordinances appear to be relatively rare in Minnesota, archaic ordinances on many other subjects frequently pop up before the LMC Codification Service. I’m predicting that the Maryland experience may give many people pause to consider the (hopefully limited) future of their archaic ordinances.
Maryland is, of course, a long ways away from Minnesota. Their cases have no binding precedent in our state. However, the case points out a real problem that can harm Minnesota cities - archaic or out of date ordinances. Ordinances regulating fortunetellers, clairvoyants, phrenologists and similar practitioners tend to be some of the oldest rules on the books. (A phrenologist studies the bumps on your head and tells you traits about your personality – this was very popular in the 1800’s). As a blanket rule, the LMC Codification Service recommends revisiting any ordinance passed before 1950 as a potentially “archaic” ordinance.
Times change. People and common practices change. Legal precedent evolves. As a result, cities need to re-evaluate archaic provisions in ordinances or code books. The story of our changing views and practices related to fortunetelling is a great illustration of the effects the passage of time can have on a city ordinance.
A Brief History of Regulating Fortunetelling:
Many old ordinances prohibiting fortunetelling appear to have been adopted out of a fear that fortunetelling was synonymous with vagrancy, begging or prostitution. Such fortunetellers practiced on the street, in city parks and often visited door to door as aggressive panhandlers.
Modern practices related to clairvoyance and fortunetelling don’t tend to focus on the street corner anymore. Instead, practitioners these days may have actual store fronts centered around “new age” bookstores, meditation or wellness centers. They may offer legitimate product lines of essentials oils, candles and healing herbs in addition to fortunetelling services. Picture peaceful music playing in the background while a study group discusses their “chakras.” After they meditate and have their chakras adjusted, customers may also take a few minutes and get their tarot or “angel” cards read.
This modern type of fortunetelling business has also been the subject of recent controversy in Macon County, GA. The background information on the store’s owner (a retired police officer) and shop offerings certainly offer a sharp contrast to the old fashioned idea of the beggar/fortuneteller. Here is a link to a newspaper article on the Macon County, GA store: http://www.macon.com/2010/04/17/1097252_fortune-telling-fight-headed-for.html.
Practical and Legal Considers with Archaic Ordinances:
When evaluating a potentially archaic ordinance there are both practical and legal considerations. Often times the practical considerations are such that the legal concerns don’t even need to be reached in deciding to amend or discard the ordinance. Here are some practical questions ordinance drafters (and the city councils there serve) should ask when reviewing a potentially “archaic” ordinance (adopted before 1950) and my hypothetical responses/musings related to a fortunetelling ordinance (in italics):
• Why did we regulate this conduct to begin with? (hypothetical answer - to prohibit fortunetelling that was really a front for begging or worse on street corners 50 years ago).
• What types of behavior or negative results were we trying to prevent when the ordinance was adopted over 50 years ago? Does the risk of those behaviors/negative results still exist? (hypothetical answer - are modern people still intimidated by beggars posing as fortunetellers? I guess I might still be intimidated if someone asked, depending on the time of day).
• Do people still commonly try to attempt the prohibited conduct? (hypothetical answer - no one has ever approached me on the street or come to my house in my entire life and offered to read my fortune).
• Has common, accepted practice related to the prohibited conduct changed? (hypothetical answer - yes, practice related to fortunetelling has changed quite a bit. Some of these places do good business as “new age” bookstores and have nice storefronts – offering classes, entertainment, and products such as candles and essential oils. They bring customers to the city, who also stop and buy goodies at the local coffee shop and gas at the corner store).
• Does state law (or some other source of regulation) now offer a better way to regulate the prohibited conduct? (hypothetical answer – I guess, if we’re really afraid of these fortunetellers operating as a front for begging or prostitution, we could pass a panhandling ordinance with the help of our attorney, and there are state laws related to prostitution already on the books. Possibly fortunetellers not operating in a shop would need a peddlers license and background check under our existing city peddlers ordinance).
• Do we feel any urgency related to regulating this conduct anymore? Have we needed to enforce this ordinance in the last 5 years? 10 years? (hypothetical answer - I just don’t see a lot of roving fortunetellers on the street. If they want to have a storefront business in town, they can follow the rules everyone else does for building appearance and maintenance and we have zoning in place too).
There are also legal considerations that need to be taken into account when evaluating archaic ordinances. Here are some important legal questions to ask:
• Do we still have the authority to regulate this area via city ordinance? Have we been superseded by state statute or federal law?
• Has the state or federal courts ruled against cities trying to enforce these types of ordinances?
• Does the ordinance regulate expressive conduct, speech or private human relations in a way that is no longer acceptable under modern state and federal court rulings? In a way that may still be acceptable but nonetheless carries a high risk of challenge in litigation?
Common Archaic Ordinances
Archaic ordinances crop up in many areas outside of fortunetelling. A few examples of archaic ordinances where the city’s authority to regulate has been superseded by state law are:
1) Ordinances on building construction and structure safety (superseded by the MN State Building Code);
2) Ordinances on “drugging” (regulating pharmacies and medical quality in an era before the FDA); and
3) Provisions on public drunkenness (now prohibited by Minn. Stat. 340A.902).
Common examples of ordinances overruled by the courts, include prohibitions related to dressing inappropriately for ones sex (typically prohibiting women from wearing men’s clothes), vaguely written loitering ordinances, restrictions on women serving on city board positions and some broadly drawn restrictions on “lewd” conduct.
Combating the “Charm” of Archaic Ordinances
Occasionally, when reviewing archaic ordinances, a person will ask me “what’s the harm?” or note that they find older ordinances “charming,” or “quaint.” I too value the past, but unfortunately, the city code or ordinance book is not the appropriate place to memorialize those yesteryears. It is important to note that repealed ordinances aren’t simply thrown in the trash. Minnesota law requires cities to maintain copies of old ordinances for their historical value. As a result, taking the provision out of the current ordinance book doesn’t mean it’s lost forever.
As we have discussed above, old ordinances can create liability for cities – particularly when the ordinance implicates speech or fundamental freedoms. But even innocuous archaic ordinances (related to horse hitching, cattle driving, suppression of riots), take up space in an ordinance book, potentially slowing down and consuming city staff time. They can also multiply copying, retrieval and maintenance costs for both paper and electronic records. Finally, archaic ordinances can create a perception that city regulation is behind the times and therefore not conducive to economic or cultural initiatives that wish to invest in the city.
Conclusion
I’m grateful to the courts of the great State of Maryland for giving us this chance to discuss the problems that archaic ordinances can create for Minnesota cities. While fortunetelling ordinances appear to be relatively rare in Minnesota, archaic ordinances on many other subjects frequently pop up before the LMC Codification Service. I’m predicting that the Maryland experience may give many people pause to consider the (hopefully limited) future of their archaic ordinances.
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