H.R. 3782

I n t e r n a t i o n a l A s s o c i a t i o n o f A s s e m b l y M a n a g e r s

International Association
of Assembly Managers, Inc

Madden & Patton, L.L.C.
1200 G Street, N.W., Suite 800
Washington, D.C. 20002
Telephone (202) 434-8988
Facsimile(202) 861-1274

May 22, 2002

The Honorable James Sensenbrenner
Chairman, Committee on the Judiciary
United States House of Representatives
2138 Rayburn House Office Building
Washington, D.C. 20515

RE: H.R. 3782, Clean, Learn, Educate, Abolish, Neutralize, and Undermine Production (Clean-Up) of Methamphetamines Act of 2002

Dear Chairman Sensenbrenner:

I represent the International Association of Assembly Managers, Inc. an industry trade association comprised of over 3000 managers of stadiums, arenas, theaters, convention centers, amphitheaters and auditoriums throughout the United States and the world (“IAAM”). On behalf of IAAM, I would like to voice the industry’s opposition to Section 416A of the above referenced bill. The other sections of the bill have tremendous merit and should be passed by Congress. However, Section 416A invokes a violation of criminal drug laws because of the type of entertainment, rave, event, dance or just plain music played at an event. The basis of connecting the content of the entertainment to the criminal laws creates economic, operational and constitutional concerns for music promoters and operators of public assembly facilities or venues. In order to understand our specific concerns about Section 416A, it is set forth below.

"SEC. 416A. PROMOTERS OF DRUG ORIENTED ENTERTAINMENT.

"Whoever knowingly promotes any rave, dance, music, or other entertainment event, that takes place under circumstances where the promoter knows or reasonably ought to know that a controlled substance will be used or distributed in violation of Federal law or the law of the place were the event is held, shall be fined under title 18, United States Code, or imprisoned for not more than 9 years, or both."

Specifically, IAAM’s opposition to Section 416A centers on the following five reasons. First, Section 416A of the bill will have a devastating economic impact on the concert and entertainment industry in this country. It is well known that drug use occurs among the young, particularly teenagers and college-aged individuals. Section 416A will prevent promoters and facility managers, for fear of criminal prosecution, from booking any entertainment event where one (1) instance of drug use or one (1) instance of drug distribution may take place at the event. Drug enforcement officials could take a broader view of the entertainment and music industry and include in the term “promoter,” any concert promoters, show and event organizers, trade show managers, managers of arenas, stadiums, performing arts centers, convention centers, auditoriums, college and high school gyms, state and local fairs and any manager or promoter of a place where music is performed or played in the United States.[1] Many of these “promoters” are state and local government officials that promote local events for community purposes. It sounds rather ridiculous but law enforcement officials could charge multiple defendants under Section 416A (the promoter, the arena manager and the others) for one musical event where one instance of drug use occurred at the event because all of them knew or reasonably should have known that one of ten thousand college students would use drugs. Consequently, Section 416A will adversely affect thousands of events every week across the country.

Second, the language in the Section that the “promoter knows or reasonably ought to know” is extremely vague and will lead to uneven enforcement and selective prosecution of “promoters” and facility managers in violation of the Fourteenth Amendment. Public Assembly Facilities are primarily of two types- those that are privately owned and operated, and those that are created, funded, and maintained by governmental entities. Due to the large expense of funding new stadiums and arenas, many are financed by the taxpayers. As a by-product of criminal prosecution, property used in the alleged crime is subject to criminal and civil forfeiture provisions. It is clear that prosecutors will be more inclined to seek enforcement against private owners and operators of music venues, because these individuals have more personal property at stake, and any such forfeiture will inure to the government’s interest. In comparison, enforcement of the same provisions against State operated facilities would lead to Eleventh Amendment issues as to the prosecution of a State and its employees by the Federal Government, and the potential state or federal seizure of State-owned property. This absurd construction of the federal government indicting State employees in state operated facilities for violation of Section 416A so that the state property could be seized by the federal government, would surely lead most prosecutors to concentrate their enforcement efforts naturally on privately owned and operated facilities. This of course presents problems regarding equal protection and due process. Furthermore, in today’s society, the criminal standard of “reasonably ought to know” will apply to almost any concert that appeals to teenagers or young adults.

Third, Section 416A will make promoters and facility managers liable for the criminal acts of third parties (the people that actually violate the drug laws). It is a well settled principal of law in many states that businesses are generally not liable for the criminal acts of third parties, absence a showing of a special relationship or negligence. For example, in Noble v. Los Angels Dodgers,[2] the plaintiffs had attended a night baseball game at Dodgers stadium. After the game, when they were returning to their car in the stadium parking lot, two drunks standing near their car attacked them. The plaintiffs sued the Dodgers for their injuries, alleging inadequate security and a jury awarded damages, but found one Plaintiff 55 percent responsible for his injuries, and his girlfriend 35 percent responsible for her injuries. The Dodgers appealed the decision, and the Court reversed the lower court’s jury verdict. In a well reasoned opinion reviewing premises liability, the Court stated:

It is a sad commentary but it can be said that in this day and age anyone can foresee or expect that a crime will be committed at any time and at any place in the more populous areas of the country. That fact alone, however, is not enough to impose liability on a property owner when a crime does in fact occur on his or her property. [3] The Court also stated that: We understand the law still to require that a plaintiff, in order to establish liability, must prove more than abstract negligence unconnected to the injury. In cases in which the specific conduct of third parties is brought to the attention of a defendant property owner sufficiently in advance of the injury to give the defendant an opportunity to act to prevent the injury, the causal connection between the failure to act and the injury is patent. …We are, however, unaware of any case in which a judgment against the property owner has been affirmed solely on the basis of a failure to provide an adequate deterrence to criminal conduct in general.[4]

Section 416A imposes criminal liability not just on the property owner or operator but on anyone that temporary leases the music venue or anyone that contracts with the venue to hold a musical event.

Fourth, promoters and facility managers may not deny musical performances based on the content of the music in violation of the First Amendment. The First Amendment of the Constitution states that “Congress shall make no law …abridging the freedom of speech …or the right of the people peaceably to assemble.”[5] Both the rights of individuals to attend “raves” or techno-music concerts and their right to assemble in a public assembly facility are in jeopardy because of Section 416A. Public assembly facilities are places where the public gathers to listen to and exchange ideas, whether that communication is through the presentation of speakers, theatrical performances, or musical concerts, among other activities. As such, facilities are prohibited from discriminating based on the content of the performances that appear within their walls. Any restrictions on presentations must follow the narrow and limited time, place and manner restrictions the Supreme Court has ruled permissible in regulating speech under the First Amendment.

The United States Supreme Court has ruled that the performance of music is protected by the first amendment.[6] Music venues have, from time to time, sought to restrict the performance of certain types of shows or music at their facilities, only to find, time and again, that the venue and its surrounding areas are largely traditional or limited public forums for the exchange of ideas, where only narrow, content-neutral regulations as to time, place and manner are allowed, as long as other adequate alternative means of communication are available. For example, in Marilyn Manson, Inc. v. New Jersey Sports and Exposition Authority,[7] the Authority sought to prevent “Ozzfest ‘97” from Giants Stadium, because it found the band, Marilyn Manson and Pantera, objectionable. Despite the fact that these bands had performed publicly without any problems or incidents, the Authority felt it was not in the best interests of the facility to hold the concert, alleging the heavy metal bands might cause drug use and safety concerns. The District Court enjoined the Authority from canceling or prohibiting the concert on First Amendment grounds, stating the Authority could not cite any legitimate and safety concern involving Manson’s or Pantera’s performance.[8]

Fifth, promoters and facility managers may not conduct searches that could not be performed by the State in violation of the Fourth Amendment. The question therefore arises as to the practicality of searches to eliminate the use of illegal drugs at facilities. Clearly, signs, searches, warnings, postings and the like may deter some people from engaging in illicit drugs while on premises, but there seems to be no fool-proof way to enforce a zero tolerance drug policy at a mass gathering, and ensure no drug will be taken or sold on premises. The State must also show some interest, beyond the illegality of the drugs themselves, in order to be able to justify any more intrusive search other than a mere pat-down. While one North Carolina Court suggested that a baggage check system could potentially be utilized, or genuine voluntary consent to searches be obtained before searching a person or his belongings,[9] any search conducted will unlikely fully eradicate the use of drugs in public assembly facilities. IAAM does not mean to suggest that any of its members condone turning a blind eye to drug use at mass gatherings, since any such use poses security and safety hazards to patrons.

In closing, IAAM members oppose only Section 416A of H.R. 3782, the other parts of the bill have tremendous merit and should be promulgated into law as soon as possible by Congress. If Section 416A becomes law, the economic effect on the concert and entertainment industry will be devastating to the industry and our country. However, IAAM members feel that the total elimination of drug use at musical events is impractical in the real world, and thus subjecting its managers and promoters to criminal penalties for providing musical events is against common sense and public policy. Section 416A places facility managers in a quandary between their obligations under Federal Drug Enforcement laws and the proscriptions of the Fourth Amendment regarding search and seizures without warrants or probable cause. Thank you for your consideration of this matter. If you have any questions, please fell free to contact me.

Sincerely,

Turner D. Madden
IAAM General Counsel

cc:
The Honorable Lamar Smith, Chairman, Subcommittee on Crime
The Honorable Steve Chabot, Chairman, Subcommittee on the Constitution
Mr. Lionel Dubay, President, International Association of Assembly Managers, Inc.
International Association of Assembly Managers, Inc. Board of Directors
Mr. Frank Roach, Chairman, External Affairs Committee,
International Association of Assembly Managers, Inc.
Mr. Dexter King, CFE, Executive Director
International Association of Assembly Managers, Inc.

[1] When you consider the language “Whoever knowingly promotes…” that begins Section 416A, the breadth of the term “promoter” is even less narrow or restricted.

[2] 168 Cal. App. 3d 912 (Cal. Ct. App. 1985).

[3] Id. at 914.

[4] Id. at 916.

[5] U.S. Const. Amend. 1.

[6] See Ward v. Rock Against Racism, 491 U.S. 781 (1989).

[7] 971 F. Supp. 875 (D. NJ 1997).

[8] See also Promotions Limited v. City of Southeast Charlotte, 333 F. Supp. 345 (W.D. N.C. 1971).

[9] See Wheaton v. Hagan, 435 F. Supp. 1134 (MD.N.C. 1977).

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