We all know that youth culture has already gone mostly underground. Even the most respected promoters run into trouble putting on anything remotely edgy for the under-21 crowd, and the word "rave" in particular has become a dirty word in the last decade.
But you ain't seen nothing yet. If a couple of extreme pieces of legislation being considered by Congress go through, even that cute little sock hop you've been dreaming about having could end with SWAT teams crashing through windows armed with high-powered Odor-Eaters and a warrant for your arrest. All because someone at your event was doing drugs -- even if you didn't actually know about it. After you pay a fine in accordance with Title 18 of the United States Code, we'll see ya when you get out of the slammer -- in about nine years or so.
That's an exaggeration, of course -- SWAT teams aren't equipped with Odor-Eaters. But the proposed legislation is real, and although it's couched in broader legislation attempting to battle methamphetamine use nationwide, the vague wording and draconian penalties have many promoters worried about the future of live entertainment as a whole.
Meth mania
The main bill in question is called H.R. 3782, and has one of those annoyingly clever little acronyms -- CLEAN-UP, which stands for Clean, Learn, Educate, Abolish, Neutralize and Undermine Production of Methamphetamines. If passed, the bill would hold promoters responsible for drug use at their events by amending Section 416A of the federal Controlled Substances Act to read as follows:
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 where the event is held, shall be fined under title 18, United States Code, or imprisoned for not more than 9 years, or both.
The bill, which already has 66 co-sponsors in the House, was drafted by Congressman Doug Ose (R-Calif.) in response to the growing methamphetamine problem. H.R. 3782 is a comprehensive plan to increase funding to police task forces, educational outreach programs and environmental protection programs.
Ose's press secretary, Yier Shi, says that 80 percent of the country's methamphetamines are produced in Northern California, mostly in Sacramento.
But the bill is also designed to clean up methamphetamine use at entertainment events. Though raves are most commonly associated with ecstasy (and indeed a couple of anti-rave bills target that drug specifically), police also consider them a serious meth problem. According to Shi, police were frustrated by situations where drugs were sold openly at raves.
"Currently if you are knowingly promoting a rave with drug use," Shi says, "the only people who are responsible are the ones with the drugs and the owners of the property."
H.R. 3782 would change all that. Promoters who know or "ought to know" of any type of drug use at their shows -- whether it be meth, ecstasy, marijuana or any other controlled substance for that matter -- will be held criminally responsible for drug possession or use by anyone in attendance.
What's really frightening about the law is that it applies to all kinds of shows. After all, wouldn't Fat Harry Productions know that, somewhere at the Vans Warped Tour held last week at Orlando Speed World Dragway, a kid was smoking pot? Or shouldn't a promoter reasonably assume that, at the Dave Matthews Band concerts it's putting on, there might be cocaine or acid?
Granted, there have been cases where event promoters knew of and even promoted drug use at their shows. It's no surprise that they're going to get busted -- they're practically asking for it. But most promoters say they aren't promoting drug use at their events (though it may happen anyway); they just want to promote music. This includes everyone from lovey-dovey rave promoters who want everyone to get blissed out on trippy natural highs to the stadium concert promoters who, despite security precautions like mandatory pat-downs, still can't control the actions of every single person in attendance. They're concerned that the language concerning promoters who "reasonably ought to know" about drug use at their shows is alarmingly vague.
Organizations such as the International Association of Assembly Managers -- an industrial trade association composed of more than 3,000 managers of stadiums, arenas, theaters, convention centers, amphitheaters and auditoriums -- are actively opposing the section of the bill quoted above.
In a letter to James Sensenbrenner, chairman of the Committee on the Judiciary, IAAM attorney Turner D. Madden expresses his concern that the sketchy wording will discourage people from promoting any entertainment events when faced with such broad responsibility and strict penalties.
"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," writes Madden.
The enforcement dilemma
When asked how it's possible to determine which cases should be punished, Shi says, "That's the judgment that law enforcement officers need to make, to prosecute those who knowingly promote drug use."
Not everyone may be comfortable with the thought of police enforcing laws based solely on their own discretion. The truth is, however, it's often a fundamental part of the legislative process. Legal experts say it's routine for the legislature to draft laws using very broad language, which are then refined through appeals. Unhappily, not only do people have to get arrested in the first place for this to happen, but somebody also has to appeal a decision and win, which usually costs money. It's a process that, while seemingly lazy or cowboyish on the surface, is nevertheless typical, considering the endless conceivable circumstances of a given type of crime.
The principal issue in this case, though, is the limits (or lack thereof) of third-party liability. IAMM attorney Madden points out that "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."
He cites a parallel case regarding premises liability, Noble v. Los Angeles Dodgers, in which two people were attacked on the way to their car in the parking lot of Dodger Stadium. The couple sued the stadium for insufficient security. They won the case, but an appellate court overturned the decision, saying, "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. 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."
Despite the law's subjective nature, Orlando-area cops say they'll use it. In fact, says Orange County Sheriff's Office public relations officer Carlos Torres, any charges would depend on "what you are doing to control the drug flow in your club. Anybody hosting an event, even a homeowner, is responsible `for what happens in their home or event`. Ignorance isn't a defense anymore."
As to what satisfies the law's "ought to know" clause, Torres points to rave promoters who, on their fliers, allow vendors to promote head shops. Head shops, of course, sell bongs. Bongs equal dope. Dope means they ought to know. But unless the cops can prove the glass pipes are used for pot, they're not illegal -- so it's the combination of dance music and glass pipes that proves illegal.
"It's not cut and dry, black and white," Torres admits. "But any law or bill that favors the police, we're going to use it to the fullest. The gray area makes us be more creative in the way we do policing. We're going to find a way to not make it gray. But we're not going to violate anybody's civil rights."
Drug war draftees
It might be said that in this day and age, anyone can foresee or expect that a joint will be smoked at any time and at any place in the more populous areas of the country. But under this new legislation, promoters of entertainment events will be responsible for the criminal behavior of others, even if they've taken preventative measures.
Some promoters say the bill's meth angle is a sham, while others say it's simply unworkable and, more importantly, unfair. Michael Horne, a California promoter, points to specific difficulties: "There's a lot of substance use that comes with the business, and it's tough to find the point where you intervene. I host cultural events, just like going to movies. What people do before or after or during these events, I'm not sure how much control or input I should have, because what constitutes reasonable intervention?"
"Why should event promoters suddenly become drug war officers?" asks another event promoter. "Although we try to secure our events as much as we can, it is impossible to control every individual's actions."
"This legislation would make event promoters less likely to allow drug prevention organizations and harm-reduction groups to distribute their information inside an event for fear of self-incrimination," he adds.
H.R. 3782 has recently been referred to four separate committees in the House for review, and a voting date has not yet been determined.
Although he doesn't think they should necessarily be off the hook completely, Kim Allen, deputy sheriff in Santa Cruz County, Calif., sympathizes with the promoters' difficulty of completely eliminating drug use at their events. "I think there's an area of liability with the promoter, but then there's activity which you possibly can't ever abate, at any event."
Mike Connor is the music calendar editor at Metro Santa Cruz, where this article originally appeared. Orlando Weekly staff writer Jeff Billman contributed to this report.
