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Sunday, May 17, 2009

City Council's Pro-Activity A Matter Of Business

In what was a low priority issue facing the Janesville city council at last week's meeting, members decided against establishing tougher legal guidelines governing the display of so-called offensive materials and images at sexually oriented businesses. Afterwards however, the council was still able to squeeze out some favorable publicity courtesy of the Janesville Gazette.

The fact is, had the city applied the same legal jargon to Spencer's Gifts as they applied to private citizens with the city’s nuisance ordinance, they would have went after the mall owner to rectify a tenant's violation. After all, Spencer's Gifts is merely a renter, and Janesville’s nuisance law targets the landlord for restitution and abatement for their tenants behavior.
JG Excerpt:
“When governments (act) proactively, I get very nervous,” Rashkin said.
Where was this sentiment when city attorney’s scrambled the Constitution in the city’s nuisance ordinance or even the ordinance covering something as mundane as weeds growing in your yard?

To go even further on this, had the council placed Spencer's on the same playing field as a typical Janesville residential property owner, the council would have allowed the city to pro-actively take care of the problem — to enter Spencer’s without an injunction and physically remove all of the products and imagery deemed offensive by somebody’s discretionary mind — IF the business owner or manager doesn’t - and then bill the owner later for the “clean-up” enforcement. Unconstitutional you say? Probably, but that never stopped the Janesville city council before. Currently, the city has such an ordinance that covers grass cutting and snow removal, and has applied those same standards to it’s much ballyhooed “toxic weed” ordinance.
Janesville Weed Ordinance Excerpt:
E. In addition to and not necessarily in lieu of the forfeiture penalties and other relief set forth in this ordinance upon seven 7 days written notice to the property owner and or possessor in the event that the subject property is not brought into and or kept in conformity with the regulations and requirements set forth in this Chapter the City may go upon the property to bring it into conformity in which event the full cost of such remediation shall be charged by the City against the property as a special charge or assessment and if not timely paid shall be collected as a delinquent tax.
Remember, the passage above is about weeds!! (of all things) growing naturally on private property, an ordinance the city of parks has smartly and conveniently exempted itself from.

But this time around, the administration's proposed changes to update the current city ordinance on offensive material was very lightweight by comparison. It appears the only thing heavy-handed about it in the eyes of the council was that it would effect business. Had this same (supposedly) offensive material been publicly displayed by a private person or residence, this council would have been all over it. Instead it’s a business, and in Janesville, businesses have more rights than people.

Just consider this next comment from the Administration regarding the city's idea to strengthen existing residential city codes. They suggested if a landlord, renter or resident fails to comply with ordinances, city officials would like…….
”……to have the ability to go onto private property….without going through the court system. That’s our current practice…to get an injunction.” – Janesville City Staff (Dec. 19, 2007)
That remark should have raised alarm bells with anyone who genuinely has issues with an oppressive or over-reaching government. At that time, I don’t recall any council members being offended by that statement or taking it to task.

But Rashkin’s comment regarding Spencer's gave the impression that his position was governed by a much broader sense of civic duty and an awareness of intrusive government. I wish it were true, but I believe the main reason why Rashkin, Voskuil, Truman and Perrotto voted against this was because it happens to target commercial establishments and the last thing this group wants to fuel is a high profile debate with Spencer's publicizing Janesville as anti-business. The decision was about defending business - not that that's necessarily bad, its just that it wasn't about holding government in check or defending rights in the broad sense, as some would have us believe.

So let’s not fool ourselves here, a majority sitting on Janesville’s city council and previous councils share a common pattern. They are not exactly champions of residential property, privacy or individual rights, the Constitution or fair government. This is the same council that rubber stamps heavy-handed provisions and penalties against a defenseless citizenry on a regular basis. You’d be giving the Janesville city council far too much credit by thinking the Spencer's decision sprung from a higher ground in noble defense of constitutional rights.

Note: Ironically, recent changes in ordinance language permits the broad use of personal discretion (instead of written law) at the point of an alleged violation, allowing authorities to discriminately enforce laws and levy penalties. When asked who would make the judgement call to determine whether or not provisions were violated, the city attorney said it doesn't have to be one person, it could be a "team" of city employees. You can't make this stuff up.

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