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Two weeks ago, the House and Senate quietly passed the Illicit Drug Anti-Proliferation Act of 2003legislation aimed at quelling club drugs like Ecstasy and GHB. Ushered through with little fanfare, the act was piggybacked onto the AMBER Alert Bill, a package of child-safety laws with overwhelming congressional support. President Bush has promised to sign it into law in the upcoming weeks. But despite serious grassroots opposition spearheaded by organizations like the Electronic Music Defense and Education Fund, the bill passed without a Senate hearing. "It was backdoor legislation at its worst," says William McColl, director of national affairs for the Drug Policy Alliance, a group that lobbies for drug decriminalization.
The act expands upon the so-called "crack house" statutean '80s law allowing prosecutors to go after the owners of "crack houses," even if they're neither dealers nor users. In 2001, the DEA broke ground by aiming the crack house statute at a new targetthe owners and promoters of a concert venue, the State Palace Theater in New Orleans. A teenage drug overdose spurred the investigation, and the defendants were indicted for "knowingly and intentionally" allowing drug use to take place; evidence included overpriced bottles of water ($3; the same price at which the nearby Superdome sells them), chill-out rooms, and on-site ambulances. A plea agreement was reachedfining the business $100,000and surgical masks, glow sticks, and pacifiers were banned from the club. A year later, a federal judge overturned the ban on the grounds that it violated First Amendment rights.
The DEA has had mixed results prosecuting promoters using the crack house statute. The new incarnation requires a lower burden of proof by making business owners not only criminally but civilly liable for the acts of their patrons. It also applies to outdoor, as well as one-night-only, events. "It gives prosecutors a bigger hammer," says Marv Johnson, legislative counsel for the American Civil Liberties Union. "Even if they can't prove without a reasonable doubt, they can still go after you civilly and take away your profits, your property."
The brain behind the Illicit Drug Anti-Proliferation Act is Senator Joseph Biden, a longtime drug warrior who also helped create the crack house statute and the Office of National Drug Control Policy in the 1980s. The Delaware Democrat first introduced his legislation last year, when it was known as the RAVE (Reducing Americans' Vulnerability to Ecstasy) Act, and argued that the sale of expensive bottled water or glow sticks at an electronic-music event was evidence of Ecstasy use. It was met with a flurry of faxes protesting the act, spurring two of the bill's co-sponsors, senators Patrick Leahy and Richard Durbin, to drop their support.
The new version also drops the rave act. "It's venue neutral," says Margaret Aitken, Biden's press secretary. "That's why we changed the name."
The renamed Illicit Drug Anti-Proliferation Act no longer contains such inflammatory "indicators" of Ecstasy use (like glow sticks), but concerns over constitutional violations remain. "Business owners have come to Congress and told us there are only so many steps they can take to prevent any of the thousands of people who may attend a concert or a rave from using drugs, and they are worried about being held personally accountable for the illegal acts of others," wrote Senator Leahy in a statement he issued shortly after the Senate unanimously passed the AMBER Alert bill.
Just what constitutes "knowingly and intentionally" has also been something of an enigma to local businesses. Several Manhattan club owners seek assistance from Forensic Investigative Associatesa private company run by Bob Silbering, a former federal prosecutor who helped shut down the Limelight in 1994. Silbering is hired by everyone from the courts to the police to the clubs to evaluate a venue's security practices. He recommends that clubs search patrons, put up anti-drug signs, use cameras, and employ a sufficient number of trained security people. "You can't keep drugs totally out," says Silbering. "But you can take measures."
Anybody who's been to a concert, festival, or club in the last 50 years knows people do drugs, whether it is an acid tab ingested at a rock show, a line of cocaine inhaled in a discotheque, or more recently, a hit of Ecstasy taken at a superclub. It is because of this pervasive use that many fear the new law could curtail all kinds of concertsnot just raves. Like the State Palace Theater in New Orleans, the wildly popular SummerStage series often hosts DJ dance parties; trained medical staff are on hand and pricey bottled water is sold. Now that the law applies to outdoor and one-night-only events, it could be argued that the promoters of these shows "knowingly and intentionally" allow drug use.
Aitken says that's not the intent: "There's a lot of misconception that the law imposes criminal liability on business owners. This is not about incidental drug use."
But many of the club owners and promoters the Voice spoke with were wary about being interviewed. Third Floor Media, the PR agency for SummerStage, declined to participate in this story, as did Radio City Entertainment, the firm that organizes concerts at Madison Square Garden and Radio City Music Hall. After a week of legal vetting, Clear Channelthe entertainment conglomerate responsible for blockbuster tours like the annual Ozzfestfinally released a statement packed with legalese in support of the law, saying it's "positive legislation," written "in a manner that will prevent the facility managers and owners from being prosecuted if a patron breaks the law on their premises without management awareness."
A major concern, however, is whether the law is going to be abused. "The bottom line is if the federal government wants to get you, they will," says longtime NYC promoter Matt E. Silver. "This is just another tool to use against you." This sentiment is echoed by John Feinblatt, the city's criminal justice coordinator, who also says the law's one-night-only provision gives police a new "tool" to go after unscrupulous operators. "The state has certainly had laws that enabled us to go against irresponsible club owners," says Feinblatt. "But promoters have been able to hide in the shadows."
One prominent dance-music promoter, Chris Kausch of Stuck on Earth Productions, has thrown raves featuring big-name DJs like Carl Cox and Richie Hawtin at city landmarks like Randalls Island and South Street Seaport. Events like his are probably what Biden had in mind when he first drafted this legislation. But Kausch is a legitimate promoter who works closely with city agencies: The parks department has even offered him letters of recommendation. Kausch, who was hesitant to talk to the Voice, says he's unsure about his business's future. "We're thinking about shutting down the company," says Kausch, who also runs a music label and marketing firm. "It's a headache."
In New York, where anti-dancing cabaret laws are enforced and cigarette smoking has been banned, the new federal law is proving to be just one more bureaucratic nightmare. "First tobacco is our fault. Now drug addiction is our fault?" questions Centro-Fly co-owner Tom Sisk. David Rabin, the outspoken president of the New York Nightlife Association, agrees: "It is very dangerous when legislation is passed by people who are clueless about nightlife and go to bed before midnight."
Witness the feds' evidence of acknowledged drug use: expensive bottled water and on-site ambulances. The high price for H20 is meant to be prohibitive: "The reason water is expensive is because we don't want to sell water," says Sisk.
Some wonder whether the feds' policy will do more harm for clubgoers, particularly in summer months: "People's safety should come first," says Kenny Smith, co-owner of Crobar, a Chicago- and Miami-based megaclub chain that's opening a location in Chelsea this fall.
Perhaps New York could take a cue from Miami, where nightlife is a big tourist draw. In South Beach clubs, it isn't uncommon to see fire marshals roaming dancefloors. Smith employs several emergency-trained staff members, and his club plans on taking tough security measures to combat drug use. "We just hope you have a great experience after we've searched your every purse and cavity," he cracks.
Civil-liberty advocates are concerned that invasive searches at concert venues may be just the beginning and that certain kinds of music events will be singled out. They believe alternative subculturesrepetitive-beat freaks, jam-band junkies, hip-hop heads, gay circuit boysare most vulnerable. "The government can essentially shut down any genre of music they don't like," says the ACLU's Marv Johnson.
Or shut down any event whose patrons they don't like. "Say the city feels a hip-hop concert is in the wrong place; [they] could use it heavy-handedly," says Crobar's Smith. "That's the scary part."
Research assistance: Daniel King