By George F. Will
Thursday, March 20, 2008
PINAL COUNTY, Ariz. -- The government of this fiefdom south of Phoenix claims that when it approved Dale Bell's blueprint for his Western-theme restaurant with an outdoor stage in an enclosed courtyard, it assumed the stage would be used for mimes or poetry readings. Mimes in Arizona scrubland? Poetry at the San Tan Flat Steakhouse and Saloon? The authorities were, they insist, shocked when country music broke out, and they are scandalized because some customers, not content to tap their feet to the Western beat while they eat, get up and dance.
Foot tapping is, so far, still legal in Pinal County. Outdoor dancing is not, at least at a dance hall, and Pinal says San Tan Flat morphs into one at certain points on certain evenings, when customers dance and Bell does not make them stop. He thinks the U.S. Constitution's protection of self-expression encompasses the right to (in the language of his brief to the county court) "sway, shuffle or even dance."
Pinal's harassment of Bell is a small provincial spat, but it illustrates two large themes of our national history. First, democracy requires judicial supervision to thwart the excesses of elected officials. Second, governments closest to the people are -- never mind what sentimentalists say -- often the worst. This is because elected tyrants can most easily become entrenched where rival factions are few.
Singer Lee Alexander, who on a recent night sang his melancholy ballad "You Can't Dance Outside," says he has seen Sandie Smith, one of the three county supervisors (all of them Democrats), at another Pinal steakhouse where people dance outdoors. No one remembers when, if ever, Democrats did not control Pinal, which was created in 1875. Bell, 58, who served in the Reagan administration, calls himself "a Ron Paul guy."
He opened a steakhouse in his home town of Spearfish, S.D., sold it and opened another in Sand Creek, Wyo., then decided, with his son Spencer, now 17, to open one here. The board of supervisors warmly approved. Soon after it opened in November 2005, however, the trouble started.
He had four entrances from the road; the county restricted him to one. The county cut his signs from two to one. It turned its squint on his firewood, searching for defects. Supervisor Smith urged him to build a berm to confine the restaurant's light and dampen its sounds, so he erected a high wall of straw bales. Pinal toughened its noise ordinance, making it one of Arizona's strictest, restricting businesses to 65 decibels during the day and 60 at night. Sheriff's deputies checked the restaurant's decibel levels sometimes three times a night without ever finding a violation. The county doubled the number of paved parking spots originally required, costing Bell $40,000.
But when the county imposed fines against Bell of $5,000 every day that anyone dances, he headed for court. The question concerns statutory interpretation. The statute includes "dance hall" -- along with bowling alleys, penny arcades, skating rinks and other things -- among the "amusement or recreational" enterprises that must be "within a completely enclosed structure." Does Bell's restaurant, which makes 99.75 percent of its revenue from food and drink (the rest comes from pool tables and trinkets) become an illegal (because not completely enclosed) dance hall when someone rises to "sway, shuffle or even dance"?
Down in the legal weeds, Arizona's tax code says dance halls charge admission fees. Bell does not. And there is no Pinal prohibition -- an oversight, perhaps? -- of outdoor musical entertainment.
Beyond the weeds there is this mighty oak of a principle: There must be a judicial leash on governments to prevent them from arbitrarily asserting that the plain language of a statute means something that it plainly does not say.
The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means. Under today's weak "rational basis" standard, courts validate virtually any abridgement of economic liberty, no matter how tenuous the connection to even a minor public purpose. Conservatives, note well: Restoring economic liberty requires a kind of judicial activism -- judges judging rather than merely ratifying government's caprices.
Despite Pinal County's nit-picking, Bell, who is represented by Arizona's chapter of the Institute for Justice, is still in business, partly because his customers fancy the Maine lobsters -- not normal fare at dance halls. Children prefer marshmallows they roast over fires next to the space for the forbidden dancing. Roasting is not illegal in Pinal, yet.