The Problem with Fortunetelling and Old Ordinances

Recently the Supreme Court of Maryland ruled that a local county ordinance banning
fortunetelling for profit was an unconstitutional restraint on free speech protections.
The case can be found at this link: http://mdcourts.gov/opinions/coa/2010/84a09.pdf.

Maryland is, of course, a long ways away from Minnesota. Their cases have no binding
precedent in our state. However, the case points out a real problem that can harm
Minnesota cities - archaic or out of date ordinances. Ordinances regulating
fortunetellers, clairvoyants, phrenologists and similar practitioners tend to be some of
the oldest rules on the books. (A phrenologist studies the bumps on your head and tells
you traits about your personality – this was very popular in the 1800’s). As a blanket
rule, the LMC Codification Service recommends revisiting any ordinance passed before
1950 as a potentially “archaic” ordinance.

Times change. People and common practices change. Legal precedent evolves. As a
result, cities need to re-evaluate archaic provisions in ordinances or code books. The
story of our changing views and practices related to fortunetelling is a great illustration
of the effects the passage of time can have on a city ordinance.

A Brief History of Regulating Fortunetelling:

Many old ordinances prohibiting fortunetelling appear to have been adopted out of a
fear that fortunetelling was synonymous with vagrancy, begging or prostitution. Such
fortunetellers practiced on the street, in city parks and often visited door to door as
aggressive panhandlers.

Modern practices related to clairvoyance and fortunetelling don’t tend to focus on the
street corner anymore. Instead, practitioners these days may have actual store fronts
centered around “new age” bookstores, meditation or wellness centers. They may offer
legitimate product lines of essentials oils, candles and healing herbs in addition to
fortunetelling services. Picture peaceful music playing in the background while a study
group discusses their “chakras.” After they meditate and have their chakras adjusted,
customers may also take a few minutes and get their tarot or “angel” cards read.

This modern type of fortunetelling business has also been the subject of recent
controversy in Macon County, GA. The background information on the store’s owner (a
retired police officer) and shop offerings certainly offer a sharp contrast to the old
fashioned idea of the beggar/fortuneteller. Here is a link to a newspaper article on the
Macon County, GA store: http://www.macon.com/2010/04/17/1097252_fortune-
telling-fight-headed-for.html.

Practical and Legal Considers with Archaic Ordinances:

When evaluating a potentially archaic ordinance there are both practical and legal
considerations. Often times the practical considerations are such that the legal concerns
don’t even need to be reached in deciding to amend or discard the ordinance. Here are
some practical questions ordinance drafters (and the city councils there serve) should
ask when reviewing a potentially “archaic” ordinance (adopted before 1950) and my
hypothetical responses/musings related to a fortunetelling ordinance:

• Why did we regulate this conduct to begin with? (hypothetical answer - to prohibit
fortunetelling that was really a front for begging or worse on street corners 50 years
ago).
• What types of behavior or negative results were we trying to prevent when the
ordinance was adopted over 50 years ago? Does the risk of those behaviors/negative
results still exist? (hypothetical answer - are modern people still intimidated by
beggars posing as fortunetellers? I guess I might still be intimidated if someone asked,
depending on the time of day).
• Do people still commonly try to attempt the prohibited conduct? (hypothetical answer
- no one has ever approached me on the street or come to my house in my entire life
and offered to read my fortune).
• Has common, accepted practice related to the prohibited conduct changed?
(hypothetical answer - yes, practice related to fortunetelling has changed quite a bit.
Some of these places do good business as “new age” bookstores and have nice
storefronts – offering classes, entertainment, and products such as candles and
essential oils. They bring customers to the city, who also stop and buy goodies at the
local coffee shop and gas at the corner store).
• Does state law (or some other source of regulation) now offer a better way to regulate
the prohibited conduct? (hypothetical answer – I guess, if we’re really afraid of these
fortunetellers operating as a front for begging or prostitution, we could pass a
panhandling ordinance with the help of our attorney, and there are state laws related
to prostitution already on the books. Possibly fortunetellers not operating in a shop
would need a peddlers license and background check under our existing city peddlers
ordinance).
• Do we feel any urgency related to regulating this conduct anymore? Have we needed to
enforce this ordinance in the last 5 years? 10 years? (hypothetical answer - I just don’t
see a lot of roving fortunetellers on the street. If they want to have a storefront
business in town, they can follow the rules everyone else does for building appearance
and maintenance and we have zoning in place too).

There are also legal considerations that need to be taken into account when evaluating
archaic ordinances. Here are some important legal questions to ask:

• Do we still have the authority to regulate this area via city ordinance? Have we been
superseded by state statute or federal law?
• Has the state or federal courts ruled against cities trying to enforce these types of
ordinances?
• Does the ordinance regulate expressive conduct, speech or private human relations in
a way that is no longer acceptable under modern state and federal court rulings? In a
way that may still be acceptable but nonetheless carries a high risk of challenge in
litigation?

Common Archaic Ordinances

Archaic ordinances crop up in many areas outside of fortunetelling. A few examples of
archaic ordinances where the city’s authority to regulate has been superseded by state
law are:

1) Ordinances on building construction and structure safety (superseded by the MN

State Building Code);
2) Ordinances on “drugging” (regulating pharmacies and medical quality in an era
before the FDA); and
3) Provisions on public drunkenness (now prohibited by Minn. Stat. 340A.902).

Common examples of ordinances overruled by the courts, include prohibitions related

to dressing inappropriately for ones sex (typically prohibiting women from wearing
men’s clothes), vaguely written loitering ordinances, restrictions on women serving on
city board positions and some broadly drawn restrictions on “lewd” conduct.

Combating the “Charm” of Archaic Ordinances

Occasionally, when reviewing archaic ordinances, a person will ask me “what’s the
harm?” or note that they find older ordinances “charming,” or “quaint.” I too value the
past, but unfortunately, the city code or ordinance book is not the appropriate place to
memorialize those yesteryears. It is important to note that repealed ordinances aren’t
simply thrown in the trash. Minnesota law requires cities to maintain copies of old
ordinances for their historical value. As a result, taking the provision out of the current
ordinance book doesn’t mean it’s lost forever.

As we have discussed above, old ordinances can create liability for cities – particularly
when the ordinance implicates speech or fundamental freedoms. But even innocuous
archaic ordinances (related to horse hitching, cattle driving, suppression of riots), take
up space in an ordinance book, potentially slowing down and consuming city staff time.
They can also multiply copying, retrieval and maintenance costs for both paper and
electronic records. Finally, archaic ordinances can create a perception that city
regulation is behind the times and therefore not conducive to economic or cultural
initiatives that wish to invest in the city.

Conclusion

I’m grateful to the courts of the great State of Maryland for giving us this chance to
discuss the problems that archaic ordinances can create for Minnesota cities. While
fortunetelling ordinances appear to be relatively rare in Minnesota, archaic ordinances
on many other subjects frequently pop up before the LMC Codification Service. I’m
predicting that the Maryland experience may give many people pause to consider the
(hopefully limited) future of their archaic ordinances.

Rachel Carlson is an attorney with the League of Minnesota Cities. The League of
Minnesota Cities is a membership organization serving Minnesota cities since 1913.
LMC Codification is a specialized service to help our cities maintain complete, up to
date and affordable code books in a frequently changing legal landscape. The LMC
Codification blog can be found at: http://lmccodification.blogspot.com