Monday, May 12, 2003
C.A. Rejects Challenge by ‘Swingers’ to Liquor Control Regulations
By KENNETH OFGANG, Staff Writer/Appellate Courts
State regulations that prohibit sexual activity on premises licensed to sell alcoholic beverages apply to conduct by patrons, as well as by licensees and their employees, and are not unconstitutional as applied to a “swing club,” the Court of Appeal for this district has ruled.
Div. Three Thursday, in an unpublished opinion by Justice Patti S. Kitching, ruled that a Superior Court judge in Long Beach erred both procedurally and substantively in enjoining the state from applying California Code of Regulations Title 4, Secs. 143.2 and 143.3 to LSO, Ltd., also known as The Lifestyles Organization.
LSO claims a nationwide membership of 25,000 and describes itself as a group of heterosexuals who “belong to the organization for the express purpose of associating with similarly minded people concerning their views on human relationships as expressed through their exploration of sensuality, intimacy and human sexual expression.” It holds various events in which members come together to, among other things, discuss politics and social affairs.
The organization has had a number of battles with the Department of Alcoholic Beverage Control, which enforces the challenged regulations, commonly referred to as the 143 Rules.
Sec. 143.2 bars various forms of nude or sexual conduct, such as the employment of topless servers and the touching by any person of any other person in a sexually explicit manner. Sec. 143.3 deals with sexually oriented conduct by persons employed to entertain patrons.
LSO sued in the U.S. District Court for the Central District of California in 1997 after the ABC suggested the Palm Springs Convention Center and the hotels adjacent to it were putting their liquor licenses at risk by agreeing to host the LSO annual convention.
‘Erotic Arts Exhibition’
That suit dealt with a different part of the regulations, Sec. 143.4, which prohibits the display of sexually explicit material on ABC licensed premises. LSO was planning to hold an “erotic arts exhibition” as part of the convention.
The show went ahead after a temporary restraining order was issued, but the suit was later dismissed. It was reinstated by the Ninth U.S. Circuit Court of Appeals in 2000, however, and eventually settled.
Thursday’s ruling concerned a suit against ABC and Long Beach officials. LSO claimed that the defendants deprived them of their constitutional rights by bringing administrative actions against two hotels based on patrons’ alleged violations of Secs. 143.2 and 143.3, thereby forcing the hotels to terminate their longstanding relationships with the group.
Under the department’s interpretation, upheld by the Court of Appeal, a liquor license may be revoked if patrons of the establishment engage in sexual activity with the knowledge of the licensee.
Kitching explained Thursday that the trial judge erred in hearing LSO’s suit because trial courts have no jurisdiction over the ABC with respect to regulatory actions. All challenges to the department’s interpretation and enforcement of its regulations must be brought in the Court of Appeal or Supreme Court, she said.
Court of Appeal Defers
The panel, however, elected to treat the action as one for administrative mandate in order to resolve the merits and ruled in favor of the ABC. The intent of the regulations, their unambiguous language, and the deference owed to an agency’s interpretation of the rules it enforces support the department’s enforcement actions, Kitching said.
The rules, she explained, go back to 1970, when officials became “concerned with regulating the secondary effects of combining alcohol and sex at establishments that allowed topless or bottomless entertainment,” including prostitution, drug use, sexually assault, and obscene and lewd conduct by patrons. LSO, she said, provided no authority for its claim that the department’s concern was limited to regulating nude or topless bars.
Kitching also rejected the organization’s constitutional claims. Long-established law, she said, makes clear that “in the context of liquor regulation, the government, pursuant to its inherent police powers, has a legitimate interest in regulating the secondary effects of combining sex and liquor consumption, which regulations may result in content-neutral time, place and manner restrictions being imposed upon certain speech or expression otherwise protected by the First Amendment.”
The case is LSO, Ltd. v. Stroh, B148501.
Copyright 2003, Metropolitan News Company