upholding confinement of topless dancing to elevated platform six feet from customers in order to prevent secondary effects, similar to those involved here: "The goal of the regulation is not censorship of expression, but the prevention of crime and disorderly conduct which is concomitant with the consumption of liquor in such situations."
How later courts described this case
- upholding confinement of topless dancing to elevated platform six feet from customers in order to prevent secondary effects, similar to those involved here: "The goal of the regulation is not censorship of expression, but the prevention of crime and disorderly conduct which is concomitant with the consumption of liquor in such situations."
- reaching this decision, however, in the context of the State's broad authority under the Twenty-first Amendment to protect public health, welfare, and morals
- challenging the validity of a Liquor Control Board regulation
Written by the judges who cited it.
The opinion
Rosellini, J.
(dissenting in part) — I dissent only to that part of the opinion approving WAC 314-16-125(6), which permits entertainers whose breast and/or buttocks are exposed to perform upon licensed premises.
The majority relies on the case of Anderson, Leech & Morse, Inc. v. State Liquor Control Bd., 89 Wn.2d 688 , 575 P.2d 221 (1978). That case approved only WAC 314-16-125(1), which forbids a licensee:
(1) To employ or use any person in the sale or service of alcoholic beverages in or upon the licensed premises while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the breast below the top of the areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals.
The court in that case did not pass upon the validity of WAC 314-16-125(6).
In neither Anderson, Leech & Morse, Inc. v. State Liquor Control Bd., supra, nor this case has either party challenged the authority of the board to permit such conduct on licensed premises. In Anderson, the board was anxious to have section (1) of WAC 314-16-125 approved and the appellant did not desire to have section (6) invalidated.
The parties' agreement as to the pertinent issues at times leads courts into traps. The stipulated issues lead to one conclusion, but the parties ignore issues which would result in a different conclusion. Thus the courts are lulled into error.
Neither the appellant nor the liquor board argued or quoted RCW 66.08.010, which provides:
*233 Title liberally construed. This entire title shall be deemed an exercise of the police power of the state, for the protection of the welfare, health, peace, morals, and safety of the people of the state, and all its provisions shall be liberally construed for the accomplishment of that purpose.
RCW 66.08.030 permits the board to make only such regulations as are consistent with the spirit of the title.
As I read these provisions, they authorize the board to make regulations to promote the public morals in places where liquor is sold and prohibits the board from making regulations which tend to encourage immoral and indecent conduct.
Does the rule tend to promote the health, peace, morals, good order and the welfare of the people, or does it tend to correct some evil or promote some interest of the state? Does the rule tend to accomplish the purposes set forth in the liquor control act?
I cannot conceive any state of facts to exist which justifies a conclusion that to permit topless dancers to perform where liquor is sold promotes the welfare, peace, morals, and safety of the people of the state. The majority has not addressed this question or attempted to show such conduct promotes the welfare and morals of the people. The converse is true. The demoralizing effect of sexually suggestive entertainment on persons consuming alcohol in public establishments dedicated to that purpose was recognized by the United States Supreme Court in California v. LaRue, 409 U.S. 109 , 34 L. Ed. 2d 342 , 93 S. Ct. 390 (1972). The constitutionality of regulations forbidding indecent entertainment on licensed premises was upheld by the United States Supreme Court in that case.
I would hold that the regulation which permits topless dancing on stage on licensed premises is invalid because the legislature has not authorized the board to promulgate such *234 a rule. Rather its duty, under the statute, is to prohibit conduct of this kind.
Wright, C.J., and Brachtenbach, J., concur with Rosellini, J.