4245 Corp. v. Division of Beverage, FF-381

• Decision Date: 18 July 1978
• Docket Number: No. FF-381,FF-381
• Citation: 371 So.2d 1032
• Parties: 4245 CORPORATION, Mother's Lounge, Inc. and Cheetah, III, Inc., Petitioners, v. DIVISION OF BEVERAGE, Respondent.
• Court: Florida District Court of Appeals

Page 1032

371 So.2d 1032

4245 CORPORATION, Mother's Lounge, Inc. and Cheetah, III, Inc., Petitioners, v. DIVISION OF BEVERAGE, Respondent.

No. FF-381.

District Court of Appeal of Florida, First District.

July 18, 1978.

Jennifer Hurst of Tobias Simon, P. A., Miami, for petitioners.

Dennis E. LaRosa, Tallahassee, for respondent.

MELVIN, Judge.

Petitioners, 4245 Corporation, Mother's Lounge, Inc., and Cheetah, III, Inc., bring their petition seeking to overturn the final order of the Division of Administrative Hearings that upheld the validity of a proposed rule of the Division of Beverage. The challenged Rule No. 7A-3.44 relates to "Entertainers, Attire and Conduct" in places of business licensed under the provisions of the beverage law, Division of Beverage. We have jurisdiction. See 4245 Corp., Mother's Lounge v. Div. of Beverage, 348 So.2d 934 (Fla. 1st DCA 1977).

In summary, the proposed rule would forbid any licensee, holding a license under the Division of Beverage, to permit any person on the licensed premises to engage in certain sexual activity or to appear or entertain in a nude or semi-nude state. The proposed rule is set forth in an appendix to this opinion.

Petitioners urge this Court to cast aside the proposed rule as being in violation of their rights under the Constitution of the United States. The petitioners further urge that the proposed rule is invalid in that it exceeds the authority delegated by the Legislature of Florida to the Division of Beverage.

We do not reach the question of the constitutionality of the proposed rule. The proposed rule is invalid as being beyond the scope of authority that the Legislature has granted to the Division of Beverage.

The necessity for, or the desirability of, an administrative rule does not, of itself, bring into existence authority to promulgate such rule. While the Division may well be lauded for its effort to curb the type of gross immoral conduct such proposed rule would prohibit, the Division must first be vested with a valid legislative delegation of regulatory power accompanied by identifiable standards for its exercise. The Division of Beverage is an arm of the executive branch of our State. It may not, therefore, exercise any power properly belonging to the legislative branch unless it is first, by the legislature, duly authorized to do so.

1 Fla.Jur.2d Administrative Law, § 48, relating to rulemaking power provides, in part:

"The rulemaking power which the legislature may validly delegate to administrative agencies must be and is limited by the statute conferring the power. Administrative agencies, when empowered to do so, may make and enforce regulations to carry out powers definitely conferred on them, but they are not permitted to do more. The legislature cannot clothe them with more, and neither may they assume to do more. While an administrative agency may regulate, It may not legislate unless so authorized by the Constitution. Its power to adopt rules and regulations is limited to the yardstick laid down by the legislature. Moreover, the rules and regulations enacted by administrative agencies must be reasonable." (Emphasis supplied)

Thus, it is necessary to examine the statutory authority of the Division to enact the proposed rule.

The Division correctly states that it is empowered with rulemaking authority pursuant to Section 561.11, Florida Statutes (1975), which provides:

"(1) The division shall have full power and authority to make, adopt, amend or repeal rules, regulations, or administrative orders to carry out the purposes of the beverage law."

The Division further cites as authority Section 561.02, Florida Statutes (1975), which provides, in pertinent part that the Division of Beverage shall ". . . supervise the Conduct, management, and operation of the manufacturing, packaging, distribution, and Sale within the state of all alcoholic beverages and shall enforce the provisions of the Beverage Law and rules and regulations of the division in connection therewith." (Emphasis supplied)

An examination of the Beverage Law: Chapter 561 (Administration); Chapter 562 (Enforcement); Chapter 563 (Beer); Chapter 564 (Wine) and Chapter 565 (Liquor) reveals a comprehensive series of statutes relating to the Division's authority to issue, approve transfers of, renew, revoke and suspend beverage licenses. Further, the statutes provide for the prohibition of the sale of alcoholic beverages to minors, regulation of the hours of sale, penalties for the possession of untaxed alcoholic beverages and penalties for adulterating liquor. A thorough examination of the Beverage Law, however, does not reveal any statute of the requisite specificity remotely granting the Division the authority to regulate dress, or lack thereof, as an incident to supervising the conduct or management of licensed establishments. Absent such authority, the Division, by adoption of the proposed rule, would invade the field of the legislature, which it is proscribed from doing. The Florida Supreme Court has pronounced the rule:

"The legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an Unrestricted discretion in applying a law; but it may enact a law, complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within Definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose." State v. Atlantic Coast Line Ry. Co., 56 Fla. 617, 47 So. 969, at 976 (1908). (Emphasis supplied)

Should the legislature desire to grant to the Division of Beverage the authority to regulate the subject of conduct and dress of entertainers on licensed premises, it may do so by legislation, containing ascertainable standards, directing the Division to oversee such areas. See Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977). Absent such authority, the Division may not, by rule, require licensed employees to wear tuxedos, evening gowns, casual or sport clothes, or any type of Dress, or by rule measure the quantity, Or lack thereof, of dress, or specify the color scheme of the exterior or interior of the licensed premises.

We note that the activities the proposed rule would forbid are among those that the Legislature of Florida has already condemned as violative of the criminal laws of this State.

In summary, we decline to rule on the constitutionality of proposed Rule 7A-3.44 having determined that the same was promulgated without valid legislative authority.

Accordingly, the prayer of the petition for review is GRANTED and Rule 7A-3.44 purporting to regulate entertainers, attire and conduct is QUASHED.

ERVIN, J., concurs.

SMITH, Acting C. J., dissents with an opinion.

APPENDIX

7A-3.44 ENTERTAINERS, ATTIRE AND CONDUCT

(1) No licensee shall permit any person to perform acts of or acts which simulate:

(a) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.

(b) The touching, caressing or fondling of the anus, vulva or genitals.

(2) No licensee shall permit any person to use artificial devices or inanimate objects to depict any of the prohibited activities described above.

(3) No licensee shall permit the displaying of films, still pictures, electronic reproduction or other visual reproduction depicting

acts of a live performance of which is prohibited by this rule.

(4) The encouraging or permitting of any person on the licensed premises to...