Inturri v. Healy
| Citation | 426 F. Supp. 543 |
| Decision Date | 16 February 1977 |
| Docket Number | Civ. No. H-76-4. |
| Court | U.S. District Court — District of Connecticut |
| Parties | Joseph INTURRI, et al. v. John F. HEALY, Individually and as Chairman of the Liquor Control Commission, State of Connecticut, et al. |
Arthur L. Spada, Spada, Vinkels & Kristofak, Hartford, Conn., for plaintiffs.
Carl Ajello, Atty. Gen., State of Connecticut, Richard M. Sheridan, Barney Lapp, Daniel R. Schaefer, Asst. Attys. Gen., Hartford, Conn., for defendants.
Before TIMBERS, Circuit Judge, CLARIE, Chief Judge, and ZAMPANO, District Judge.
The plaintiff, Joseph Inturri, is the permittee of Helton, Incorporated, a cafe located in Hartford, Connecticut, which is licensed by the State Liquor Control Commission (LCC).1 Included as plaintiffs are Helton, Incorporated, the corporate backer, and Charlene Jordan, a dancer, who alleges that the LCC regulations interfere with the conduct of her chosen profession, "topless and/or bottomless" dancing. The plaintiffs brought this § 1983 action against the members of the LCC, whose regulations prohibit various types of sexually oriented entertainment, including topless dancing, in establishments licensed to sell alcoholic beverages for on-premises consumption. The plaintiffs claim that these LCC regulations violate their first and fourteenth amendment rights to free speech and equal protection.
On January 23, 1976, the plaintiffs' motion for a preliminary injunction was denied by the district court. Thereafter, a three-judge court was convened under 28 U.S.C. §§ 2281 and 2284 to consider the constitutional claims raised by the plaintiffs against the Commission's regulations, which have state-wide application. The Court finds that the issues of this case fall squarely within the ambit of California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), without raising any of the distinguishing factors present in the Salem Inn cases.2 Accordingly, judgment shall enter for the defendants.
At the time when this action was filed and argued, section 30-6-A24 of the State Liquor Control Regulations read in part, as follows:
"No on-premises consumption place of business, such as a restaurant, tavern, hotel, cafe or club, shall permit entertainment consisting of impersonations either of females by males or of males by females, nor shall any permittee of any such establishment advertise, give, permit or participate in any obscene, indecent, immoral or impure show or entertainment." (Emphasis added).
By an interpretative policy pronouncement issued on July 15, 1974 (Policy Memo # 21), the LCC construed this regulation as requiring that the attire of dancers on licensed premises should consist of The Memo further stated that "the actions of the performers will not be such as to excite the prurient interest of the observer."
Violations of the aforesaid regulations led to three arrests for public indecency at the plaintiff Inturri's establishment during 1975,3 followed by a letter from the LCC directing the plaintiff to cease "such activities."4 A review of Inturri's cafe permit was initiated by the Commission, but action has been held in abeyance pending the resolution of this litigation. A formal request by the plaintiff to have topless dancing allowed on his premises was denied by the Commission in a letter dated November 19, 1975, with the observation that "no exceptions to the "topless" rule have been made, nor will be made."
At the commencement of this action, the plaintiffs argued that the state's blanket prohibition on topless performances in licensed liquor establishments violated their first amendment right to freedom of expression, as applied to the states through the fourteenth amendment. They further alleged that the LCC's regulations have not been enforced against dinner-theater establishments, which stage legitimate theater productions, while patrons dine at individual tables nearby at which liquor is served. The plaintiffs claim that certain productions staged at these dinner-theaters have violated the LCC's regulations, yet no action has been taken against them. Such non-uniform application of the Commission's rules, the plaintiffs argued, violates their right to equal protection under the fourteenth amendment.
At the hearing on the merits, held March 29, 1976, the Attorney General of Connecticut advised the Court that new regulations were being prepared to replace those being contested by the plaintiffs, and that any decision issued by the Court prior to their final adoption might therefore be rendered moot. The Court withheld judgment pending the issuance of these revised regulations, which were published in final form on December 14, 1976.5 Thereafter the plaintiffs renewed their challenge on the identical grounds raised in the initial complaint.
As amended, the new section 30-6-A24 of the Connecticut State Agency Regulations reads, in its relevant portions:
These highly detailed strictures in the amended regulations have narrowed the plaintiffs' freedom of expression claim, by eliminating much of the alleged vagueness inherent in the original regulations. The plaintiffs' claims remain otherwise unaffected, however, and so the Court must determine whether, under controlling case precedent, Connecticut's revised liquor control regulation prohibiting sexually oriented performances on licensed liquor premises is constitutionally enforceable against topless female dancers and entertainers.
In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the Supreme Court upheld California liquor control regulations very similar to those recently promulgated in Connecticut. Writing for the Court in LaRue, Justice Rehnquist noted that a state's authority to regulate liquor distribution under the twenty-first amendment is broader than its general police powers. Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964); State Board v. Young's Market Co., 299 U.S. 59, 64, 57 S.Ct. 77, 81 L.Ed. 38 (1936); but see Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). Noting that "a common element" in the contested regulations was "the Department's conclusion that the sale of liquor by the drink and lewd or naked dancing and entertainment should not take place" in bars and cocktail lounges, id., 409 U.S. at 115, 93 S.Ct. at 395, the Court declined to overturn California's regulations, even though much of the prohibited behavior would be constitutionally protected under the first amendment, if engaged in other than on licensed liquor premises.6 For a liquor control regulation to be valid, the LaRue Court intimated, all that is required is that a relation exist between the contested enactment and some valid regulatory purpose which is not wholly irrational.7
Despite the broad primary holding in LaRue, however, the Court did not completely foreclose constitutional attacks upon state liquor regulations limiting lewd entertainment. In one paragraph the Court stated:
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