626 P.2d 1280 (N.M. 1980), 12916, Nall v. Baca

Docket Nº:12916.
Citation:626 P.2d 1280, 95 N.M. 783, 1980 -NMSC- 138
Opinion Judge:[11] Federici
Party Name:Lancett NALL and Maria Dyer, Plaintiffs-Appellants, v. Jim BACA, Director Alcoholic Beverage Control Department of the State of New Mexico, Defendant-Appellee.
Attorney:Dennis R. Francish, Albuquerque, for plaintiffs-appellants., Jeff Bingaman, Atty. Gen., Vernon O. M. Henning, Asst. Atty. Gen., Santa Fe, for defendant-appellee., Bernard D. Morley, Denver, Colo., amicus curiae. [7] DENNIS R. FRANCISH, Albuquerque, New Mexico, Attorney for Appellants, [8] JEFF B...
Judge Panel:PAYNE and FELTER, JJ., concur.
Case Date:December 22, 1980
Court:Supreme Court of New Mexico
 
FREE EXCERPT

Page 1280

626 P.2d 1280 (N.M. 1980)

95 N.M. 783, 1980 -NMSC- 138

Lancett NALL and Maria Dyer, Plaintiffs-Appellants,

v.

Jim BACA, Director Alcoholic Beverage Control Department of the State of New Mexico, Defendant-Appellee.

No. 12916.

Supreme Court of New Mexico

December 22, 1980

Rehearing Denied Jan. 21, 1981.

Page 1281

[95 N.M. 784] Dennis R. Francish, Albuquerque, for plaintiffs-appellants.

Jeff Bingaman, Atty. Gen., Vernon O. M. Henning, Asst. Atty. Gen., Santa Fe, for defendant-appellee.

Bernard D. Morley, Denver, Colo., amicus curiae.

OPINION

FEDERICI, Justice.

This is a suit for declaratory judgment to declare Section 30-9-14.1, N.M.S.A. 1978 (Cum.Supp.1980) (Indecent Dancing Statute) unconstitutional, and for injunctive relief. The suit was brought by the owner of a licensed liquor establishment (Nall) and a female nude dancer employee against the State Liquor Director (Baca) in the District Court of Santa Fe County. Following trial, the trial court denied Nall's requested relief and held that Section 30-9-14.1 prohibiting nude dancing in a licensed liquor establishment, does not violate the New Mexico Constitution. Nall appeals from the judgment of that court. We affirm.

The complaint alleges that an actual controversy exists between the parties, that Nall owns Dispenser's License No. 502 and operates an establishment known as Lancer's Club in Bernalillo County, where, since 1970, he has provided alcoholic beverages and nude female dancing entertainment for his patrons. Co-plaintiff Maria Dyer, is and has been a nude dancer employed at the Lancer's Club for the past three years. The complaint alleges that on August 3, 1979, Nall was cited by Baca's agents for violation of the Indecent Dancing Statute, Section 30-9-14.1, because he employed Maria Dyer to dance nude in his club. Both plaintiffs allege that Section 30-9-14.1 is unconstitutional and deprives them of rights secured by the Constitution of the United States and the State of New Mexico, and they pray that Baca be permanently enjoined from enforcing the statute.

The answer admits there is an actual controversy between the parties and that Nall was cited for violation of Section 30-9-14.1 because he employed a nude dancer at his club. The answer admits the plaintiffs have constitutional rights, but denies that Section 30-9-14.1 is unconstitutional.

The plaintiffs and defendant stipulated that the facts surrounding the issuance of the citation on August 3, 1979, were such that at an administrative hearing Nall would have been found guilty of violating Section 30-9-14.1 and Baca would have suspended or revoked Dispenser's License No. 502.

Plaintiffs do not challenge the trial court's findings, but do disagree with the conclusions of the trial court. A summary of the trial court's findings follows: Nall owns Dispenser's License No. 502 and a business known as Lancer's Club, which sells alcoholic beverages to patrons in Bernalillo County. Nall has owned and operated the Lancer's Club since 1970, and has continually provided nude female dancers as entertainment. Dyer has been employed as a nude dancer at the Lancer's Club for the last three or four years. Since March 15, 1977, nude dancing at the Lancer's Club has been conducted within the standards set by the United States District Court for the District of New Mexico. No administrative hearing was held. Had a hearing been held, Nall would have been found guilty of violating Section 30-9-14.1 because he employed a nude dancer in his licensed liquor establishment. Following the hearing, Baca would have revoked or suspended Nall's liquor license. Baca offered no evidence to show that nude dancing performed at the Lancer's Club injured, harmed or threatened to harm the public health, safety and morals. No finding was made by the trial court that the dancing was obscene or indecent.

[95 N.M. 785]

Page 1282

The trial court refused to adopt the following requested findings of fact and conclusions of law: (1) all patrons of the Lancer's Club are consenting adults over the age of 21 years; (2) signs outside the premises indicate the type of entertainment available in advance of entry; (3) all patrons pay a $1.00 cover charge and must, if questioned, show identification showing their age is over 21; (4) the Lancer's Club is well known in Bernalillo County and has goodwill as a going business, which is a property right; (5) the Lancer's Club is located in the county, out of the City of Albuquerque, away from heavy population, and nude dancing has become an accepted art form by...

To continue reading

FREE SIGN UP