Bolser v. Washington State Liquor Control Bd.

• Decision Date: 22 June 1978
• Docket Number: No. 44757,44757
• Citation: 90 Wn.2d 223,580 P.2d 629
• Parties: Charlotte BOLSER and Linda Jane BeHaan, Appellants, v. The WASHINGTON STATE LIQUOR CONTROL BOARD, Respondent.
• Court: Washington Supreme Court

Page 223

90 Wn.2d 223

580 P.2d 629

Charlotte BOLSER and Linda Jane BeHaan, Appellants, v. The WASHINGTON STATE LIQUOR CONTROL BOARD, Respondent.

No. 44757.

Supreme Court of Washington,En Banc.

June 22, 1978.

Lundin, Estep, Sindell & Haley, Inc., P. S., Landon R. Estep, Seattle, for appellants.

Slade Gorton, Atty. Gen., John G. Hennen, Asst. Atty. Gen., Olympia, for respondent.

DOLLIVER, Associate Justice.

Plaintiffs are dancers who perform in establishments licensed by defendant Washington State Liquor Control Board. In 1975, the Board adopted WAC 314-16-125 which forbids a licensee (tavern owner) from permitting topless table dancing at floor level and within 6 feet or less of a customer. The regulation applies only to the licensee and does not expressly control the conduct of the dancers. WAC 314-16-125(6) provides:

Subject to paragraph (5) herein, (it is prohibited) to permit entertainers whose breast and/or buttocks are exposed to view to perform elsewhere on the licensed premises except upon a stage at least eighteen inches above the immediate floor level and removed at least six feet from the nearest patron.

In their original complaint, plaintiffs prayed for a declaratory judgment that WAC 314-16-125 was invalid and for injunctive relief against its future enforcement. They allege violation of their right to employment, their freedom of speech and expression, and the equal rights amendment. Const. art. 31 (amendment 61).

The trial court treated plaintiffs' complaint as a petition for a declaratory judgment under RCW 34.04.070, which provides, in pertinent part:

(1) The validity of any rule may be determined upon petition for a declaratory judgment thereon addressed to the superior court of Thurston county, when it appears that the rule, or its threatened application, interferes with or impairs or immediately threatens to interfere with or impair, the legal rights or privileges of the petitioner. The agency shall be made a party to the proceeding. The declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question.

The trial court found the plaintiffs "interested in and . . . affected by the rule" but devoid of any rights or privileges affected thereunder. It concluded that "plaintiffs have not met the requisite burden established by the Legislature for standing to challenge the rule adopted by the Board governing licensees of the Board."

The interpretation of RCW 34.04.070 urged by defendant and adopted by the trial court makes the question of standing circular. Whether plaintiffs have standing depends on whether they have any legal rights or privileges which will be interfered with or impaired; but this question is the final conclusion of the law suit. Thus, under this analysis, standing, a threshold inquiry, must await its resolution until a final determination of plaintiffs' case.

The approach in Blondheim v. State, 84 Wash.2d 874, 877, 529 P.2d 1096 (1975), on the question of standing is useful in resolving this problem. In Blondheim, we adopted the test set forth by the United States Supreme Court in Association of Data Processing Serv. Orgns., Inc. v. Camp, 397 U.S. 150, 153, 90 S.C.t. 827, 830, 25 L.Ed.2d 184 (1970). That case held:

The "legal interest" test goes to the merits. The question of standing is different. It concerns, apart from the "case" or "controversy" test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.

We interpret RCW 34.04.070(1) in accordance with the approach adopted in Blondheim. When, as here, it reasonably appears the regulation in question or its threatened application may interfere with or impair or it immediately threatens to interfere with or impair the legal rights or privileges of the plaintiffs, they then have the requisite standing to challenge the rule under RCW 34.04.070(1). Kenneth Culp Davis, Standing, 1976, 72 Nw.U.L.Rev. 69, 80 (1977). We hold plaintiffs, even though not licensees, possess standing to litigate the merits of the challenged infringement of rights.

Although plaintiffs were dismissed for lack of standing, the trial court did rule on the merits of the alleged impairment of rights and privileges. Because plaintiffs have challenged those findings and in the interests of judicial economy, we rule on the various contentions set forth.

First, plaintiffs challenge the authority of the Liquor Control Board to adopt the regulation in question. We have, however, disposed of that issue in Anderson v. State, 89 Wash.2d 688, 575 P.2d 221 (1977), which was decided by the court subsequent to the hearing in this case. In Anderson, we specifically upheld the authority of the Liquor Control Board to promulgate WAC 314-16-125.

Plaintiffs next contend the regulation is overbroad and may, in given situations, affect expression which is protected by the First Amendment. Initially, we note this controversy arises in the context of liquor control regulations and as set forth in Joseph E. Seagram & Sons, Inc. v Hostetter, 384 U.S. 35, 41, 86 S.Ct. 1254, 1259, 16 L.Ed.2d 336 (1966):

Consideration of any state law regulating intoxicating beverages must begin with the Twenty-first Amendment, the second section of which provides that: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

Enlarging upon this passage, the Supreme Court in California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 394, 34 L.Ed.2d 342 (1972), stated:

While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals.

In LaRue, the Supreme Court upheld regulations enacted by the California Department of Alcoholic Beverage Control which forbade displaying of live or simulated acts of sexual intercourse or showing of movies depicting the same, exposure of the genital area, and other sexually-oriented conduct in its licensed premises. While LaRue did not go so far as to hold that the Twenty-first Amendment grant of authority to the states supersedes all other provisions of the United States Constitution, it did hold that some protected speech could be proscribed:

While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink.

California v. LaRue, supra at 118, 93 S.Ct. at 397.

In Richter v. Department of Alcoholic Beverage Control of California, 559 F.2d 1168 (9th Cir. 1977), the United States Court of Appeals was called upon to review a specific application of the same liquor regulations challenged in LaRue. The court, at page 1172, held:

The goal of the regulation is not censorship of the expression but the prevention of crime and disorderly conduct which is concomitant with the consumption of liquor in such situations. In this case, it was shown at the hearings held prior to the promulgation of the rules that a vast amount of various crimes (e. g., rape, prostitution, public indecency, assaults, etc.) was taking place on or near premises wherein the forms of entertainment delineated in the rules occurred. The Department's regulations were a form of prophylactic action to prevent victimizing by, or victimization of, intoxicated patrons of such establishments. The Supreme Court in LaRue found the Department's efforts to be reasonable and this court is bound by that holding.

Plaintiffs do not delineate what protected speech or expression is infringed by the requirement that topless dancing occur on an elevated platform at least 6 feet away from the patrons. If there is an infringement, we conclude it is at most minimal. Any minimal First Amendment infringements caused by the 6-foot, elevated-platform restriction must be balanced against the underlying policies which led to adoption of WAC 314-16-125. In its "concise statement" (see RCW 34.04.025) issued at the time of the adoption of the regulation, the Board listed the following as one of its principal reasons for promulgation:

The number of cases wherein arrests have been made and licensees have been cited for allowing disorderly persons on licensed premises has increased many times over during the last few years. The majority of these violations of the Liquor Act involved topless table dancing. The rule, as adopted, will minimize the chances of repeated violations of this nature.

Thus, not only was the infringement minimal, but the regulation was reasonable and rationally related to the furtherance of legitimate state interests. See California v. LaRue, supra; Richter v. Department of Alcoholic Beverage Control of California, supra.

The two cases brought to our attention by plaintiffs in which the Twenty-first Amendment was held insufficient to justify a liquor control regulation are inapposite. In Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), the Supreme Court held unconstitutional a Wisconsin statute which allowed designated persons to forbid the sale or gift of intoxicating liquors to one who "by excessive drinking" would expose himself or family to "want" or become "dangerous to the peace" of the community. In striking down the legislation, the Supreme Court specifically...