Bundo v. Liquor Control Commission
| Decision Date | 20 August 1979 |
| Docket Number | 78-2744,Docket Nos. 78-2272 |
| Parties | Ben BUNDO, Jr., and Ben Bundo, Sr., Plaintiffs-Appellants, v. LIQUOR CONTROL COMMISSION for the State of Michigan, Defendants-Appellees. Ben BUNDO, Jr., and Ben Bundo, Sr., Plaintiffs-Appellants, v. OAKLAND COUNTY PROSECUTOR, Assistant Oakland County Prosecutor, Michigan State Police, and Walled Lake Police Department, Jointly and Severally, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Paul G. Valentino, Bloomfield Hills, for plaintiffs-appellants.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Richard I. Rubin, Asst. Atty. Gen., for State Liquor Control.
Lawrence J. Bunting, Asst. Pros. Atty., for Oakland Pros. Attys.
Richard J. Poehlman, Farmington Hills, for Walled Lake Police Dept.
Before ALLEN, P. J., and T. M. BURNS and HOLBROOK, * JJ.
Are rules of the Michigan Liquor Control Commission prohibiting topless and bottomless dancing valid, constitutional exercises of the state's police power or do they violate the First or Fourteenth Amendment of the United States Constitution? The trial court held such rules valid and plaintiffs appeal of right.
Plaintiffs are the owners and operators of the Camelot Inn in the city of Walled Lake, Oakland County, Michigan, an establishment licensed to sell liquor by the glass by the Michigan Liquor Control Commission. On October 14, 1977, the Liquor Control Commission adopted rules and regulations prohibiting on-premises licensees from allowing nudity or performing explicit sexual activities on the premises. Rule 436.37 provides as follows:
1977 AACS R 436.37.
For more than two years prior to the adoption of rule 37. (1) plaintiffs had permitted topless and bottomless dancing on the premises. Subsequent to the adoption of the rules, nude dancing by female entertainers continued and, on December 14, 1977, a complaint was issued against plaintiffs alleging plaintiffs violated Rule 436.37 by permitting three female entertainers to dance in the altogether on the premises. Hearing on the complaint was scheduled for January 30, 1978, but on January 20, 1978, plaintiffs filed a complaint for declaratory judgment in the Circuit Court in Oakland County, alleging that Rule 436.37 was unconstitutional, said action being docket # 78-2272.
On May 24, 1978, while decision on the merits of the complaint for declaratory judgment was pending, a combined squad of officers from the Michigan State Police, the Walled Lake City Police Department, and the Oakland County Prosecutor's Office "raided" the Camelot Inn arresting all of the dancers present, the bar manager, the cashier and the parking lot attendant. Claiming harassment, plaintiffs petitioned the trial court for a restraining order enjoining the police authorities from attempting to enforce Rule 436.37 pending decision by the trial court. When that petition was denied on grounds that the respective law enforcement agencies were not agents of the defendant Liquor Control Commission, plaintiffs filed a separate complaint in the Circuit Court of Oakland County naming the various law enforcement agencies as defendants. That action is this Court's docket # 78-2744.
On June 6, 1978, the Camelot Inn was again raided by the combined forces of the several police agencies and two female dancers were arrested. On June 12, 1978, the trial court issued a declaratory judgment in docket # 78-2272, holding the challenged rule of the Liquor Control Commission to be on its face constitutionally valid. On June 13, 1978, the trial judge issued his final order denying a restraining order in docket # 78-2744, for the reason that declaratory judgment in the first case made the relief prayed for in the second action moot. Plaintiffs appealed both cases to this Court, which ordered the cases consolidated.
Although plaintiffs raise seven issues on appeal, we find there is basically but one issue, that issue being whether Rule 436.37 of the Liquor Control Commission is a valid, constitutional exercise of the police power of the State of Michigan. Except for two issues of minor importance, the remaining issues are subdivisions of the charge of unconstitutionality and will fail if the rule is held constitutional. 1
We reject the charge that the Michigan statutes on obscenity, M.C.L. § 750.343a Et seq.; M.S.A. § 28.575(1) Et seq., have preempted the power of the Liquor Control Commission to issue regulations governing conduct in licensed establishments. The doctrine of preemption is different from and should not be confused with divestment. Preemption may occur where there is a conflict between the statutes or regulations of the state and Federal government or where the state and a municipality each regulate the same activity. 2 Am.Jur.2d, Administrative Law, §§ 211-218, pp. 39-48. Michigan's obscenity statutes concern the distribution of obscene films and printed material. Rule 436.37 focuses on conduct in liquor licensed establishments. We find the two activities so different from one another that we cannot conclude that, in the absence of clear statutory language to the contrary, the Legislature intended to Divest the Liquor Control Commission of either its well-established constitutional powers to control alcoholic beverage traffic, Black v. Liquor Control Comm., 323 Mich. 290, 35 N.W.2d 269 (1948), or of its broad power to regulate the manner in which liquor is sold. Noey v. City of Saginaw, 271 Mich. 595, 261 N.W. 88 (1935). So drastic a reduction in the powers of the Liquor Control Commission requires more than inference.
The thrust of plaintiffs' claim that Rule 436.37 contravenes the First Amendment guarantee of freedom of expression or the Fourteenth Amendment's guarantee of equal protection, is that nude dancing, when not performed in an obviously obscene or offensive manner, is protected by the First and Fourteenth Amendments. Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). According to plaintiffs, nude dancing is a constitutionally protected form of expression, losing such protection only when shown to be obscene. Salem Inn, Inc., v. Frank, 522 F.2d 1045 (CA 2, 1975), Attwood v. Purcell, 402 F.Supp. 231 (D.Ariz., 1974), Lucifer's Gate Inc. v. Town of Van Buren, 83 Misc.2d 790, 373 N.Y.S.2d 304 (1975), State v. Walker, 568 P.2d 286 (Okl.Crim.App., 1977). Plaintiffs state the rule too broadly.
The landmark decision on the question at issue here is California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), Reh. den. 410 U.S. 948, 93 S.Ct. 1351, 35 L.Ed.2d 615 (1973). In that case regulations issued by the California Department of Alcoholic Beverage Control prohibiting naked entertainment in establishments licensed to sell liquor were challenged as being in violation of the First and Fourteenth Amendments. In sustaining the regulations, the United States Supreme Court drew a distinction between statutes or ordinances which censor dramatic performance in the theater and regulations which only prohibit such exposure in bars and cocktail lounges where liquor is sold.
"The substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in the form of movies or live entertainment, 'performances' that partake more of gross sexuality than of communication. 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.
...
To continue reading
Request your trial
-
In re Pike, M85-254 CA2.
...Mich. 215, 35 N.W.2d 245 (1948). However, the M.L.C.C.'s authority is limited to the regulation of alcohol. Bundo v. Liquor Control Commission, 92 Mich.App. 20, 283 N.W.2d 860 (1979). The bankruptcy court commented upon the scope of the M.L.C.C.'s authority in The Matter of Ratcliff Enterpr......
-
Matter of Ratcliff Enterprises, Inc.
...N.W.2d 245 (1948), but the commission's authority is limited to the regulation of alcohol. Fitzgerald, supra; Bundo v. Liquor Control Comm., 92 Mich.App. 20, 283 N.W.2d 860, (1979). If, therefore, the aim of Rule 19 is to regulate the perfection of security interest which is controlled by M......
-
Stanich v. State Liquor Control Commission, Docket No. 43822
...licensed station." This Court recently upheld the constitutionality of Rule 436.37 on the basis of La Rue. Bundo v. Liquor Control Comm., 92 Mich.App. 20, 283 N.W.2d 860 (1979). The instant case, however, does not involve a constitutional challenge to the rules in question. Rather, plaintif......