C'est Bon, Inc. v. NORTH CAROLINA ST. BD. OF ALCOHOLIC CON.

• Decision Date: 07 September 1971
• Docket Number: Civ. No. 2826.
• Citation: 331 F. Supp. 82
• Court: U.S. District Court — Western District of North Carolina
• Parties: C'EST BON, INC., t/a C'Est Bon, Inc., Plaintiff, v. NORTH CAROLINA STATE BOARD OF ALCOHOLIC CONTROL et al., Defendants.

331 F. Supp. 82

C'EST BON, INC., t/a C'Est Bon, Inc., Plaintiff, v. NORTH CAROLINA STATE BOARD OF ALCOHOLIC CONTROL et al., Defendants.

Civ. No. 2826.

United States District Court, W. D. North Carolina, Charlotte Division.

September 7, 1971.

Adam Stein, Chambers, Stein, Ferguson & Lanning, and Michael G. Plumides, Charlotte, N. C., for plaintiff.

Charles E. Knox, Charlotte, N. C., for defendants Mecklenburg County Board of Education, its members, Chief Charlotte City Police, and Sheriff of Mecklenburg County.

Robert Morgan, Atty. Gen. of North Carolina and Christie Y. Denson, Asst. Atty. Gen., Raleigh N. C., for defendant State Board of Alcoholic Control.

Before CRAVEN, Circuit Judge, and JONES and McMILLAN, District Judges.

CRAVEN, Circuit Judge:

This is a suit brought before a three-judge court to challenge the constitutionality of an inartfully drawn state criminal statute purporting to forbid "indecent exposure,"¹ and another state statute, quite vague in language, purporting to control conduct and entertainment on premises where alcoholic beverages are served.²

Aware of the vagueness of the second statute, the Mecklenburg County Alcoholic Beverage Control Board has issued a set of guidelines purporting to interpret the statute so as to specifically prohibit (1) topless and bottomless dancing (mere topless dancing is permitted), (2) any performance simulating sexual activity "with any object, device or other paraphernalia," (3) physical contact between customers and topless performers, and (4) physical contact between topless waitresses and customers.

Because of highly publicized nude and partially nude dancing at C'Est Bon's place of business, state administrative proceedings were begun to revoke C'Est Bon's ABC license. These proceedings resulted in a revocation of the license on alternative grounds: (1) nude dancing, (2) serving alcoholic beverages to an intoxicated person and allowing him to remain on the premises.

At the time of the filing of the federal complaint and at the time of the hearing before the three-judge court there were not pending any criminal prosecutions against C'Est Bon. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L. Ed.2d 669 (1971), and companion cases are without application.

Since the filing of the action, the City of Charlotte has enacted a so-called indecent exposure ordinance, § 13-21 Code of the City of Charlotte. C'Est Bon has filed a supplemental complaint challenging the constitutionality of this ordinance. Because it is purely local in nature it is not properly before a three-judge court. Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971).

We think this case is a peculiarly appropriate one for abstention by a federal court. Since the repeal of the Eighteenth Amendment in 1933 the control of the consumption and use of alcoholic beverages in this country has been committed to the states. The federal government has asserted no interest whatsoever in the subject matter except to tax such beverages. There is no federal administrative or executive agency that concerns itself with the control and usage of alcoholic beverages. The exerise of police power, and the development of administrative expertise in the area, has been peculiarly that of the states to the exclusion of the federal government.

Although the state regulation under attack here may sweep overbroadly into areas ordinarily protected by the First Amendment, a saving construction may be available in the state courts. See Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); City of Meridian v. Southern Bell Telephone & Telegraph Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959). Unless the First Amendment is viewed as an absolute, its command must be balanced against the state police power to regulate the usage of alcoholic beverages. Compare Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948). A state court with the benefit of an administrative record is in a better position to strike the balance than are we.³ The abstention doctrine is an equitable one designed to prevent needless friction between federal and state government. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). When abstention delays ultimate resolution of the merits of the constitutional claim, and it frequently does, and when the constitutional challenge is a First Amendment one, the harm of delay will often outweigh the competing comity considerations. But here the delay will not have an immediate impact on plaintiff's constitutional rights. C'Est Bon's license has been suspended on independent grounds for a period of some months.⁴ The state administrative proceedings have long since been begun and might well have come to fruition had C'Est Bon pressed as hard for a resolution of the controversy there as it has done in this court. The suspension period now in effect can certainly be used to obtain an authoritative construction of the state regulations and statutes in the state courts.⁵ Our intervention at this point might well hamper and impede quick resolution of the controversy rather than speed it up.

The Clerk is directed to enter a judgment dismissing the complaint, insofar as it seeks relief from a three-judge court.

McMILLAN, District Judge (concurring):

C'Est Bon Club has been destroyed by fire; the challenged statutes have been substantially revised by the General Assembly; plaintiff's...