Club 107, In re, No. 85-526

Docket NºNo. 85-526
Citation566 A.2d 966, 152 Vt. 320
Case DateAugust 11, 1989
CourtUnited States State Supreme Court of Vermont

Page 966

566 A.2d 966
152 Vt. 320
In re CLUB 107.
No. 85-526.
Supreme Court of Vermont.
Aug. 11, 1989.

[152 Vt. 321] Frank F. Berk and Linda Sable, Law Student (On the Brief) of Mayer & Berk, South Royalton, for plaintiff-appellant.

Jeffrey L. Amestoy, Atty. Gen., and Robert W. Gagnon, Sr. Asst. Atty. Gen., Montpelier, for defendant-appellee.

[152 Vt. 320] Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MAHADY, JJ.

[152 Vt. 321] DOOLEY, Justice.

Appellant, Club 107, is the holder of first and third class licenses to sell alcoholic beverages for consumption on its premises. On November 1, 1985, the Liquor Control Board (Board) determined that appellant had, on August 28, 1985, violated the Board's General Regulation 9(a) which prohibits "[o]bscene, lewd, or indecent entertainment." As a result of this violation, the Board suspended appellant's licenses

Page 967

for a period of fifteen days. This appeal ensued, and the Board issued an order staying the suspension during the pendency of the action before this Court. We hold that in promulgating General Regulation 9(a) the Board exceeded its legislative grant of authority and that the regulation is, therefore, invalid. For this reason, we reverse and vacate the Board's order.

On August 28, 1985 appellant held a "ladies night," so called, which included male dancers as the featured entertainment. In attendance at this event were approximately 170 women [152 Vt. 322] and two investigators from the Department of Liquor Control. During the course of the evening, the investigators observed that one of the dancers had exhibited pubic hair during his performance and that the buttocks of the same dancer and a subsequent dancer were partially exposed as they danced. Appellant was cited for violating the regulation, and a hearing was held before the Board on October 18, 1985. On November 1 the Board issued its findings of fact, conclusions of law, and ruling.

Appellant challenges the constitutionality of General Regulation 9(a) on the grounds that it violates the free speech provision embodied in Chapter I, Article 13 of the Vermont Constitution, which states:

That the people have a right to freedom of speech, and of writing and publishing their sentiments, concerning the transactions of government, and therefore the freedom of the press ought not to be restrained.

Specifically, appellant argues that the semi-clothed dancing of the male performers was speech-related conduct which is improperly infringed upon by the regulation.

We need only address the constitutional issue if we find that this regulation was promulgated pursuant to authority either expressly or impliedly granted to the Board by the Legislature. See, e.g., 4245 Corp. v. Division of Beverage, 371 So.2d 1032, 1033 (Fla.Dist.Ct.App.1978). This is because without a legislative grant of authority enabling the Board to establish and enforce such a prohibition, the regulation is void. See In re Agency of Administration, 141 Vt. 68, 75, 444 A.2d 1349, 1352 (1982). As this Court has previously observed, "[a]n agency must operate for the purposes and within the bounds authorized by its enabling legislation, or this Court will intervene." Id. If the regulation is void as exceeding the Board's enabling legislation, it cannot stand--regardless of whether its enforcement violates the constitutional protections afforded to free speech under either the Vermont or United States Constitutions. Thus, we must first put aside the question whether the semi-nude performances of male dancers in a night club is constitutionally protected speech-related conduct, and the question of whether the state--in the exercise of its police powers--may regulate such activities. Rather, the focus [152 Vt. 323] of our initial concern is whether the Legislature has authorized the Liquor Control Board to promulgate such regulations.

The challenged regulation states, in relevant part:

9. (a). Obscene, lewd, or indecedent entertainment. The Liquor Control Board shall consider the following conduct upon any licensed premises to constitute obscene, lewd or indecent entertainment:

(1) The real or simulated showing of the human male or female genitals, pubic hair or buttocks, or the showing of the female breast below the top of the areola by any employee, entertainer or by...

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16 practice notes
  • In re A.P., No. 2019-246
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 9, 2020
    ...not permit amorphous statutory language to become a one-size-fits-all vehicle for enforcing community values. See also In re Club 107, 152 Vt. 320, 326, 566 A.2d 966, 969 (1989) (holding that Liquor Control Board could not expand its authority beyond Title 7 to "define and regulate ind......
  • In re A.P., No. 19-246
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 9, 2020
    ...not permit amorphous statutory language to become a one-size-fits-all vehicle for enforcing community values. See also In re Club 107, 152 Vt. 320, 326, 566 A.2d 966, 969 (1989) (holding that Liquor Control Board could not expand its authority beyond Title 7 to "define and regulate ind......
  • In re Mountain Top Inn & Resort, No. 19-082
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 24, 2020
    ...141 Vt. 68, 75, 444 A.2d 1349, 1352 (1982). Because an agency has only the authority delegated to it by the legislature, In re Club 107, 152 Vt. 320, 322, 566 A.2d 966, 967 (1989), "an administrative body may promulgate only those rules within the scope of its legislative grant of auth......
  • DLH, Inc. v. NEBRASKA LIQUOR CONTROL COM'N, No. S-02-033.
    • United States
    • Supreme Court of Nebraska
    • July 18, 2003
    ...But see Ore. Newspaper Pub. v. Peterson, 244 Or. 116, 415 P.2d 21 (1966) (en banc) (burden on administrative agency). Cf. In re Club 107, 152 Vt. 320, 566 A.2d 966 (1989) (deference not warranted where Liquor Control Board regulated outside area of As one leading commentator has explained: ......
  • Request a trial to view additional results
16 cases
  • In re A.P., No. 2019-246
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 9, 2020
    ...not permit amorphous statutory language to become a one-size-fits-all vehicle for enforcing community values. See also In re Club 107, 152 Vt. 320, 326, 566 A.2d 966, 969 (1989) (holding that Liquor Control Board could not expand its authority beyond Title 7 to "define and regulate ind......
  • In re A.P., No. 19-246
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 9, 2020
    ...not permit amorphous statutory language to become a one-size-fits-all vehicle for enforcing community values. See also In re Club 107, 152 Vt. 320, 326, 566 A.2d 966, 969 (1989) (holding that Liquor Control Board could not expand its authority beyond Title 7 to "define and regulate ind......
  • In re Mountain Top Inn & Resort, No. 19-082
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 24, 2020
    ...141 Vt. 68, 75, 444 A.2d 1349, 1352 (1982). Because an agency has only the authority delegated to it by the legislature, In re Club 107, 152 Vt. 320, 322, 566 A.2d 966, 967 (1989), "an administrative body may promulgate only those rules within the scope of its legislative grant of auth......
  • DLH, Inc. v. NEBRASKA LIQUOR CONTROL COM'N, No. S-02-033.
    • United States
    • Supreme Court of Nebraska
    • July 18, 2003
    ...But see Ore. Newspaper Pub. v. Peterson, 244 Or. 116, 415 P.2d 21 (1966) (en banc) (burden on administrative agency). Cf. In re Club 107, 152 Vt. 320, 566 A.2d 966 (1989) (deference not warranted where Liquor Control Board regulated outside area of As one leading commentator has explained: ......
  • Request a trial to view additional results

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