Cocktail Fortune, Inc. v. Supervisor of Liquor Control, 81309

Decision Date29 June 1999
Docket NumberNo. 81309,81309
Citation994 S.W.2d 955
PartiesCOCKTAIL FORTUNE, INC., Respondent, v. SUPERVISOR OF LIQUOR CONTROL, Appellant.
CourtMissouri Supreme Court

Jeremiah W. (Jay) Nixon, Atty. Gen., Michael A. Zito, Asst. Atty. Gen., Jefferson City, for appellant.

Christopher J. Stark, Springfield, for respondent.

STEPHEN N. LIMBAUGH, Jr., Judge.

Appellant, Missouri's Supervisor of Liquor Control ("Supervisor"), appeals a judgment of the circuit court reversing a decision of the Administrative Hearing Commission ("AHC") that the liquor license of Cocktail Fortune, Inc. ("Cocktail") was "subject to discipline" because Cocktail had permitted "lewd conduct" on its premises. The circuit court concluded that the term "oral copulation" as used in 11 CSR 70-2.130, the liquor license regulation banning lewd conduct, was unconstitutionally vague, thus making that part of the regulation unenforceable. After a split opinion by the Court of Appeals, Southern District, this Court granted transfer. Mo. Const. art. V, sec. 10. Having now concluded that the term "oral copulation" is not void for vagueness, the judgment of the circuit court is reversed and the case is remanded.

I.

The Supervisor has primary responsibility for enforcing the state's liquor control laws as set out in Chapters 311 and 312, RSMo 1994, and the regulations promulgated thereunder.

Cocktail owns and operates the Club Mercedes, a nightclub in Springfield, Missouri, where women perform exotic, semi-nude dancing and strip tease. It is licensed by the state to serve retail liquor by the drink.

The facts surrounding the incidents in question, as determined by the AHC, are as follows: On November 2, 1992, Springfield policemen, acting undercover, visited Club Mercedes. A dancer by the stage name "Angel" performed a "chair dance" for one of the officers, and as the dance progressed, she used her mouth to remove a dollar bill that had been inserted in his pants' fly. Before removing it, however, she held the bill up with one hand, then placed her mouth over the bill and slowly moved her head up and down and back and forth. That same night, another officer asked for a "chair dance" and selected a dancer known as "Peaches." In performing her dance, "Peaches" used her mouth to remove a dollar bill that had been inserted under the officer's belt just above his pants fly. Before removing it, however, she held the bill up with one hand, then placed her mouth over the bill and slowly moved her head up and down and back and forth.

Based on the officers' reports, Supervisor's agents filed a "Violation Report", which charged that Cocktail had twice violated 11 CSR 70-2.130(14)(A), which prohibits, inter alia, the performance of acts or simulated acts of "oral copulation" on a liquor licensee's premises. On November 4, 1993, Supervisor entered an order finding that Cocktail had violated the regulation and imposed the civil sanction of a ten-day suspension of Cocktail's liquor license.

Cocktail then filed a complaint with the AHC requesting a review of the Supervisor's action in suspending the liquor license. After a full evidentiary hearing, the AHC issued findings of fact and conclusions of law in which it determined that "Angel" and "Peaches" committed acts of "simulated fellatio" and upheld the Supervisor's imposition of discipline. In its conclusions of law, the AHC stated:

Although fellatio or cunnilingus are more widely used terms, we conclude that the Supervisor's use of the term "oral copulation" means the same thing....[O]ral copulation is a sexual joining together at or near the mouth. Both dancers clearly intended to and did simulate fellatio, also a violation of paragraph (A).

Cocktail then filed a petition for review with the circuit court, which reversed the AHC's decision on the ground that 11 CSR 70-2.130(14), as it pertains to "oral copulation," is vague and unenforceable. This appeal followed.

Under section 536.140, RSMo 1994, this Court's review of a case decided initially by the AHC is limited to a review of the AHC's findings and conclusions, rather than the judgment of the circuit court. Psychcare Management v. Department of Social Services, 980 S.W.2d 311, 312 (Mo. banc 1998). In this case, however, the circuit court ruled on the constitutional validity of the liquor control regulation, a determination the AHC, as an executive branch agency, does not have authority to make. State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d 69, 76 (Mo. banc 1982). Because the only basis the circuit court gave for reversing the AHC's decision was that the regulation was unconstitutional, this Court reviews only the circuit court's judgment.

II.

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. State v. Mahan, 971 S.W.2d 307, 312 (Mo. banc 1998). The void for vagueness doctrine ensures that laws give fair and adequate notice of proscribed conduct and protects against arbitrary and discriminatory enforcement. Id. The test in enforcing the doctrine is whether the language conveys to a person of ordinary intelligence a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. State v. Schleiermacher, 924 S.W.2d 269, 276 (Mo. banc 1996). However, neither absolute certainty nor impossible standards of specificity are required in determining whether terms are impermissibly vague. State v. Duggar, 806 S.W.2d 407, 408 (Mo. banc 1991). Moreover, it is well established that "if the law is susceptible of any reasonable and practical construction which will support it, it will be held valid, and ... the courts must endeavor, by every rule of construction, to give it effect." Id. (quoting from City of St. Louis v. Brune, 520 S.W.2d 12, 16-17 (Mo.1975)). Finally, courts employ "greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." State ex rel. Nixon v. Telco Directory Pub., 863 S.W.2d 596, 600 (Mo. banc 1993).

With these rules in mind, we turn to the regulation, 11 CSR 70-2.130, which provides in pertinent part:

(14) Lewdness. No retail licensee or his/her employee shall permit in or upon his/her licensed premises-

(A) The performance of acts, or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law;

(B) The displaying of any portion of the areola of the female breast;

(C) The actual or simulated touching, caressing or fondling of the breast, buttocks, anus or genitals;

(D) The actual or simulated displaying of the pubic hair, anus, vulva or genitals;

(E) The permitting by a licensee of any person to remain in or upon the...

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