Corral, Inc. v. Washington State Liquor Control Bd., 1913-II

• Decision Date: 13 June 1977
• Docket Number: No. 1913-II,1913-II
• Citation: 17 Wn.App. 753,566 P.2d 214
• Parties: The CORRAL, INC., a Washington Corporation, Appellant, v. WASHINGTON STATE LIQUOR CONTROL BOARD, Respondent.
• Court: Washington Court of Appeals

Page 753

17 Wn.App. 753

566 P.2d 214

The CORRAL, INC., a Washington Corporation, Appellant, v. WASHINGTON STATE LIQUOR CONTROL BOARD, Respondent.

No. 1913-II.

Court of Appeals of Washington, Division 2.

June 13, 1977.

Landon R. Estep, Lundin, Estep, Sindell & Haley, Seattle, for appellant.

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

PETRIE, Chief Judge.

The appellant herein, The Corral, Inc., is a Washington corporation, holder of a Class H Liquor License issued by the respondent herein, Washington State Liquor Control Board, and operates a restaurant and cocktail lounge in Yakima, Washington. In 1974, the Board cited the Corral for 8 violations of board rules.

The hearing examiner before whom the administrative proceedings were conducted found sufficient evidence to sustain 7 of the charges. The examiner's findings were adopted by the Board, and, upon review to the superior court, they were again affirmed. On May 29, 1975 the court entered judgment directing the Board to impose a penalty upon the Corral not to exceed suspension of its license for 30 days or, alternatively, to impose a monetary penalty equal to the gross profit from the operation of the business for 30 days. The Corral now appeals to this court. We affirm.

For purposes of this opinion, we concern ourselves with only 3 of the board's citations: charges that on May 14, 22, and 29, 1974 the "licensees permitted disorderly persons to be on the premises," in violation of WAC 314-16-120 (known historically as board rule 27-1).

Rule 27-1 provides as follows:

(1) No licensee shall be disorderly, boisterous or intoxicated on the licensed premises, or on any public premises adjacent thereto which are under his control, nor shall he permit any disorderly, boisterous or intoxicated person to be thereon ; nor shall he use or allow the use of profane or vulgar language thereon.

(Emphasis added.)

Among the findings which were subsequently affirmed by the court, only one of which the Corral now challenges, are the following:

4.

That on May 14, 1974, Washington State Liquor Control Board Enforcement Officers Gilbert and Given entered the premises at approximately 8:30 p. m. and remained for approximately five hours; that they observed approximately ten (10) go-go dancers performing at customers' tables; that they observed one dancer brushing her buttocks and legs on the customer's legs; that they observed another go-go dancer brushing her breasts in the customer's face.

5.

That on May 22, 1974, Washington State Liquor Control Board Enforcement Officers Gilbert and Given entered the premises at approximately 9:30 p. m. and remained for approximately three hours; that they observed a go-go dancer performing three times at a customer's table and pushing her breasts in the customer's face and lowering the bottom portion of her bikini costume.

6.

That on May 29, 1974, Washington State Liquor Control Board Enforcement Officer Martin entered the premises at approximately 10:40 p. m. and observed three go-go dancers performing at customers' tables; that he observed one dancer brush her buttocks against the customer.

The Corral challenges the finding pertaining to the alleged May 22 incident, but one of the Board's agents described the body contact in the following manner Q What was the nature of the contact?

A The girl would start dancing, and as I recall, her top would come off and she had her arms wrapped around his neck, and he had his head and face pushed up against her breasts, and they together pulled down her bikini bottoms and he just sort of worked his way on down.

Q He was touching her with his mouth?

A That's what it looked like to me.

Q I understand the bottom of her bikini would be removed too at this time?

A They were down around her knees.

Q Did that keep on going, what, the length of a record again?

A The length of a record each time.

Indeed, the Corral's majority stockholder, husband of the board-authorized manager, was on the premises on May 22 in his capacity of checking identification and doing "a little bit of everything." He testified that the Corral permits women who are on the premises, even though they are not employees or performing amateurs, to get up and dance so long as they do not display their pubic area or nipples on their breasts. He stated:

This girl did get up and dance once or twice I don't know for sure and then she sat down at the table and they were just talking and carrying on, and all of a sudden the girl rips all of her clothes off and runs across the place and runs out in front, naked.

Upon review of the record, we are not left with a definite and firm conviction that a mistake has been committed. Accordingly, there is no error in the challenged finding of fact. Ancheta v. Daly, 77 Wash.2d 255, 461 P.2d 531 (1969). The unchallenged findings as to the alleged incidents of May 14 and 29 must, of course, be accepted as verities.

The Corral contends, however, that the described conduct does not violate board rule 27-1. The Board does not contend that the licensee permitted a boisterous or intoxicated person on the premises, only one who was "disorderly." The licensee asserts that the 3 findings demonstrate only 3 instances of two adults touching each other with the other's consent; that conduct in the Corral continued in a normal, nonriotous fashion before, during, and after the 3 incidents of consented touching, and that the conduct caused no disruption or disturbance, was not riotous or otherwise illegal and, therefore, not disorderly.

The thrust of the Corral's assertion, as we understand it, is (1) that the term "disorderly" as used in rule 27-1 must be something akin to "boisterous or intoxicated"; and (2) that the term is so vague that a reasonable person cannot know in advance what actions are proscribed.

In a slightly different setting, an instruction, which defined "disorderly" as embracing all persons who violate the peace and good order of society, was approved. State v. Harlowe, 174 Wash. 227, 24 P.2d 601 (1933). See also State v. Jones, 9 Wash.App. 1, 511 P.2d 74 (1973). Further, in State v. Levin, 67 Wash.2d 988, 410 P.2d 901 (1966) the court seized upon other language adverted to in Harlowe, and described "disorderly" as reflecting a theme of "profligacy" or "depravity." Again, in State v. Finrow, 66 Wash.2d 818, 405 P.2d 600 (1965) a definition of the term "disorderly" which included the concepts of "turbulent, riotous or indecent " was specifically approved. Finally, in an attempt to synthesize expressions used in prior opinions into a meaningful whole, it was authoritatively determined that the term "disorderly" connotes "overt misconduct contrary to the rules of good order and behavior, which is violative of the public peace." State v. Maloney, 78 Wash.2d 922, 925, 481 P.2d 1, 3 (1971).

Under any of the foregoing definitions of the term, activities included within the hearing examiner's findings constitute "disorderly" conduct. Furthermore, the appellate courts of this jurisdiction have often held that the term "disorderly", as judicially defined, is not so vague that reasonable persons cannot determine what is proscribed. State v. Harlowe, supra; State v. Jones, supra.

Finally, the Corral contends that the Board exceeded its authority in adopting rule 27-1. Here, the challenge is (1) that Title 66 RCW, taken as a whole, does not, even in general terms, authorize the Board to regulate the subject matter of rule 27-1; (2) that, contrariwise, in specific terms, legislation has restricted the board's rule-making authority to areas other than those pertaining to the conduct of entertainers and patrons at licensed premises; and, indeed, (3) that the legislative authority to regulate conduct embraced within rule 27-1 has been specifically delegated to local authorities. We disagree.

We consider these issues in the reverse order of their presentation.

The Corral directs our attention to two statutes, RCW 66.28.080 a...