Dydyn v. Department of Liquor Control

• Decision Date: 21 October 1987
• Docket Number: Nos. 5302,s. 5302
• Citation: 12 Conn.App. 455,531 A.2d 170
• Court: Connecticut Court of Appeals
• Parties: Victor R. DYDYN et al. v. DEPARTMENT OF LIQUOR CONTROL. Paul J. CIANCI et al. v. DEPARTMENT OF LIQUOR CONTROL. to 5309.

Page 170

531 A.2d 170

12 Conn.App. 455

Victor R. DYDYN et al. v. DEPARTMENT OF LIQUOR CONTROL.

Paul J. CIANCI et al. v. DEPARTMENT OF LIQUOR CONTROL.

Nos. 5302 to 5309.

Appellate Court of Connecticut.

Argued June 4, 1987.

Decided Sept. 22, 1987.

Certification Denied Oct. 21, 1987.

Martin Margulies, Bridgeport, with whom were Carolyn Comerford and Leslie Byelas, Westport, for appellants (plaintiffs).

Robert F. Vacchelli, Asst. Atty. Gen., with whom, on the brief, were Joseph I. Lieberman, Atty. Gen., and Richard M. Sheridan, Asst. Atty. Gen., for appellee (defendant).

Before HULL, SPALLONE and BIELUCH, JJ.

HULL, Judge.

The plaintiffs in this appeal are permittees of establishments that dispense alcoholic beverages and also provide live entertainment by female dancers. Pursuant to General Statutes § 4-183, ¹ the plaintiffs sought judicial review in the trial court from decisions of the department of liquor control (department) suspending their liquor permits. The trial court upheld the department's suspensions. In this appeal, the plaintiffs claim that the trial court erred (1) in upholding the constitutionality of § 30-6-A24(d) and (e) of the regulations of Connecticut state agencies, concerning liquor control, ² under the twenty-first amendment to the United States constitution, ³ (2) in concluding that the challenged regulation does not infringe on the plaintiffs' rights to free expression under article first, §§ 4 and 5 of the Connecticut constitution, ⁴ (3) in concluding that the challenged regulation does not infringe on the plaintiffs' equal protection rights under article first, §§ 1 and 20 of the Connecticut constitution, ⁵ and (4) in holding that the challenged regulation does not violate the plaintiffs' due process rights and that the department did not act in excess of its authority in promulgating the regulation.

The following facts are not in dispute. The plaintiff Victor R. Dydyn is the permittee of the Culinary Cafe, Inc., in Newington. The plaintiff Paul J. Cianci is the permittee of the Dealer's Choice Lounge, Inc., in Hartford. In each case, ⁶ female dancers were observed by plainclothed detectives to be performing at the permit premises in various states of nudity, in violation of liquor control regulation § 30-6-A24. In particular cases, dancers were also observed fondling their breasts and genital areas, allowing customers to place money in their costumes, mingling with and kissing patrons, and simulating sexual intercourse during their routines. In the cases involving Cianci and the Dealer's Choice Lounge, Inc., the permit to sell liquor was suspended by the department for a total of forty-five days. In the cases involving Dydyn and the Culinary Cafe, Inc., the permit was suspended for a total of thirty-five days.

I

The plaintiffs' first claim is that the court erred in upholding the constitutionality of the department's regulation under the twenty-first amendment to the federal constitution. Their second claim is that the department's regulation prohibiting nude dancing in establishments with liquor permits is violative of their constitutional right to free speech under article first, §§ 4 and 5 of the Connecticut constitution. These arguments are in effect, that nude and semi-nude dancing is a protected form of expression that cannot be curtailed by this regulation. We disagree.

The provisions of section 2 of the twenty-first amendment to the United States constitution have been interpreted as granting the states virtually complete control over whether to permit the importation and sale of liquor. California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 110, 100 S.Ct. 937, 946, 63 L.Ed.2d 233 (1980). ⁷ The amendment has been recognized as conferring more than the normal state authority over public health, welfare and morals. California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972). Pursuant to the twenty-first amendment, a state can ban topless dancing and other nude conduct, regardless of whether it is obscene, as part of its liquor licensing regulatory scheme. See New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) (Bellanca I ); Doran v. Salem Inn, Inc. 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); California v. LaRue, supra. ⁸ The United States Supreme Court has held that a state's power to ban the sale of alcoholic beverages under the twenty-first amendment entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs. Bellanca I, supra, 452 U.S. at 717, 101 S.Ct. at 2601.

The plaintiffs, however, do not make their argument under the federal constitution. They assert that the department's regulation is vulnerable under the free speech provisions of our state constitution because there is no state constitutional enactment similar to the twenty-first amendment. There is a split of authority as to the effect of a lack of a provision similar to the twenty-first amendment in a state's constitution. Some jurisdictions hold that the twenty-first amendment of the federal constitution is not applicable to the states. See Bellanca v. New York State Liquor Authority, 54 N.Y.2d 228, 429 N.E.2d 765, 445 N.Y.S.2d 87 (1981) (Bellanca II ) (on remand from the United States Supreme Court); see also Mickens v. Kodiak, 640 P.2d 818 (Alaska 1982); Commonwealth v. Sees, 374 Mass. 532, 373 N.E.2d 1151 (1978). Other jurisdictions hold that the twenty-first amendment is applicable to the states. See Daytona Beach v. Del Percio, 476 So.2d 197 (Fla.1985); and Nall v. Baca, 95 N.M. 783, 626 P.2d 1280 (1980).

We find logic in the latter cases, and in the dissents in Bellanca II. "The Supreme Court has flatly and squarely held that the 'State has absolute power under the Twenty-first Amendment to prohibit totally the sale of liquor within its boundaries.... It is equally well established that a State has broad power under the Twenty-first Amendment to regulate the times, places and circumstances under which liquor may be sold.' ( Bellanca I, supra [452 U.S. at] 715 . To now require, as a precondition to the exercise of such power in a manner expressly condoned by the highest court of this Nation, that the State must enact its own counterpart of the Twenty-first Amendment, is without reason or authority." Bellanca II, supra, 54 N.Y.2d at 238-39, 429 N.E.2d 765, 445 N.Y.S.2d 87 (Gabrielli, J., dissenting).

Contrary to the plaintiffs' view, "when a State acts to regulate the sale of liquor within its boundaries, its authority stems from both its general police power and directly from the Twenty-first Amendment to the United States Constitution. Indeed, rather than merely restoring to the States their pre-existing police power over the sale of alcoholic beverages by repealing the Eighteenth Amendment, the second section of the Twenty-first Amendment expressly reserves to the States a power to regulate traffic in liquor: 'The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.' Thus, although the States 'require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare and morals.' (California v. LaRue, [supra]. This independent right to regulate the sale of liquor under the Federal Constitution has been interpreted by the Supreme Court as not only creating an exception to the commerce clause (e.g., J. Seagram & Sons v. Hostetter, 384 U.S. 35, 41-42 [86 S.Ct. 1254, 1259, 16 L.Ed.2d 336], reh. denied, 384 U.S. 967, 86 S.Ct. 1583, 16 L.Ed.2d 679 (1966); Ziffrin, Inc. v. Reeves, 308 U.S. 132 [60 S.Ct. 163, 84 L.Ed. 128] (1939); State Board v. Young's Market Co., 299 US 59 [57 S.Ct. 77, 81 L.Ed. 38], reh. denied, 299 U.S. 623, 57 S.Ct. 229, 81 L.Ed. 458 (1936)); but, more recently, as qualifying rights guaranteed by the First Amendment as well--at least insofar as certain forms of nude and partially nude entertainment are concerned. ( [Bellanca I, supra]; California v. LaRue, supra.)" Bellanca II, supra, 54 N.Y.2d at 243-44, 429 N.E.2d 765, 445 N.Y.S.2d 87 (Jason, J., dissenting). This federally recognized power on the part of the states to control the commercial distribution of alcoholic beverages within their respective boundaries does not exist in a vacuum; nor is it limited to the confines of the federal constitution. The power conferred by the twenty-first amendment does not simply evaporate once the analysis shifts to a determination of the right to free expression under our state constitution. Rather, this independent, federal right to control the traffic in liquor subsists, and, pursuant to the supremacy clause, ⁹ must be given full recognition and effect, even when we consider the provisions of our own constitution.

The plaintiffs urge us, even if we find the twenty-first amendment applicable to the state constitution, to read the free speech provision of the Connecticut constitution more broadly than that of the federal constitution, thus making the protections greater under the state constitution. This we decline to do. A similar request was presented to our Supreme Court in Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984). In Cologne, the plaintiffs urged the court to find that the Connecticut constitution provides greater protection to expressive activity on private property than does the federal constitution. Our Supreme Court refused to do so, finding nothing in the history of the Connecticut constitution to warrant a distinction between the Connecticut and federal free speech provisions. Id., at 62-63, 469 A.2d 1201. Similarly, in the...