People v. Becker

• Citation: 759 P.2d 26
• Decision Date: 05 July 1988
• Docket Number: No. 86SC242,86SC242
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Marlene BECKER, Dianne Johnson and Thomas Fuselier, Respondents.
• Court: Supreme Court of Colorado

Page 26

759 P.2d 26

The PEOPLE of the State of Colorado, Petitioner, v. Marlene BECKER, Dianne Johnson and Thomas Fuselier, Respondents.

No. 86SC242.

Supreme Court of Colorado En Banc.

July 5, 1988.

James F. Smith, Dist. Atty., Michael J. Milne, Deputy Dist. Atty., Brighton, for petitioner.

Keller, Dunievitz, Johnson & Wahlberg, Robert Elmer Johnson, Denver, for respondents.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Steven M. Bush, Asst. Atty. Gen., Denver, for amicus curiae.

QUINN, Chief Justice.

We granted certiorari to review a judgment of the District Court of Adams County, which affirmed the county court's dismissal of criminal charges arising out of alleged violations of the Colorado Liquor Code, specifically section 12-47-128(5)(l ), 5 C.R.S. (1985), which prohibits any person licensed to sell alcoholic beverages for on-premises consumption from permitting any employee to solicit patrons to purchase any alcoholic beverage or "any other thing of value" for the soliciting employee or another employee. In affirming the judgment of dismissal, the district court ruled that the phrase "any other thing of value" was facially overbroad and vague in violation of due process of law. We now reverse the judgment and remand the case to the district court with directions to return the case to the county court for reinstatement of the charges and for further proceedings.

I.

The defendants in this case are Thomas Fuselier, the licensed owner of a tavern in Adams County, and his two employees, Marlene Becker and Dianne Johnson. The basic facts are undisputed. On March 26, 1985, Becker and Johnson solicited tavern patrons to buy them drinks of orange juice at the price of $6.00 per drink. Posted in the tavern on that date were signs which stated "the solicitation of alcoholic beverages is illegal" and "all girls' drinks are nonalcoholic."

Fuselier was charged with employing persons to solicit from tavern patrons the purchase of nonalcoholic drinks for the soliciting employees in violation of section 12-47-128(5)(l ), 5 C.R.S. (1985), and Becker and Johnson were charged with conspiracy to solicit from tavern patrons the purchase of these nonalcoholic drinks. On the date of the alleged offenses, section 12-47-128(5)(l ) of the Colorado Liquor Code provided as follows:

(5) It is unlawful for any person licensed to sell at retail pursuant to this article:

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* * *

(1) To employ or permit, if such person is licensed to sell alcoholic beverages for on-premises consumption or is the agent or manager of said licensee, any employee, waiter, waitress, entertainer, host, hostess, or agent of said licensee to solicit from patrons in any manner, for himself or herself or for any other employee, the purchase of any alcoholic beverage or any other thing of value. ¹

The three defendants filed motions to dismiss the charges, alleging that the phrase "any other thing of value" was facially overbroad and vague. ² The county court agreed and dismissed the charges. The prosecution appealed to the district court, which affirmed the county court's judgment of dismissal. The district court concluded that the phrase "any other thing of value" was facially overbroad because, in the court's view, it unreasonably infringed upon the fundamental rights of free speech and assembly. ³ The court also ruled that the phrase was facially vague because it provided neither sufficient notice of the prohibited conduct nor adequate standards for proper enforcement of the prohibition. We thereafter granted the People's petition for a writ of certiorari to review the judgment of the district court.

In addressing the issues of facial overbreadth and vagueness, we will follow the following analytical sequence adopted by the United States Supreme Court in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191-92, 71 L.Ed.2d 362 (1982), and previously followed by us in High Gear and Toke Shop v. Beacom, 689 P.2d 624, 628 (Colo.1984), namely: we will first determine whether the statutory proscription reaches such a substantial amount of constitutionally protected conduct as to suffer from an overbreadth infirmity; and, if the statute is not unconstitutionally overbroad, we will then examine the issue of facial vagueness.

II.

In determining that the phrase "any other thing of value" suffers from unconstitutional overbreadth, the district court was of the view that the challenged language encroached upon the fundamendal rights of speech and assembly in violation of due process of law. A brief restatement of the basic principles of the overbreadth doctrine will set the legal framework for our resolution of this issue.

A.

A statutory proscription suffers from constitutional overbreadth if, although ostensibly designed to punish activities that are not constitutionally protected, it threatens the existence of protected fundamental rights, such as free speech and assembly, by encompassing those protected activities within its prohibition, even though the same activities might have been properly punished under a more carefully drawn statute. See, e.g., Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo.1985); High Gear and Toke Shop, 689 P.2d 624. Because of the judicial recognition that the very existence of a statutory proscription infringing on rights of free speech or association may cause others not before the court to refrain from the exercise of those fundamental freedoms, expanded standing is accorded in overbreadth cases to permit a party to assert not only its own constitutionally protected interests but also the constitutionally protected rights of others. Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973); City of Englewood v. Hammes, 671 P.2d 947, 950 (Colo.1983); May v. People, 636 P.2d 672, 675 (Colo.1981). Due to the fundamental nature of the rights implicated by the overbreadth doctrine, a heightened level of scrutiny is involved in overbreadth analysis. When the overbreadth doctrine is applicable to a statutory prohibition, the proponent of the statute must establish that the prohibition is necessary to effectuate very significant governmental objectives and that less drastic alternatives would be unavailing. E.g., Shelton v. Tucker, 364 U.S. 479, 488-90, 81 S.Ct. 247, 252-53, 5 L.Ed.2d 231 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 463-66, 78 S.Ct. 1163, 1172-73, 2 L.Ed.2d 1488 (1958). When fundamental freedoms are not implicated by unconstitutional overbreadth, the statute will pass constitutional muster as long as it is reasonably related to a legitimate governmental interest. See, e.g., Village of Hoffman Estates, 455 U.S. at 494-97, 102 S.Ct. at 1191-92; People v. Pharr, 696 P.2d 235, 237 (Colo.1984).

The overbreadth doctrine is not without its limitations. While First Amendment freedoms are fundamental, they are neither absolute nor immune from all legislative restriction. See Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569, 75 L.Ed.2d 547 (1983); Prostrollo v. University of South Dakota, 507 F.2d 775, 781 (8th Cir.1974), cert. denied, 421 U.S. 952, 95 S.Ct. 1687, 44 L.Ed.2d 106 (1975). "States may sometimes proscribe expression that is directed to the accomplishment of an end that the State has declared to be illegal when such expression consists, in part, of 'conduct' or 'action.' " California v. LaRue, 409 U.S. 109, 117, 93 S.Ct. 390, 396, 34 L.Ed.2d 342 (1972). Thus, a statutory proscription directed at the regulation of conduct with a speech or associational component, rather than pure speech or association, will not be subject to overbreadth analysis unless the statute is initially determined to be "substantially overbroad." Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918; Hammes, 671 P.2d at 950. A further limitation on the overbreadth doctrine is its inapplicability to commercial speech. Village of Hoffman Estates, 455 U.S. at 497, 102 S.Ct. at 1192; High Gear and Toke Shop, 689 P.2d at 630. Although the line between commercial and noncommercial speech is not always easy to draw, we can say with fair assurance that commercial speech includes such activities as in-person solicitations for pecuniary gain. See Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 561, 100 S.Ct. 2343, 2348, 65 L.Ed.2d 341 (1980); Ohralik v. Ohio State Bar Association, 436 U.S. 447, 457-59, 98 S.Ct. 1912, 1919-20, 56 L.Ed.2d 444 (1978).

B.

These principles lead us to conclude that the phrase "any other thing of value" in section 12-47-128(5)(l ) is not facially overbroad. We initially note that the statutory proscription is clearly calculated to prohibit a licensed tavern operator and tavern employees from exploiting patrons of the establishment by inducing them to purchase alcoholic and nonalcoholic beverages and other things of value for any employee while the patrons are on the premises where alcoholic beverages are sold. To the extent that a speech or associational interest might be implicated by the application of the statute to solicitation activities, such interest is basically a by-product of the conduct involved in the solicitation activity. Any arguable restriction on speech or association, therefore, is an incidental burden at best and one that is constitutionally insufficient for purposes of triggering overbreadth analysis. See LaRue, 409 U.S. at 117, 93 S.Ct. at 396.

To the extent that any speech or associational interest might be encompassed by the statutory proscription, it is quite clear that interest involves only the economic benefit of the soliciting employee or other employee and thus is unquestionably commercial in character and outside the...