People v. Lowrie

• Decision Date: 19 September 1988
• Docket Number: No. 87SC74,87SC74
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Roxanne E. LOWRIE, Respondent.
• Court: Colorado Supreme Court

Page 778

761 P.2d 778

The PEOPLE of the State of Colorado, Petitioner, v. Roxanne E. LOWRIE, Respondent.

No. 87SC74.

Supreme Court of Colorado,

En Banc.

Sept. 19, 1988.

Barney Iuppa, Dist. Atty., Jeanne S. Smith, Chief Deputy Dist. Atty., Colorado Springs, for petitioner.

Dennis W. Hartley, P.C., Dennis W. Hartley, Colorado Springs, for respondent.

QUINN, Chief Justice.

The question in this case is whether the General Assembly has impermissibly delegated legislative authority to the Director of the Department of Revenue (Director), as the state licensing authority for licenses issued under the Colorado Liquor Code, to promulgate rules and regulations pertaining to a tavern licensee's sale of alcoholic beverages for on-premises consumption by customers, the violations of which constitute criminal conduct. We granted certiorari to review a judgment of the District Court of El Paso County, which affirmed the county court's dismissal of criminal charges brought against Roxanne E. Lowrie, the licensed owner of a tavern in Colorado Springs, for violating a regulation promulgated by the Director of the Department of Revenue. In affirming the judgment of dismissal, the district court ruled that the General Assembly had unconstitutionally delegated to the Director of the department the legislative authority to define those acts that constitute criminal conduct. We now reverse the judgment and remand the case for further proceedings.

I.

The Colorado Liquor Code, §§ 12-47-101 to -144, 5 C.R.S. (1985 & 1987 Supp.), provides for the issuance of a tavern license to persons selling alcoholic beverages to customers for on-premises consumption. § 12-47-119.5(1), 5 C.R.S. (1985). The Executive Director of the Department of Revenue, or the Deputy Director if the Director so authorizes, is designated as the state licensing authority for the Colorado Liquor Code. § 12-47-103(27), 5 C.R.S. (1985). The Liquor Code authorizes the Director to make such rules and regulations as necessary for the proper regulation and control of the sale of alcoholic beverages and for the enforcement of the liquor laws. § 12-47-105(1)(b), 5 C.R.S. (1985). All such rules and regulations must be "reasonable and just," § 12-47-105(2)(a), 5 C.R.S. (1985), and may cover such subjects as "practices unduly designed to increase the consumption of alcoholic beverages," "standards of cleanliness, orderliness, and decency," and "such other matters as are necessary for the fair, impartial, stringent, and comprehensive administration" of the liquor laws. Id. Section 12-47-130(1)(a), 5 C.R.S. (1985), states, in pertinent part, as follows:

Any person violating any of the provisions of this article or any of the rules and regulations authorized and adopted pursuant to it is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five thousand dollars for each offense, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.

The Director, acting pursuant to his statutory rulemaking authority, adopted regulation 47-105.1, 1 Code Colo.Reg. 203-2 (1979), which is entitled "Conduct of Establishment" and provides in pertinent part as follows:

A. Orderliness, Loitering, Serving of Intoxicated Persons.

Each person licensed under this Article shall conduct his licensed premises in a decent, orderly and respectable manner, and shall not permit on his licensed premises the serving or loitering of an apparently intoxicated person or habitual drunkard, nor shall he permit profanity, rowdiness, undue noise, or other disturbances or activity offensive to the senses of the average citizen, or to the residents of the neighborhood in which the licensed establishment is located. B. Attire and Conduct of Employees and Patrons.

No person licensed under this Article shall engage in or permit the following:

1. Employment or use of any person in the sale or service of alcoholic liquor in or upon the licensed premises while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals.

2. Employment or use of the services of any hostess or other person to mingle with the patrons while such hostess or other person is unclothed or in such attire, costume or clothing as described in paragraph No. (1) above.

3. Any person on the licensed premises touching, caressing, or fondling the breasts, buttocks, anus or genitals of any other person.

4. Any employee or person on the licensed premises wearing or using any device or covering, exposed to view, which simulates the breasts, genitals, anus, pubic hair or any portion thereof.

C. Entertainment.

Live entertainment is permitted on any licensed premises, except that:

1. No person licensed under this Article shall permit any person to perform acts of or acts which simulate:

(a) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.

(b) The touching, caressing or fondling of the breast, buttocks, anus or genitals.

(c) The displaying of the pubic hair, anus, vulva or genitals.

2. No licensee shall permit any person to use artificial devices or inanimate objects to depict any of the prohibited activities described above.

3. No licensee shall permit any person to remain in or upon the licensed premises who exposes to public view any portion of his or her genitals or anus.

Roxanne E. Lowrie is the owner of PT's Nightclub, a licensed tavern in Colorado Springs in which topless dancing is offered as entertainment. Lowrie was charged by summons and complaint in the El Paso County Court with fifty-four misdemeanor counts of violating Regulation 47-105.1. The charges were based on undercover police officers' observations of various activities by employees at the tavern on several evenings in December 1985. Each summons and complaint listed the source of the charge as section 12-47-130 and Regulation 47-105.1, and then contained a brief description of the offense, of which the following are examples:

Employee of establishment served a visibly intoxicated patron an alcoholic beverage.

An employee (dancer) touched her bare breasts during her dance routine.

An employee (dancer) wore a G-string that exposed her pubic hair.

Lowrie moved to dismiss the charges filed against her, claiming that the Colorado Liquor Code unconstitutionally delegates to the Director of the Department of Revenue legislative authority to define criminal conduct. The county court granted Lowrie's motion to dismiss, and the People appealed the order of dismissal to the district court. In affirming the judgment of dismissal, the district court ruled that the Colorado Liquor Code unconstitutionally delegated to the Department of Revenue the legislative authority to determine what particular acts constitute a criminal offense and that Regulation 47-105.1 was constitutionally invalid as an unlawful exercise of legislative authority by the Director.

We granted the People's petition for certiorari to consider whether sections 12-47-105(1)(b) and 12-47-130 of the Colorado Liquor Code unconstitutionally delegate to the Director of the Department of Revenue legislative authority to define criminal conduct.

II.

The Colorado Constitution divides the powers of government into three distinct departments--the legislative, executive, and judicial--and provides that no persons or collections of persons charged with the exercise of powers belonging to one of these departments shall exercise any power properly belonging to either of the others, except as expressly directed or permitted by the constitution. Colo. Const. art. III. The legislative power of the state is vested in the General Assembly "consisting of a senate and house of representatives, both to be elected by the people...." Colo. Const. art. V., § 1. The nondelegation doctrine, which has its source in the constitutional separation of powers, prohibits the General Assembly from delegating its legislative power to some other agency or person. E.g., People v. Peterson, 734 P.2d 118 (Colo.1987); People v. Lepik, 629 P.2d 1080 (Colo.1981); Swisher v. Brown, 157 Colo. 378, 402 P.2d 621 (1965).

This is not to say that the General Assembly may not delegate rulemaking authority to an administrative agency. Although the power to legislate implies that the General Assembly also has the responsibility not to delegate that power to someone else, the legislative department of government does not abdicate its lawmaking function "when it describes what job must be done, who must do it, and the scope of his authority." People v. Willson, 187 Colo. 141, 144, 528 P.2d 1315, 1316 (1974) (quoting Swisher, 157 Colo. at 388, 402 P.2d at 626). As long as the General Assembly establishes "a definite framework for the law's operation," it may properly delegate the details of rulemaking to an administrative agency to carry out that operation. Id. As our decisions recognize, it will often be impracticable for the General Assembly to fix rigid standards to guide agency action, particularly in situations involving exercise of the police power, without destroying the flexibility necessary to effectuate obvious legislative goals in dealing with complex economic and social problems. Swisher, 157 Colo. at 387-89, 402 P.2d at 626-27; see also Lloyd A. Fry Roofing Co. v. State Department of Health Air Pollution Variance Board, 179 Colo. 223, 228-29, 499 P.2d 1176, 1179 (1972); People ex rel. Dunbar v. Giordano, 173 Colo. 567, 571, 481 P.2d 415, 416 (1971).

The nondelegation doctrine is not merely concerned with the proper distribution of powers among the departments of government, but also looks to the protection of the public from the imposition of irrational rules created by non-elected officials. See generally ...