La Rue v. State of California

Decision Date07 April 1971
Docket NumberCiv. No. 70-1751-F,70-1770-F and 70-1782-F.
Citation326 F. Supp. 348
CourtU.S. District Court — Central District of California
PartiesRobert LA RUE, dba the Buckit, et al., Plaintiffs, v. STATE OF CALIFORNIA, and Edward J. Kirby, Director of Alcoholic Beverage Control, Defendants. Don MacLEAN, dba the Scorpio, et al., Plaintiffs, v. The DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF the STATE OF CALIFORNIA, Defendant. Jerry D. JENNINGS, dba Sugar Shack, Erwin A. Rohm, dba Chee Chee, Raymond Rohm, dba Firehouse, Richard Carson and Robert A. Warner, dba Tuscan Room, Seemaygro, Inc., a California Corporation, dba Sarong Gals, Robert E. Poff, dba 1st King, Edward Grimes, dba the Circle, Harry J. Coleman dba Hi Dollie and Everett L. Butts, dba the Worlock, Plaintiffs, v. Edward J. KIRBY, Director of the Department of Alcoholic Beverage Control of the State of California, John J. Canney, Assistant Director of the Department of Alcoholic Beverage Control of the State of California, John A. Kelly, Orange County District Administrator of the Department of Alcoholic Beverage Control of the State of California, James F. Meehan, Long Beach District Administrator of the Department of Alcoholic Beverage Control of the State of California, Kermit Q. Greene, Crenshaw District Administrator of the Department of Alcoholic Beverage Control of the State of California, Defendants.

Harrison W. Hertzberg, Los Angeles, Cal., for Robert LaRue, dba The Buckit and others.

Warren I. Wolfe, Donald J. Boss, Los Angeles, Cal., for Don MacLean dba The Scorpio and others.

Berrien E. Moore, Kenneth Scholtz, Gardena, Cal., for Jerry D. Jennings dba Sugar Shack and others.

Evelle J. Younger, Atty. Gen., Los Angeles, Cal., L. Stephen Porter, Deputy Atty. Gen., San Francisco, Cal., for defendants.

Before ELY, Circuit Judge, and GRAY and FERGUSON, District Judges.


FERGUSON, District Judge:

In 1967, the California Supreme Court, in an obscenity case, declared:

"The United States Supreme Court has wisely recognized that ultimately the public taste must determine that which is offensive to it and that which is not; a public taste that is sophisticated and mature will reject the offensive and the dull; it will in its own good sense discard the tawdry, and once having done so, the tawdry will disappear because its production and distribution will not be profitable.
Understandably, such maturity does not come quickly or easily, and, in a time when the strictures of Victorianism have been replaced by wide swings of extremism, it seems hopelessly remote." People v. Noroff, 67 Cal.2d 791, 796-797, 63 Cal.Rptr. 575, 579, 433 P.2d 479, 483 (1967).

After that statement by California's highest court, it is somewhat surprising that a federal district court four years later is called upon to determine whether a state administrative agency may require "fig leaves" to be worn by entertainers in California.

These three actions are brought pursuant to 28 U.S.C. §§ 1331, 1343, 2201 and 2202, and 42 U.S.C. § 1983, by various holders of California liquor licenses and dancers at licensed premises. A three-judge court was convened in accordance with 28 U.S.C. §§ 2281 and 2284. The actions seek to enjoin the enforcement of certain statewide rules adopted by the Department of Alcoholic Beverage Control and Edward J. Kirby, its director. The parties, by pre-trial stipulations and orders, have acknowledged proper jurisdiction and venue in this court.

Rules in Issue

The Department is established pursuant to Article 20, Section 22 of the California Constitution. That section provides in part:

"The Department of Alcoholic Beverage Control shall have the exclusive power, except as herein provided and in accordance with laws enacted by the Legislature, to license the manufacture, importation and sale of alcoholic beverages in this State, and to collect license fees or occupation taxes on account thereof. The department shall have the power, in its discretion, to deny, suspend or revoke any specific alcoholic beverages license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals, or that a person seeking or holding a license has violated any law prohibiting conduct involving moral turpitude."

That paragraph of the state constitution has been interpreted to reject the contention of the Department that its power over denial, suspension and revocation of liquor licenses is limitless and absolute. It was held that the Department's power over such matters is subject to reasonable legislative enactment. Kirby v. Alcoholic Beverage Control Appeals Board, 71 Cal.2d 1200, 81 Cal.Rptr. 241, 459 P.2d 657 (1969); Samson Market Co. v. Alcoholic Beverage Control Appeals Board, 71 Cal.2d 1215, 81 Cal.Rptr. 251, 459 P.2d 667 (1969); Big Boy Liquors, Ltd. v. Alcoholic Beverage Control Appeals Board, 71 Cal.2d 1226, 81 Cal.Rptr. 258, 459 P.2d 674 (1969).

The Department adopted Rules 143.2, 143.3, 143.4 and 143.5, effective August 10, 1970. The Rules, which are set forth in Appendix A, state generally that certain entertainment on premises licensed by the Department is contrary to public welfare and morals and no liquor licensed may be held at any establishment where such entertainment is permitted. In summary, they provide:

(1) 143.2—prohibits topless waitresses.
(2) 143.3—
(a) prohibits nude entertainers;
(b) regulates the content of entertainment;
(c) requires that certain entertainers perform on a stage.
(3) 143.4—regulates the content of movies.
(4) 143.5—prohibits any entertainment which violates a city or county ordinance.

The plaintiffs originally challenged all four Rules. However, at oral argument they withdrew their objections in these actions to the Rules which (1) prohibit topless waitresses, (2) permit local regulations, and (3) require certain entertainers to be on a stage. The plaintiffs thus concede that topless waitresses are not within the protection of the First Amendment; that local ordinances must be independently challenged depending upon their content; and that the requirement that certain entertainers must dance on a stage is not invalid.

The court is, therefore, required to determine (1) whether Rule 143.4, which regulates the content of movies, is unconstitutional, and (2) whether those portions of Rule 143.3 which regulate the content of live entertainment are prohibited by the First, Fifth and Fourteenth Amendments.

Doctrine of Abstention

Prior to the determination of the merits of the litigation, it must be determined whether this court should stay its hand pending state court determination. In Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (Jan. 19, 1971), the Supreme Court invalidated a state law relating to liquor matters due to constitutional infirmities. Under ordinary circumstances, this court might have adopted the reasoning of Mr. Justice Black in his dissenting opinion, when he stated: "I believe it is unfair to Wisconsin to permit its courts to be denied the opportunity of confining this law within its proper limits if it could be shown that there are other state law provisions that could provide such boundaries." 400 U.S. at 444, 91 S.Ct. at 513.

However, certain of the plaintiffs in this action have been to state court on many occasions to challenge the Rules, but the state courts have refused to assume jurisdiction over their complaints. The California Attorney General has requested the state courts to assume jurisdiction over the litigation presented here, but, rejecting that request, the state courts have refused. The Attorney General, furthermore, has asked that this court not abstain but decide the merits of the litigation.

It, therefore, appears that the doctrine of abstention should not be applied, and this court has the obligation to decide another state obscenity case before the state courts have ruled.1 However, in order to place the litigation in proper focus, a discussion of the obscenity laws as pronounced by the California Supreme Court, as well as the United States Supreme Court, is necessary.


In 1965, a dancer in a California nightclub danced with her breasts exposed. The California Supreme Court, in In re Giannini, 69 Cal.2d 563, 72 Cal. Rptr. 655, 661, 446 P.2d 535, 541 (1968), held that she could not be convicted of either lewd conduct or indecent exposure in the absence of proof that her dance was obscene. The court stated:

"Nor can we accept the prosecution's sweeping argument that `standards required of an obscenity prosecution are inapplicable in this case' because the `conduct standing alone is clearly unlawful' and does not become lawful `because it is engaged in during an activity' which would be afforded First and Fourteenth Amendment protections. Petitioner's apparent `unlawful conduct' consisted of the baring of her breasts; the thrust of the argument presumably is that since such conduct could not be lawfully engaged in at any place and any time and under any and all circumstances it is not entitled to constitutional protection when performed in the different context of a theatrical performance.
"The conduct here of course took place during a theatrical performance of a dance before an audience. We have previously explained that such a dance enjoys constitutional protection. The proper issue here therefore turns on whether the alleged unlawful conduct, which is inextricably a part of the dance, forfeits constitutional protection because of its alleged obscene nature.
"To isolate the questioned conduct and to judge it in an entirely different context would be to distort the nature of this case. By fictitiously changing the manner and place of its performance the prosecution would make the conduct criminal although in the actual manner and place of its performance the conduct should be tested by constitutional standards.
"Thus acts which are unlawful in a different context,

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