Salt Lake City v. Wood, 981670-CA.

• Decision Date: 04 November 1999
• Docket Number: No. 981670-CA.,981670-CA.
• Citation: 1999 Utah Ct. App. 323,991 P.2d 595
• Parties: SALT LAKE CITY, Plaintiff and Appellee, v. Jennifer K. WOOD, Defendant and Appellant.
• Court: Utah Court of Appeals

991 P.2d 595

1999 Utah Ct. App. 323

SALT LAKE CITY, Plaintiff and Appellee, v. Jennifer K. WOOD, Defendant and Appellant.

No. 981670-CA.

Court of Appeals of Utah.

November 4, 1999.

W. Andrew McCullough, Orem, for Appellant.

Don M. Wrye, Salt Lake City, for Appellee.

Before Judges BENCH, BILLINGS, and ORME.

OPINION

BENCH, Judge:

¶ 1 Appellant asserts that her misdemeanor conviction should be reversed because the trial court erred in concluding that section 5.28.030 of the Salt Lake City Code is constitutional. This ordinance makes it unlawful for any person to perform as a professional dancer, in specified establishments, without first obtaining a licence. Appellant contends that the ordinance is facially unconstitutional because it abridges freedom of expression in violation of the United States Constitution and the Utah Constitution. We affirm.

BACKGROUND

¶ 2 In November 1997, undercover police officers observed appellant, who was then eighteen years of age, dancing on stage at "Runway 69," an establishment licensed to serve liquor in Salt Lake City. Section 5.28.030 of the Salt Lake City Code provides that before performing in such establishments, professional dancers must first obtain a license. Other provisions of the ordinance require that the dancers be at least twenty-one years of age (as alcohol is served in such establishments), meet certain minimum costume coverage requirements, and have no physical contact with patrons while performing. Appellant was not licensed to dance, and was therefore cited for violating the license requirement.

¶ 3 At the trial court, appellant moved to dismiss the charge on the grounds that the ordinance violates the freedom of expression under both the First Amendment to the United States Constitution and Article I, Section 15 of the Utah Constitution. The trial court denied the motion to dismiss, held a bench trial, and found appellant guilty. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶ 4 The sole issue presented by appellant is whether section 5.28.030 of the Salt Lake City Code, requiring that professional dancers obtain a license before performing in certain establishments, such as "Runway 69," unconstitutionally abridges the freedom of expression. See U.S. Const. amend. I; Utah Const. art. I, § 15. We review a constitutional challenge to an ordinance for correctness, giving no deference to the trial court. See Town of Alta v. Ben Hame Corp., 836 P.2d 797, 800 (Utah Ct.App.1992).

ANALYSIS

A. Issues Not Before Us

¶ 5 Before addressing the only issue properly before us on appeal, we summarily reject some collateral issues mentioned by appellant in her appeal brief. At various places in her brief, appellant mentions constitutional principles such as vagueness, overbreadth, due process, equal protection, and prior restraint. She does not, however, develop any argument based upon these principles. Overbreadth, for example, is mentioned in passing, but is unaccompanied by argument, analysis, or citation to any authority. Notwithstanding the dissent's eagerness to address them, overbreadth and the other cursorily presented issues are not properly before this court, and we will not address them. See State v. Bishop, 753 P.2d 439, 450 (Utah 1988) (stating that "`a reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research'") (citation omitted); see also Walker v. U.S. Gen., Inc., 916 P.2d 903, 908 (Utah 1996) (declining to address issue when appellant's brief "wholly fail[s] to cite to the record or a single case in support of this contention"); Utah R.App. P. 24(a)(9) (providing that argument in brief "shall contain the contentions and reasons of the appellant with respect to the issues presented... with citations to the authorities, statutes, and parts of the record relied on").

¶ 6 Similarly, appellant mentions Article I, Section 15 of the Utah Constitution.¹ Appellant fails, however, to demonstrate that any additional or different protection is afforded under the Utah Constitution. Therefore, we decline to address her state constitutional arguments. See State v. Dudley, 847 P.2d 424, 426 (Utah Ct.App.1993) ("Mere allusion to state constitutional claims[,] unsupported by meaningful analysis, does not permit appellate review."); see also State v. Lafferty, 749 P.2d 1239, 1247 n. 5 (Utah 1988) (stating that party must make "an argument for different analysis under the state and federal constitutions").

B. Twenty-first Amendment

¶ 7 Appellant first argues that the license requirement cannot be justified as a regulation of alcoholic beverages under the Twenty-first Amendment to the United States Constitution.² We disagree. In making this argument, appellant incorrectly asserts that 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996), unequivocally overruled California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972).

¶ 8 In Liquormart, the State of Rhode Island had totally banned the publication or broadcasting of any price of an alcoholic beverage. The State argued that it had the right to do so under the Twenty-first Amendment, and that its power under the Twenty-first Amendment overrode any First Amendment rights of defendants. The State, in making this argument, relied on LaRue, which applied the Twenty-first Amendment to uphold a ban on sexual exhibitions in establishments licensed to serve alcohol. The Supreme Court, in Liquormart, distinguished LaRue and held the Rhode Island ban on liquor advertising to be unconstitutional under the First Amendment:

Without questioning the holding in LaRue, we now disavow its reasoning insofar as it relied on the Twenty-first Amendment. As we explained in a case decided more than a decade after LaRue, although the Twenty-first Amendment limits the effect of the dormant Commerce Clause on a State's regulatory power over the delivery or use of intoxicating beverages within its borders, "the Amendment does not license the States to ignore their obligations under other provisions of the Constitution." That general conclusion reflects our specific holdings that the Twenty-first Amendment does not in any way diminish the force of the Supremacy Clause, the Establishment Clause, or the Equal Protection Clause. We see no reason why the First Amendment should not also be included in that list. Accordingly, we now hold that the Twenty-first Amendment does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment.

Liquormart, 116 S.Ct. at 1514-15 (citations omitted).

¶ 9 Thus, rather than overruling LaRue, and thereby eviscerating the Twenty-first Amendment as a means of regulation when the First Amendment may also come into play, Liquormart simply establishes a hierarchy:

The Liquormart decision establishes the supremacy of the First Amendment in cases involving the Twenty-first Amendment right of states to regulate the sale of intoxicating liquor. The First Amendment, where implicated, trumps the authority of the State to regulate the sale of liquor under the Twenty-first Amendment.

DPR, Inc. v. City of Pittsburg, 24 Kan. App.2d 703, 953 P.2d 231, 238 (1998); see also Toy Box, Inc. v. Bay County, 989 F.Supp. 1183, 1184 (N.D.Fla.1997) (stating Liquormart did not overrule LaRue); Jott, Inc. v. Clinton Tp., 224 Mich.App. 513, 569 N.W.2d 841, 852 n. 6 (1997) (same).

We have no doubt that the City, acting under the Twenty-first Amendment, has very broad authority to exercise its police power regulating establishments selling alcoholic beverages. There seems to be little constitutional restraint against the exercise of that power. However, a very important restriction on the police power of the City under the Twenty-first Amendment is that the exercise of that power cannot violate rights granted to citizens under the First Amendment.... To the extent the City's exercise of the Twenty-first Amendment does not unduly interfere with rights protected by the First Amendment, it will be valid.

DPR, 953 P.2d at 238.

¶ 10 The ordinance in the instant case requires professional dancers to be at least twenty-one years of age before they can obtain a license to perform in an establishment that serves liquor. The Twenty-first Amendment authorizes the state to prohibit minors from working in, or even entering, establishments that serve liquor. See Salt Lake City v. Ronnenburg, 674 P.2d 128, 129 (Utah 1983) (holding that ordinance prohibiting presence of minors on premises where intoxicants were served is valid because "[t]he prohibited activity has a direct relation to the public's interest in regulating alcohol and protecting minors"). Moreover, ordinances requiring that professional dancers obtain a license are clearly permissible. "The [city's] interest in preventing the employment of minors as nude dancers is compelling. Requiring that all dancers be licensed directly serves this interest." D.C.R. Entertainment, Inc. v. Pierce County, 55 Wash.App. 505, 778 P.2d 1060, 1065 (1989); see also Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1060 (9th Cir.1986) (holding that state may require dancers to obtain license, and that such requirement serves valid governmental purposes); Ino Ino, Inc. v. City of Bellevue, 132 Wash.2d 103, 937 P.2d 154, 167 (1997) (stating that "licensing requirements advance several legitimate goals" such as protecting minors, assuring correct identification of dancers, and enabling effective law enforcement). Accordingly, we hold that the license requirement in the instant case is a valid regulation under the Twenty-first Amendment. This determination is not, however, the end of the inquiry. We must also determine, consistent with Liquormart, whether the license requirement violates the First Amendment.

C. First Amendment

¶ 11 "[D]ancing of the kind sought...