State v. Larson

• Decision Date: 10 April 1995
• Citation: 653 So.2d 1158
• Parties: 94-1237 La
• Court: Louisiana Supreme Court

Page 1158

653 So.2d 1158

94-1237 La. 4/10/95

STATE of Louisiana v. Blaine LARSON.

No. 94-KA-1237.

Supreme Court of Louisiana.

April 10, 1995.

John E. Di Giulio, Baton Rouge, for applicant.

Richard P. Ieyoub, Atty. Gen., Bernard E. Boudreaux, Dist. Atty., Walter J. Senette, Jr., Franklin, for respondent.

[94-1237 La. 1] LINDSAY, Justice Pro Tem. ¹

This is a direct appeal under La. Const. Art. V, Sec. 5(D) from a trial court judgment holding unconstitutional provisions of the Alcoholic Beverage Control Law, LSA-R.S. 26:90(A)(13) and (D)(3), which prohibit lewd dancing on licensed premises. For the following reasons, we find the statutory provisions at issue to be constitutional and, accordingly, reverse the judgment of the trial court.

Facts

On March 17, 1993, officers of the Terrebonne and St. Mary Parish narcotics units conducted an undercover investigation into narcotics, nude dancing, and B-drinking violations at the Foxy Lady Lounge in Morgan City, Louisiana. While inside the lounge, the officers observed dancers repeatedly exposing their vaginas, anuses, breasts, and nipples. Then, on May 20 and 21, 1993, an officer of the Morgan City Police Department was joined by two agents of the Alcoholic Beverage Control Board, who again observed dancers at the Foxy Lady Lounge [94-1237 La. 2] engaging in the identical conduct. The defendant, Blaine Larson, is the lessee of the premises upon which he operates the Foxy Lady Lounge, and was for 1993 the holder of a Class A Retail Beer and Liquor permit.

On June 22, 1993, the defendant was arrested. He was released on bail the next day. On September 23, 1993, the defendant was formally charged in a bill of information with three counts of Letting Prohibited Acts on Premises, LSA-R.S. 26:90(A)(13) and (D)(3). ² These provisions of the Louisiana Revised Statutes are found in the chapter pertaining to permits under the Alcoholic Beverage Control Law.

The defendant filed a Motion to Dismiss, asserting that LSA-R.S. 26:90(A)(13) and (D)(3) fail to set forth a scienter requirement. He contends that this missing element permitted a prosecution without a showing of criminal intent or culpable knowledge and thereby failed to give the defendant fair notice of the prohibited criminal conduct.

On March 25, 1994, the trial judge granted the defense motion, stating:

[T]he Court is satisfied that as presently constituted Title 26 Section 90 of the Louisiana Revised Statutes, insofar as ... it's presently structured it violates constitutional principles in that fairness requires that the matter be set out with some specificity that the conduct must be intentional or knowingly intentional to pass constitutional muster. For that reason we do find that Title 26 Section 90 as affects this particular case, that portion of it anyway, is unconstitutional. ³

The pertinent parts of LSA-R.S. 26:90 provide as follows:

[94-1237 La. 3] A. No person holding a retail dealer's permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:

....

(13) Permit any disturbance of the peace or obscenity, or any lewd, immoral, or improper entertainment, conduct, or practices on the licensed premises.

B. The following acts or conduct on licensed premises are deemed to constitute lewd, immoral, or improper entertainment as prohibited by this Section and therefore no on-sale permit for beverages of high alcoholic content shall be held at any premises where such conduct or acts are permitted:

(1) Employment or use of any person in the sale or service of alcoholic beverages 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 (1) of this Subsection.

(3) Encouraging or permitting any person on the licensed premises to touch, caress or fondle the breasts, buttocks, anus, or genitals of any other person.

(4) Permitting any employee or person to wear or use any device or covering, exposed to view, which simulates the breast, genitals, anus, pubic hair, or any portion thereof.

C. Acts or conduct on licensed premises in violation of this Section are deemed to constitute lewd, immoral or improper entertainment as prohibited by this Section and therefore no on-sale permit for beverages of high alcoholic content shall be held at any premises where such conduct and acts are permitted.

D. Live entertainment is permitted on any licensed premises, except that no permittee shall permit any person to perform acts of or acts which simulate:

[94-1237 La. 4] ....

(3) The displaying of the pubic hair, anus, vulva, genitals, or nipple of the female breast.

....

I. Violation of this Section is punishable as provided in R.S. 26:171 and is also sufficient cause for the suspension or revocation of a permit.

The penalty provision in LSA-R.S. 26:171 classifies the offense as a misdemeanor:

Whoever violates any provision of this Chapter or any rule or regulation of the commissioner, where no other penalty is provided for in this Chapter, shall be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned for not less than thirty days nor more than six months, or both.

Lack of Scienter

The defendant first maintains that LSA-R.S. 26:90(A)(13) and (D)(3) fail to require scienter or any form of criminal intent on the part of the person operating an establishment with an alcoholic beverage permit. Specifically, the defendant argues that the applicable provisions of LSA-R.S. 26:90 "fail to distinguish between owners of bars who are aware of the obscene conduct and owners of bars who are unaware of obscene conduct." The state replies that although there is a general rule that criminal statutes should contain a mens rea element, LSA-R.S. 26:90 is a public welfare, regulatory statute which does not require intent or knowledge to complete the offense.

This court has recognized that the existence of mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence. Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951); State [94-1237 La. 5] v. Brown, 389 So.2d 48 (La.1980). In support of this general principle, the United States Supreme Court has observed:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act ... has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."

Morissette v. United States, 342 U.S. 246, 250-251, 72 S.Ct. 240, 243-44, 96 L.Ed. 288 (1952).

While "strict liability" offenses are not favored, the Supreme Court has noted that Congress can dispense with the requirement of mens rea. Liparota v. United States, 471 U.S. 419, 424-25, 105 S.Ct. 2084, 2087-88, 85 L.Ed.2d 434 (1985). Furthermore, "[t]he [state] legislatures have always been allowed wide freedom to determine the extent to which moral culpability should be a prerequisite to conviction of a crime." Powell v. Texas, 392 U.S. 514, 545, 88 S.Ct. 2145, 2160, 20 L.Ed.2d 1254, 1274 (1968) (Black, J., concurring).

Under Louisiana law, not all statutes require scienter to be valid, nor is it necessary that knowledge be proven, for intent is not an element of every criminal offense. State v. Humphrey, 412 So.2d 507, 512 n. 3 (La.1981); State v. Terrell, 352 So.2d 220, 221 (La.1977).

LSA-R.S. 14:8(2) provides that criminal conduct may consist of a "mere act or failure to act that produces criminal consequences, where there is no requirement of criminal intent...." Furthermore, LSA-R.S. 14:11 provides that in some crimes [94-1237 La. 6] "no intent is required." Thus, intent is not a necessary element of every crime. Usually, a statute contains wording that specifies the requisite intent. However, LSA-R.S. 26:90(A)(13) and (D)(3) contain no language stating whether scienter is required.

As the United States Supreme Court noted in Morissette, supra, there is no bright line test to determine which crimes require a mental element and those that do not. 342 U.S. at 259-61, 72 S.Ct. at 248. However, there is one type of crime recognized by the courts which has been traditionally exempt from the mens rea requirement, the public welfare or regulatory offense. Id. at 251-54, 72 S.Ct. at 244-45. Such public welfare offenses have been recognized by the Supreme Court in limited circumstances. United States v. United States Gypsum Company, 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). The Supreme Court has noted that one category of public welfare offense is the illegal sale of intoxicating liquors, although it did not discuss this category in depth. Morissette, 342 U.S. at 262 n. 20, 72 S.Ct. at 249 n. 20 (citations omitted). In addition, the criminal penalties which attach to public welfare offenses are usually in the misdemeanor category because they are employed as the means of regulation. Morissette, 342 U.S. at 255-57, 72 S.Ct. at 246; United States v. Dotterweich, 320 U.S. 277,...