Three K. C. v. Richter

• Decision Date: 30 May 1979
• Docket Number: No. 61742,TWO-,INC,61742
• Citation: 279 N.W.2d 268
• Parties: THREE K. C., a corporation, and Ronald Bergeron, d/b/a the Bittersweet, Appellants, v. David E. RICHTER, County Attorney of Pottawattamie County, Iowa, Appellee., a corporation, d/b/a the Lusty Lady, Appellant, v. David E. RICHTER, County Attorney of Pottawattamie County, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 268

279 N.W.2d 268

THREE K. C., a corporation, and Ronald Bergeron, d/b/a the Bittersweet, Appellants, v. David E. RICHTER, County Attorney of Pottawattamie County, Iowa, Appellee.

TWO-R, INC., a corporation, d/b/a the Lusty Lady, Appellant, v. David E. RICHTER, County Attorney of Pottawattamie County, Iowa, Appellee.

No. 61742.

Supreme Court of Iowa.

May 30, 1979.

James A. Pratt and Robert C. Heithoff of Heithoff, Pratt & Heithoff, Council Bluffs, for appellants.

David E. Richter, Pottawattamie County Atty., pro se.

Considered en banc.

UHLENHOPP, Justice.

This appeal involves due process and equal protection attacks on a statute prohibiting nudity in establishments where liquor or beer is sold. The legislature provided in section 728.5, The Code 1979:

A holder of a liquor license or beer permit or any owner, manager, or person who exercises direct control over any licensed premises defined in section 123.3, subsection 31 shall be guilty of a serious misdemeanor under any of the following circumstances:

1. If such person allow or permit the actual or simulated public performance of any sex act upon or in such licensed premises.

2. If such person allow or permit the exposure of the genitals or buttocks or female breast of any person who acts as a waiter or waitress.

3. If such person allow or permit the exposure of the genitals or female breast nipple of any person who acts as an entertainer, whether or not the owner of the licensed premises in which the activity is performed employs or pays any compensation to such person to perform such activity.

4. If such person allow or permit any person to remain in or upon the licensed premises who exposes to public view his or her genitals, pubic hair, or anus.

5. If such person allow or permit the displaying of moving pictures, films, or pictures depicting any sex act or the display of the pubic hair, anus, or genitals upon or in such licensed premises.

6. If such person advertises that any activity prohibited by this section is allowed or permitted in such licensed premises.

Provided that the provisions of this section shall not apply to a theater, concert hall, art center, museum, or similar establishment which is primarily devoted to the arts or theatrical performances and any of the circumstances contained in this section were permitted or allowed as part of such art exhibits or performances.

Plaintiff corporations and Ronald Bergeron come within the prohibition of this statute with respect to their Bittersweet and Lusty Lady lounges in Council Bluffs, Iowa. They hold liquor licenses and beer permits for those premises, and prior to the instant proceedings they allowed exposure of the genitals and the female breast nipples by entertainers performing there. Some of these entertainers were paid professionals and others were amateurs competing for cash prizes on the basis of patrons' "applause." The Bittersweet also had feature performances.

The combination of nudity and alcohol made the lounges very profitable. Before section 728.5 was in effect, each lounge produced about $1000 per day; after the section went into effect on January 1, 1978, each lounge dropped to about $200 per day until plaintiffs obtained temporary injunctions prohibiting enforcement of the section. Under the record plaintiffs' claim is indisputable that live exhibitions of human female genitalia and mammae do much to stimulate customer attendance and alcoholic beverage sales. Plaintiff Bergeron testified:

Q. Do you feel, based upon the difference in revenue in January with the observing the law and before the injunction was issued, do you have an opinion as to the effect on your future business if this law is valid and enforced? A. It would have the opportunity of ruining the business.

On cross-examination Bergeron testified:

Q. Well, how do you account for the big impact if your business has gone downhill like you testified? The only difference being, as I recall, was that the nipples and the genitals had to be covered. What other reasons do you attribute this tremendous business loss to, for the few days in January that you were covered up? A. Well, you give them a total package. You're taking part of the total entertainment package out.

Q. But, according to your figures, Mr. Bergeron, it must be quite a party package, the nipples and genitals are a considerable part of your package of entertainment? A. Yes, they are.

Also:

Q. In the Lusty Lady, where there's not a feature show, you're basically selling nudeness and alcohol; right? A. Yes. And dancing. Go-go dancing with nudeness and alcohol.

Plaintiff Bergeron's conception of lewdness includes nudes squatting or bending forward with their backs to the patrons so as to display fully the vulva and anus. He testified that he warns and then fires entertainers who persist in such conduct, or who engage in prostitution or in use of dope. For example:

Well, there's been incidents where they have got on stage, and they were going to get vulgar, or did, and we fired them on the spot. Gave them a warning that we don't allow this. They did it twice, we just fired them right then and there and told them we didn't want their type of entertainment in our club. So forth, like this. This happened on many more than one occasion.

In addition, plaintiffs "bounce" over-aroused patrons. They maintain a bouncer, an individual of impressive physical prowess. ("Q. How big is Clyde? A. Oh, he's about six one or two, weighs about 280, 300 pounds.") Evidently plaintiffs actually try to confine their operation to the display of nudity and the sale of alcohol if such confinement is attainable in an enterprise dealing in that somewhat lethal mixture. Thus the night before the district court trial three men had to be ejected from one of the lounges, after which the men got into a fight and two of them "beat up" the third one. Again, an entertainer testified:

Q. Do you ever have a night, though, that somebody does try to hustle you? A. Oh, that's every night.

Q. Every night? How many times a night would you guess? A. Fifteen, twenty.

Another entertainer testified:

Q. Did you take any combs from the customer and comb your pubic hair with them? A. Do I have to answer that question?

The Court: Yes, you do, Ma'am.

Mr. Richter (county attorney): Q. Did you?

The witness: A. Yes.

Plaintiffs pay the professional entertainers varying hourly wages depending on the entertainers' abilities, personalities, and "endowments." Essentially the entertainers, professional and amateur, dance to music, move their bodies and hips, and disrobe.

Plaintiffs brought these actions for declaratory judgments holding that section 728.5 is invalid and for injunctions against its enforcement. In the district court they asserted several grounds for relief. After trial on the merits, the court held against them on all grounds, dissolved the temporary injunctions, and denied permanent injunctions. Plaintiffs appealed.

Plaintiffs confine their appeal to only two grounds, evidently endeavoring to avoid other issues on which we decided in favor of constitutionality in Wright v. Town of Huxley, 249 N.W.2d 672 (Iowa 1977).

I. Due Process. Both the United States Constitution and the Iowa Constitution guarantee that no person shall be deprived of "life, liberty, or property, without due process of law." U.S.Const. amend. XIV, § 1; Iowa Const. art. I, § 9. Under plaintiffs' first ground the question is whether section 728.5 deprives plaintiffs of liberty or property without due process. The section unquestionably deprives them of property substantial profits and so the issue is whether the deprivation is without due process of law. The critical point on this issue is that the section does not ban nudity itself; it bans nudity only in connection with dispensation of alcohol.

Traditionally, control of alcoholic beverages, including the manner and circumstances under which they may be dispensed, if at all, has been within the police power of the states. Crane v. Campbell, 245 U.S. 304, 307, 38 S.Ct. 98, 99, 62 L.Ed. 304, 309 (1917). There the United States Supreme Court stated:

It must now be regarded as settled that, on account of their well-known noxious qualities and the extraordinary evils shown by experience commonly to be consequent upon their use, a State has power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders without violating the guarantees of the Fourteenth Amendment. (Citations omitted.)

As the State has the power above indicated to prohibit, it may adopt such measures as are reasonably appropriate or needful to render exercise of that power effective. (Citations omitted.)

See also 45 Am.Jur.2d Intoxicating Liquors § 24, at 503 (1969) ("A state, in the exercise of its undoubted power to protect its people against the evils incident to traffic in and the use of intoxicants, may exercise large discretion as to the means employed."); 48 C.J.S. Intoxicating Liquors § 33, at 164 (1947) ("Under their inherent police power, the several states have the right to prohibit, regulate, or restrain the use, manufacture, and sale of intoxicants . . . .").

The Twenty-first Amendment to the United States Constitution states in section 2:

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Regarding that section, the United States Supreme Court stated in California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342, 349-50 (1972), Rehearing denied, 410 U.S. 948, 93 S.Ct. 1351, 35 L.Ed.2d 615 (1973):

While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment...