Summary
rejecting liquor licensee's vagueness challenge to regulation prohibiting "lewd or indecent displays" where conduct triggering the violation involved "a woman fondling the penis of a male patron" at the licensee's liquor establishment
Summary of this case from People v. GravesOpinion
Keller & Dunievitz, Lionel Dunievitz, Denver, for plaintiff-appellant.
Max P. Zall, City Atty., Lloyd K. Shinsato, Asst. City Atty., Denver, for defendant-appellee.
COYTE, Judge.
Plaintiff appeals from a judgment of the trial court which upheld the decision of the Denver Director of Excise and Licenses ordering the suspension of plaintiff's liquor license. We affirm.
These proceedings were initiated when the Director issued to plaintiff a notice and order to show cause why its liquor license should not be suspended for violation of Regulation 19 B of the Rules and Regulations of the Executive Director of the Department of Revenue. That regulation reads as follows:
'Each licensee shall conduct his establishment in a decent, orderly and respectable manner, and shall not permit whthin or upon the licensed premises the loitering of habitual drunkards or intoxicated persons, lewd or indecent displays, profanity, rowdiness, undue noise, or other disturbance or activity offensive to the senses of the average citizen, or to the residents of the neighborhood in which the establishment is located.'
An officer of the Denver police department testified at the hearing that he observed a woman fondling the penis of a male patron in the licensee's liquor establishment. The involved woman testified that she was employed by plaintiff as a dancer. Following the hearing, the Director ruled that plaintiff was in violation of Regulation 19 B and ordered its license suspended for a period of six days. Pursuant to C.R.C.P. 106(a), plaintiff sought review of the Director's action in district court, which court, after a hearing, upheld the action of the Director. On appeal, plaintiff contends that the district court erred in its construction of the word 'permit', and that the regulation is too vague to be enforceable.
Plaintiff first contends that the word 'permit' in Regulation 19 B requires that it have actual knowledge of any violations and the evidence is insufficient to support a finding that it had such knowledge. We disagree.
In The Clown's Den, Inc. v. Canjar, Colo.App. 518 P.2d 957, we held that the term 'permit' does not require that the licensee have actual knowledge of the specific activities constituting a violation of Regulation 19 B. Here, it was established that the woman involved was an employee of plaintiff and her knowledge with respect to violations of Regulation 19 B is therefore imputed to plaintiff. Karidies v. Dept. of Alcoholic Beverage Control, 164 Cal.App.2d 549, 331 P.2d 145. The record supports the findings that plaintiff permitted the conduct which violates Regulation 19 B.
Plaintiff next contends that the regulation is void because it is unduly vague. We disagree.
A regulation must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. A regulation which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Memorial Trusts, Inc. v. Beery, 144 Colo. 448, 356 P.2d 884. We find no such vagueness here.
Acts and forms of lewdness constituted criminal offenses at common law. 50 Am.Jur.2d Lewdness, Indecency, and Obscenity s 1. We approve and adopt the statement of the court in State v. Evans, 73 Idaho 50, 245 P.2d 788, 'Lewd and lascivious are words in common use and the definitions indicate with reasonable certainty the kind and character of acts and conduct which the legislature intended to prohibit and punish, so that a person of ordinary understanding may know what conduct on his part is condemned.'
Accord, Lovelace v. Clark, 83 Ariz. 27, 315 P.2d 876.
The evidence in the instant case suports the finding of the Director that the conduct involved was of the type proscribed by Regulation 19 B, People v. 'Sarong Gals', 27 Cal.App.3d 46, 103 Cal.Rptr. 414; See Steinke v. Municipal Court, 2 Cal.App.3d 569, 82 Cal.Rptr. 789, and therefore the Director did not abuse his discretion in suspending plaintiff's license.
The judgment is affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.