STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

4245 CORPORATION, MOTHER'S ) LOUNGE, INC., AND CHEETAH III, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 76-1975RP

)

DIVISION OF BEVERAGE, )

)

Respondent. )

)

FINAL ORDER

This proceeding involves a challenge to a proposed rule of the Division of Beverage filed in accordance with Section 120.54(4) which states in part,

"(a) Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority."

APPEARANCES

For Petitioner: Sy Chadroff, Esquire

120 Biscayne Boulevard, North Suite 2804

Miami, Florida 33132

For Respondent: Charles F. Tunnicliff, Esquire

Department of Business Regulation Division of Beverage

725 South Bronough

Tallahassee Florida 32304

1. The Petitioners challenge a proposed rule of the State Division of Beverage captioned 7A-3.44, ENTERTAINERS ATTIRE AND CONDUCT. A copy of said rule is attached to this order as an appendix. Subsections 1 through 6 of the proposed rule deal with prohibitions of conduct which licensees are forbidden to permit. It is assumed the rule applies to activities on licensed premises although only Subsections 4, 5 and 6 specifically limit its prohibitions to the licensed premises.

   
   

2. In general, the rule prohibits lewd and lascivious behavior on the part of a licensee or his agents or employees. The rules further Prohibit nudity and the displaying of pictures or motion pictures which would depict acts prohibited by this rule. The Petitioners challenge the authority of the Division of Beverage to adopt such rules. They claim that the Division of Beverage is without the specific legislative authority to adopt any rules dealing with the

   behavior or activities that take place upon the premises of individuals licensed to deal with alcoholic beverages. The Department, on the other hand, maintains that it has been given the authority to adopt such rules by the legislature.

   Section 451.11(1), Florida Statutes, states:

   
   

   "The division shall have full power and authority to make, adopt, amend, or repeal rules, regulations, or administrative orders to carry out the purposes of the Beverage Law.

   All such rules, regulations, or orders adopted in accordance with chapter 120, shall have the full force and affect of law."

   
   

   The Division of Beverage claims that the above statutory authority gives it the right to adopt the rule in question. The above statute gives the Division of Beverage full authority to adopt rules to carry out the purposes of the Beverage Law. The parties waived the requirement of having this dispute go to a formal hearing and agreed to let this matter be decided on the basis of briefs submitted to this division. Also, the parties waived the time requirements for this type of hearing found in Section 120.54(4), F.S. If the proposed rule goes beyond the Division's rule making authority, then the rule must be declared to be invalid, for an agency can only adopt regulations which have been authorized by the legislature. Agencies have no inherent rule making authority and derive their rule making powers from legislative delegation. State v. Atlantic Coast Line R. Co., 47 So. 969; Louisville and N. R. Co. v. Railroad Commissioners, 58 So.543; State ex rel. Railroad Commissioners v. Florida East Coast R. Co., 59 So.385; Atlantic Coast Line R. Co. v. State, 143 So.255; Grissom v. Van Orsdel,

   137 So.2d 246; De Thorn v. Beck, 280 So.2d 448. An agency's rule making power is most often strictly construed and rules and regulations an agency wishes to adopt must have a reasonable relationship to the agency's statutory responsibility. The Division of Beverage is created in Section 561.02, F.S., which states:

   
   

   "There is created within the Department of Business Regulation the Division of Beverage, which shall supervise the conduct, manufacturing, packaging, distribution and sale within the state of all alcoholic beverages and shall enforce the provisions of the Beverage Law and rules and regulations of the division in connection therewith."

   
   

3. It is apparent that the proposed rule in question has been modeled off rules adopted by the California State Department of Alcoholic Beverage Control. Those rules were considered by the U.S. Supreme Court in the case of California

   v. LaRue, 409 U.S. 109 (1972)., The Supreme Court stated that the power of the state to regulate the sale of alcoholic beverages is broad enough to regulate what type of entertainment may be tolerated on licensed premises. For the purposes of this order it may be considered that the California rules considered by the Supreme Court in the LaRue decision are identical to those proposed by the Division of Beverage herein.

   
   

4. The LaRue decision considered a direct constitutional challenge to California's beverage rules. That court did not discuss whether the California Department of Alcoholic Beverage Control had legislative authority to adopt such rules. The Petitioners herein are challenging the division's authority to adopt such rules. The Division of Beverage has been given the authority to adopt

rules to carry out the purposes of the Beverage Law, and under the authority of the decision in LaRue there is a sufficient nexus between the sale of alcoholic beverages and the type of entertainment provided on licensed premises to permit such regulation. The key phrase in Section 561.02, F.S., gives the Division of Beverage the authority to supervise the conduct of the sale of alcoholic beverages. The only reasonable interpretation of that phrase is that the Division of Beverage may supervise all aspects of the sale of alcoholic beverages. Certainly the type of activity proscribed in the proposed rule is a part of the marketing of alcoholic beverages as it deals with the entertainment and attraction of customers to a licensed premise. While this Hearing Officer may agree with many of the points raised by the Petitioners that the above rule is unnecessarily vague and difficult to apply to an objective standard, the decision in the LaRue case, which is totally on point, puts those issued beyond the area of dispute.

It is therefore ORDERED that the Petition challenging the above rule is DENIED.

DONE and ENTERED this 16th day of March, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, DIRECTOR

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1977.

COPIES FURNISHED:

Sy Chadroff, Esquire

120 Biscayne Boulevard, North Suite 2804

Miami, Florida 33132

Charles F. Tunnicliff, Esquire Department of Business Regulation Division of Beverage

725 South Calhoun

Tallahassee, Florida 32304

Carroll Webb, Executive Director Administrative Procedure Committee Room 120, Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

403 East Gaines Street Tallahassee, Florida

Charles A. Nuzum, Director Division of Beverage

Department of Business Regulation Johns Building

Tallahassee, Florida 32304

APPENDIX

7A-3.44 ENTERTAINERS, ATTIRE AND CONDUCT

1. No license shall permit any person to perform acts of or acts which simulate:

   
   

   1. Sexual intercourse, masturbation, sodomy bestiality, oral copulation, flagellation

      or any sexual acts which are prohibited by law.

      
      

   2. The touching, caressing or fondling of the anus, vulva or genitals.

      
      

2. No licensee shall permit any person to use artificial devices or inanimate objects to depict any of the prohibited activities described above.

   
   

3. No licensee shall permit the displaying of films, still pictures, electronic reproduction or other visual reproduction depicting acts a live performance of which is prohibited by this rule.

   
   

4. The encouraging or permitting of any person on the licensed premises to touch, caress or fondle the breasts, buttocks, anus or genitals of any entertainer, employee, servant, or agent of the licensee is prohibited. The encouraging or permitting of any entertainer, employee, servant, or agent of the licensee by any such person to touch, caress, or fondle the breasts, buttocks, anus, or genitals of any other person on the licensed premises is prohibited.

   
   

5. It is prohibited to employ or use any person in or upon a licensed premises while such person is unclothed or in such attire, costume or clothing, as to expose to view any portion of the pubic hair, anus, vulva, or genitals.

(6). No entertainer, employee, servant or agent of the licensee, while not performing or entertaining as prescribed by this rule, shall mingle or perform services for or with patrons as any host, hostess, waiter, or waitress unless clothed as to cover from view the pubic hair, anus, vulva and' genitals.

1. The prohibitions contained in this rule are not intended to permit or encourage activities that are not otherwise permitted by the law or under local community standards.

   
   

2. If any provision of this rule or the application hereof to any person, or circumstances is held invalid, such invalidity shall not affect the other provisions or application of the rule which can be given effect without the invalid provision or application and, to this end, provisions of this, rule are severable.

Specific Authority 561.11 FS. Law Implemented 561.02, 561.07, 561.08, 561.11, 561.29(1)(a) F.S. History-New - -76.

Docket for Case No: 76-001975RP

Orders for Case No: 76-001975RP