No. 90-264 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

CITY OF BILLINGS, Plaintiff and Respondent,

JIMMY LEE LAEDEKE, Defendant and Appellant.

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APPEAL FROM: District Court of theThirteenth Judicial District, In and for the County of Yellowstone, TheHonorable RobertW. Holmstrom,Judgepresiding.

COUNSEL OF RECORD: For Appellant: Robert L. Stephens, Stephens Law Firm, Billings, Montana For Respondent: Russell C. Fagg, City Attorney, Billings, Montana Hon. Marc Racicot, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana

..6.. Submitted: January 18, 1991 Decided: February 5, 1991 Filed: 

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### clerkChief Justice J. A. Turnage delivered the Opinion of the Court. Jimmy Lee Laedeke appeals an order of theThirteenth Judicial District, Yellowstone County, which upheld the constitutionality of 59 3-304(d) and (e), Billings, Montana City Code (BMCC), an ordinancebanning certain formsof nude and semi-nude dancing. The District Court upheld the constitutionality and found Laedeke guilty of violating the ordinance. We affirm. Laedeke raises the following issues: 1. Did the District Court err in finding that the City of Billings had authority to adopt regulatory ordinances for statelicensed retail liquor premises? 2. Did the District Court err in concluding that the municipal ordinancedid notviolate stateand federal constitutional provisions relatingto freedomof speech,freedomof expression, equal protection, due process, and vagueness and over-breadth?

FACTS AND PROCEDURE In 1987, Jimmy Lee Laedeke worked as a male revue dancer at the Club Carlin, d/b/a Big Daddy's, an establishment licensed by the state to sell alcoholic beverages, in Billings, Montana. As

a male revue dancer, Laedeke entertained the Club Carlin patrons by performing burlesque-type dance routines to music. Laedeke designed his own dance costumes,which consisted of various layers of clothing that he would progressively remove as his dance routines unfolded. 2Laedeke began oneofhisdance routinesdressed in a raincoat. Underneath his raincoat, Laedeke wore a bikini brief, equivalent to a speedo swimsuit, which was embellished with portrayals of Groucho Marx's nose,mustache and glasses on the front portion of the bikini. Underneath his 'tGroucho'l bikini, Laedeke wore two overlapping G-strings. A G-string, designed for a male, is a garment consisting of a pouch that covers the genital area with a narrow string attached to thepouch which runsup thebuttocks and attaches to a narrow belt worn around thewaist. Laedeke's top Gstring was of slightly larger proportions than the bottom Gstring. The arresting police officer testified that the smaller G-string's pouch barely covered Laedeke's genital area and its string was approximately one-eight inch wide. Laedeke would completehis routineby wearing only the smallerG-string. On the evening of November 6, 1987, the arresting police officer observed Laedeke while he was performing this particular dance routine. After viewing Laedeke's performance, the police officer left the Club Carlin to review relevant ordinances in connection to this performance. The police officer returned approximately one-half hour later and cited Laedeke with a violation of S 3-304, BMCC, which prohibits certain forms of nude and semi-nude dancing while Laedeke was again performing the same routine. Additionally, the arresting officer cited four other female performers that night, as well as the manager of the Club Carlin, forviolating 5 3-304, BMCC, and in one instance, 3-301,BMCC,which requires live entertainment to remain on a platform or within an exclusive area while performing. Legal proceedings originated in the City Court of Billings. On December 17, 1987, Laedeke and five co-defendants moved to dismiss the case based on the unconstitutionality of 55 3-301 and -304, BMCC. On February 8, 1988, the defendants were found guilty of violating 53-304, BMCC, and in one instance, 1 3-301, BMCC. The defendants appealed to District Court. On October 6, 1988, Laedeke consented to the withdrawal of Richard Stephens as his attorney and expressed his interest to represent himself pro

se. On October 20, 1988, the District Court, by stipulation, dismissed with prejudice the appeal of the remaining defendants and ordered their respectivebonds of $150.00 forfeited. Laedeke, however, continued his case, asserting the unconstitutionality of 5 3-304, BMCC. Following a trial on January 11, 1990, the District Court found that the City of Billings had the authority to enact 5 3- 304, BMCC, and that this ordinance was constitutional; the court also found Laedeke guilty of violating the ordinance, fined him $130.00, and assessed him a $20.00 court surcharge. From this decision, Laedeke further appeals.

STANDARD OF REVIEW A "legislative enactment1#is presumed to be constitutional and will be upheld on review except when proven to be unconstitu4tional beyond a reasonable doubt. Fallon County v. State (1988), 231Mont. 443, 445-46, 753 P.2d 338, 339-40 (citationsomitted).

ANALYSIS 1. Did the District Court err in finding that the City of Billings had authority to adopt regulatory ordinances for statelicensed retail liquor premises? Laedeke argues that §§ 3-304(d) and (e),BMCC,areunconstitutional based on state preemption of regulation of establishments state-licensed to sell alcoholic beverages under the Montana Alcoholic Beverage Code, 5 16-1-101 to 16-6-314, MCA. We disagree. Thepertinent language of theMontana Alcoholic BeverageCode, found under 5s 16-1-101(2) and -104,MCA, provides: It is hereby declared to be the policy of the state of Montana to effectuate and ensure the entire control of the manufacture, sale, and distribution of alcoholicbeverages within the state of Montana, as that term is defined in this code, subject to the authority of the state of Montana through the Montana department of revenue. The purpose and intent of this code are to prohibit transactions in alcoholic beverages which take place wholly within the state of Montana except under statecontrol as specificallyprovided by this code,and every section and provision of this code shall be construed accordingly. Sections 3-304 (d)and (e)

### , BMCC, provide: (d) Any owner,proprietor orperson in charge of an establishment in which alcoholic bever-ages are sold or dispensed, who knowingly permits any person to appear clothed, costumed, unclothed, or uncostumed in such a manner that the lower part of his/her torso, consisting of theprivate parts, orgenitalia, or anal cleft, or cleavage of thebuttocks, is not covered by a fully opaque material, or is so thinly covered as to appear uncovered, is guilty of a misdemeanor.

(e) Any personwho intentionally appears with private parts uncovered in an establishmentas in subsection (d), whether employed by the establishment or not, is guilty of a misdemeanor. The Montana Alcoholic Beverage Code grants the Department of Revenue LiquorDivisiontheauthority toregulate the llmanufacture, sale, and distribution of alcoholic beverages.I1 (Emphasisadded.) The Code, however, does not grant the Department the authority to regulate the conduct that may occur in establishments statelicensed to sell alcoholic beverages. Here, Laedekelsplace of employment, the Club Carlin, was a Billings establishment state-licensed to sell alcoholic beverages to its patrons. Accordingly, the Montana Alcoholic Beverage Code applies to the regulation of the sale of alcoholic beverages within the Club Carlin. Sections 3-304(d) and (e), BMCC, are ordinances banning certain forms of topless and bottomless dancing which may occur in Billings establishments state-licensed to sell alcoholicbeverages. Clearly, these ordinances innoway regulated the Club Carlin1ssale of alcoholic beverages to its patrons, but instead, regulated Laedekelsconduct that occurred in the Club Carlin. This is simply not a llliquor-salett case as found in Stateex rel. City of Libby v. Haswell (1966)

### , 147 Mont. 492, 414 P.2d 652, where we held that a city ordinance which granted a police court jurisdiction over the offense of selling beer to a minor under twenty-one years of age was invalid and preempted by the state. We therefore hold that the City of Billings had the authority to enact 55 3-304(d) and (e), BMCC, as the City of Billings was not preempted by the Montana Alcoholic Beverage Code to regulate conduct which may occur in state-licensed liquor establishments.

2. Did the District Court err in concluding that the municipal ordinancedidnot violate federaland stateconstitutionalprovisionsrelating to freedomof speech, freedomof expression, equal protection, due process, and vagueness and over-breadth? Laedeke argues that restricting burlesque-type dancing is a violation of the FirstAmendment of theUnited States Constitution,

aswell asArticle 2,5 7of theMontana Constitution,which states that I1[n]o law shall be passed impairing the freedom of speech or expressi~n.~~ Laedeke asserts that nude dancing, as a visual representation, is a form of protected expression if it is not found to be obscene citing 41 Op. Att'y Gen. 75 (1986), and here, uncontroverted evidence establishes that burlesque-type dancing featured at the Club Carlinwasviewed by theperformers as a form of artistic self-expression. Furthermore, Laedeke argues that noevidence exists in the record to establish that Laedekelsperformance was obscene. Laedeke additionally argues that the ordinance offends the principles of equal protection and due process inboth the federal and stateconstitutions. Laedeke furtherarguesthat theordinance isvague and overly-broad. Laedeke, however, failed to adequately brief the arguments of equal protection, due process, vagueness, and over-breadth in his brief to this Court, and, as such, this Court will not further address these arguments. We will therefore limit ourdiscussion towhether 1) theordinance violated the First Amendment of the United StatesConstitution,and 2) whether Article 2, § 7 of theMontana Constitution provides greater protection for individual expressive activity than the First Amendment of the United States Constitution. Laedekelsconstitutional argument based on a First Amendment violation lacks merit in light of a series of three United States Supreme Court cases. Those cases clearly establish that an ordinance regulating nude and semi-nude dancing is constitutional under the broad language of the Twenty-first Amendment of the United States Constitution, which grants the states the power to regulate the sale of liquor. In City of Newport v. Iacobucci

(1986), 479 U.S. 92, 107 S.Ct. 383, 93 L.Ed.2d 334, the Court upheld a Kentucky municipal ordinance, quite similar to the Billings ordinance in question, which banned certain forms of nude and semi-nude dancing inbars. The Court stated that the sweeping 8language of the Twenty-first Amendment confers to states the authority to ban nude and semi-nude dancing in establishments state-licensed to sell liquor "'as a part of its liquor license control program.'" Iacobucci, 479 U.S. at 95 (citationomitted). Additionally, the Court held that states may delegate this authority Itasthey see fit." Iacobucci,479U.S. at 96. TheCourt in Iacobucci cited New York State Liquor Authority v. Bellanca (1981), 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357, where the Court upheld a state statute banning nude dancing in bars. In Bellanca, the Court held that the state's interest of upholding order outweighed the interest of free expression under the First Amendment. Bellanca, 452 U.S. at 716-17. The Court in Iacobucci and Bellanca cited California 

### v. LaRue (1972), 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342, as authority, which upheld a state regulation banning nude dancing in bars holding that the TwentyfirstAmendment confersbroad powers "overpublic health, welfare, and morals.'' LaRue, 409 U.S. at 114. Therefore, a municipality may enact an ordinance regulating nude and semi-nude dancing if the state has delegated its regulatory authorityunder theTwenty-first Amendmenttothemunicipality. Here, the City of Billings is a municipality with selfgovernmentpowers. InMontana, amunicipalitywith self-government powers "mayexerciseanypower not prohibited by this constitution, law,or charter.It Mont. Const. Art. XI, 5 6. A Montana municipality with self-government powers is not expressly prohibited from 9regulating nude and semi-nude dancing in establishments statelicensed to sell liquor. Therefore, the City of Billings, a municipality with self-government powers, may enact an ordinance that regulates nude and semi-nude dancing under the broad regulatorypowers of the Twenty-firstAmendment. Laedeke further argues that Article 11, 5 7 of the Montana Constitution, the "freedom of speech or expression" clause, provides greater protection for individualexpressive activity than the First Amendment's ''freedom of speech" clause of the United States Constitution. In the past, this Court has discussed the First Amendment and its state counterpart without distinguishing between the two provisions. See Dorn v. Board of Trustees of Billings School District #2 (1983), 203 Mont. 136, 144-45, 661P.2d 426, 430-31. Several state courts,however, have developed state constitutional protections which limit state authority over nude entertainment apart fromtheTwenty-firstAmendment. Someof these courts haveheld that the state'spolice power, thoughpossibly not limited under the United States Constitution, is limited by the state constitution's free expressionprotections. SeeMickens v. City of Kodiak (Alaska 1982), 640 P.2d 818, 821; Bellanca v. New York State Liquor Authority (N.Y. 1981), 429 N.E.2d 765, 766; Harrisv. Entertainment Sys. Inc. (Ga. 1989), 386 S.E.2d 140, 142. We,however, concurwith the Florida Supreme Court's analysis in City of Daytona Beach v. Del Percio (Fla. 1985), 476 Sc).2d 197,203-04, where, in upholding a municipal ordinance banning certain forms of nude and semi-nude dancing, the court stated: Assuming thatFlorida's constitutionalprotection of nude barroom dancing is coextensive with the federal protections (andwe are not inclined to find a greater stateprotection in this instance), a municipality's inherent police power, exercised for the public health and welfare, may outweigh the minimal speech protection at stakehere. "The regulation of activitywhich has demonstrated a capacity to induce breaches of the peace is a traditional and legitimate subject for the exercise of a municipality's police power." [citations omitted.] 

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# . While some may question the wisdom of regulating crime suchas this,which said detractors might term victimless, the decision lies with the legislative body, not the courts. Here, we are also inclined not to find a greater state protection of nude and semi-nude dancing in establishments state-licensed to sell alcoholic beverages thanwhat isaffordedby theUnited States Constitution. Accordingly, we hold that the municipal ordinance in question is constitutionally sound under the Montana Constitution. Affirmed.



### " Chief JusticeWe concur:JusticeWilliam E. Hunt, Sr., dissenting:

Idissent. There are many ways to express an opinion. Some people wrap themselves in the flag. Others burn it. But the majority of us silently regard it as an emblem of the freedom to express ourselves aswe see fit. In dancing, there are many ways to express oneself,ways that the rest of us do not always regard

as "ourway.'' Some put on a pair of tights and perform classical ballet. Others attire themselves in fancy dress and promenade on a ballroom floor. Jimmy Lee Laedekedons a Groucho Marx bikini and two G-strings and prances before the patrons of The Club Carlin. The Majority has danced the wild fandango in its zeal to ensure that Laedeke's routine shall never again see the footlights of Billings. First, it holds that the City is not preempted by state liquor-control law fromenactinganordinance forbidding nude and semi-nudedancing in establishmentsthat serve alcoholbecause the ordinance restrains conduct rather than themanufacture, sale and distributionof alcohol. Inthenextbreath, itholds that the ordinance is constitutional under the Twenty-First Amendment because it is part of a liquor-controlprogram. The City cannot have it both ways. Either the ordinance was enacted as a part of a liquor-control program or itwasn't. If it

was part of a liquor-licensing scheme, the City could not enact the ordinance because the area of alcohol sales has been affirmatively subjected to state control. If it wasn't part of a liquor-controlprogram, and insteadwas enacted solely to regulateconduct, the ordinance does not fit under the broad base of power granted to the states under the Twenty-First Amendment. A state's authority to regulate conduct under the TwentyFirst Amendment is inextricably coupled with its authority to regulate the sale of alcohol. The amendment grants the State the ability toproscribe conductbecause "[tlhe [s]tatetspower to ban the sale of alcoholic beverages entirely includes the lesserpower to ban the sale of liquor on premises where topless dancing occurs." New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 717, 101 S.Ct. 2599, 2601, 69 L.Ed.2d 357, 361 (1981). Strip away the alcohol sales, as the Majority does in the first part of the Opinion, and you have an ordinance that no longer fits under the lesser protection of the Twenty-First Amendment. The ordinance instead becomes a conduct-restricting regulation subject to the greater degree of scrutiny given to all laws implicating the First Amendment. Thus, once theMajority determined that the City's ordinance

was not preempted by the Statebecause it regulated conduct rather than alcohol sales, itwasrequired toreviewtheconstitutionality of the law under the standardspertaining to regulations that, on their face, restrict conduct for its communicative element. As JusticeMarshallpointed out inhis dissent to Californiav. LaRue, 409 U.S. 109, 131, 138, 93 S.Ct. 390, 403, 407, 34 L.Ed.2d 342, 359, 363 (1972), a case concerning California laws banning sexual conduct in bars and night clubs: [I]n order to restrict speech, the Statemust show that the speech is "used in such circumstances and [is] ofsuch a nature as to create a clear and present danger that [it] will bring about the substantive evils that [the State]has a righttoprevent." (Citationsomitted.)

Classifications that discriminate against the exercise of constitutional rightsper se

# ...must be supported by a ttcompellingN governmental purpose and must be carefully examined to insure that the purpose is unrelated tomere hostility to the rightbeing asserted. The ordinance could not pass scrutinyunder this test because, as the City acknowledged in itsbrief, ithas failed tomake a showing of

## anv governmental interest furthered by the law. What I findmost disturbing about theMajority's thinlyveiled attempt to uphold this ordinance at any price is its failure to take this opportunity to put some teeth into our state constitutional guarantee of freedom of expression. 1972 Mont. Const. Art. 11, 5 7. Invoting unanimously to include a specific provision for the freedom of expression in the Montana Constitution, the Bill of Rights Committee stated: Hopefully,thisextension [offreedomofexpression] will provide impetus to the courts in Montana to rule on various forms of expression similar to the spoken word and the ways in which one expresses his unique personality in an effort to re-balance the seneral backseat status of states in the safesuardins of civil liberties. The committee wishes to stress the primacy of these suarantees in the hope that their enforcement will not continuemerely in thewake of the federal case 

# a. (Emphasisadded.) Bill of ~ights committee Proposal, I1Mont. Const. Convention 630 (Feb. 23, 1972). Although the committee expressed the hope that the Montana Constitution's freedom of expressionwould givebroader guarantees than theU.S. SupremeCourt had accorded the right, this Court hasrefused to listen to this desire. Instead, the Majority today bestows lesser protection to the freedom of expression than that accorded by the federal court. The Majority has not required the City to demonstrate any governmental interest forwarded by this ordinance. Instead, it has placed the burden of proving unconstitutionality on Laedeke. And the standard themajority has demanded that he use, that of a reasonable doubt, is the most stringent standard of all. What a sad day it is when we allow a law that on its face constricts so fundamental a right to pass muster under the lowest possible scrutiny available. The fact that Laedeke dances to a different choreographer should not be a reason to deny him, and inferentially all of us, thebasic constitutional rightto express our feelings whether they are about the flag, dancing or Groucho Marx. Iwould reverse. 

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