A Legal Victory for Topless Bars

In a Corona case that could affect topless bars throughout California, a state appeals board has ruled that a Department of Alcoholic Beverage Control regulation restricting topless dancing infringes on the dancers’ constitutional rights.

The decision could make it more difficult for the department to suspend or revoke licenses of topless bars.

The Alcoholic Beverage Control Appeals Board decided that the regulation, forbidding women from touching parts of their bodies while dancing topless, violated the 1st Amendment. In a decision made public this week, panel members wrote that the regulation infringed on the rights of expression of Angels Sports Bar owner Renee Vicary and her dancers.

The decision means the department can no longer discipline a licensed bar for permitting certain conduct by topless dancers unless that dancing is considered lewd or obscene. The board considers such issues separately.

Vicary’s attorney, Roger Jon Diamond, called the Aug. 16 ruling a victory for topless cabarets throughout the state.

“It’s a weapon in the arsenal to stop the onslaught against protected speech,” said Diamond, who frequently represents adult entertainment clubs. “It will make it much more difficult for cities to try to go after these clubs because it says that this kind of conduct is protected by the 1st Amendment.”

Department May Appeal the Ruling

Diamond added that bars no longer have to be worried about the ABC taking away their licenses if their dancers touch themselves while dancing.

The Department of Alcoholic Beverage Control has until next month to decide whether to ask the state appellate court to review the case.

“The ball is in our court,” said department spokesman Carl DeWing. “We are just reviewing our options to decide whether we intend to basically appeal.”

He declined to comment specifically on the ruling.

Loyola law professor Karl Manheim said the ruling will affect the department, but its effect on cities depends on how much they use the ABC to “enforce their moral standards.”

Cities trying to shut down topless and nude clubs sometimes call the department to report possible violations.

Some city councils pass their own ordinances--ranging from zoning regulations to rules prohibiting physical contact between dancers and patrons--in an attempt to shut down bars, Manheim said.

Such measure are often too restrictive to hold up in court. “There is a tendency of cities to go too far and try to regulate more than they constitutionally can,” he said. “That’s when they get into trouble.”

Manheim said California courts that are asked to make rulings on the constitutionality of city ordinances will probably not pay that much attention to the appeals board ruling.

Vicary has run Angels Sports Bar in Corona since 1992 and has provided topless dancing since 1996, according to legal papers in the case.

State regulations prohibit bars from serving alcohol if they offer nude dancing. But bars such as Vicary’s can serve alcohol if their dancers are topless and follow ABC regulations.

In 1999, department agents reported that seven women dancers had violated one of those regulations: a rule prohibiting dancers from touching, caressing or fondling themselves. The rule says those actions are “deemed contrary to public welfare and morals.”

‘Expressive Element of the Dance’

In response to the reports, an administrative law judge in February 2000 suspended Vicary’s license to sell alcohol.

Vicary appealed the decision to the board, which is made up of members appointed by the governor. The appeals board determined that the dancers’ actions were part of the “expressive element of the dance.”

Peter Eliasberg, an ACLU staff attorney who has fought the ABC in a previous case, said he believes the department should not be worrying about what dancers are doing.

“The ABC should be in the business of regulating alcohol,” he said. “They shouldn’t go beyond that.”