Opinion
May 25, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 914
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Chris J. Eliopulos, Sp. Asst., Atty. Gen., for plaintiff in error.
Alex Stephen Keller, Denver, for defendants in error.
COYTE, Judge.
This case was transferred from the Supreme Court pursuant to statute.
Pursuant to C.R.S.1963, 3--16--2, the State Licensing Authority issued Regulation 19(d) which reads as follows:
'(1) No person shall employ or permit upon any licensed on-sale premises, any employee, waitress, hostess, entertainer, or other person to solicit, beg, procure or encourage the purchase or sale of drinks or beverages, or to pay any such employee, waitress, hostess, entertainer, or other person a percentage or commission on the sale of such drinks or beverages.
'(2) The purpose and intent of the provisions of Section D is to prohibit and prevent the activities of B-Girls, or other persons, which are intended to exploit patrons and customers of licensed premises or designed to unduly increase the consumption of alcoholic beverages, or are unfair practices, or are unfair competition. It is not the intent of this regulation to prohibit the purchase of drinks by patrons on their own initiative or when asked by an owner, bartender, waiter, or waitress if they desire service.'
Prior to this regulation becoming effective, the defendants in error filed an action for declaratory judgment and permanent injunction to prevent the regulation from being enforced.
A hearing on the issue was held and the court found that the regulation was too sweeping in nature, and therefore void. It then issued a permanent injunction against its enforcement. Electing to stand on the regulation as written rather than to rewrite it, the State has brought an appeal.
The right of the State through the Director of Revenue to regulate the sale of liquor is not disputed, only the particular regulation is questioned here. It is urged that the true intent of this regulation is to prohibit the act of solicitation of drinks by so-called 'B-Girls.'
The inherent difficulty of the State's position is the terminology it selected when it wrote the regulation in question. The natural and unambiguous construction of this regulation would include any legitimate entertainer who might work at an establishment on a commission basis. It is axiomatic that the underlying purpose of such entertainment is to encourage patronage of the establishment and the consequent purchase of liquor which would naturally follow.
Although counsel for the State earnestly contends that such an effect is not intended, the clear, unmistakable wording of the regulation would be to include such activity. It is basic that where, as here, the State seeks to regulate activity, such regulations must be of sufficient clarity as to specify with precision what conduct is permissible, and what is prohibited. Memorial Trusts, Inc. v. Beery, 144 Colo. 448, 356 P.2d 884. If the State desires to prohibit females from mingling with the patrons and from personally encouraging the patrons to purchase liquor, in return for a set commission on the liquor actually purchased by that particular patron, then the regulation should be written so as not to prohibit the innocent conduct of ligitimate entertainers. We therefore conclude the trial court was correct in enjoining the enforcement of this regulation.
Judgment affirmed.
ENOCH and DUFFORD, JJ., concur.