No. 28904: R81-1-25. Sexually-Oriented Entertainers and Stage Approvals

DAR File No.: 28904
Filed: 09/28/2006, 02:23
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

Based on public comments received and recommendations by individuals who are experienced in writing local ordinances regarding sexually-oriented entertainment, the following changes to the proposed rule amendment are proposed.

Summary of the rule or change:

The proposed changes to this rule amendment include language to clarify that the purpose of the rule amendment is, in part, to protect the public health, peace, safety, welfare, and morals. It also clearly defines the terms "licensee", "permittee", "semi-nude", "sexually-oriented entertainer", and "straddle dancing". The change amends and describes what will not be permitted in sexually-oriented entertainment on the licensees' premises and further clarifies requirements of stages where sexually-oriented entertainment takes place. (DAR NOTE: This change in proposed rule has been filed to make additional changes to a proposed amendment that was published in the August 15, 2006, issue of the Utah State Bulletin, on page 2. Underlining in the rule below indicates text that has been added since the publication of the proposed rule mentioned above; strike-out indicates text that has been deleted. You must view the change in proposed rule and the proposed amendment together to understand all of the changes that will be enforceable should the agency make this rule effective.)

State statutory or constitutional authorization for this rule:

Section 32A-1-107, and Subsections 32A-4-106(22), 32A-4-307(22), 32A-5-107(40), 32A-7-106(5), 32A-10-206(14), and 32A-10-306(5)

Anticipated cost or savings to:

the state budget:

None--Some businesses that hold alcoholic beverage licenses choose to have sexually-oriented entertainment on their premises. This proposed change to the rule amendment only defines pertinent terms and establishes what types of entertainment are not permitted. There will be no fees assessed or collected from licensees by the Department of Alcoholic Beverage Control as a result of the passage of this rule, and the state's budget will not be affected.

local governments:

None--Many local governments issue sexually-oriented business permits to alcoholic beverage licensees who choose to have sexually-oriented entertainment. Any costs or savings to local governments will be realized when the local permits are issued and not as a result of the passage and changes to this proposed rule amendment.

other persons:

None--The changes to this proposed rule merely define terms related to sexually-oriented entertainment and establish what conduct is not permitted by the performers for which licensees are responsible. The rule imposes no new fees and there will be no overall costs or savings to licensees as a result of the passage of this rule amendment.

Compliance costs for affected persons:

None--The changes to this proposed rule merely define terms related to sexually-oriented entertainment and establish what conduct is not permitted by the performers for which licensees are responsible. The rule imposes no new fees and there will be no costs or savings to licensees as a result of the passage of this rule amendment.

Comments by the department head on the fiscal impact the rule may have on businesses:

The changes to this proposed rule amendment are being proposed in large part in response to the public comments received. Most of the public comments came from individuals involved in the modeling business. It became clear that an obvious distinction must be drawn between those who model clothing and those who are involved in entertainment of a sexual nature. The commission has, therefore, proposed these changes to the proposed rule amendment to impose guidelines and restrictions where it is needed to protect public welfare and morals. Kenneth F. Wynn, Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Alcoholic Beverage Control
Administration
1625 S 900 W
SALT LAKE CITY UT 84104-1630

Direct questions regarding this rule to:

Sharon Mackay at the above address, by phone at 801-977-6800, by FAX at 801-977-6889, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/14/2006

This rule may become effective on:

11/22/2006

Authorized by:

Kenneth F. Wynn, Director

RULE TEXT

R81. Alcoholic Beverage Control, Administration.

R81-1. Scope, Definitions, and General Provisions.

R81-1-25. Sexually-Oriented Entertainers and Stage Approvals.

(1) Authority. This rule is pursuant to:

(a) the police powers of the state under 32A-1-103 to regulate the sale, service and consumption of alcoholic beverages in a manner that protects the public health, peace, safety, welfare, and morals;

(b) the commission's powers and duties under 32A-1-107 to prescribe the conduct and management of any premises upon which alcoholic beverages may be sold, consumed, served, or stored[. It is also pursuant to ]; and

(c) 32A-4-106(22), 32A-4-307(22), 32A-5-107(40), 32A-7-106(5), 32A-10-206(14), and 32A-10-306(5) that prescribe the attire and conduct of sexually-oriented entertainers in premises regulated by the commission and require [sexually-oriented entertainers to perform in premises regulated by the commission]them to perform only upon a stage or [at]in a designated area approved by the commission.

(2) Purpose. This rule:

(a) establishes reasonable and uniform guidelines governing the time, place and manner of operation of premises regulated by the commission that have sexually-oriented entertainers so as to reduce the adverse secondary effects that such premises have upon communities, and to protect the health, peace, safety, welfare, and morals of the residents of those communities;

(b) establishes guidelines used by the commission to approve stages or designated performance areas where sexually-oriented entertainers may perform[, and provides ];

(c) establishes guidelines for licensees and permittees to control the attire and conduct of sexually-oriented entertainers when the entertainers mingle with patrons or other persons[, or interact with other sexually-oriented entertainers] in premises regulated by the commission; and

(d) shall be construed to protect the governmental interests identified by this rule in a manner consistent with protections provided by the constitutions of the United States and the state of Utah.

(3) Definitions.

(a) "Licensee" or "permittee" means a retailer authorized by the commission to sell, serve, and allow consumption of alcoholic beverages on its premises regardless of whether the retailer also holds a locally-issued sexually-oriented business license.

(b) "Semi-nude" means a state of dress in which opaque attire, costume, or clothing covers no more than the nipple and areola of the female breast and the male or female genitals, pubic area, and anus, which covering of the genitals, pubic area, and anus is no narrower than four inches (4") wide in the front, five inches (5") wide in the back, and does not taper to less than one inch (1") wide at the narrowest point.

[(a)](c) "Sexually-oriented entertainer"[, for purposes of this rule,] means any person[, male or female, paid or unpaid, licensed or unlicensed, who dances, models, entertains or performs in a sexually provocative manner before patrons of a premises regulated by the commission through use or movement of their body, including but not limited to a dancer, stripper, model, mud or oil wrestler, and participant in a wet t-shirt or wet underwear contest.] who appears at or performs on behalf of or at the request of a licensee or permittee on a premises regulated by the commission on a contractual or voluntary basis, whether or not the person is designated an employee, independent contractor, agent, or otherwise of the licensee or permittee, for the entertainment of patrons, and who appears semi-nude.

[(b) "Licensee" or "permittee" means a retailer authorized by the commission to sell, serve, or allow consumption of alcoholic beverages on its premises regardless of whether the retailer also holds a locally-issued sexually-oriented business license.

(c) "Mingling", for purposes of this rule, means the circulating, mixing, contacting, or having close face-to-face conversation between sexually-oriented entertainers and patrons, regardless of whether physical contact is made, on that portion of a premises regulated by the commission that is used by patrons.

](d) "Straddle dancing"[, for purposes of this rule,] means the use by any sexually-oriented entertainer of any part of his or her body to touch the genitals, pubic [region]area, buttocks, anus or female breast of any [patron or any ]other person[, or the touching of the genitals, pubic region, buttock, anus or female breast of any person by a patron]. Conduct shall be "straddle dancing" regardless of whether the "touch" [or "touching" ]is direct or through [a costume, clothing, or covering]attire, costume, or clothing. "Straddle dancing", shall include but not be limited to conduct commonly referred to by the terms "lap dancing", "table dancing", and "face dancing".

(4) Application of Rule.

(a) A licensee or permittee [may permit a sexually-oriented entertainer to perform only on a stage or performance area that has first been approved by the commission.

(b) A licensee or permittee may not permit a sexually-oriented entertainer to engage in mingling, as defined in this rule, if the sexually-oriented entertainer is unclothed or in attire, costume, or clothing that exposes to view any portion of the female breast below the top of the areola or any portion of the pubic hair, anus, cleft of the buttocks, vulva, or genitals.

(c) A licensee or permittee may not permit a sexually-oriented entertainer, patron, or any other person engage in straddle dancing with another person in any premises regulated by the commission.

(d) A licensee or permittee may not permit a patron to be on the stage or performance area while a sexually-oriented entertainer is on the stage or performance area.

(e) ]shall not allow:

(i) a sexually-oriented entertainer to appear or perform except on a stage or in a performance area that complies with this rule, and has been approved by the commission;

(ii) a sexually-oriented entertainer, while in the portion of the premises used by patrons, to be dressed in other than opaque clothing which covers and conceals the entertainer's performance attire or costume from the top of the breast to the knee;

(iii) a sexually-oriented entertainer to engage in straddle dancing with another person on the premises;

(iv) a sexually-oriented entertainer to touch a patron during the entertainer's performance, or while the entertainer is dressed in performance attire or costume;

(v) a patron to be on the stage or in the performance area while a sexually-oriented entertainer is appearing or performing on the stage or in the performance area;

(vi) a patron to touch a sexually-oriented entertainer during the entertainer's performance, or while the entertainer is dressed in performance attire or costume; or

(vii) a patron to place money or any other object on or within the costume or the person of any sexually-oriented entertainer.

(b) Nothing herein precludes a local authority from being more restrictive with respect to attire[, costume, clothing, acts, or] and conduct of sexually-oriented entertainers in premises regulated by the commission.

[(f)](c) Stage requirements.

(i) The following shall submit for commission approval a floor-plan containing the location of any stage or performance area where sexually-oriented entertainers perform:

[(i)](A) an applicant for a license or permit from the commission who intends to have sexually-oriented entertainment on the premises;

[(ii)](B) a current licensee or permittee of the commission that did not have sexually-oriented entertainment on the premises when application was made for the license or permit, but now intends to have such entertainment on the premises; or

[(iii)](C) a current licensee or permittee of the commission that has sexually-oriented entertainment on the premises, but has not previously had the stage or performance area approved by the commission.

[(g)](ii) The commission may approve a stage or performance area where sexually-oriented entertainers may perform only if the stage or performance area:

[(i)](A) is horizontally separated from the portion of the premises on which patrons are allowed by a minimum of three (3) feet, which separation shall be delineated by a physical barrier or railing that is at least three (3) feet high from the floor;

[(ii)](B) is configured so as to preclude a patron from:

[(A)](I) touching the sexually-oriented entertainer;

[(B)](II) placing any money or object on or within the costume or [on] the person of any sexually-oriented entertainer;

[(iii)](III) is configured so as to preclude a sexually-oriented entertainer from touching a patron; and

[(iv)](IV) conforms to the requirements of any local ordinance of the jurisdiction where the premise is located relating to distance separation requirements between sexually-oriented entertainers[, as defined by this rule,] and patrons that may be more restrictive than the requirements of Sections [(4)(g)(i) through (iv)](4)(c)(i) and (ii) of this rule.

[(h)](iii) The person applying for approval of a stage[, platform, dance floor or] or performance area [approval ]shall submit with their application:

(A) a diagram, drawn to scale, of the premises of the business including the location of any stage or performance area where sexually-oriented entertainers or performers will perform;

(B) a copy of any applicable local ordinance relating to distance separation requirements between sexually-oriented entertainers[, as defined by this rule,] and patrons; and

(C) evidence of compliance with any such applicable local ordinance.

 

KEY: alcoholic beverages

Date of Enactment or Last Substantive Amendment: 2006

Notice of Continuation: August 31, 2006

Authorizing, and Implemented or Interpreted Law: 32A-1-107; 32A-1-119(5)(c); 32A-3-103(1)(a); 32A-4-103(1)(a); 32A-4-106(22); 32A-4-203(1)(a); 32A-4-304(1)(a); 32A-4-307(22); 32A-4-403(1)(a); 32A-5-103(1)(a); 32A-5-107(40); 32A-6-103(2)(a); 32A-7-103(2)(a); 32A-7-106(5); 32A-8-103(1)(a); 32A-8-503(1)(a); 32A-9-103(1)(a); 32A-10-203(1)(a); 32A-10-206(14); 32A-10-303(1)(a); 32A-10-306(5); 32A-11-103(1)(a)