DAR File No. 29898

Alcoholic Beverage Control, Administration

R81-1-25

Sexually-Oriented Entertainers and Stage Approvals

NOTICE OF PROPOSED RULE

DAR File No.: 29898
Filed: 04/30/2007, 11:56
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

With the passage of S.B. 205 by the 2007 Legislature, much of the language in this rule was transferred into statute. This amendment modifies the rule to accommodate for the new statutes. (DAR NOTE: S.B. 205 (2007) is found at Chapter 284, Laws of Utah 2007, and was effective 04/30/2007.)

Summary of the rule or change:

This proposed amendment substantially reduces the length and language of the sexually-oriented entertainers and stage approvals rule as it is now written. The amendment defines the terms "seminude" and "sexually-oriented entertainer", and designates that the rule applies to class D private clubs and taverns which are now the only licensed establishments allowed to have seminude or sexually-oriented entertainers.

State statutory or constitutional authorization for this rule:

Sections 32A-1-107 and 32A-1-603

Anticipated cost or savings to:

the state budget:

None--This rule amendment merely moves the regulations for seminude or sexually-oriented entertainment from rule to statute. There are no costs or savings involved in doing this.

local governments:

None--The regulations for seminude and sexually-oriented entertainment in this rule are enforced by the State and do not affect local governments.

other persons:

None--The regulations for seminude and sexually-oriented entertainment are not substantially changed except that this type of entertainment is now limited to class D private clubs and taverns and the bulk of the regulations are now found in statute. These changes have incurred no additional costs or savings for any other persons.

Compliance costs for affected persons:

None--The regulations for seminude and sexually-oriented entertainment are not substantially changed except that seminude or sexually-oriented entertainment is now limited to class D private clubs and taverns and the bulk of the regulations are now found in statute. These changes have incurred no additional compliance costs to licensees who choose to have this type of entertainment.

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

This rule is amended because most of its provisions are now in statute and no longer needed in rule. The department anticipates no fiscal impact on businesses as a result of this proposed amendment. 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 smackay@utah.gov

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:

06/14/2007

This rule may become effective on:

06/22/2007

Authorized by:

Kenneth F. Wynn, Director

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; 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)]32A-1-601 through -604 that prescribe the attire and conduct of sexually-oriented entertainers in premises regulated by the commission and require them to appear or perform only in a tavern or class D private club and only upon a stage or in a designated area approved by the commission in accordance with commission rule.

(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;

(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 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] establishes guidelines used by the commission to approve stages and designated performance areas in a tavern or class D private club where sexually-oriented entertainers may appear or perform in a state of seminudity.

(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.

(c) "Sexually-oriented entertainer" means any person 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.

(d) "Straddle dancing" means the use by any sexually-oriented entertainer of any part of his or her body to touch the genitals, pubic area, buttocks, anus or female breast of any other person. Conduct shall be "straddle dancing" regardless of whether the "touch" is direct or through 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".](a) "Seminude", "seminudity, or "state of seminudity"means a state of dress as defined in 32A-1-105(49).

(b) "Sexually-oriented entertainer" means a person defined in 32A-1-105(50).

(4) Application of Rule.

[(a) A licensee or permittee 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 and conduct of sexually-oriented entertainers in premises regulated by the commission.](a) A sexually-oriented entertainer may appear or perform seminude only on the premises of a tavern or class D private club.

(b) A tavern or class D private club licensee, or an employee, independent contractor, or agent of the licensee shall not allow:

(i) a sexually-oriented entertainer to appear or perform seminude except in compliance with the conditions and attire and conduct restrictions of 32A-1-602 and -603;

(ii) 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; and

(iii) a sexually-oriented entertainer to appear or perform seminude except on a stage or in a designated performance area that has been approved by the commission.

(c) Stage and designated performance area requirements.

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

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

(B) a current tavern or class D private club 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

(C) a current tavern or class D private club 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.

(ii) The commission may approve a stage or performance area where sexually-oriented entertainers may perform in a state of seminudity only if the stage or performance area:

(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;

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

(I) touching the sexually-oriented entertainer;

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

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

(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 and patrons that may be more restrictive than the requirements of Sections (4)(c)(i) and (ii) of this rule.

(iii) The person applying for approval of a stage or performance area 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 appear or perform;

(B) a copy of any applicable local ordinance relating to distance separation requirements between sexually-oriented entertainers and patrons; and

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

 

KEY: alcoholic beverages

Date of Enactment or Last Substantive Amendment: [March 30, ]2007

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(1)(a); 32A-4-203(1)(a); 32A-3-304(1)(a); 32A-4-307(1)(a); 32A-4-401(1)(a); 32A-5-103(1)(a); 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)