GLAA to Ambrose: Please Remove Section 905 of Proposed ABC Regulations
October 10, 2003
Chairperson Sharon Ambrose
Committee on Consumer and Regulatory Affairs
Council of the District of Columbia
1350 Pennsylvania Ave, NW
Washington, DC 20004
Dear Councilmember Ambrose:
The ABC Board has published proposed regulations in the
October 10, 2003 District Register. GLAA strongly objects to the inclusion of
Section 905 in the regulations.
As clearly stated by the ABC Board in their introduction,
“The purpose of the proposed rules is to implement conforming regulations to
carry out the provisions of D.C. Law 13-298, the Title 25, D.C. Code Enactment
and Related Amendments Act of 2001, which took effect on May 3, 2001.”
However, there is no section of the law which in any way
relates to Section 905.
905. PROHIBITED CONDUCT ON
LICENSED PREMISES 905.1 No holder of an alcoholic beverage license shall
require or permit any entertainer, employee, customer, or other person to do
any of the following on its premises:
(a) Perform acts of oral,
anal, or vaginal sexual intercourse, masturbation, or bestiality; or
(b) Fondle the breasts,
buttocks, anus, or genitals of any other person.
905.2 No holder of an
alcoholic beverage license shall permit any person who engages in any of the
acts prohibited by § 905.1 to remain on the licensed premises.
In addition to the improper inclusion of this regulation
over the Council’s intent in enacting the law, this section is on its face
unconstitutional in two ways.
First, most hotels in DC have liquor licenses for their
in house bars and restaurants. Each of these establishments would be required
to prohibit any guests from performing any of the listed sexual acts even in
their locked rooms. This is a clear violation of the constitutional right to
privacy as unequivocally established earlier this year by the U.S. Supreme
Court in Lawrence v. Texas.
The ABC Board is attempting through Section 905 to
re-criminalize sodomy and other completely legal and constitutionally
protected activities. DC’s community undertook a sustained campaign for 30
years to repeal the sodomy law led by Dr. Frank Kameny. This must not be
reversed in this obviously unconstitutional section.
Second, most of our theaters also have liquor licenses.
Plays and other live performances often call for the fondling of breasts or
buttocks of themselves or other actors. These performances are strictly
protected by the First Amendment of the U.S. Constitution. The very existence
of this section creates an impermissibly chilling effect on theater and other
live performances.
The job of the ABC board is to regulate the sale of
alcohol, not to enforce their own code of morality. We already have laws such
as Section 22-1312 Lewd, Indecent or Obscene Acts; Section 22-2201 Certain
Obscene Activities and Conduct Declared Unlawful; Section 22-2713
Prostitution, Pandering; and Section 22-3101 Sexual Performance Using Minors,
which more than adequately serve the purpose of regulating public and
commercial sex.
Section 905 is unnecessary, unconstitutional and at odds
with the stated purpose of the regulations to implement the law. The Council
should delete it in its entirety.
Sincerely,
Kevin Davis
President
Gay and Lesbian Activists Alliance of Washington, DC
P.O. Box 75265
Washington, DC 20013
cc: All Councilmembers
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