Misleh v. State

1990 OK CR 70, 799 P.2d 631, 1990 Okla. Crim. App. LEXIS 86, 1990 WL 154247
CourtCourt of Criminal Appeals of Oklahoma
DecidedOctober 10, 1990
DocketNo. M-89-691
StatusPublished
Cited by2 cases

This text of 1990 OK CR 70 (Misleh v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Misleh v. State, 1990 OK CR 70, 799 P.2d 631, 1990 Okla. Crim. App. LEXIS 86, 1990 WL 154247 (Okla. Ct. App. 1990).

Opinions

OPINION

LANE, Vice-Presiding Judge:

Edward Ameen Misleh, Appellant, was convicted after a bench trial for the crime of Allowing a Dancer to Expose a Breast in a Club Operating Under an Alcoholic Beverage Laws Enforcement License (37 O.S. Supp.1988, § 213.1) in Cleveland County District Court, Case No. M-88-2782. The trial court set punishment at a fine of three hundred dollars ($300.00) and court costs. Appellant raises three propositions of error, that the trial court erred in denying his demurrer, that 37 O.S.Supp.1988, § 213.1 is unconstitutionally overbroad, and that the trial court erred in overruling his motion to suppress statements which the police allegedly obtained in violation of Miranda. Finding no trial court error, and finding the statute constitutional, we affirm.

On September 27, 1988, at approximately 9:15 p.m., Norman police officers Francis Pasierb and Charles Daily made a routine bar check at Walter Mitty’s. The officers saw a female dancer on stage who appeared to be dancing bare-breasted. Officer Pasierb confronted the dancer after her performance and determined that the areo-la of her breasts were exposed, in violation of state law. Officer Daily located the appellant who stated he was “in charge”, near the front door of the bar. Approximately one week later the appellant was arrested and charged with this crime.

The appellant argues that in order to prove criminal liability under 37 O.S. Supp.1988, § 213.1 the State must prove that he knew the dancer was exposing herself. He asserts the State did not prove this element and thus, his demurrer to the evidence should have been granted. Appellant relies on Matter of Revocation of County Bev. License, 620 P.2d 395 (Okl.1980) to support his position.

In pertinent part 37 O.S.Supp.1988, § 213.1 provides:

No ... manager, or person having supervisory control of any establishment licensed to sell non-intoxicating beverages shall permit ...
3. Any person on the licensed premises while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the areola of the female breast ...

To determine whether knowledge is an element of the offense which must be [634]*634proven by the State we will follow the cardinal rule of statutory construction and look to the plain language of the statute. See Ledbetter v. Alcoholic Bev. Laws Enforcement, 764 P.2d 172, 179 (Okl.1988). The statute by its clear language places an affirmative duty on the manager or person having supervisory control of a licensed establishment not to permit the enumerated unlawful acts. Failure to perform this duty is the defined offense. In the present case the appellant was present in the bar in a place from which he could have seen the stage, and he did not perform his statutory duty. The appellant thereby committed the misdemeanor with which he was charged.

Appellant’s reliance on Matter of Revocation of County Bev. License is misplaced. In that case the Oklahoma Supreme Court looked to agency principles to determine whether the illegal acts of two employees of a private club, selling liquor by the drink, could be imputed to the license holder in order to revoke his beverage license. The Court held that the acts of the employees could be imputed to the license holder/employer only if the employees acted with his knowledge or consent. 620 P.2d at 397.

This reasoning does not support the appellant’s position. The acts of the dancer are not being imputed to the appellant, rather he is charged with failing to perform his own statutory duty. The State presented sufficient evidence to establish the elements of this crime, and the trial court properly denied Appellant’s demurrer.

Appellant next argues that 37 O.S. Supp.1988, § 213.1 is unconstitutionally overbroad. He claims that the statute could operate to prohibit speech protected by the First Amendment such as nude artistic performances in Oklahoma theaters licensed to sell 3.2 beer. He also argues that the statute sweeps too broadly because “current trends in summertime fashions” being what they are, the manager of an establishment, such as the 89er Stadium in Oklahoma City, could be exposed to liability for the revealing apparel worn by baseball fans.

Initially we find that although the appellant does not allege the statute was necessarily overbroad in order to apply to him, he has standing to raise this constitutional challenge. See NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830, 840 (1973). This exception to the usual rules governing standing has been explained by the Supreme Court:

We give a defendant standing to challenge a statute on grounds that it is facially overbroad, regardless of whether his own conduct could be regulated by a more narrowly drawn statute, because of the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application, (quotation and citation omitted).

Bigelow v. Virginia, 421 U.S. 809, 816, 95 S.Ct. 2222, 2230, 44 L.Ed.2d 600, 608 (1975).

There is no doubt at this time that the Fourteenth Amendment requires that state law may not erode the protections guaranteed by the First Amendment. See Bigelow, 421 U.S. at 811, 95 S.Ct. at 2227, 44 L.Ed.2d at 605 (1975). The Supreme Court has explained that a statute is unconstitutionally overbroad in the First Amendment context if it purports to reach protected as well as unprotected speech. See Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830, 840 (1973).

The appellant does not direct us to any authority which suggests that the wearing of revealing fashions by fans at a sporting event is constitutionally protected speech. Nor does he support his bald speculation that Section 213.1 would be applied to spectators at a sporting event. To have standing to assert the claim of the stadium manager, the appellant must show more than allegations of a subjective “chill” to protected speech; there must be a claim of specific present objective harm or a threat of specific future harm. Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325-26, 33 L.Ed.2d 154, 166 (1972). As he fails to [635]*635show both that the possible exposure is protected speech or expressive conduct, and a specific or future harm, we find no merit to this portion of his argument.

The appellant properly recognizes that under the Twenty-first Amendment the State has the broad power to regulate the sale of alcoholic beverages, and that this power includes the authority to ban the sale of liquor on premises where topless dancing occurs. See New York State Liquor Authority v. Bellanca, 452 U.S. 714

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Cite This Page — Counsel Stack

Bluebook (online)
1990 OK CR 70, 799 P.2d 631, 1990 Okla. Crim. App. LEXIS 86, 1990 WL 154247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/misleh-v-state-oklacrimapp-1990.