Cocktail Fortune, Inc., Petitioner-Respondent v. Supervisor of Liquor Control, Respondent-Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Cocktail Fortune, Inc., Petitioner-Respondent v. Supervisor of Liquor Control, Respondent-Appellant. Case Number: 22020 Handdown Date: 11/13/1998 Appeal From: Circuit Court of Greene County, Hon. J. Miles Sweeney Counsel for Appellant: Kurt U. Schaefer Counsel for Respondent: Christopher J. Stark, Opinion Summary: None Citation: Opinion Author: Kenneth W. Shrum, Presiding Judge Opinion Vote: AFFIRMED. Barney, J., concurs; Garrison, C.J., dissents in separate opinion. Opinion: Missouri's Supervisor of Liquor Control ("Supervisor") appeals from a judgment of the Greene County Circuit Court regarding the liquor license of Cocktail Fortune, Inc. ("Licensee"). The trial court reversed a decision of the Missouri Administrative Hearing Commission ("AHC") that the license was "subject to discipline" because Licensee had permitted "lewd conduct" on its premises. The question presented is whether the phrase "simulated oral copulation" found in Supervisor's regulation, Section 11 CSR 70-2.130, is unconstitutionally vague, thus making that part of the regulation unenforceable. We answer "Yes." We affirm. Licensee operated the "Club Mercedes," a business establishment in Springfield, Missouri, where women danced for tips. It was licensed by the State of Missouri to serve retail liquor by the drink. In November 1992, Springfield policemen, acting undercover, visited Club Mercedes as part of a "random check" of all Springfield bars that had female dancers.

During one such visit, dancer "Angel" performed a "chair dance" for officer Gault. Before the dance started, dollar bills were positioned on Gault, including a bill that "was folded [lengthwise] and placed in the zipper flap area of [his] pants." As the dance progressed, Angel ended up on her knees in front of Gault and facing him. She then used her mouth to slowly remove the bill from the zippered area of Gault's trousers. During a later visit, officer Stockham asked for a chair dance and selected a dancer known as "Peaches" to perform. Four one-dollar bills were placed on Stockham, one of which was tucked under a belt at his waist. At one point during this dance Peaches stood in front of Stockham, facing him. She then slowly leaned over toward Stockham, put one hand "on top of his right leg," used her left hand to hold the dollar bill to "where it was out" at his waist, and then used her mouth to slowly pull the dollar bill from beneath his belt. Based on the reports by these Springfield policemen, Supervisor's agent ultimately filed a "Violation Report." This report charged that Licensee had twice violated "Regulation [11 CSR] 70-2.130(14)(A) Lewdness."(FN1) On November 4, 1993, Supervisor entered an order finding that Licensee had violated 11 CSR 70-2.130(14) and suspended the subject license for ten days. Licensee timely appealed from the Supervisor's order and sought a hearing before the AHC. The AHC held the hearing on April 7, 1994. On December 21, 1994, the AHC issued its findings of facts and conclusions of law in which it found, inter alia, that Angel's conduct with the dollar bill in officer Gault's pants' fly, "simulat[ed] fellatio." Likewise, the AHC found that Peaches had "simulat[ed] fellatio" in removing the dollar from officer Stockham's belt. The AHC's decision continued: "Although fellatio or cunnilingus are more widely used terms, we conclude that the Supervisor's use of the term 'oral copulation' means the same thing. 'Copulation' means in this context a 'a joining together or coupling; sexual union or intercourse.' THE RANDOM HOUSE DICTIONARY, 297 (Unabr. 1982). Thus, oral copulation is a sexual joining together at or near the mouth. Both dancers clearly intended to and did simulate fellatio, . . . a violation of paragraph (A)." The AHC also concluded that Licensee had permitted the conduct found to be violative of Supervisor's regulation; consequently, the license was found "subject to discipline." On January 10, 1995, Supervisor held an evidentiary hearing "to determine the appropriate disciplinary action." Supervisor then issued an order dated January 24, 1995, imposing a ten-day suspension of the subject license. Licensee filed a petition for review with the Circuit Court of Greene County. The trial court reversed the AHC's decision, saying: "[T]his court has consulted Webster's Third New International Dictionary and finds no reference to 'oral copulation.' Therefore, the regulation as it pertains to 'oral copulation' is vague and not enforceable." This appeal followed.

The Due Process Clause of the United States Constitution and Article I, Section 10 of Missouri's Constitution are the source of the void for vagueness doctrine.(FN2) This is succinctly explained in State v. Allen, 905 S.W.2d 874 (Mo.banc 1995): "'It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.' Due process requires that a statute give 'a person of ordinary intelligence fair notice that his contemplated conduct is forbidden . . . .' Due process also requires that a statute speak with sufficient specificity and provide sufficient standards to prevent arbitrary and discriminatory enforcement." Id. at 876-77[1-3] (citations omitted). Supervisor's single point maintains that the trial court erred when it concluded that the phase "oral copulation" as used in 11 CSR 70-2.130(14)(A) made the regulation too vague to enforce against Licensee.(FN3) Supervisor asserts that people of common intelligence are not required to guess at the meaning of the phrase "oral copulation." In developing this argument, Supervisor reasons: "Oral copulation is the combining of two specific terms;'oral,' meaning 'at, or near the mouth,' WEBSTER'S NEW WORLD DICTIONARY, 999 (2nd College Ed. 1980), and 'copulation,' meaning 'to unite, couple, . . . to have sexual intercourse.' Id. at 314. As if these two terms alone are not enough to paint an explicit enough definition of oral copulation for a person of common intelligence as a sex act involving the mouth and a sex organ, "sexual" is defined as "of . . . or involving . . . the organs of sex," Id. at 1305, and 'intercourse' is defined as 'the sexual joining of two individuals. . . .' Id. at 734. Accordingly, a person of normal intelligence should consider oral copulation to be the sexual joining of two individuals involving a sex organ and a mouth, i.e. cunnilingus or fellatio. 'Oral' and 'copulation' together clearly and definitely describe in a non-gender specific manner a class of sex act commonly known to the general public under a variety of slang terms." Words and phrases are to be taken in their ordinary and usual sense, Section 1.090, RSMo 1994, and "[t]hat meaning is generally derived from the dictionary." Abrams v. Ohio Pacific Express, 819 S.W.2d 338, 340[2] (Mo.banc 1991). Here, the AHC used a single definition of copulation found in the Random House Dictionary to conclude that oral copulation meant fellatio or cunnilingus and thus Licensee had violated Supervisor's regulation by simulating such conduct. Yet, other definitions in Random House publications, as well as other dictionaries, support the trial court's conclusion that the phrase "oral copulation" is constitutionally infirm because of vagueness. Thus, The Random House Dictionary of the English Language 448 (2d ed. 1987) variously defines copulation as "1. sexual intercourse. 2. a joining together or coupling." This same dictionary at 1755 defines "sexual intercourse" as "genital contact, esp. the insertion of the penis into the vagina followed by orgasm; coitus; copulation." Webster's Third New International Dictionary 503 (1976) defines copulation, inter alia, as "2a: sexual union: COITUS." This same dictionary at 441 defines "coitus" as "physical union of male and female genitalia accompanied by rhythmic movements leading to the ejaculation of semen from the penis into the female reproductive tract . . . ."

A thesaurus is a book of words classified and grouped according to ideas. In Peter Mark Roget and John Bartlett, Bartlett's Roget's Thesaurus, (1st ed. 1996) the word "copulation" is listed under three categories. First, copulation is listed in category "20 Sex," specifically in paragraph 20.9 as a synonym for "sexual intercourse." Other synonyms given in paragraph 20.9 for "sexual intercourse" and "copulation " are "sex, sex act, safe sex, having sex, coupling, pairing, mating, intimacy, procreation; . . . , coition, coitus, venery [Arch]; sexual relations, relations, marital relations, marital act, consummation, sexual commerce, sexual congress, sexual union; sleeping together, sleeping with, going to bed with, act of love, making love, lovemaking; fornication, adultery, shacking up [Inf]; casual sex, one-night stand; wife swapping, husband swapping; [Inf]: screwing, balling, fucking, nooky or nookie, diddling, hanky-panky, doing it, quickie, making it, making out, going all the way, rogering [Brit]." The word copulation is next listed in Bartlett's Roget's Thesaurus under category "21 Reproduction." There, copulation is listed in paragraph 20.4 as a synonym for "propagation." Other synonyms in paragraph 20.4 are "reproduction, generation, procreation; sex, sexual intercourse, . . . coition; breeding, spawning, engendering, fathering, siring." Finally, the word copulation is found in this thesaurus as part of category "752 Union," specifically in paragraph 20.6 as a synonym for "sexual union." Additional synonyms in paragraph 20.6 are "mating, . . . coition, coitus, procreation, reproduction, syngenesis, syngamy; wedlock, marriage." In our research, we have not found the term "oral copulation" in any dictionary or thesaurus. Nor have we found the phrase listed as a synonym for fellatio or cunnilingus. We have found a Missouri criminal statute that defines "sexual intercourse" to mean "any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results . . . ." Section 566.010.1(1), RSMo 1994. From all of the above we are persuaded that "copulation," in the context of potentially lewd behavior and as commonly understood by persons of ordinary intelligence, means the joining and insertion of the male genitalia into female genitalia, i.e., as might lead to propagation, reproduction, siring, and procreation. Consequently, the term "simulated oral copulation" is a non sequitur as it is impossible to orally copulate. We hold that the phrase "simulated oral copulation" does not delineate its reach in words of common understanding and is, therefore, impermissibly vague. See Allen, 905 S.W.2d at 877. In reaching our conclusion, we do not ignore Supervisor's argument that Missouri courts can discern the meaning of "oral copulation" with reasonable certainty since that phrase was used in some appellate opinions synonymously with either fellatio or cunnilingus. To illustrate, Supervisor cites State v. Williams, 628 S.W.2d 947, 949-50 (Mo.App. 1982),

Vaughan v. State, 614 S.W.2d 718, 721 (Mo.App. 1981), State v. Cole, 581 S.W.2d 875, 876 (Mo.App. 1979), and State v. Davis, 540 S.W.2d 122, 123-24 (Mo.App. 1976). We note, however, that in none of those cases were the defendants charged with committing an act of "simulated oral copulation" or "oral copulation." Rather, the crimes charged fell under Section 566.010, et seq., and the subject statutes clearly defined the prohibited conduct. Consequently, when each court used the term "oral copulation" in its opinion it merely described an act that was already clearly defined and described via witness testimony and in the applicable statute. We agree with Licensee's argument that use of the phrase "oral copulation" under those circumstances is a far cry from use of the term in a statute or regulation without definition. Moreover, we cannot find the phrase "simulated oral copulation" defined in Missouri or any other jurisdiction. We remain convinced this phrase is so vague that people of common intelligence must guess at its meaning and would differ as to its application; consequently, as to that phrase the regulation is too indefinite to be valid. See State ex rel. Casey's General Stores, Inc. v. City Council of Salem, 699 S.W.2d 775, 777 (Mo.App. 1985). The judgment of the trial court is affirmed. Footnotes: FN1.Specifically, the violation report alleged that Licensee had permitted "'Angel' to perform a lewd act by placing a folded one dollar bill in Officer Gault['s] . . . pants zipper and performing simulated act of oral copulation on the dollar bill in violation of this regulation." A second allegation was that Licensee had permitted "'Peaches' to perform a lewd act by placing a folded one dollar bill in Officer Stockham['s] . . . pants and performing simulated act of oral copulation on the dollar bill in violation of this regulation." FN2."Duly promulgated state regulations have the force and effect of law and can be subject to challenges of unconstitutional vagueness." State v. Stone, 926 S.W.2d 895, 898 n.2 (Mo.App. 1996) (citations omitted). FN3.In pertinent part, 11 CSR 70-2.130(14)(A) (effective January 13, 1992) reads: "(14) Lewdness. No retail licensee or his/her employee shall permit in or upon his/her licensed premises-- "(A) The performance of acts or simulated acts of . . . oral copulation . . . ." Separate Opinion:

I respectfully dissent. I am unable to agree with the majority opinion's conclusion that the term "oral copulation," as used in the regulation, is unconstitutionally vague, thereby making the regulation unenforceable. 11 CSR 70-2.130 (14) provides: Lewdness. No retail licensee or his/her employee shall permit in or upon his/her licensed premises - (A) The performance of acts, or simulated acts of sexual intercourse, masturbation, sodomy, beastiality, oral copulation, flagellation or any sexual acts which are prohibited by law; (B) The displaying of any portion of the areola of the female breast; (C) The actual or simulated touching, caressing or fondling of the breast, buttocks, anus or

genitals; (D) The actual or simulated displaying of the pubic hair, anus, vulva or genitals; (E) The permitting by a licensee of any person to remain in or upon the licensed premises who exposes to public view any portion of his/her genitals or anus; and (F) The displaying of films, video programs or pictures depicting acts, the live performances of which are prohibited by this regulation or by any other law. The allegations against Respondent upon which the hearing was held were those contained in the "Notice" of proceedings to suspend or revoke the state liquor license of Respondent. There, two violations of the regulation were alleged, both being couched in the following terms: Lewdness On or about November 2, 1992, you or an employee did wrongfully and unlawfully permit in or upon the licensed premises, the performance simulated acts of oral copulation by a female performer . . . or other sexual acts which are prohibited by law, all in violation of and contrary to 11 CSR 70-2.130(14)(A), Rules and Regulations of the Supervisor of Liquor Control. The Administrative Hearing Commission ("AHC") found that in both instances the dancers in question removed a dollar bill, which had been folded and placed either in an officer's fly or just above his pants fly, after she held the bill up with one hand, placed her mouth over the bill, and "slowly moved her head up and down and back and forth, simulating fellatio." Appellant does not contend that these findings were unsupported by evidence presented to the AHC. The AHC also found: 1440 Although fellatio or cunnilingus are more widely used terms, we conclude that the Supervisor's use of the term "oral copulation" means the same thing. "Copulation" means in this context "a joining together or coupling; sexual union or intercourse." The Random House Dictionary, 297 (unabr. 1982). Thus, oral copulation is a sexual joining together at or near the mouth. Both dancers clearly intended to and did simulate fellatio, also a violation of paragraph (A). The circuit court, on review, concluded that: . . . this Court has consulted Webster's Third New International Dictionary and finds no reference to "oral copulation." Therefore, the regulation as it pertains to "oral copulation" is vague and not enforceable. Neither absolute certainty nor impossible standards of specificity are required in determining whether terms are impermissibly vague. State v. Duggar, 806 S.W.2d 407, 408 (Mo. banc 1991). The test is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Id. At least when considering the issue of vagueness as it relates to statutes, the Missouri Supreme Court has said that while statutes should be worded so that a person may know whether he is violating it, " if the law is susceptible of any reasonable and practical construction which will support it, it will be held valid, and . . . the courts must endeavor, by every rule of construction, to give it effect." Id. (quoting from City of St. Louis v. Brune, 520 S.W.2d 12, 16-17 (Mo. 1975)). If words used are of common usage and understandable to persons of ordinary intelligence, they satisfy the constitutional requirement of definiteness and certainty. State v. Stone, 926 S.W.2d 895, 899 (Mo. App. W.D. 1996). Again, in dealing

with the vagueness of statutes, the court in Stone said that a statute is void only if its terms are of so uncertain meaning or so confused "that courts cannot discern them with reasonable certainty." Id. Many courts have used the term "oral copulation" without further definition and with an apparent belief that it is readily understood. In Wainwright v. Stone, 414 U.S. 21, 38 L. Ed.2d 179, 94 S. Ct. 190 (1973), the United States Supreme Court, in discussing a statute proscribing "the abominable and detestable crime against nature," referred to a state conviction for "copulation per os and per anum" (FN1) without further definition. Similarly, in Stephens v. Tennessee, 489 S.W.2d 542 (Tenn. App. 1972), the court said that sodomy includes, in its broader sense, unnatural copulation "per os as well as per anus." In Kansas v. Fore, 843 P.2d 292 (Kan. App. 1992), the court summarized the acts of defendants as including "oral copulation" with no further definition. See also Miller v. Indiana, 268 N.E.2d 299 (Ind. 1971) (where the defendant was charged with sodomy "by oral copulation," and the court said that the use of the term "oral copulation" defined more precisely the form of sodomy with which the defendant was charged); Nebraska v. Temple, 222 N.W.2d 356 (Neb. 1974) (where the court said that the State's sodomy statute covered a case "involving oral copulation"); and Allan v. Nevada, 541 P.2d 656 (Nev. 1975) (where the court said that the defendant was appealing from a conviction of an infamous crime against nature "committed through oral copulation"). I believe that it is significant that the Missouri Supreme Court has also used the term "oral copulation" without providing the reader with a more specific definition. In Wilson v. State, 459 S.W.2d 298 (Mo. 1970), the charges against the defendant included forcible rape. In describing the facts surrounding the offenses, the court referred at least twice to the fact that the defendant had forced the victim "to perform oral copulation" on him. Id. at 300. Likewise, in State v. Shumate, 478 S.W.2d 328 (Mo. 1972), the defendant was convicted of rape. In the course of that opinion, the Missouri Supreme Court referred to the fact that the trial court had, in addition to the rape, found that the defendant had committed "acts of oral copulation" on the victim. Id. at 329. In describing the facts of the offense, the Supreme Court, itself, used the term "oral copulation" at least four other times in the opinion without further definition. Id. at 329-330. In both of these cases, the court was obviously referring to fellatio, more commonly referred to as oral sex, in using the term "oral copulation." Other Missouri courts have likewise used the term "oral copulation" in opinions without specifically defining it, but under circumstances which obviously refer to occurrences of oral sex. See State v. Williams, 628 S.W.2d 947, 949- 950 (Mo. App. W.D. 1982) (where the court, in describing the facts of the case, referred to testimony that the defendant performed "fellatio" on the victim, and later referred to it as an act of "oral copulation," thereby apparently using the two terms interchangeably); State v. Davis, 540 S.W.2d 122, 123 (Mo. App. St. L. 1976) (where conduct, which the court described as an attempt by the defendant to force the victim to perform an act of "oral copulation," was submitted to the

jury in a verdict directing instruction as an attempt to insert the defendant's penis in the victim's mouth). Likewise, some states have, by statute, used the term "oral copulation" to define the offense of sodomy. For instance, Kansas defines sodomy as including "oral or anal copulation." In Kansas v. Wilson, 795 P.2d 336, 340 (Kan. 1990), the Kansas Supreme Court held that an information charging "anal sex" was sufficient under the statute rather than requiring use of the term "anal copulation." If "anal sex" and "anal copulation" are essentially synonymous for the purpose of charging the commission of a crime, I can see no reason why "oral sex" and "oral copulation" should not also be considered as synonymous. The Kansas Supreme Court has also held that the prohibition against "oral or anal copulation" under the Kansas statute refers to the penetration of the male sex organ into a mouth or anus. Kansas v. Switzer, 769 P.2d 645, 650 (Kan. 1989). California has statutorily defined "oral copulation" as "the act of copulating the mouth of one person with the sexual organ or anus of another person." Cal. Penal Code ' 288a (1988). Numerous courts have held that statutes proscribing the "detestable and abominable crime against nature" or "sodomy" are not unconstitutionally vague. See Rose, Warden v. Locke, 423 U.S. 48, 96 S. Ct. 243, 46 L. Ed.2d 185 (1975); Arizona v. Bateman, 547 P.2d 6 (Ariz. 1976); Connor v. Arkansas, 490 S.W.2d 114 (Ark. 1973); Mississippi v. Mays, 329 So.2d 65 (Miss. 1976); Allan, 541 P.2d at 657 ("the infamous crime against nature"); Bradley v. Oklahoma, 501 P.2d 528 (Okla. App. 1972). In Gilmore v. Colorado, 467 P.2d 828 (Colo. 1970), the court found that a statute proscribing "unnatural carnal copulation committed per anus or per os" was not unconstitutionally vague. Even terms such as "cruel and inhuman punishment" and "for the purpose of sexual stimulation or gratification" have been held not to be unconstitutionally vague. See Duggar, 806 S.W.2d at 408. In State v. Crawford, 478 S.W.2d 314 (Mo. 1972), the Missouri Supreme Court held that a statute proscribing the "detestable and abominable crime against nature, committed with mankind or with beast, with the sexual organs or with the mouth" was not unconstitutionally vague. In reaching that conclusion, the court discussed the standards used in making such a review, stating that a statute must "not be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Id. at 317. Absolute certainty or impossible standards of specificity are not required, but rather, the language must provide a sufficiently definite warning as to the proscribed conduct "when measured by common understanding and practices." Id. In my opinion, it is inconsistent to conclude that a statute proscribing the "detestable and abominable crime against nature" is not unconstitutionally vague, while saying that a regulation prohibiting simulated "oral copulation" fails to pass constitutional muster. The term "oral copulation" in the regulation in question should not be considered in a vacuum. It is fundamental that, at least as to statutes, a section should not be read in isolation from the context of the whole act. State v. Haskins,

950 S.W.2d 613, 615 (Mo. App. S.D. 1997). "In interpreting legislation, 'we must not be guided by a single sentence . . . , but [should] look to the provisions of the whole law, and its object and policy.'" Id. To the same effect, see Ferrell Mobile Homes, Inc. v. Holloway, 954 S.W.2d 712, 715 (Mo. App. S.D. 1997). Likewise, "[t]he meaning of a term used in a statute cannot be determined independent of the particular context in which it is used and the subject matter under discussion." Barry Service Agency Co. v. Manning, 891 S.W.2d 882, 891 (Mo. App. W.D. 1995). The same should be true in construing regulations such as that in issue here. Paragraph (14) of the regulation in question here is titled "Lewdness." Each of its provisions deals with sexually related conduct. By considering the use of the term "oral copulation" in the context of the remainder of the regulation, it is clear to me that it refers to oral sex.(FN2) As indicated above, numerous courts in this country have used the term in that manner without feeling the need for further definition. I believe that a person of ordinary intelligence would understand that "simulated oral copulation" would include a female dancer holding a folded dollar bill placed in a man's fly and slowly moving up and down on it with her mouth. I would hold that the term "oral copulation" or "simulated oral copulation," as used in the regulation, is not impermissibly vague. Footnotes: FN1."Per" is defined as "through or by means of," and "os" is defined as " mouth." Webster's Third New International Dictionary, 1976. FN2.By consulting Webster's Third International Dictionary, a person would be led to the conclusion that "oral copulation" means "oral sex." The search would first reveal that the definition of "oral" includes "of, relating to, or belonging to the mouth; given or taken through or by way of the mouth." Webster's. The search would also reveal that "copulation" means either, 1) "the act of coupling or joining," or 2) "a sexual union." Id. Referencing "copulate," the searcher would find a meaning of either, 1) "to join or unite," or 2) "to unite in sexual intercourse." Id. The searcher would have to determine which of the term's meanings more likely pertains to the context in which the phrase is used. Considering that the regulation deals with lewdness and sex, the searcher would surely opt for the latter meanings. Putting this information together, the searcher would be left with "taken through or by way of the mouth" plus "a sexual union" or "sexual intercourse." The results of such a search would indicate that "oral copulation" is "a sexual union taken through or by way of the mouth" (i.e., oral sex). This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.