Dec 05, 2003  |  By: LOU CHIBBARO JR.  | COMMENTS     

The D.C. Council repealed a regulation on Dec. 2 that gave the city’s Alcoholic Beverage Control Administration authority to ban sexually oriented performances and acts in bars and nightclubs.

Council members supporting the repeal said the city’s liquor law has no provision on which to base the regulation and that it duplicates enforcement authority against public sex acts already held by the police.

The Council passed the repeal by voice vote as part of its approval of P.R. 15538, the Revised Alcoholic Beverage Regulation Approval Resolution of 2003. The resolution ratifies a set of liquor related regulations proposed by ABRA and revised by the Council’s Committee on Consumer and Regulatory Affairs.

The resolution, which required only one “reading” or vote by the Council, took effect immediately.

Other regulations included in the resolution approved by the Council Tuesday ease restrictions that gay and straight bar and nightclub owners have said prevented them from providing amenities such as outdoor dining, dancing, and live entertainment.

“There is a growing consensus in the city that there are major problems with the regulatory process,” said Mark Lee, owner of Atlas Events, an event promotion company that caters to the gay community.

Lee said the regulation repealed by the Council this week is one of a number of regulations and provisions of the city’s liquor law that a coalition of nightlife advocates, including gay club owners, is seeking to address.

The D.C. Gay & Lesbian Activists Alliance lobbied the Council to repeal the regulation pertaining to sexually oriented acts and performances, saying investigators with the Alcoholic Beverage Control Board used the regulation to unfairly target clubs and events catering to leather and S&M groups. Some of those groups sponsor shows that include simulated sex acts involving whips and chains that ABC investigators claimed violated the regulation’s ban on “flagellation,” GLAA members said.

Other critics called the regulation a holdover from a past era when liquor regulators sought to regulate the behavior of consenting adults who engaged in such activities as touching while dancing together at a club or restaurant.

The regulation, known as Sec. 905, states that “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 or simulate the performance of acts of oral, anal, or vagina sexual intercourse, masturbation flagellation, or bestiality; or (b) fondle the breasts, buttocks, anus, or genitals of any other person.”

In the past, the ABC Board fined and suspended the liquor licenses of both gay and straight nightclubs that feature nude dance performances after ABC inspectors alleged that customers were fondling or improperly touching the dancers. Owners of the clubs said the customers’ actions violated club policies prohibiting customers from improperly touching dancers.

Bob Summersgill, the GLAA member who coordinated the group’s lobbying against the regulation, called the regulation overly broad and intrusive.
He noted that it gave liquor board officials powers to arrest adult hotel guests, including married couples, who engage in consenting sex acts in their rooms at hotels that have a license to sell liquor.

Summersgill noted that most hotels have a liquor license. The regulation also made it illegal for a theater that sells liquor at concession stands, including the Kennedy Center, to provide performances in which actors simulate sexual acts.

The regulation “was used solely for harassment of club owners who allowed entertainment in their establishments,” Summersgill said. “In particular, clubs such as the Eagle were harassed by the ABC Board for allowing leather contests,” he said. “Leather contests usually have a fantasy segment. Many of the fantasies involved actual or simulated flagellation, which was expressly prohibited” by the regulation, Summersgill said.

David Grasso, an aid to Council member Sharon Ambrose (D-Ward 6), who supported efforts to repeal the regulation, said the repeal enjoyed broad support among both business and civic groups that monitor liquor law issues.

“We felt existing law already bars things like prostitution,” said Grass, who noted that the regulations were most likely aimed at prostitution.

Peter LaValle, a spokesperson for the D.C. Corporation Counsel’s office, which prosecutes misdemeanor crimes in the District, said customers or employees could be subject to arrest under the city’s “lewd, indecent or obscene acts” law if they engage in certain sex acts in bars and nightclubs. A conviction under the act could lead to a fine of up to $300 or a jail term of up to 90 days, he said.

The Council made these additional changes to the regulations it approved this week:

• It repealed a rule allowing residents living within a ...