Liquor Control Law and Policy
LIQUOR CONTROL LAW AND POLICY
Gay bars and saloons became popular gathering places, more for gay men than for lesbians, as early as the 1900s. In large cities like New York these gathering places flourished even during Prohibition. The repeal of Prohibition in 1933, however, brought with it closer scrutiny of public bars to guarantee that patrons were orderly and that establishments did not encourage immorality. State alcoholic beverage control boards or licensing agencies, with the help of local police, were a constant threat to the existence of gay and lesbian bars. Up until the late 1960s, even in the most progressive cities, like San Francisco and New York, police raids were frequent.
In 1851 Maine adopted a statewide law that banned the sale of alcoholic beverages. Thirteen states, mostly in the north, followed; New York did not pass a statewide prohibition law. Its bars and saloons were nonetheless affected by the temperance movement of the late 1800s. In 1896 the New York Legislature enacted the Raines Law, which shut down saloons on Sundays, except for bars and saloons that were located in hotels. As a consequence many bars in New York City began to offer rooms for rent in a sufficient number (ten) to qualify as a hotel. Known as "Raines Law hotels," more than a thousand such institutions were in operation in the early 1900s. Moral reformers in New York City, concerned that these "hotels" were primarily operated for immoral sexual encounters and commercial prostitution, decided that the best way to cure the problem was for the bars to forbid women on the premises. One consequence of this "men only" rule was that a number of these bars in "Raines Law hotels" developed into popular spots for gay men.
By the early 1900s at least half the states had declared themselves "dry." Battles between the Drys and the Wets moved to the national level. In 1913, Congress passed the Interstate Liquor Act, which prohibited the shipping of alcohol into dry states. In 1917, Congress proposed to amend the United States Constitution by adding an amendment that would prohibit the "manufacture, sale, or transportation of intoxicating liquors …for beverage purposes." This amendment (the Eighteenth) was ratified and became effective in 1920.
During the thirteen years (1920–1933) that Prohibition existed at the national level, countless illegal bars and speakeasies operated, especially in large cities. Regulated male-only saloons were replaced by unregulated speakeasies in which the sexes mingled freely. This was the era of the Harlem Renaissance, during which time lesbians and gay men frequented clubs where bootleg whiskey was served and illicit sexual activity was the norm.
When the twenty-first amendment to the U.S. Constitution repealed prohibition in 1933, control of liquor sales was returned to the states. Most states opted for strict control of liquor sales and authorized cities and counties to determine whether such sales should occur within their boundaries. In many large cities, establishments were prohibited from selling drinks to the public in barrooms or saloons, even after World War II. State and local restrictions on liquor sales made the opening of public gay bars, like the ones in New York City, San Francisco, and Los Angeles, impossible in many other cities.
The repeal of prohibition had another effect. Even in cities where drinking in public was legal, the rules of appropriate bar behavior were suddenly changed. Legalization of alcohol sales carried with it a fear of return to the saloons of the nineteenth and early twentieth centuries that the temperance movement had fought so hard to destroy. The compromise was to allow bars and saloons to operate so long as they did not turn into "disorderly houses." To enforce these new standards of behavior, state licensing boards were created and given the power to terminate an owner's license to sell liquor if the new standards were not met.
State licensing agencies, often called Alcohol Control Boards (ABC), or, in New York, the State Licensing Agency (SLA), engaged in undercover work to determine whether certain bars and saloons were operating properly. Police officers or others hired by the agency would typically visit a bar on a nightly basis to determine whether or not the bar was operated in an orderly fashion. These agents understood a "disorderly house" to include any bar that was frequented by prostitutes, homosexuals, or other sexual perverts. Once a bar was identified as a hangout for homosexuals, it risked losing its liquor license.
An early legal challenge to these harassing tactics occurred in New York in 1939. Gloria's Bar and Grill argued that its license should not be revoked merely because homosexuals frequented the establishment. Rather, some offensive conduct must be shown to have occurred before the determination of a "disorderly house" could be made. The SLA asserted that such conduct had occurred and also that it had the power to close any bar that welcomed homosexuals, even without proof of disorderly conduct. Not until the 1960s were arguments such as those made by Gloria's successful in the New York courts.
Post–World War II New York
Prior to 1967, New York court opinions on the propriety of revoking or suspending an establishment's liquor license because of homosexual activity on the premises were mixed. Because the New York statute allowed revocation only if the proprietor permitted the premises to become disorderly, the arguments made on behalf of bar owners were (1) that insufficient conduct existed to constitute disorder, and (2) even if disorderly conduct occurred, such conduct was so isolated that the owner could not possibly have had sufficient knowledge that the conduct was occurring on the premises. In most cases, the SLA acted only after a police arrest of a bar patron for solicitation. In those few cases in which courts reversed SLA decisions, they found either that the solicitations were too few in number to constitute disorder or that they occurred in private without the knowledge or constructive knowledge of the bar owner. In 1959 the SLA announced a campaign to revoke the licenses of all bars "patronized by prostitutes and homosexuals." Shortly thereafter, the gay bars of New York City were shut down. Rather than challenge the closings in court, the owners typically reopened either in a new location or sometimes even in the same location under new management.
By the 1960s, even before the Stonewall Riots, political organizers were challenging the SLA's position that the mere presence of gay patrons was sufficient to revoke a bar's license for being "disorderly." In 1966, Dick Leitsch, then-president of the Mattachine Society of New York, organized a "sip-in." The plan was for a group of three gay men to appear at various bars in the city, announce that they were gay, and order a drink. If any bar refused to serve them out of concern about its liquor license, then Leitsch was prepared to sue the bar in order to establish the right of gays to congregate in the bar of their choice. Apparently, the first bars that the three men visited (with the press in attendance) readily served them. Only when they went to a well-known gay bar were they denied service. Under threat of suit, the SLA voluntarily changed its policy.
In 1967, the New York Court of Appeals issued an important progay ruling in a case against a gay bar whose license had been revoked prior to the 1966 change in policy. The court explicitly ruled that the fact that gay persons were allowed to congregate was not sufficient to convict a bar owner of the knowing operation of a disorderly house. Furthermore, although some of the gay patrons were dancing with each other and kissing each other, that conduct was not sufficient to find the place "disorderly."
Liquor Law in California
In post–World War II San Francisco, The Black Cat was probably the most well-known watering hole for gay men on the west coast. A bohemian bar from before World War II, and made more famous by its role in Jack Kerouac's On the Road and the patronage of poet Allen Ginsberg, The Black Cat drew the attention of the San Francisco vice squad when it became a hangout for gay clientele. In 1949, after a year-long police investigation, the Board of Equalization revoked The Black Cat's license on grounds that it was being used as a "disorderly house." The specific charge was that "persons of known homosexual tendencies patronized said premises and used said premises as a meeting place." The owner of the bar, Sol Stoumen, challenged the revocation in court. The trial court sustained the revocation of the license, explaining that it "would be a sorry commentary on the law …to find that persons holding liquor licenses could permit their premises to be used month after month as meeting places for persons of known homosexual tendencies" (Stoumen v. Reilly). An intermediate appellate court affirmed the decision in 1950, and Stoumen appealed to the California Supreme Court. In 1951, the Supreme Court ruled in favor of Stoumen and reinstated The Black Cat's liquor license, holding that the state could not revoke a liquor license solely on grounds that a bar caters to a gay clientele.
The state legislature responded to the Stoumen case by enacting a statute that authorized the revocation of a liquor license if the premises were a "resort for illegal possessors or users of narcotics, prostitutes, pimps, panderers, or sexual perverts." Relying on this, statute, police continued their harassment of gay bars. The constitutionality of the new statute was tested in 1959 in Vallergav. Department of Alcoholic Beverage Control, a challenge to the closing of the popular lesbian bar, Mary's First and Last Chance. The California Supreme Court struck the statute down, not based on a finding that gay and lesbian people have a constitutional right to gather in public, but rather on the more narrow rationale that the provision in the California constitution giving the liquor board the ability to revoke a license for "good cause" did not authorize revocation solely because the establishment catered to homosexuals.
While the Vallerga decision was a positive one for gay and lesbian bars, it did not end police harassment. The 1959 mayoral election in San Francisco created a particularly hard time for gay bars. Mayor George Christopher was up for reelection. His opponent charged him with providing too much support for the gay and lesbian community and with turning San Francisco into a gay mecca. Although Christopher denied the allegations and won the election, the charges caused him to institute a crackdown on gay bars.
These attacks led to the formation of the Tavern Guild in 1962. The Tavern Guild was formed by a group of gay bar owners and employees who decided that, if they banded together, they could better fight the assaults. All the gay and lesbian bar cases had distinguished between places that were mere hangouts for gay men and lesbians and premises on which "homosexual conduct" occurred. The police in the early 1960s claimed to observe much indecorous behavior. Not only were patrons arrested, licenses were lost. The Tavern Guild provided a lawyer and a bail bondsmen for every individual arrested on or near the premises of bars and taverns owned by guild members. In 1964 a new homophile rights organization, Society for Individual Rights, was formed. That group worked with the Tavern Guild to become a political force in San Francisco that ultimately led to San Francisco's image in the 1970s as the "gay capital" of the United States.
Liquor Law in Other States
New Jersey's experience was similar to that of New York. After years of legal battles over the right of bars to serve a predominately homosexual clientele, the New Jersey Supreme Court held in 1967 that the "asserted rights of the homosexuals to assemble in and patronize licensed establishments are intertwined with the asserted rights of licensed establishments to serve them" (One Eleven Wines and Liquors, Inc. v. Division of Alcoholic Beverage Control). While bar patrons continued to experience harassment after 1967, the decision made it clear that the mere congregation of gay men and lesbians on the premises was not a sufficient justification for revoking a liquor license.
By contrast, a Miami ordinance declaring it unlawful for a business licensed to sell intoxicating beverages to "knowingly sell to, serve to or allow consumption of alcoholic beverages by a homosexual person, lesbian or pervert…or to knowingly allow two or more persons who are homosexuals, lesbians or perverts to congregate or remain in his place of business," was upheld by the Florida courts in 1967 (Inman v. City of Miami).
Some states continued to apply rules that jeopardized the liquor licenses of gay and lesbian bars well into the 1970s and 1980s. In Las Vegas, Nevada, the county code authorized revocation of licenses of "each licensee, who shall permit his licensed premises to be frequented by or to become the meeting place, hangout, or rendezvous for known prostitutes, homosexuals, vagrants, known hoodlums." In 1975, the Supreme Court of Nevada held the provision unconstitutional, saying that it "is established beyond peradventure that the mere presence of prostitutes, homosexuals or other 'undesirable' classes of persons in the licensed premises is not an adequate ground upon which to revoke a liquor license" (Cline v. Clark County Liquor and Gaming Licensing Board).
Since the 1980s, gay and lesbian bars have flourished throughout the country as centers of gay and lesbian culture. Police harassment of owners and patrons is rare and, when it does occur, is considered an abuse of power subject to legal redress.
Chauncey, George. Gay New York: Gender, Urban Culture and the Making of the Gay Male World 1890–1940. New York: Basic Books, 1994.
Cline v. Clark County Liquor and Gaming Licensing Board. 535 P.2d 783 (Nev. 1975).
D'Emilio, John. Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940–1970. Chicago: University of Chicago Press, 1983.
Eskidge, William M., Jr., Gaylaw: Challenging the Apartheid of the Closet. Cambridge, Mass.: Harvard University Press, 1999.
Faderman, Lilliam. Odd Girls and Twilight Lovers: A History of Lesbian Life in Twentieth-Century America. New York: Columbia University Press, 1991.
Inman v. City of Miami, 197 So.2d 50 (Fla. 1967).
Kerma Restaurant Corp. v. State Liquor Authority. 233 N.E.2d 833 (N.Y. 1967).
One Eleven Wines and Liquors, Inc. v. Division of Alcoholic Beverage Control. 235 A.2d 12 (N.J. 1967).
Stoumen v. Reilly. 234 P.2d 969 (Cal. 1951).
Vallerga v. Department of Alcoholic Beverage Control. 347 P.2d 909 (Cal. 1959)
Patricia A. Cain
see alsoalcohol and drugs; bars, clubs and restaurants; crime and criminalization; discrimination; federal law and policy; rights of association and assembly; transgender and gender impersonation law and policy.