Brewvies manager, U professor weigh in on DABC fine

Story and slideshow by JACOB W. MAXWELL

The Utah Department of Alcoholic Beverage Control fined Brewvies Cinema Pub, a locally owned and operated restaurant/movie theater in Salt Lake City, during the summer of 2011.

Andrew Murphy, the pub’s general manager, said Brewvies quietly paid a $1,627 fine for screening “The Hangover Part II,” a movie that the DABC thought violated a section of the Utah Alcoholic Beverage Control Act.

This was Brewvies’ first DABC violation since opening its doors in 1997.

Murphy, speaking for the first time about the fine, the law and how they have affected the theater, said Brewvies attracts a variety of customers.

“You don’t have to partake in alcohol to come. So we get LDS people that come in to enjoy a nice meal and a movie. That’s kinda the beauty of the place,” he said.

Murphy said Brewvies screens popular PG, PG-13, R- and G-rated films based upon what the owners think their clientele, 21 years and older, wants.

He said many Brewvies patrons and concerned citizens were outraged to hear about the fine. “We’ve had tons of support. We made national news and have had people writing in from all over the country. Mostly curious because they don’t understand why Brewvies was fined and they think that the issue was deeper than it really is,” Murphy said.

He said many people also questioned why the DABC sent undercover Utah Highway Patrol officers into Brewvies to watch the film at the taxpayers’ expense.

Why was Brewvies fined for showing a summer blockbuster that simultaneously premiered with other local theatres?

Francine Giani, interim director of the DABC, said in a letter that Brewvies was fined because “The Hangover Part II” ran afoul of a Utah law “prohibiting films or pictures depicting sex acts on premises that sell alcohol.”

Giani said Utah’s law is modeled after a similar law in California that was upheld in a 1972 decision by the U.S. Supreme Court.

The only case seen before the Supreme Court regarding sexually oriented entertainment during the time period was Miller v. California (1973), in which a business owner conducted a mass-mail campaign to advertise pornographic material.

In a 5-to-4 decision, the Supreme Court ruled in favor of the state and held that material considered obscene was not protected by the First Amendment. The court developed the Miller Test, a legal standard where four qualifications have to be met in order for speech to be considered obscene.

David Vergobbi, an associate professor in the University of Utah’s Department of Communication, said he hasn’t seen the movie, but he doesn’t believe the film depicts sex acts in the same manner that the Miller obscenity test would apply to.

There are parts of “The Hangover Part II” that depict full frontal male nudity. During the end credits of the movie, the character portrayed by Ed Helms is seen having sex with a transsexual.

“If [Giani] is indeed referring to Miller v. California, the Miller obscenity test, it’s moot anyhow because the film isn’t rated obscene,” Vergobbi said. “The R-rating is nowhere near reaching the level of obscene speech and indecent speech is protected under the First Amendment. Obscene speech is not.”

The DABC has the ability to financially force Brewvies to censor movies that violate the section concerning films in the Alcoholic Beverage Control Act, despite the content being protected under the First Amendment.

The act allows the DABC to regulate the content of any film depicting the act or simulated acts of sexual intercourse, masturbation, oral copulation, whipping, etc. in an establishment that serves alcohol. Also, if characters in a film fondle or show their genitals, breasts or anus, it is in violation of the law.

After reading the act, Vergobbi said, “Heck, this [law] could cover almost anything,” in reference to what Brewvies is legally allowed to screen.

Vergobbi received a Ph.D. in Mass Communication Law, Ethics and History. He teaches U students about media ethics and mass communication law.

He said the DABC could make a claim that they are only carrying out the law as written. The problem Vergobbi sees is that Brewvies would have to sue the department that holds its liquor license in order to get the law changed. But, he said this scenario could prevent Brewvies from taking legal action.

Brewvies has thought about fighting back but Murphy said the cinema pub doesn’t have the money to do so.

“It’s a considerable amount of money to get the proper lawyer and paperwork filed. And what would it really gain us?” he said. “The law could get changed or we could get back our fine.”

Vergobbi believes the law could be challenged on vagueness and over-breadth, which is the standard test for whether a statute is constitutional.

“I’m sure they were referring to pornographic films,” Vergobbi said regarding why the law was written. “But by just saying ‘showing a film’ it opens it up for this kind of application.”

Giani said Brewvies, upon receiving its alcohol license, was cautioned by a licensing and compliance officer about the law and urged to prescreen movies to avoid any possibility of a violation.

Brewvies had the opportunity to screen “The Hangover Part II” because other Warner Bros. films like “Super Bad” and “Knocked Up” had done well at the theater. The owners had to agree to premier the film before they knew about the content. And to Murphy’s knowledge, the film wasn’t prescreened in Utah.

“We were selling out shows to the first ‘Hangover’ six weeks into the run, which gave us the opportunity to premier more films,” Murphy said.

In the 14 years since Brewvies has been open, it has only premiered a small handful of films.

Murphy said Brewvies has always taken every precaution to not violate DABC regulations, Utah State laws and Salt Lake City and County mandates. Yet he is not sure where to draw the line as far as what films the theater can screen in the future.

“Film is art and as soon as you start regulating what people can put in their art then you are really having a heavy hand on the culture,” Murphy said.

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