[29] I concur in the results reached by the Court. However, I would just emphasize that the United States Supreme Court has previously interpreted statutes like the one before us today. In so doing, they have been upheld as constitutional. In City ofNewport v. Iacobucci, 479 U.S. 92, 107 S.Ct. 383, 93 L.Ed.2d 334, rehearing denied 479 U.S. 1047, 107 S.Ct. 913, 93 L.Ed.2d 862 (1986), the Court held a Kentucky city ordinance which banned nude or nearly nude dancing in local establishments licensed to sell liquor for consumption on the premises constitutional, relying on the reasoning set forth in an earlier New York case. In that case, New York State Liquor Authority v. Bellanca,452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981), the Court held constitutional a statute which banned nude dancing in establishments licensed to sell liquor by the state. InBellanca the New York Supreme Court had declared the statute unconstitutional, reasoning that ". . . topless dancing was a form of protected expression under the First Amendment . . . "Bellanca, at 715, 101 S.Ct. at 2600. However, the Supreme Court of the United States noted that "[a] state has broad power under the Twenty-first Amendment to regulate the times, places, and circumstances under which liquor may be sold." Id. The Court went on to say that:
Although the customary `barroom' type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 U.S. 109, 118, [93 S.Ct. 390, 397, 34 L.Ed.2d 342] (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.
[30] Bellanca, 452 U.S. at 716-717, 101 S.Ct. at 2601.
[31] In LaRue the Court determined that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, "outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing *Page 637 as part of its liquor license control program." Id. at 717, 101 S.Ct. at 2601. (Emphasis added.) The Court went further to explain that "[p]ursuant to its power to regulate the sale of liquor within its boundaries, it has banned topless dancing in establishments granted a license to serve liquor. The State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs." Bellanca at 717, 101 S.Ct. at 2601. And "[w]hatever artistic or communicative value may attach to topless dancing is overcome by the State's exercise of its broad powers arising under the Twenty-first Amendment . . . the Twenty-first Amendment makes that a policy judgment for the state legislature, not the courts." Bellanca at 718, 101 S.Ct. at 2602.
[32] It should also be noted that a review of First Amendment claims must also distinguish between words and acts. This distinction was reiterated by the Supreme Court in LaRue.
But as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases. States may sometimes proscribe expression that is directed to the accomplishment of an end that the State has declared to be illegal when such expression consists, in part, of `conduct' or `action,' Hughes v. Superior Court, 339 U.S. 460, 94 L.Ed. 985, 70 S.Ct. 718 (1950); Giboney v. Empire Storage Co., 336 U.S. 490, 93 L.Ed. 834, 69 S.Ct. 684 (1949). In O'Brien, supra, [United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)] the Court suggested that the extent to which `conduct' was protected by the First Amendment depended on the presence of a `communicative element,' `We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea.' 391 U.S., at 376 [88 S.Ct. at 1678], 20 L.Ed.2d 672.
[33] 409 U.S. at 117, 118, 93 S.Ct. at 396, 397.
[34] The case before us today is not unlike that of Bellanca orIacobucci and because the Supreme Court of the United States has interpreted the Twenty-first Amendment as encompassing a State's authority to ban nude dancing in establishments licensed by the State to sell liquor, I agree with the Court that the statute in question is constitutional under the analysis of the Supreme Court's decisions.
[35] Appellant's allegation that he should have received "Miranda" warnings is totally without merit. The Appellant was not in-custody when the police officer asked who was "in charge." The requirements of the Miranda warnings are directed to custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694, 725 (1966). See also, Beckwith v.United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976);California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). The questioning was in the form of a Terry type investigatory procedure and fails to rise to the level of interrogation. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In the recent case of United States v.Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), the Supreme Court Stated:
The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures. The authority and limits of the Amendment apply to investigative stops . . .
[36] Id. at 682, 105 S.Ct. at 1573. (emphasis added)
[37] It was in Terry that the Court adopted a dual inquiry for evaluating the reasonableness of an investigative stop. The Court will examine "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." 392 U.S. at 20, *Page 638 88 S.Ct. at 1879. The brief detention of Appellant to answer the officer about who owned or managed the club clearly was limited in scope and duration and at no time significantly interfered with Appellant's freedom. The officer's action was both justified and limited in scope and clearly met the Fourth Amendment's standard of reasonableness. *Page 1122