(dissenting).
I respectfully dissent from the majority’s decision holding the challenged ordinance to be facially constitutional under the Twenty-first Amendment.
In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the Supreme Court considered regulations issued by the California Department of Alcoholic Beverage Control that prohibited performances by male or female entertainers that partook “more of gross sexuality than of communication.” 409 U.S. at 109, 93 S.Ct. at 391. The portions of the regulations held facially constitutional by the Supreme Court prohibited the following kinds of conduct on licensed premises:
(a) The performance of acts, or simulated acts, of “sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law”;
(b) The actual or simulated “touching, caressing or fondling on the breast, buttocks, anus or genitals”;
(c) The actual or simulated “displaying of the pubic hair, anus, vulva or genitals”;
(d) 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 or her genitals or anus”; and, by a companion section,
(e) The displaying of films or pictures depicting acts a live performance of which was prohibited by the regulations quoted above. Rules 143.3 and 143.4, 409 U.S. at 111-12, 93 S.Ct. at 394.
The ordinance in the case before us affects bars or other liquor controlled businesses that feature “topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.” Detroit Michigan Ordinance No. 744-G § 5-4-1, October 26, 1972.
LaRue holds that a regulation that prohibits specific kinds of explicit sexual conduct on premises where liquor is served will not be held facially unconstitutional merely because some of the conduct that it comprehends is protected by the First Amendment. In this appeal, however, the. ordinance limits the bar owner’s presentation of certain categories of entertainers whose conduct may or may not involve gross sexuality more than communication in the medium of entertainment.
Another and perhaps more important distinction exists between the Detroit ordinance and the California regulations considered in LaRue. The Detroit ordinance appears to be more concerned with regulating land use than it is with regulating the delivery and use of liquor under the Twenty-first Amendment. This is evident from the fact that the Detroit ordinance does not forbid a licensed bar from presenting the proscribed entertainers if 51% of the neighbors living or doing business within 500 feet of the proposed location approved or if there are fewer than two other uses regulated by the ordinance within 1,000 feet of the proposed location. On the other hand, *1137the California regulations forbade the proscribed conduct at all business places, without exception, where liquor was dispensed.
I do not read LaRue as giving blanket authority to states to regulate under the Twenty-first Amendment every kind of conduct by performers in bars. When a state seeks to control barroom performances that partake “more of gross sexuality than of communication,” the Twenty-first Amendment will insulate from a charge of facial unconstitutionality regulations that prohibit acts of gross sexuality on regulated premises. The Twenty-first Amendment does not, however, authorize ordinances like the one attacked here.
In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the Supreme Court indicated that statutes designed to regulate obscenity must be carefully drawn. Indeed, the sexual conduct sought to be regulated or proscribed “must be specifically defined by applicable state law, as written or authoritatively construed.” 413 U.S. at 24, 93 S.Ct. at 2611. As examples of what a state statute could define for regulation, the Court suggested:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. 413 U.S. at 25, 93 S.Ct. at 2615.
The drafters of the regulations in LaRue appear to have been influenced by the Court’s suggestions in Miller, because they tried to regulate conduct consistent with the Miller formula. Although the regulation exceeded the boundaries set down in Miller, the Supreme Court held that the slight variance was not fatal because of the state’s authority to regulate dispensation of liquor.
In this appeal, however, the City of Detroit failed to surmount the first hurdle in attempting to regulate sexual conduct. It failed to “specifically define” the kind of sexual conduct that was subject to regulation. Topless dancers, go-go dancers, strippers, exotic dancers and impersonators are not, without more, obscene. Although it is possible one or more of these performers might engage in obscene conduct, the ordinance is not restricted to such entertainment, nor does it afford definite standards of obscenity. The Michigan courts do not appear to have “authoritatively construed” the challenged ordinance so that it is limited to particular obscene conduct. Cf. Talley v. Detroit, 54 Mich.App. 328, 220 N.W.2d 778 (1974), on rehearing, 58 Mich.App. 261, 227 N.W.2d 214 (1975).
Accordingly, I view this ordinance as being grossly facially overbroad because it attempts to regulate all forms of expression by listed entertainers. I do not read LaRue as permitting this court to uphold such an ordinance in the face of such substantial overbreadth.