What is dancing?
That’s the question that the four county liquor commissions in Hawaii are asking now that the state has forced them to define the term if they want to continue regulating it in bars, restaurants, clubs and hotels.
Throughout the state, businesses are required to obtain a permit if they’re going to allow patrons to shake their booties. Without it, proprietors face fines and even the possibility of losing their licenses to serve alcohol.
Just last month, the Kauai Liquor Control Commission levied a $2,000 fine on Poipu Beach Athletic Club after an investigator spotted several adults join a group of kids who were dancing during a recent event.
It’s surprising to many in the birthplace of hula that dancing is regulated at all. But county liquor officials say it’s a matter of safety to ensure access to exits remain open and aisles are free of obstruction.
State lawmakers and dance advocates have tried to force the liquor commissions to address the issue for a decade. They finally succeeded in getting a bill passed last session, which Gov. David Ige signed into law in June, that required the liquor commissions to adopt a definition of dancing by Oct. 1.
That deadline came and went, but the commissions are making progress.
Maui, Kauai and Honolulu have each scheduled public hearings this month, and Hawaii County plans to give its proposed rule a final vote in November.
All four counties went with the same definition from Merriam-Webster: “to move your body in a way that goes with the rhythm and style of music that is being played.”
Honolulu added a provision to make it clear that this definition applies to customers on licensed premises, since the county also issues permits for exotic dancing, another issue altogether.
Jeff Portnoy, a Honolulu attorney who specializes in First Amendment issues, said definitions of dancing vary from one dictionary to the next.
“It’s destined for a legal challenge as being vague and ambiguous,” Portnoy said. “It’s one of those terms that I guess you could call like pornography — you know it when you see it.”
County liquor officials are less than thrilled that the state has forced them to define dancing, and say that talk about overzealous investigators cracking down on twerks and twists is more of an “urban legend.”
To allow dancing at all, establishments must have designated dance floors of a minimum size. Dancing is restricted to those areas.
“Dancing is a freedom and I feel we should be able to move our bodies moderately everywhere we are. Flailing about wildly is best to be done on dance floors, but to shimmy, shake, or just casually move to the music should not be outlawed.”
Maui Liquor Control Deputy Director Traci Fujita Villarosa said she told lawmakers that she would prefer to not have to regulate dancing at all.
“Our department is concerned with the regulation of liquor,” she said.
The liquor commissions restrict dancing to designated areas so that people can make their way around the rest of the place without running into people moving and grooving.
The dance floor is intended to be a safe zone free of spilled booze and slippery conditions, she said.
“In my memory, we’ve never fined anyone or taken their license away for dancing,” Villarosa said. “It seems to be kind of like an urban legend.”
It’s more than a legend to some residents though.
Jiva Jive (formerly Anthony Simmons), co-founder of Maui Dance Advocates, told lawmakers as the bill was moving forward earlier this year that he has seen people thrown out of bars and restaurants because they were either dancing in an undesignated space or the establishment didn’t have a license to allow it.
“Dancing is a freedom and I feel we should be able to move our bodies moderately everywhere we are,” he said. “Flailing about wildly is best to be done on dance floors, but to shimmy, shake, or just casually move to the music should not be outlawed.”
Rep. Angus McKelvey, who chairs the House Consumer Protection and Commerce Committee, wrote in his report on the bill that the current rules are hard for members of the public and business owners to follow.
“There may be confusion and ambiguity in regulations that prohibit dancing under certain circumstances, but fail to define dancing,” he said in his committee report on the bill. “For example, a broad definition of dancing could be interpreted to prohibit a variety of movements ranging from simply bobbing one’s head to moving in synchronization with another individual for an extended period of time.”
There’s no extra charge for dancing permits — the regular license fees cover it — but an extra approval is needed. Each county does it slightly differently.
Anthony Carll, general manager of Poipu Beach Athletic Club, was among those confused by the rules, which he says led to his fine.
There are four categories of liquor licenses that allow dancing on Kauai. The general liquor license fee for restaurants is $480. It’s $240 for clubs, $600 for cabarets and $900 for hotels.
Carll, who ran popular night spots in Honolulu before taking the Kauai job, thought his restaurant license and an approval for live entertainment allowed dancing as well. But on Kauai, he needed a separate OK for dancing.
“I don’t know exactly what this definition will do. We don’t need a definition of dancing for our purposes. The dancing regulation that we’re talking about is to have a permit and tell us where your dance floor is.” — Maui Liquor Control Deputy Director Traci Fujita Villarosa
The Kauai Liquor Control Commission, a seven-member body appointed by the mayor, opened its Sept. 3 meeting by fining the club $2,000 after an investigator reported spotting several adults join a group of children who were dancing during a recent event there, according to the meeting’s minutes.
Carll said he did everything is his power to rectify the situation, noting he has applied for a new license to include live entertainment and dancing.
Despite a warning, the investigator said Carll failed to get the word out to the crowd that their behavior was illegal and put a stop to it, according to the minutes. Carll could not be reached for comment Tuesday.
Some of the Kauai liquor commissioners felt $2,000 was excessive and tried to get the fine knocked down to $500 since it was a first offense.
But Commissioner Gerald Matsunaga said that would just amount to a “slap on the wrist” for the first person he’s ever seen “knowingly and intentionally” violate the dancing rule, according to the minutes.
The commission ultimately agreed on a $2,000 fine, but suspended $1,000 as long as Carll doesn’t get in trouble again for a year.
At the end of the same meeting, the commission took up the issue of what constitutes dancing. The members unanimously voted to approve the proposed amendment to their rules defining dancing the same way Webster does.
Jay Furfaro, administrator of 17 Kauai boards and commissions, said defining dancing wasn’t one of his top priorities when asked why the county didn’t meet the Oct. 1 deadline imposed by the Legislature.
He said the commission has settled on Webster’s definition and that the dance floor must be at least 150 square feet.
Part of the reason all the counties failed to comply with the Oct. 1 deadline was the need to first send the rules to the state Small Business Regulatory Review Board for approval, liquor officials said.
Anna Hirai, the Honolulu Liquor Commission’s assistant administrator, said establishments on Oahu that have liquor licenses were able to determine what dancing was before it was defined and they’ll be able to do so afterward, according to the county’s filing with the state’s Small Business Regulatory Review Board.
Customers are allowed to dance in roughly 522 of the 1,388 businesses that have liquor licenses on Oahu, according to the filing.
Hirai said in the filing that she was unaware of any comparable or related standard governing dancing by customers on licensed premises anywhere else in the country.
Hawaii County Liquor Control Director Gerald Takase said the Big Island is “kind of lenient” when it comes to dancing.
“The idea of trying to regulate something that is so innate and so distinguishing and so glorious about the Hawaiian culture is perverse.” — Dean Pitchford, writer of the film “Footloose”
“We’ll try to keep them on the dance floor, but it’s more for investigators so that they’re not creating a problem with obstructions,” he said. “If a wedding couple hears their favorite song and gets up to dance, we won’t come down on them.”
On the Big Island, like in Maui County, an approval for dancing means completing a one-page form and getting the administrator to sign off on it. Mostly, regulators want to know if the establishment is planning on allowing dancing, and if so, where it will be happening.
Takase said there were no public comments on the proposed dancing definition when a hearing was held last month, and he hasn’t received any phone calls about it.
“To tell you the truth, we’ve never really had a problem with dancing,” he said, adding that he can’t recall a single fine for dancing.
Villarosa felt similarly, saying the county is going to go ahead and approve the definition as required by the state but doesn’t feel it’s necessary.
“I don’t know exactly what this definition will do,” she said. “We don’t need a definition of dancing for our purposes. The dancing regulation that we’re talking about is to have a permit and tell us where your dance floor is.”
Dean Pitchford, a St. Louis School graduate who went on to write the screenplay for the 1984 dance movie “Footloose,” said one of the things he talks about when he speaks around the country about dancing is how lucky he was to grow up in Hawaii.
“I was fortunate enough to be raised in a community where there was no separation between music and hula and dance and movement and our lives,” he said in a 2013 interview as lawmakers were trying, unsuccessfully, to pass a bill to define dancing.
“The idea of trying to regulate something that is so innate and so distinguishing and so glorious about the Hawaiian culture is perverse,” Pitchford said.
Here’s a video of Civil Beat’s interview with Pitchford, in which he talks about the history of dancing rules around the country and the challenges of defining the term.