Buckle Up Festival, LLC v. City of Cincinnati, 336 F. Supp. 3d 882

Plaintiffs sued under 42 U.S.C. § 1983 challenging Cincinnati Municipal Code § 309-3 (admissions tax) as unconstitutionally vague and violative of equal protection and due process; court previously dismissed the vagueness claim.
§ 309-3 levies a 3% tax on amounts paid for admission to public performances and defines "admission" in § 309-1-A to include "seats, chairs, tables and benches, reserved or otherwise, and other similar accommodations and charges."
Plaintiffs allege inconsistent enforcement: no tax for Bunbury 2012 but tax assessed for Bunbury 2013, supporting arbitrary enforcement claim.
Plaintiffs submitted testimony from two city officials stating the "and other similar accommodations" language is vague; they moved for reconsideration based on that and on the court's prior statement that the ordinance was not criminal.
Court recognized § 309-99 imposes criminal penalties (minor misdemeanor), so the earlier characterization was a legal error and the court granted reconsideration.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Vagueness of § 309-3 (due process)	§ 309-3 (esp. "other similar accommodations") is vague and permits arbitrary enforcement; inconsistent application (2012 v. 2013) shows the problem	§ 309-3 gives adequate notice (dictionary meaning of accommodations) and applies to Plaintiffs’ provision of special access/areas	Court: DENIED judgment on pleadings as to vagueness; plausible claim that § 309-3 invites arbitrary enforcement survives
Standard of review (criminal vs. civil vagueness test)	Court erred to apply less stringent civil standard because § 309-99 creates criminal penalties	City relied on civil standard in prior briefing	Court: CLEAR ERROR; criminal penalties require careful vagueness analysis; reconsideration granted
Procedural due process claim	City deprived Plaintiffs of procedural due process	City moved for judgment on the pleadings	Court: GRANTED judgment on the pleadings for Defendants on procedural due process claim
Equal protection / Ohio constitution claims	Enforcement was arbitrary/discriminatory (equal protection and state constitutional claims)	City denies unconstitutional discrimination	Court: DENIED judgment on the pleadings as to equal protection and Ohio constitutional claims (claims survive)

Beckles v. United States, 137 S. Ct. 886 (Sup. Ct. 2017) (void-for-vagueness principle re: notice and arbitrary enforcement)
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (U.S. 1982) (different vagueness standards for civil vs. criminal/regulatory enactments)
Kolender v. Lawson, 461 U.S. 352 (U.S. 1983) (statute must provide explicit standards to avoid arbitrary enforcement)
Holder v. Humanitarian Law Project, 561 U.S. 1 (U.S. 2010) (vagueness analyzed as-applied; clear proscription forecloses facial vagueness challenge)
United States v. Williams, 553 U.S. 285 (U.S. 2008) (vagueness: fair notice and prevention of discriminatory enforcement)
United States v. Krumrei, 258 F.3d 535 (6th Cir. 2001) (as-applied vagueness challenge standard)
Dambrot v. Central Michigan Univ., 55 F.3d 1177 (6th Cir. 1995) (unrestricted delegation invites arbitrary enforcement)