732 N.E.2d 1025 | Ohio Ct. App. | 1999
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Junction 615, according to appellant's brief, "is similar to many of the upscale gentlemen's clubs that are becoming so popular today. It employs dancers who perform sophisticated dance routines for the patrons." On two occasions, the commission sent agents to Junction 615 to determine whether the "sophisticated dance routines" were in violation of the former version of Ohio Adm. Code
On Saturday, March 9, 1997, Agents Patrick Sheehan and Eric Wolfe went to Junction 615 to investigate a complaint. While at the establishment, the agents observed the dance routine of Lisa E. Mackel. Ms. Mackel's routine consisted of her straddling herself across the laps of numerous unidentified male patrons, thrusting her hips into their groin areas, and then placing her breasts around their faces while allowing them to caress her thighs and buttocks. She performed this sophisticated routine while dressed in high heel shoes, a shear black T bottom (also referred to as a "G-string"), and a black mesh bra. At the end of her routine, she allowed each patron to place a monetary tip in the left leg of her G-string. After observing the routine from the bar area for a few minutes, Agent Sheehan positioned himself at a seat near the dance floor to get a better look. Eventually, Ms. Mackel approached Agent Sheehan and placed her head in his groin area and started to quickly move her head up and down, which, in the agents estimation, was done to simulate oral sex. Before issuing a citation to the club, Agent Sheehan also allowed her to straddle his lap, thrust her hips into his groin area, and place her breasts in his face and knock his head back and forth with them. The agent's issued a citation to the club for "[a]llowing improper conduct (dancer having physical contact with the patron.)" After a hearing, the commission ruled that appellant had violated rule 52 and assessed it a fine of $700, or allowed it to have its liquor license suspended for seven days, in lieu of the fine.
On Saturday, August 16, 1997, Agents James G. Eliason and Kevin Piazza went to Junction 615 to investigate a complaint. After ordering drinks, the agents observed the dance routines of Eva E. Hails and Dawn M. Britsky. Agent Eliason observed Ms. Hails' stage performance from a seat next to the stage. Ms. Hails' routine consisted of her placing her legs around his head and pulling it into her groin area for a few seconds, straddling his lap and "grind[ing] her groin area in [his] lap," and placing her breasts in his face, while dressed in a one-piece bathing suit. She also performed this routine for other unidentified patrons seated in the vicinity of the stage. After observing Ms. Hails' routine, but before issuing the club a citation, Agent Eliason proceeded to the bar where he and Agent Piazza observed more dance routines. One of these routines included that of Dawn M. Britsky, who performed a private dance for a patron in a corner of the bar, while dressed in a bikini. Her routine consisted of rubbing her buttocks in the patron's chest, straddling his lap, and rubbing her breasts in his face. All of this activity was done in full view of a barmaid and the club's doorman. The agents issued a citation to the club for "[a]llowing improper conduct (go-go dancers having physical contact with the patrons)." After a hearing, the commission ruled that appellant had violated rule 52 and assessed it a fine of $2,800, or allowed it to have its liquor license suspended for fourteen days, in lieu of the fine.
Appellant did not dispute the agents' versions of the facts at either of the hearings before the commission. Appellant appealed the commission's decisions to the Court of Common Pleas. The cases were consolidated for the purposes of the administrative appeal. Appellant argued that: the commission's finding was not supported by reliable, probative, and substantial evidence; the commission abused its discretion; it did not violate rule 52; rule 52 was unconstitutionally overbroad; and, rule 52 violated its right to due process and the equal protection clause of the Ohio and United States Constitutions. On May 29, 1998, the trial court affirmed the rulings of the commission. In its judgment entry, the court ruled that the commission's decisions were supported by reliable, probative, and substantial evidence. The trial court, further, determined that rule 52 was constitutional, notwithstanding the unreported Eighth District Appellate Court decision, cited by appellant, holding it unconstitutional. SeeCleveland's P.M. on the Boardwalk, Ltd. v. Ohio Liquor ControlComm. (Jan. 23, 1997), Cuyahoga App. No. 69779, unreported.
Appellant raises the following assignments of error:
*38"[1.] The trial court erred in affirming the Ohio Liquor Control Commission's decision due to the fact that Ohio Administrative Code
4301:1-1-52 is unconstitutionally overbroad under theFirst andFourteenth Amendments to the United States Constitution and ArticleI , Section11 of the Ohio Constitution.
"[2.] The decision below must be reversed because rule 52 is unconstitutional under the Due Process Clause of Article
1 Section16 and19 of the Ohio Constitution because it is unconstitutionally vague."[3.] Rule 52 violates the Equal Protection Clause of the United States Constitution and Article
1 Section2 of the Ohio Constitution."
At the time of the within violations, rule 52 read as follows:
"No permit holder, his agent, or employee shall knowingly or willfully allow in, upon or about his licensed premises improper conduct of any kind, type or character; any improper disturbances, lewd, immoral activities or brawls; or any indecent, profane or obscene language, songs, entertainment, literature, pictures, or advertising materials; nor shall any entertainment consisting of spoken language or songs which can or may convey either directly or by implication an immoral meaning be permitted in, upon or about the permit premises.
"Entertainment consisting of dancing, either solo or otherwise, which may or can, either directly or by implication, suggest an immoral act is prohibited. Nor shall any permit holder, his agent, or employee possess or cause to have printed or distributed any lewd, immoral, indecent, or obscene literature, pictures or advertising material."
In addition to the holding by Ohio's Eighth Appellate District in Cleveland's P.M., the Federal Court in Ohio's Northern District also held that rule 52 was unconstitutional, see J.L.Spoons, Inc. v. Brunswick (N.D.Ohio 1998),
The Ohio Supreme Court determined that a conflict existed between the holding of the Eighth District in Cleveland's P.M. and the holding of the Tenth District in Planet Earth Entertainment,Inc. v. Ohio Liquor Control Comm. (Feb. 5, 1998) Franklin App. No. 97APE06-744, unreported. Thus, it took up review of the question "[w]hether the prohibition against semi-nude dancing in liquor establishments, enforced under Ohio Adm. Code
On December 10, 1998, the Liquor Control Commission, presumably in response to the adverse court rulings, amended rule 52. It now defines "lewd activities" as those activities * * * that contain lustful, lascivious or lecherous behavior and includes, but is not limited to acts of, or acts that simulate, sexual intercourse, masturbation, sodomy, bestiality, or oral copulation. Ohio Adm. Code 4301:1-1-52(A)(1). Ohio Adm. Code 4301:1-1-52(B) now provides: *39
"[N]o permit holder, his agent, or employee shall knowingly or willfully allow in and upon his licensed permit premises any persons to:
"(1) Engage in any lewd or disorderly activities;
"(2) Appear in a state of nudity;
"(3) Touch, fondle, or caress the genitals, pubic area, buttocks, or female breasts of any person;
"* * * [or,]
"(7) Commit improper conduct of any kind, type, or character that would offend the public's sense of decency, sobriety or good order."
On February 12, 1999, after the amendment of rule 52, the Ohio Supreme Court granted a motion to dismiss the appeal on suggestion of mootness. Planet Earth Entertainment, Inc.v. Ohio Liquor Control Comm. (1999),
In its first assignment of error, appellant asserts that rule 52 is unconstitutionally overbroad on its face and as applied. Although appellant argues that rule 52 was overbroad as applied, it seems to be arguing that it was unconstitutional because it improperly suppressed the content of the message conveyed by its performers.
While such actions as simulating sex and pummeling a customer with one's breasts are not afforded the same degree of protection as political discourse or classic literature, as appellant correctly points out, dancing, even nude dancing, is afforded some constitutional protection. See Schad v. Mt. Ephraim (1981),
Conduct, such as the type of erotic dancing at issue here, may be "sufficiently imbued with elements of communication to fall within the scope of the
When "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the "nonspeech" element can justify incidental limitations on
As has been repeatedly held, restrictions on public nudity, public decency, and erotic dancing in liquor establishments are within the constitutional power of the government. Barnes, supra. Rule 52 was not intended to suppress free speech, but was enacted to further the government's interest in public decency, sobriety, and good order in liquor establishments. Salem v. Liquor ControlCommission (1973),
Although appellant's own conduct was not protected by the
By relying on LaRue and the
While a reading of rule 52 reveals that an immense amount of protected material is prohibited by it, the constitutional overbreadth doctrine is a very limited and specific doctrine. The doctrine of overbreadth is an exception to the traditional rules of standing whereby a party may assert the
While rule 52 did not unconstitutionally restrict conduct by appellant that was protected by the
In its second assignment of error, appellant asserts that rule 52 is unconstitutionally vague. While the doctrine of vagueness is closely related to the doctrine of overbreadth, it deals with appellant's due process rights, specifically the right to know what conduct is prohibited under a regulation, not the
The holding in Salem clearly asserted that the wording of rule 52 (known then as LCc-1-52) was vague. However, Salem concentrated solely on the actual wording used in the regulation and not the possibility it presented for arbitrary and discriminatory enforcement. In Kolender and the many United States Supreme Court cases analyzing vagueness that have come out since Salem, the Court's main concern has been the possibility that an enactment would be applied in an arbitrary and discriminatory fashion. *43
Many of the same concerns we had under the overbroad challenge are also presented in the vagueness challenge. The Miller case, in part, set forth that a particular piece of artwork or performance was obscene, and not protected by the
In appellant's third assignment of error, it asserts that the regulation violates the Equal Protection Clauses of both the Ohio and the United States Constitutions because they have been punished under the statute while other establishments have not. Appellant did not show how rule 52 discriminated against different classes or provide any evidence to support a claim of an Equal Protection violation to either the trial court or this court. Thus, its third assignment of error is without merit.
For the foregoing reasons, we conclude that former Ohio Adm. Code
__________________________________________ JUDGE ROBERT A. NADER
FORD, P.J., O'NEILL, J. concur. *44