613 N.E.2d 1066 | Ohio Ct. App. | 1992
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *29 In February and March 1991, detectives under the supervision of the Franklin County Sheriff's Department visited appellant, The Private Dancer. Once inside the establishment, each of the detectives bought a female dancer a conversation drink and discussed the various forms of entertainment. Each of the detectives subsequently paid the waitress for a lap dance with the dancer with whom they were speaking. The lap dance involved the detective sitting on a couch and the dancer, wearing shorts, straddling him and dancing in time to the music. The duration of the lap dance depended on the number of songs purchased.
On April 11, 1991, pursuant to R.C. Chapter 3767, appellee, S. Michael Miller, Franklin County Prosecuting Attorney, filed a complaint against The Private Dancer; the real property located at 3609 Trabue Road; the owner of the property, Mark Wolfe; his wife, Sharon Wolfe; and the operator of The Private Dancer, Brenda Redman, alleging that lewdness, assignation or prostitution is conducted, permitted or continued or exists at The Private Dancer and, thus, that The Private Dancer is a public nuisance.
On April 29, 1991, appellant Sharon Wolfe filed a motion to dismiss, asserting that the complaint failed to state a cause of action against her because she was not an owner of the property. At the hearing for the temporary injunction, the trial court reserved ruling on Sharon Wolfe's motion until it heard the evidence.
Following the hearing, the court, by entry dated May 8, 1991, found that a nuisance existed on the premises and granted a temporary injunction and ordered the premises closed. After the hearing for a permanent injunction, the trial court found that a nuisance existed at The Private Dancer, in that lap dancing was a form of sexual activity and constituted an act of lewdness and sexual contact. The court then ordered that the nuisance be abated and permanently enjoined *30 and the premises at 3609 Trabue Road were ordered closed for use for any purpose for a period of one year beginning May 8, 1991. The court further ordered that all the personal property used in conducting the nuisance be removed and sold. A tax of $300 was levied and the costs of the matter were assessed against appellants.
Appellants now bring this appeal and assert the following assignments of error:
"Assignment of Error 1
"The trial court erred as a matter of law to the prejudice of the appellant, Sharon Wolfe, in failing to sustain the pre-trial motion to dismiss, as she is not an owner of the property within the meaning of O.R.C.
"Assignment of Error 2
"Ohio Revised Code Chapter 3767 is unconstitutionally vague with reference to the term lewdness in violation of the Due Process Clauses of the Ohio and Federal Constitutions both on its face and as applied and further that the trial court erred in weighing the evidence to find lewdness."
In their first assignment of error, appellants assert that the trial court erred in not granting Sharon Wolfe's motion to dismiss. Appellants assert that the property in question was sold only to Mark Wolfe and that the only involvement Sharon Wolfe had in the transaction was being obligated on the mortgage deed, which has since been satisfied. Because she is not an owner of the property in question, appellants assert that Sharon Wolfe was not a proper party in this action.
Appellants assert that, when Sharon and Mark Wolfe executed the purchase money mortgage in favor of the real estate vendor, they did so to release Sharon Wolfe's dower interest in the general warranty deed, which granted the real estate in question solely to Mark Wolfe, and to provide the vendor with an additional responsible debtor. Appellants assert that, once the mortgage deed was satisfied, Sharon Wolfe only held an inchoate right of dower in the property, which would not vest until the death of Mark Wolfe.
In Jewett v. Feldheiser (1903),
In this case, there is no evidence showing that Sharon Wolfe specifically released her dower interest in the property in question. Such a release must be done in writing and recorded. Because there is no evidence that Sharon Wolfe's dower interest in the property has been released, the trial court did not err in not *31 granting her motion to dismiss. Appellants' first assignment of error is not well taken.
In their second assignment of error, appellants assert that the term "lewdness," as used in R.C. Chapter 3767, is unconstitutionally vague both on its face and as applied. Appellants also assert that this case presents a substantially different fact pattern from cases previously decided by this court on the issue of lewdness,1 in that there was more obvious evidence of sexual activity in the other cases. A law is unconstitutional on its face if it is so vague that a person of common understanding cannot know what is forbidden. Lanzetta v.New Jersey (1939),
This court is bound to follow the decision of the Ohio Supreme Court in State ex rel. Rear Door Bookstore v. TenthDist. Court of Appeals (1992),
"The common definitions of `lewd' clearly demonstrate that there are activities of a sexual nature which are beyond the limits of what society deems tolerable. * * *
"* * * The word [`lewdness'] describes a public sexual activity that is reprehensible or disgusting in nature. Its meaning is sufficiently clear to a person of average intelligence and its definition supplies ample guidance to prevent arbitrary and discriminatory enforcement."
The court further stated, at 359,
"* * * The end result is that a meaning can be ascertained which puts a person of ordinary intelligence on notice of what actions are prohibited."
While some may find that lap dancing, like nude dancing, is a form of expressive conduct protected by the
Appellants also assert that the trial court erred in weighing the evidence to find lewdness.
When reviewing a trial court decision to determine whether it is against the manifest weight of the evidence, a court of appeals is guided by the presumption that the findings of the trial court were correct. Seasons Coal Co. v. Cleveland (1984),
The standard of review for this court regarding the granting of an injunction by a trial court is whether the trial court abused its discretion. The allowance of an injunction rests within the sound discretion of the trial court and depends upon the facts and circumstances surrounding the case. Perkins v.Quaker City (1956),
This court finds that the judgment of the trial court is supported by some competent, credible evidence that showed that lap dancing was lewd and tended to incite sensual desire or imagination. See Rear Door Bookstore. Although this court, in hearing the evidence, might have held a different opinion than the trial court, this is not a legitimate ground for reversal. Consequently, this court finds that the trial court did not abuse its discretion in weighing the evidence and in issuing the injunction. Appellants' second assignment of error is not well taken. *33
Based on the foregoing, appellants' two assignments of error are overruled and the judgment of the trial court is affirmed.
Judgment affirmed.
WHITESIDE and PETREE, JJ., concur.