161 Dublin, Inc. v. Ohio State Liquor Control Commission
| Decision Date | 27 December 2001 |
| Docket Number | 01AP-134,01-LW-5186 |
| Citation | 2001 Ohio 8863 |
| Parties | 161 Dublin, Inc., Appellant-Appellant v. Ohio State Liquor Control Commission, Appellee-Appellee |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
Gary L Jones Co., L.P.A., and James J. Andrioff, for appellant.
Betty D. Montgomery, Attorney General, and David A. Raber, for appellee.
161 Dublin, Inc., appellant, appeals a judgment of the Franklin County Court of Common Pleas, which rendered a decision in favor of appellee, Ohio State Liquor Control Commission by revoking appellant's liquor permits.
Appellant holds liquor permits for the Remington Gentleman's Club ("Remington Club") in Columbus, Ohio. The Remington Club sells alcohol and also features female dancers. On April 8, 1999, two investigators from the Ohio Department of Safety Investigative Unit visited the Remington Club to perform a routine field investigation. One of the agents gave the following account of what occurred during their visit to the Remington Club. In a "private dance room" for the club, the agents witnessed a female dancer removing her bra and exposing her bare breasts. The report stated that the dancer:
*** proceed[ed] in placing her bare breast against [an] unidentified male patron[']s facial area. Note that [the dancer] began knocking the unidentified male patron[']s head from the left to right while her breast were still placed against sames face. *** [the dancer] then straddled herself in a seated position across the lap of the earlier mentioned unidentified male patron and began thrusting her hips into sames groin area while allowing the unidentified male patron to caress her thighs and buttocks ***. [The dancer] then positioned herself in front of the above stated unidentified male patron in a kneeling position and placed her facial area into the unidentified males patron[']s groin area. [The dancer] then began moving her head in an up and down fashion as to simulate oral sex.
The agents spoke with the club's general manager and informed him that the club was being cited for liquor permit violations pursuant to Ohio Adm.Code _4301:1-1-52. The incident was assigned case No. 2045-99. Appellant was cited for two violations of "improper conduct." The first violation ("Violation #1") was for engaging or allowing lewd activities (simulating sexual intercourse) to occur and the second violation ("Violation #2") was for engaging or allowing physical contact (touching, fondling or caressing buttocks, female breasts or self or patrons) to occur.
On July 1, 1999, two different investigators visited the Remington Club for a field investigation. The investigative report stated that when a female dancer unclothed, one of the agents "noted that the dancer had a clear 'latex' covering over her nipples but the nipples were showing through." The agents witnessed another female dancer dancing without any covering on her nipples. One of the agents entered a back room called the "VIP Room" with a third female dancer. When the agent sat down, the female dancer "immediately started grinding on [his] lap" and pressing her breasts into his face. The agent stated that the third female dancer's nipples were also covered by a clear latex covering.
The agents returned to the stage area of the club and observed a fourth female dancer kneeling before a seated male patron placing her head into his lap, and simulating the performance of oral sex. The dancer then sat down in front of one of the agents and placed his head into her groin area. The agent stated in his report that after this occurred, they talked with the manager of the club, identified themselves as agents for appellee, and informed him the club was being cited for liquor permit violations pursuant to Ohio Adm.Code 4301:1-1-52. This incident was assigned case No. 2042-99. The improper conduct cited by the agents was: Violation #1, engaging or allowing nudity because of insufficient covering of the dancers' nipples, and Violation #2, engaging or allowing physical contact between a patron and a dancer's breast.
A hearing was held on November 16, 1999 regarding the four violations of Ohio Adm.Code 4301:1-1-52 contained in case Nos. 2045-99 and 2042-99. At the hearing, appellant entered into a plea agreement with an assistant from the Attorney General's office who represented appellee. Violation #1 from both case Nos. 2045-99 and 2042-99 was dismissed in exchange for appellant stipulating to the facts supporting Violation #2 for both cases. Appellee concluded appellant's liquor license should be revoked.
Pursuant to R.C. 119.12, appellant filed a notice of appeal. Appellant stated in its notice that the grounds for the appeal were "that the orders appealed are not supported by reliable, probative and substantial evidence and that the orders appealed are not in accordance with law due to the fact that Ohio Administrative Code Rule 4301:1-1-52 is unconstitutional." After both parties filed briefs, the trial court filed a decision and judgment entry affirming the order of appellee on January 25, 2001. The court held that Ohio Adm.Code 4301:1-1-52(B)(7) was "unconstitutional as being both overbroad and vague as well as potentially abridging First Amendment rights by not being narrowly drawn." The court also held that the remaining provisions of Ohio Adm.Code 4301:1-1-52 were constitutional stating that they were "narrowly drawn to accomplish the purpose for which they were promulgated." Appellant appeals this decision and presents the following assignment of error:
THE COMMON PLEAS COURT ABUSED IT'S [sic] DISCRETION WHEN IT RULED THAT REGULATION 4301:1-1-52, OHIO ADM. CODE IS CONSTITUTIONAL.
Appellant argues in its single assignment of error that appellee could not revoke its liquor license based upon Ohio Adm.Code 4301:1-1-52 ("Regulation 52") because it is unconstitutional. In support of this argument, appellant cites to J.L. Spoons, Inc. v. O'Connor (N.D.Ohio 2000), 194 F.R.D. 589 ("J.L. Spoons II"), where a United States District Court in the Northern District of Ohio held that sections (A)(1), (A)(3), (B)(2), and (B)(3) were unconstitutionally overbroad and (B)(7) was unconstitutionally vague and overbroad. The Court also held that the phrase "lewd activities" as defined in (B)(1) was unconstitutionally overbroad. The trial court declined to follow the reasoning of J.L. Spoons II, stating that "[d]espite the fact that the federal court for the Northern District of Ohio has enjoined the enforcement of parts of new Regulation 52, to date, the [United States] Southern District and the State Courts have declined to follow suit."
The First Amendment of the United States Constitution states in part: "Congress shall make no law *** abridging the freedom of speech." Nude dancing can be found to be considered "expressive conduct" falling within "the outer ambit of the First Amendment's protection." City of Erie v. Pap's A.M. (2000), 529 U.S. 277, 289, 120 S.Ct. 1382, 1391. The Fourteenth Amendment of the United States Constitution makes the freedom of speech provision of the First Amendment applicable to the states. City of Ladue v. Gilleo (1994), 512 U.S. 43, 45, 114 S.Ct. 2038, 2040, fn. 1.
Restrictions on public nudity, public decency, and erotic dancing in liquor establishments are within the constitutional power of the government. Junction 615, Inc. v. Ohio Liquor Control Comm. (1999), 135 Ohio App.3d 33, 40, following Barnes v. Glen Theatre, Inc. (1991), 501 U.S. 560, 111 S.Ct. 2456. In applying the Twenty-first Amendment of the United States Constitution to a state's regulation of nude dancing, the United States Supreme Court stated: "The State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs." New York State Liquor Auth. v. Bellanca (1981), 452 U.S. 714, 717, 101 S.Ct. 2599, 2601. "The obvious 'harmful potentialities' when the sale of intoxicating beverages occurs in retail outlets necessitates that the liquor industry be strictly regulated, and that regulation includes not only the sale of liquor but also the conditions and circumstances surrounding the liquor premises." Salem v. Liquor Control Comm. (1973), 34 Ohio St.2d 244, 245. Additionally, "actions such 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 [and] dancing *** even nude dancing." Junction 615, at 39. Therefore, we find appellee had the authority to regulate the actions of appellant.
The next question we address is whether the method by which appellee regulated appellant pursuant to Regulation 52 violated the First Amendment. Regulation 52's prohibitions for liquor permit holders are contained in Ohio Adm.Code 4301:1-1-52(B), which states:
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