Angola Corp. v. Liquor Control Commission
Citation | 33 Ohio App.2d 87,62 O.O.2d 142,292 N.E.2d 886 |
Parties | , 62 O.O.2d 142 ANGOLA CORP., Appellant, v. LIQUOR CONTROL COMM., Appellee. |
Decision Date | 28 November 1972 |
Court | United States Court of Appeals (Ohio) |
Syllabus by the Court
The Ohio Liquor Control Commission may impose upon its permit holders a more strict standard of conduct regarding public decency than that applicable to the public generally and may prohibit conduct it regards as obscene even though such conduct may by accepable under the standards set out in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.
J. Richard Lumpe, Columbus, for appellant.
William J. Brown, Atty. Gen., John A. Connor, and Nathaniel Hawthorne, Columbus, for appellee.
This is an appeal from a judgment of the Franklin County Court of Common Pleas which affirmed an order of the Ohio liquor control commission.
Plaintiff, the appellant herein, was charged September 6, 1970, with two violations of knowingly and willfully allowing improper conduct upon its permit premises in violation of Section LCc-1-52 of the Ohio liquor control regulations. The violations as charged are as follows:
'Violation 1-On September 6, 1970, at or about 12:05 o'clock A. M., EST., your agent James E. Full did knowingly and/or willfully allow in and upon the permit premises, improper conduct, in that your agent James E. Fall, did allow a female to dance in a manner which suggested an indecent act-in violation of LCc-1-52 a regulation of the Ohio Liquor Control Commission.
'Violation 2-On September 6, 1970, at or about 12:05 o'clock A. M., EST., your agent, James E. Fall, did knowingly and/or willfully allow in and upon the permit premises, improper conduct in that your agent James E. Fall did allow a female to have physical conduct with various patrons, to-wit, placing her buttocks on a male patron's lap and performing in a manner which suggested an indecent act-in violation of LCc-1-52 a regulation of the Ohio Liquor Control Commission.'
The liquor control commission, after a hearing, found the allegations well taken, and ordered plaintiff's permit suspended for twenty-eight days. Plaintiff appealed to the Franklin County Court of Common Pleas.
The Common Pleas Court, in its decision and entry wrote, in pertinent part, as follows:
Counsel for plaintiff relies heavily in his brief upon the decision of this court in Fortner v. Thomas No. 8714, decided December 26, 1968 (reversed on other grounds), 22 Ohio St.2d 13, 257 N.E.2d 371, concerning an indecent act, as follows:
(Emphasis added.)
Consequently, applying the Fortner case, it is counsel's contention that the elements established by the Supreme Court concerning the meaning and application of 'obscene' and 'indecent' must be proven before a conviction can be sustained. Such elements are cited, along with counsel's basic argument, at page 3 of his brief as follows:
'1. The deminant theme of the material taken as a whole appeals to a prurient interest in sex;
'2. The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters;
'3. The material is utterly without redeeming social value.
* * *'
Judge Troop, however, expressed a different viewpoint in Ivan Friedman v. Liquor Control Commission, No. 8938, decided by this court March 5, 1968, in the following quoted passage:
'Commission regulations, including No. 52, serve the statutory injunction contained in Section 4301.03(B), Revised Code, when they are designed to maintain 'public decency, sobriety, and good order.' The enforcement division of the liquor department should be dedicated to the accomplishment of that very serious purpose. It could well be questioned whether the employment of an almost completely naked woman in a dance routine in a public bar is an attempt to maintain public decency, but admitting that opposition to such performance is an antiquated and puritanical point of view, let us note the fact pattern in the instant case.
(Emphasis supplied.)
Furthermore, we note the following significant statement by Judge Zimmerman in Solomon v. Liquor Control Comm. (1965), 4 Ohio St.2d 31, at page 34, 212 N.E.2d 595, at page 598:
Thereafter, whatever the generally acdepted mores may be at a particular time and place and in particular circumstances outside permit premises, a permit holder must conduct his business in a manner designed to maintain public decency and good order. This concept was reiterated by this court in Crouse v. Liquor Control Comm., No. 7669, decided January 12, 1965, where it was said:
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