Cleveland v. Fisher

• Decision Date: 11 June 1992
• Docket Number: Nos. 92,s. 92
• Citation: 62 Ohio Misc.2d 792,611 N.E.2d 1016
• Parties: CITY OF CLEVELAND v. FISHER et al. CRB 2573, 92 CRB 2575, 92 CRB 2576 and 92 CRB 2614.
• Court: Ohio Court of Common Pleas

Page 792

62 Ohio Misc.2d 792

611 N.E.2d 1016

CITY OF CLEVELAND v. FISHER et al.

Nos. 92 CRB 2573, 92 CRB 2575, 92 CRB 2576 and 92 CRB 2614.

Cleveland Municipal Court, Ohio.

Decided June 11, 1992.

Lynn A. McLaughlin, Asst. Cleveland Prosecutor, Cleveland, for plaintiff.

Deborah J. Nicastro and Wilhelm G. Spiegelberg II, Cleveland, for defendants Cheryl Fisher, Barbara Lockart, Denise Boils, and Damon Webb.

RONALD B. ADRINE, Judge.

All of the defendants in the above-captioned cases perform various services for their employer, The Red Garter, Inc., an adult entertainment facility located in downtown Cleveland.

The Red Garter's primary service is the presentation of live nude performances. Such performances are presented in two formats. The first is on a central stage. The second is in private booths, which are located along the north wall of the facility.

All of the defendants were arrested, on two separate occasions, for violating Cleveland M.C. 699.02(a), which was entitled "FAILURE TO MAINTAIN VISIBILITY." The ordinance provided, in pertinent part, that:

"No picture arcade or live viewing booth shall be maintained or operated unless the interior of the premises is configured in such a manner that there is an unobstructed view of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms, from a manager's station continually occupied by the owner, manager or an employee responsible for the operation of the establishment at the time * * *. Visibility shall not be blocked or obscured by doors, curtains, drapes, merchandise, display racks, or any other obstruction. * * * "

The defendants challenge the maintenance of the instant charges. They cite two alternate grounds:

1. The city of Cleveland repealed M.C. 699.02(a), as well as two other enabling ordinances, after the defendants in these complaints were charged.

2. M.C. 699.01, 699.02, and 699.99, as they read at the time of the arrests in these cases, were unconstitutional.

In furtherance of their first argument, the defendants have taken the position that "[w]here a person is being prosecuted under a municipal ordinance and the legislative authority of the municipality repeals that criminal ordinance before judgment is rendered in the case without any savings clause as to pending prosecutions, the defendant is entitled to be discharged because the repeal of the criminal ordinance has 'swept away the whole foundation of the prosecution, and [h]as effectively put an end to it.' " Defendants' Memorandum in Support of Joint Motion to Dismiss, at page 3. As authority for this position, the defendants cite Earnhart v. Lebanon (1891), 5 Ohio C.C. 578, 582, 3 Ohio C.D. 282, 285, and Ex parte Brown (C.P.1936), 31 Ohio Law Abs. 345, 346-347.

The prosecution counters the defendants' arguments, maintaining that M.C. 101.04 operates as a general savings clause and, therefore, the repeal of the sections " * * * does not * * * affect the prior operation of any prior action taken thereunder." M.C. 101.04(c)(1). The prosecution distinguishes Earnhart and Brown from the case at bar. It maintains that those cases do not apply to the facts before this court, as in each of those cases, unlike the instant case, there was no general savings clause in the Code itself.

The parties have not cited, nor has the court's own research uncovered, any authority directly bearing on the application of M.C. 101.04 to a situation similar to the one which now confronts it. The court is mindful of the axiomatic proposition that the criminal laws must be construed strictly against the prosecution. Notwithstanding this principle, common sense would dictate that in a situation where the legislative authority has retained the language of a prior enactment, its intention is to continue to sanction the conduct covered by the new, as well as the old, section. This is particularly true where, as here, no break in the continuity of coverage afforded by the new and the old enactments can be shown. Any other interpretation would defy logic.

This interpretation is given credence by the explicit language employed in M.C. 101.04(b). That section reads:

"An ordinance which is re-enacted or amended is intended to be a continuation of the prior ordinance and not a new enactment, so far as it is the same as the prior ordinance."

In the case before the bench, Cleveland City Council repealed M.C. 699.02 and replaced it with a new section which deals with the licensing requirements for the operation of a picture arcade. See Cleveland City Council Ordinance No. 1890-91. In the same enactment, City Council also retained substantially the same language from the repealed section in a new M.C. 699.09. The primary differences between the old M.C. 699.02 and the new M.C. 699.09 are requirements in the new enactment that the regulated establishments install and maintain closed-circuit television equipment. Such equipment is to be employed to aid the owner/operators in monitoring the activities of patrons and employees occurring on the premises. Under the former M.C. 699.02, such owner/operators were required to conduct this monitoring function with the naked eye. The new section also requires that these establishments conspicuously post notice that continuous closed-circuit television monitoring is in progress.

Despite these refinements, the purpose and the intent of the new M.C. 699.09 are the same as the old M.C. 699.02. As such, the court finds that the retention of this language, purpose, and intent by the legislative authority shows a clear desire on its part that prosecutions previously commenced under the old section not be lost under the new arrangement of the law. M.C. 101.04(c)(3) and (4) preserve these prosecutions intact. The defendants' arguments in this regard are not well taken.

The defendants' constitutional argument may be subdivided into its component parts. Succinctly stated, the defendants challenge the ordinance under which they were charged, as well as the ordinances which enabled it, as violative of their rights to free speech and to due process. They also claim that these enactments were impermissibly vague and overbroad. Each of these arguments warrants independent examination and discussion.

I. VAGUENESS

The defendants' vagueness argument has two prongs. The first attacks the definitions of certain essential terms found in M.C. 699.01 as being "so vague that men of common intelligence must necessarily guess at [their] meaning and differ as to [their] application," Connally v. Gen. Constr. Co. (1926), 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 323. Specifically, defendants take issue with the definition of "live viewing booth," and the lack of definition for the term "premises," provided in M.C. 699.01 and 699.02.

It is defendants' position that the definition of "live viewing booth" is so incomprehensible that persons of ordinary intelligence can only guess at its meaning. At first glance, defendants' argument would appear to have merit. The language in question reads as follows:

"(a) 'Live viewing booth' which may also be known as 'live peep shows' means any private or semi-private booth [to] which the public may gain admittance wherein a live performance is presented to give [sic ] (5) or fewer persons at one time."

Close scrutiny of this language leads unerringly...