Dayton Tavern, Inc. v. Liquor Control Commission
| Decision Date | 27 August 1999 |
| Docket Number | C.A. 17651,99-LW-3525 |
| Parties | DAYTON TAVERN, INC., Plaintiff-Appellant v. LIQUOR CONTROL COMMISSION, Defendant-Appellee C.A. Case No. 17651 |
| Court | Ohio Court of Appeals |
RICHARD A. BOUCHER, Atty. Reg. #0033614, 12 W. Monument Avenue, Suite 200, Dayton, Ohio 45402-1202, Attorney for Plaintiff-Appellant
BETTY D. MONTGOMERY, Attorney General Of Ohio, Atty. Reg. #0007102 DAVID A. RABER, Assistant Attorney General, Atty. Reg #0059502, 30 East Broad Street, Columbus, Ohio 43215-3428, Attorneys for Defendant-Appellee
Plaintiff-appellant Dayton Tavern, Inc., dba Brandy's, appeals from an order affirming a decision of defendant-appellee Ohio Liquor Control Commission, ordering that Brandy's serve a six-day suspension of its liquor license, or pay a $1,200 forfeiture, for committing multiple violations of Ohio Adm.Code 4301:1-1-52 ("Regulation or Rule 52"), by allowing improper dancing at its establishment. Brandy's, which is also known as Key West, argues that the trial court erred in upholding the commission's order, because it was not supported by substantial, reliable, and probative evidence, and it was not in accordance with law, since Regulation 52 is unconstitutionally vague and overbroad, in violation of Section 11, Article I of the Ohio Constitution, and the First and Fourteenth Amendments of the United States Constitution.
We conclude that the trial court did not abuse its discretion in affirming the commission's order, since the order was supported by substantial, reliable, and probative evidence. However, we also conclude that Regulation 52 is facially overbroad, in violation of the United States and Ohio Constitutions. Accordingly, the judgment of the trial court is Reversed, and judgment is entered for Key West, reversing and vacating the order of the commission imposing sanctions.
Key West, a liquor permit holder, is a nightclub featuring semi-nude dance performances. In April, 1996, the Department of Liquor Control contacted local police departments, requesting their assistance in investigating several complaints it had received regarding Key West. As a result of the ensuing investigation, Key West was cited in two separate cases for multiple violations of the Ohio Liquor Control Commission's regulations. In Case No. 1509-96, Key West was charged with violating Regulation 52 by allowing female dancers to expose their "bare breasts" (Violation # 1), and "pubic areas" (Violation #2).[1] In Case No. 90-97, Key West was charged with violating Regulation 52 by allowing female dancers "to expose their breasts with pasties covering only the aerolo [sic, presumably areola] and/or nipple portion of the breasts."
A hearing on both cases was held before the Ohio Liquor Control Commission on February 12, 1997. The commission found that Key West had committed both of the violations charged in Case No. 1509-96, and ordered it to pay a forfeiture of $1,200, or to serve a six-day suspension. The commission also found that Key West had committed the single violation charged in Case No. 90-97, but imposed no penalty for that violation. Key West appealed the commission's decision to the Montgomery County Court of Common Pleas, pursuant to former R.C. 119.12.[2] The trial court affirmed the commission's decision.
Key West appeals from the trial court's order affirming the commission's decision.
Key West's First Assignment of Error states:
THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, OHIO ERRED IN SUSTAINING THE COMMISSION'S ORDER BECAUSE IT WAS NOT SUPPORTED BY SUBSTANTIAL, RELIABLE AND PROBATIVE EVIDENCE.
In reviewing an order issued by an administrative agency, a common pleas court must affirm the agency's order if it finds that there is reliable, probative, and substantial evidence to support it, and it is in accordance with the law. Lavery v. Ohio Liquor Control Comm. (1996), 112 Ohio App.3d 494, 497. In reviewing an administrative order, a common pleas court generally must defer to the administrative resolution of evidentiary conflicts. Paramount Auto, Inc v. Motor Vehicle Dealers Bd. (1997), 118 Ohio App.3d 511, 514. An appellate court's review of the common pleas court's decision is even more limited; the appellate court simply determines whether the common pleas court abused its discretion. Id. On questions of law, however, an appellate court's review is plenary. MacKnight v. Lake Cty. Dept. of Human Serv. (1995), 107 Ohio App.3d 181, 184.
Regulation 52 provides 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 the 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.
Allowing a female to dance topless, with only pasties covering the nipple and areola portion of her breasts, constitutes "improper conduct" for purposes of Regulation 52. Salem v. Ohio Liquor Control Comm. (1973), 34 Ohio St.2d 244.
In Case No. 1509-96, violation #1, Key West was cited for allowing its dancers to expose their "bare breasts" in contravention of Regulation 52. Key West argues that its dancers wore latex pasties covering the nipple and areola portion of their breasts, and, therefore, could not have exposed their bare breasts. In furtherance of this argument, Key West contends that the law enforcement officers admitted that the dancers were wearing pasties.
Initially, the only law enforcement officer who testified that the dancers were wearing pasties was Agent Steven M. Clapp, who testified about the events of September 28, 1996, which formed the basis for the violation charged in Case No. 90-97. Detective Kraig Krivis testified about the events of April 26, 1996, which formed the basis for the violations charged in Case No. 1509-96. Krivis testified that while he and a second officer were inside Key West, working undercover, three female dancers exposed their breasts to him and the second officer while dancing for them. Although Krivis did not expressly testify that the dancers exposed their bare breasts to the officers, as the trial court found, that was, nevertheless, a reasonable construction of Krivis' statement that the dancers "exposed their breasts" to him and his fellow officer. Furthermore, while Key West's manager, Delbert Lee Hale, testified that the dancers were wearing pasties on April 26, 1996, the trial court was entitled to defer to the commission's resolution of the evidentiary conflict, see Paramount Auto, Inc., supra, particularly where there was testimony indicating that Key West's dancers did not always follow the management's rules.
In Case No. 1509-96, Violation #2, Key West was cited for allowing one of its dancers to expose her "pubic area." Key West acknowledges that one of its dancers did, in fact, expose her pubic region to Detective Krivis, but contends that the dancer was simply adjusting her costume because it was too small for her. Key West asserts that it neither condoned nor permitted the dancer's actions, and that it fired the dancer following the allegation. Thus, Key West asserts, the trial court abused its discretion in upholding the commission's finding with respect to Violation #2. We disagree.
Under the plain meaning of Regulation 52, an establishment can be cited for violating the provision if either the permit holder, or its agents or employees, knowingly or willfully permit improper conduct to occur on the premises. Dancers are considered agents of the permit holder for purposes of Regulation 52. Insight Enterprises, Inc. v. Ohio Liquor Control Comm. (1993), 87 Ohio App.3d 692, 697.
Here, Hale testified that the dancer whose actions prompted the citation set forth in Violation #2 indicated that she accidentally exposed her pubic area while adjusting her costume. However, under questioning from one of the commissioners, Hale conceded that he did not believe the dancer's explanation, and, therefore, fired her. Thus, Hale essentially conceded that the dancer was acting knowingly when she exposed her pubic region; that testimony, together with the testimony of Detective Krivis, was sufficient to prove the violation.
In Case No. 90-97, Key West was cited for allowing female dancers to expose their breasts, with only pasties covering the nipple and areola portion of their breasts. Key West argues that when it allowed its female dancers to expose their breasts, covered only by pasties, it was reasonably relying on a "policy statement," which it had introduced into evidence at the hearing. The policy statement, which allegedly came from the Ohio Department of Public Safety, reads in relevant part as follows:
The [dancer's] attire must at a minimum opaquely cover the nipple and aeriola [sic] portion of the female breast. "Pasties" or other coverings are sufficient as long as the entire nipple and aeriola [sic] portion are rendered invisible. These coverings cannot be designed or decorated in such a way as to simulate the appearance of the nipple and aeriola [sic]. (Emphasis added.)
Initially, it is unclear where this policy statement...
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