Total Exposure.com, Ltd. v. Miami Valley Broadcasting Corp., 2006 Ohio 484 (OH 2/3/2006)

Citation2006 Ohio 484
Decision Date03 February 2006
Docket NumberC.A. No. 21062.
PartiesTotal Exposure.Com., Ltd., et al. Plaintiffs-Appellants v. Miami Valley Broadcasting Corporation, et al. Defendants-Appellees
CourtUnited States State Supreme Court of Ohio

Laura J. Martin, Atty. Reg #0076590 and Michael R. Botros, Atty. Reg. #0067123, 5785 Far Hills Avenue, Dayton, Ohio 45429. And

H. Louis Sirkin, Atty. Reg. #0024573, 105 West Fourth Street, Suite 920, Cincinnati, Ohio 45202, Attorneys for Plaintiffs-Appellants.

Robert P. Bartlett, JR., Atty. Reg. #0022995, Thomas R. Kraemer, Atty. Reg. #0060120 and Karl E. Neudorfer, Atty. Reg. #0072783, 500 Courthouse Plaza, S.W., 10 North Ludlow Street, Dayton, Ohio 45402, Attorneys for Defendants-Appellees.

OPINION

BROGAN, P.J.

{¶ 1} This case is the latest in a series of actions involving TotalXposure and Diamonds Cabaret, two adult entertainment clubs featuring nude or partially nude exotic dancers. The Plaintiffs/Appellants are: Total Exposure.Com, LTD., BJS No. 2, Inc., d.b.a. Adult Total Xposure (BJS), Planet Earth Entertainment, Inc. (Planet Earth), Luke Liakos, and Scott Conrad. Liakos and Conrad each own 50% of Total Exposure.Com. They each also own 50% of Hayworth, which, in turn, wholly owns both BJS and Planet Earth. At all times pertinent to this action, BJS operated Total Xposure, the dancing club located in Troy, Ohio. Similarly, Planet Earth operated Diamonds Cabaret (Diamonds), the dancing club located in Washington Township, Ohio.

{¶ 2} To begin, we will briefly relate some history preceding this action. About ten years ago, Planet Earth opened Diamonds and was licensed to sell alcoholic beverages on the premises. Notably, there was public opposition to Diamonds from the time it opened. See Planet Earth Entertainment, Inc., d.b.a. Diamonds v. Ohio Liquor Control Comm. (1998), 125 Ohio App.3d 619, 628, 709 N.E.2d 220 (discussing testimony of a state representative about the frustration of citizens and police, who felt Diamonds should be closed). In March, 1995, the lessor of the Diamonds' premises sought a temporary restraining order and inunction against Planet Earth on the ground that it was operating an adult entertainment facility in violation of a Washington Township zoning ordinance. See 1994-N1 Ohio Associates, L.P. v. Planet Earth Entertainment, Inc. (Dec. 15, 1995), Montgomery App. No. 15338, 1995 WL 738416 (affirming trial court's grant of writ of restitution to lessor). Although a writ of restitution was granted, Diamonds' owners solved the problem by buying the premises. Therefore, they were able to continue operating the club.

{¶ 3} Planet Earth lost its liquor license in 1996, because female dancers had been allowed to perform at Diamonds with completely bare breasts. Planet Earth contested the action of the Liquor Control Commission, but the decision was ultimately upheld. See Planet Earth Entertainment, Inc., d.b.a. Diamonds, 125 Ohio App.3d 619, 625-27.

{¶ 4} A criminal complaint was also filed, accusing Conrad d.b.a. Planet Earth of violating Washington Township's zoning laws by allowing nude dancing at Diamonds. We reversed Conrad's conviction of that charge in 1997, because the trial court had employed an incorrect definition of "prurient interest." See State v. Conrad, d.b.a. Planet Earth Entertainment, Inc. (Jan 17, 1997), Montgomery App. No. 15553, 1997 WL 54668, *2.

{¶ 5} Subsequently, in June, 1999, Planet Earth filed a complaint for injunctive relief in the United States District Court for the Southern of Ohio, Western Division, contending that Ohio's statutory scheme for liquor license revocations and administrative appeals from revocations violated substantive and procedural due process. See Planet Earth Entertainment, Inc., d.b.a. Diamonds v. Edwards (S.D. Ohio 1999), 84 F. Supp.2d 891. In that case, the district court denied a temporary injunction, but also found that Planet Earth's action under Section 1983, Title 42, U.S. Code was not barred by the Eleventh Amendment.

{¶ 6} In the meantime, BJS had opened Total Xposure in Troy, Ohio, in March, 1997. Like Diamonds, this club featured nude and semi-nude dancers, and raised the ire of local citizens and government officials. See BJS No. 2, Inc. v. City of Troy, Ohio (S.D. Ohio 1999), 87 F. Supp.2d 800, 803-04. In fact, the day after Total Xposure opened, the City of Troy amended its zoning code to impose certain conditions on adult entertainment facilities. Shortly thereafter, the City also revoked BJS's permit to operate Total Xposure. Id. This matter was disputed in Miami County Common Pleas Court, where BJS lost, and in federal court, where BJS filed a complaint for declaratory and injunctive relief, alleging that the ordinance was unconstitutional on its face. Id. at 804. Ultimately, the district court found certain provisions of the zoning code unconstitutional as a prior restraint on constitutionally protected expression. Accordingly, the district court enjoined the City from requiring BJS to comply with certain provisions of the zoning code in order to obtain a new zoning permit. However, the court also refused to enjoin enforcement of a state court injunction prohibiting operation of Total Xposure without a zoning permit. In this regard, the court reasoned that the prior zoning permit was not revoked because of the new adult entertainment ordinance; instead, it was revoked because BJS had changed the use of its property without obtaining the City's approval. Id. at 818-19.

{¶ 7} Nonetheless, despite the attempts of the City of Troy to close the club, Total Xposure continued to operate for more than six years, or until October 16, 2003, when the Miami County Common Pleas Court found that the club was a nuisance due to "methodical, constant, and rampant" illegal sexual activity and lewd behavior occurring on the premises. State ex rel Nasal v. BJS No. 2, Inc., 127 Ohio Misc. 2d 101, 2003-Ohio-7323, 806 N.E.2d 208, at ¶68. This occurred well after the events involved in the present litigation.

{¶ 8} In August, 2000, Liakos and Conrad also opened an adult bookstore in Huber Heights, Ohio. Huber Heights filed an action to enjoin operation of the bookstore because Liakos and Conrad had neither sought nor obtained a license from the City to operate a sexually oriented business. However, the trial court refused to grant an injunction. The court found that the ordinance violated the Fourteenth Amendment because it lacked various procedural safeguards required by due process. See City of Huber Heights v Liakos, 145 Ohio App.3d 35, 40, 2001-Ohio-1083, 761 N.E.2d 1083. On appeal, we agreed that the ordinance was flawed, and affirmed the trial court decision. 145 Ohio App.3d at 40-50. Operation of the bookstore was ultimately enjoined in a separate action, based on a restrictive covenant that prohibited the rental, sale, or exhibition of pornographic material on the premises where the store was located. See KIR Huber Heights, L.P. v. Liakos, Montgomery App. No. 18636, 2001-Ohio-1761, 2001 WL 1388530, *1.

{¶ 9} Needless to say, the above events generated substantial publicity and news coverage in the Miami Valley area (which includes Troy, Washington Township, Huber Heights, and Dayton, Ohio). See affidavit attached to WHIO TV motion for summary judgment, listing 111 articles about Plaintiffs that appeared between 1995 and January, 2004, in various sources such as the Dayton Daily News, the Cincinnati Enquirer, and the Associated Press.

{¶ 10} The present lawsuit stems from events that occurred between October, 2002, and January 27, 2003. During that time, Becky Grimes was Special Projects Manager for WHIO TV/Cox Broadcasting. In October, 2002, another WHIO employee told Grimes about a tip he had received concerning possible internet sex videos being filmed in a shopping mall next to Diamonds. Allegedly, dancers from Total Xposure and Diamonds were involved in the videos.

{¶ 11} Grimes and her news director, Julie Weindel, decided to hire Ronald Norton, a licensed private investigator, to see if he could confirm the tip. Norton subsequently located the office in the shopping mall where videos were being filmed. In October, 2002, a staff member from Norton's office also paid $19.95 to join TotalXposure.com, and recorded video of sexual intercourse and oral sex on the website. Grimes and Weindel viewed the website with investigators and observed video of what appeared to be a woman engaging in sex or simulated sex with a man. Grimes also visited the shopping center where the videos were allegedly being filmed, and found that the office was located where the WHIO source had predicted.

{¶ 12} After further investigation, Grimes learned who owned TotalXposure (Liakos and Conrad). However, Grimes was never successful in getting Liakos to speak with her. In fact, the last time Grimes tried to contact Liakos, a woman at the Diamonds' office rudely rebuffed her. After that, Grimes did not attempt further contact.

{¶ 13} Based on the above information, Grimes aired a broadcast on WHIO TV on November 25, 2002. The lead-in to the broadcast, by WHIO TV anchors, was as follows:

{¶ 14} "Anchor: If you are concerned about nude dance clubs operating in your neighborhood . . . You won't believe what we've uncovered now!

{¶ 15} "Anchor: Live Internet Sex! And as Newscenter 7's Becky Grimes uncovered . . . . The broadcast is coming from right here in the Miami Valley and going all over the world!"

{¶ 16} This lead-in was followed by Grimes' report. During the report, Grimes began by commenting on the unhappiness of a local church and its minister about a nude adult dance club operating in Troy. Grimes went on to say:

{¶ 17} "City officials say there's been no serious trouble at Total Xposure. But now, newscenter 7 has learned there's a lot more than dancing going on at the club. What would the pastor think about...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT