COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69478 CITY OF CLEVELAND : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION STANLEY TRZEBUCKOWSKI : : Defendant-appellee : : DATE OF ANNOUNCEMENT : AUGUST 15, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Cleveland Municipal Court : Case No. 95 CRB 006331 JUDGMENT : REVERSED AND JUDGMENT ENTERED FOR APPELLANT. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: CAROLYN W. ALLEN, ESQ. KENNETH BOSSIN, ESQ. Chief Prosecutor 330 Standard Building City of Cleveland 1370 Ontario Street PINKEY S. CARR, ESQ. Cleveland, OH 44113-1701 Assistant City Prosecutor 1200 Ontario Street Courts Tower - 8th Floor Cleveland, OH 44113 - 2 - PATTON, J. Plaintiff-appellant City of Cleveland ("Cleveland") appeals the Cleveland Municipal Court's granting of defendant-appellee Stanley Trzebuckowski's ("defendant") motion to dismiss criminal charges brought against him for permitting minors to enter a billiard room in violation of Cleveland Municipal Code Section 688.13. The Cleveland Municipal Court granted the motion to dismiss, finding the ordinance in question unconstitutional as arbitrary and overbroad. On March 11, 1995, at 11:45 p.m., defendant was acting in his capacity as manager of LeQue Billiards. At the time, five minors were present in the billiard room, in violation of Cleveland Municipal Code Section 688.13 ("ordinance"), owner's duty to exclude minors (billiard rooms), which provides in pertinent part: "No owner, operator, agent or keeper of a billiard room shall permit any person who has not yet reached the age of eighteen years to remain in a billiard room for any purpose." Defendant was charged with five violations of the ordinance. Defendant filed a motion to dismiss the charges on constitutional grounds. First, he claimed the charges violated his constitutional right to equal protection, contending Cleveland selectively enforced the ordinance. Second, he claimed the ordinance was unconstitutionally vague and overbroad. On June 21, 1995, oral arguments were heard. The court then granted defendant's motion to dismiss and issued an opinion holding the ordinance violated defendant's right to equal protection and - 3 - the ordinance was overbroad, as there was no rational basis to support the manner in which the law was enforced. Cleveland now appeals the granting of defendant's motion to dismiss. Essentially, Cleveland argues (1) the ordinance is not overbroad and defendant has no constitutional right to association and (2) the ordinance is rationally related to a legitimate state goal. I. Cleveland argues the ordinance is constitutional and not overbroad because "the statute bears a real and substantial relation to the health, safety, morals or general welfare of the public." Cleveland also contends there is a rational basis for supporting the ordinance: it ensures proper supervision for minors and encourages minors to spend their time in a more adolescent setting. In contrast, defendant argues the ordinance is unconstitutional because it is overbroad by infringing on his right to associate or assemble. Additionally, he argues Cleveland did not submit any evidence to support its argument that there is a rational basis for upholding the ordinance. An ordinance is overbroad if it "sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments." Akron v. Rowland (1993), 67 Ohio St.3d 374, 387, quoting Grayned v. Rockford (1972), 408 U.S. 104, 115. Thus, a "clear and precise enactment may * * * be overbroad if in - 4 - its reach it prohibits constitutionally protected conduct." Id., quoting Grayned, 408 U.S. at 114. The United States Supreme Court predicated this proposition on a recognition that the "First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society." Broadrick v. Oklahoma (1973), 413 U.S. 601, 611-612. Defendant argues his right to assemble or associate was violated. This argument is flawed because the right to associate is not applicable to individual social associations as defendant asserts. The right of association has not been expressly recognized by the language of the First Amendment. But it has been implicitly recognized within and emanating from rights expressly guaranteed. The Fourteenth Amendment makes these implicit rights applicable to the states. Buckley v. Valeo (1976), 424 U.S. 1. Although the right to association has been recognized regarding social associations, it has never been held to apply to the right of an individual to associate for purposes purely social in character. See City of Dallas v. Stanglin (1989), 109 S.Ct. 1591. Consequently, the right to associate is protected only when the expressive conduct from which the association is derived is accorded protection by the First Amendment. NAACP v. Button (1963), 371 U.S. 415. Thus, a compelling interest will be required - 5 - if the government seeks to interfere with or discourage a group who assembles for a purpose constitutionally protected under the freedom of expression guarantee. Defendant has not demonstrated that the communicative elements of being in a pool hall with friends or playing pool are entitled to constitutional protection. In City of Dallas, supra, the Supreme Court noted two different sorts of freedom of association that are protected by the constitution and stated: "The first is the choice to enter into and maintain certain intimate human relationships. The second is the right to associate for the purpose of engaging in those activities protected by the First Amendment-speech, assembly, petition for the redress of grievances, and the exercise of religion." The Court in City of Dallas further held a restriction of persons from ages 14-18 from entering a dance hall did not violate their right to association because these patrons "were not engaged in the sort of intimate human relationships envisioned by the Constitution nor were they patrons taking positions on public questions or performing any similar expressive association protected by the Constitution." Id. The Court concluded that the Constitution does not recognize a generalized right of "social 1 association." Id. 1 For other cases holding similar restrictive statutes constitutional, see Aladdin's Castle, Inc v. Village of North Riverside (1978), 66 Ill. App.3d 542; Rothner v. City of Des Plaines (N.D. Ill. 1981), 554 F. Supp. 465; Marshfield Family Skateland, Inc v. Town of Marshfield (1983), 389 Mass. 436, cert. denied (1983), 104 S. Ct. 475. - 6 - Defendant's argument is based on Aladdin's Castle, Inc. v. City of Mesquite (5th Cir. 1980), 630 F.2d 1029, quoting its own holding from Sawyer v. Sandstrom (5th Cir. 1980), 615 F.2d 311, 315, which held in footnote thirteen, that the right of association "is not limited to those associations which are political in the customary sense but includes those which pertain to the social, legal, and economic benefit of the [individuals who are associating]." Pursuant to the Supreme Court's holding in City of Dallas, occurring nine years after the Aladdin's Castle case, we believe defendant has not demonstrated that playing pool with others, without more, is entitled to constitutional protection. Therefore, the statute in the instant case, which restricts association for individual social purposes, is not violative of the First Amendment. Cleveland's first argument is sustained. II. Cleveland's second argument is based on the premise that the ordinance involves neither a suspect class nor a fundamental right. Cleveland argues the ordinance is rationally related to a legitimate state goal: preventing minors from being exposed to an inappropriate atmosphere. Defendant counters the ordinance has a discriminatory effect and violates his constitutional guarantees of equal protection. He states there is no difference between his for-profit billiard room - 7 - and non-profit recreational centers with billiards, but the ordinance allows minors to play pool in one and not in the other. Equal protection cases are analyzed under a two-tiered approach. First, if the interest is fundamental or the classification is suspect, the court applies the strict scrutiny test. Second, unequal treatment of classes of persons by a state is valid only if the state can show that a rational basis exists for the inequality. Beatty v. Akron City Hosp. (1981), 67 Ohio St.2d 483, 492. As we determined, supra, defendant did not have a First Amendment or other constitutionally secured right affected by the ordinance banning minors from playing pool in a billiard room. Therefore, the strict scrutiny test, applied when government action infringes on a fundamental right protected by the constitution, is irrelevant. However, the ordinance must rationally further a legitimate state interest. Perry Educ. Assn. v. Perry Local Educators' Assn. (1983), 460 U.S. 37, 45-46. The foregoing analysis mandates application of the rational basis test. Under the rational basis test, a statutory prohibition is constitutionally valid if it (1) bears a real and substantial relationship to the public's health, safety, morals, or general welfare and (2) is reasonable or not arbitrary. State v. Benson (1992), 81 Ohio App.3d 697, 701. - 8 - As justification for the ordinance Cleveland submits in for- profit billiard halls the atmosphere is designed to fit the needs of adults and therefore fosters "an environment which is inappropriate for minors." The rational basis test is the most lenient form of judicial scrutiny under the Equal Protection Clause. In Dandridge v. Williams (1970), 397 U.S. 471, 485-486, the Supreme Court stated, "[i]f the classification has some reasonable basis, it does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality." Similarly in New Orleans v. Dukes (1976), 427 U.S. 297, 303-304, the Court stated "* * * it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment." The city conceded there may be privately owned billiard halls which are free from adult oriented activities such as alcohol consumption and gambling. However, it still maintained, "the state goal is to prevent minors from being exposed to an inappropriate atmosphere." The city then argued, "[b]y barring minors from entering for-profit billiard halls the state is protecting minors from an atmosphere which encourages gambling and other adult oriented activities." Therefore, it has been shown that the ordinance rationally furthers a legitimate state interest, and thus benefits the general welfare of the public. - 9 - Defendant argues the ordinance is also being applied in an unreasonable manner. The ordinance bans a minor's presence in defendant's for-profit billiard room but allows a minor's presence in a non-profit billiard room, such as a recreational center with a billiard table. Defendant contends that allowing a minor's presence in the former but not the latter is selective enforcement by Cleveland because there is no difference between the two. Defendant correctly demonstrates that the distinction between for-profit and non-profit billiard halls is a slight one. However, it is also true that a more adolescent atmosphere will be present in a recreational center versus a billiard hall which is generally frequented by adults. Although the differences between the two are not striking, differentiation need not be striking in order to survive rational basis scrutiny. City of Dallas, supra, at 1597. Accordingly, we hold that Cleveland's ordinance does not infringe on any constitutionally protected right of association, and that a rational relationship exists between the age restriction for billiard halls and Cleveland's interest in promoting the welfare of minors. Therefore, both assignments of error are sustained. Reversed and judgment entered for appellant, City of Cleveland. - 10 - This cause is reversed and judgment entered for appellant. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to the Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., KARPINSKI, J., CONCUR. SEE CONCURRING OPINION, KARPINSKI, J., ATTACHED. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69478 : CITY OF CLEVELAND : : : Plaintiff-Appellant : : CONCURRING v. : : OPINION STANLEY TRZEBUCKOWSKI : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 15, 1996 KARPINSKI, J., CONCURRING: I concur in the majority opinion, but write separately to explain the basis for my decision. I agree with the general legal principles cited by the majority. It is not entirely clear, however, why the city desires to regulate only private billiard halls in this case. The city conceded in its brief on appeal that "it may be true that many privately owned billiard rooms are wholesome and free from the gambling and consumption of alcohol that was once associated with this type of establishment." (Brief at p. 8.) In defense of the ordinance the city argued that its own recreational centers (which - 2 - contain coin-operated billiard tables) offer merely a more appropriate atmosphere for minors than private billiard halls because of the greater degree of supervision and security provided. I concur in the majority's application of these principles to uphold the ordinance in this case only because the case law does not permit courts to strictly scrutinize the rational basis alleged .