COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69779 : CLEVELAND'S PM ON THE BOARDWALK, : LTD. : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : OHIO LIQUOR CONTROL COMMISSION : : Defendant-Appellee : : DATE OF ANNOUNCEMENT JANUARY 23, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 281246 JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: MICHAEL J. MURRAY, ESQ. BARBARA A. SERVE, ESQ. STEVEN D. SHAFRON, ESQ. Assistant Attorney General Berkman, Gordon Murray & Devan 2323 West Fifth Avenue 55 Public Square, #2121 Columbus, Ohio 43204-3692 Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: Appellant Cleveland P.M. on the Boardwalk, Ltd. dba Tiffany's Cabaret, appeals the trial court's judgment upholding Appellee Ohio Liquor Control Commission's decision that Appellant violated Rule 52 (Ohio Administrative Code 4301:1-1-52) when it allowed improper dancing at its establishment. Appellant challenges Rule 52 under both Ohio and Federal free speech laws and assigns the following errors for our review: I. THE COURT OF COMMON PLEAS ERRED IN SUSTAINING THE COMMISSION'S ORDER BECAUSE IT WAS NOT SUPPORTED BY SUBSTANTIAL RELIABLE AND PROBATIVE EVIDENCE. II. THE DECISION BELOW MUST BE REVERSED BECAUSE OHIO ADMINISTRATIVE CODE 4301:1-1-52 IS UNCONSTITUTIONALLY OVERBROAD UNDER ART. 1. 11 OF THE OHIO CONSTITUTION AND THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. III. THE DECISION BELOW MUST BE REVERSED BECAUSE REGULATION 52 VIOLATES THE DUE PROCESS CLAUSE AND EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND ART. 1, 2, 16 AND 19 OF THE OHIO CONSTITUTION. Having reviewed the record and the legal arguments of the parties, we reverse the trial court's decision. We conclude Rule 52 is facially unconstitutional as applied under Section II, Article I of the Ohio Constitution. Accordingly, we conclude California v. LaRue (1972), 409 U.S. 109 has no application to this case. Because we determine Rule 52 is unconstitutional, we conclude Appellant's first and third assignments of error are moot. The apposite facts follow. -3- Appellant was cited for violating Rule 52, which provides the following: 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 an 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. The basis for the Rule 52 citation came from evidence presented by the following witnesses: Michael Betts At approximately 11:40 p.m. on January 20, 1994, Michael Betts and Orlando Cumberlander, agents for the Department of Liquor Control, went to Tiffany's Cabaret, an establishment owned and operated by Appellant Cleveland P.M. on the Boardwalk. Betts went inside while Cumberlander remained in the car. In order to gain entrance to the establishment, Betts had to show proof that he was over twenty-one years of age and pay a cover charge. Betts took a seat at a table with an unobstructed view of the dance floor. This was about five to ten feet away from the bar. He -4- was approached by a female dancer, Susan Zwolinski, who asked him if he wanted a table dance. A table dance is where a dancer employed by the premises approaches individuals and dances at their table for a fee of usually five dollars. Betts accepted the offer, and Zwolinski started dancing in close proximity to him. She was wearing a two-piece costume, consisting of a bathing suit top and a T-bar or G-string bottom. During the dance, Zwolinski removed the top part of her costume exposing her breasts. During Betts' observation, he saw other female dancers take off their tops while dancing. The waitresses and other staff did not do anything when Zwolinski or other dancers removed their tops. After the table dance, Betts went to the pay phone in the rest room and contacted his partner, Cumberlander. Cumberlander came into the establishment and issued a citation to the manager for a violation of Rule 52. Betts made the decision to have the citation issued because he believed top-less dancing was improper conduct within the meaning of Rule 52. He conceded dancing was not lewd and immoral so long as the dancers were clothed or their "body parts" were not exposed. It was his opinion that Zwolinski's dancing was improper conduct. Betts testified on rebuttal that Zwolinski was within two feet of his grasp and was not wearing any latex covering, clear or otherwise. The Rule 52 citation was issued because he could not see any covering over her breasts. However, Betts indicated, had she been wearing latex, a citation would have been issued for bare -5- breasts with latex. The decision as to what was improper conduct was based upon his judgment. To contradict this testimony, Appellant offered the following witnesses: Matthew Bellina Bellina was the general manager of Tiffany's Cabaret. Tiffany's Cabaret offered sophisticated dance performances. The dancers began in sophisticated costumes and stripped down to their T-bars. All female dancers were required to wear latex on their breasts to cover their nipples and areola. When latex dries, it gives a white appearance like Elmers glue and is not transparent. When the dancers wear the latex it has the visual tone of skin color because the dancers put make-up on top of it. Bellina met Agent Cumberlander on the night in question. When he was informed a Rule 52 citation was being issued, he had one of his employees bring Zwolinski to his office. He showed Cumberlander that she was wearing latex. Cumberlander indicated it did not matter because that was not a proper covering substance, and he issued the citation. Bellina further testified he verified Zwolinski was wearing latex, when he called her into his office. He had her take off the latex covering, he put it over the face of his watch to verify that it was not transparent, and several other employees verified they could not read his watch. Rosemary Michelle Vinci Vinci was marketing director for Tiffany's. Tiffany's had five stages, oversized and very plush furnishings with a quarter of -6- a million dollar light show and sound system with special effects. Their primary customers were affluent upscale male professionals from 25 to 64 years of age who earn approximately $40,000 a year or better, couples between 25 and 54 years of age, and single men between 21 and 30 years of age looking for an establishment to hold bachelor parties. The performers wore elaborate gowns and performed very sophisticated dance routines. It was Tiffany's policy not to allow the dancers to remove their T-bar bottoms, and all dancers were required to wear latex on their breasts. The women were required to purchase their own costumes and remain physically fit. The club had a very positive relationship with the community and had a positive write-up in the West Laker Times, a weekly local suburban newspaper. Prior to dancing, the dancers were required to undergo an inspection to make sure they are wearing the latex covering. After hearing the above testimony, the Commission ruled the dance performance was improper and upheld the citation. The trial court agreed and found no constitutional violation. This appeal followed. In this case, we invoke the broadest judicial review applicable, i.e., de novo review. De novo review means this court is not obliged to give any deference to the trial court's ruling on the legal question of whether Rule 52 is unconstitutionally overbroad. Consequently, we undertake plenary review and our -7- determination is whether the trial court was correct as a matter of law. Before we address Cleveland P.M.'s second assignment of error, it is necessary to point out two main concerns. First, we do not decide this case under the First Amendment to the U.S. Constitution. Consequently, California v. LaRue (1972), 409 U.S. 109 is inapplicable. Second, we are mindful of this court's previous decision, Esquire Bar, Inc. v. Liquor Control Commission (Dec. 23, 1975), Cuyahoga App. Nos. 34148, 34149, unreported. However, we conclude it, too, is inapplicable. In California v. LaRue, the U.S. Supreme Court upheld the facial validity of a regulation that prohibited nudity and sexually explicit entertainment in a liquor establishment. The facts in this case showed the areas surrounding the establishment were often manifested with increased sex-related crimes. Id. at 111. Applying the 21st Amendment, which gives states the right to regulate the dispensing of alcohol, the majority in LaRue reasoned the First Amendment was irrelevant to this safety regulation. The regulation, the majority held, was a reasonable exercise of the state's 21st Amendment powers, and it was rationally related to a legitimate state interest suppression of sex-related crimes. The majority concluded despite the regulation's sweep into non- obscene material, it was, nonetheless, valid. The communicative content of the dance was irrelevant. Thus, the majority held when the state's interest is measured against the individual's interest the state's interest prevails. -8- Although LaRue set a powerful precedent on the facial over- breadth issue, it did not resolve the question of the regulation's overbreadth application. LaRue concluded because the First Amendment was inapplicable, the facial attack should be overruled. Likewise, this court in Esquire Bar reached the same conclusion. However, it must be understood that Esquire and LaRue involved only the First Amendment to the U.S. Constitution and not the Ohio Constitution's free speech clause. We conclude different results are reached when the Ohio Constitution is involved. We reach this conclusion because the 21st Amendment to the U.S. Constitution, which is absent in the Ohio Constitution, is not imbued with greater weight than the Ohio free speech clause. See New York State Liquor Authority v. Bellanca (1981), 54 N.Y.2d 228, 429 N.E.2d 765 (Bellanca II). In Bellanca II, the litigants added for the first time the argument that the regulation violated the free speech clause of the New York's Constitution. This was done after the first case was decided by the U.S. Supreme Court where it held the regulation violated the 21st Amendment. See New York State Liquor Authority v. Bellanca (1981), 452 U.S. 714 (Bellanca I). The majority in Bellanca II held the regulation violated New York State's free speech clause and struck down the regulation as unconstitutional under state law. The New York high court felt it was not restrained by the 21st Amendment because New York did not have a comparable 21st Amendment in its Constitution. Thus, it felt there was nothing to weigh. -9- Other states have followed Bellanca II. Mickens v. City of Kodiak (Alaska 1982), 640 P.2d 818; Cabaret Enter. v. Alcoholic Bev. Con. Commn, (1984), 393 Mass. 13, 468 N.E.2d 612. Harris v. Entertainment Sys., Inc. (Ga. 1989), 386 S.E.2d 140. These courts have reasoned that, "because the 21st Amendment does not apply to enhance the state's power to regulate expression in liquor establishments as against the state's own free expression guarantees, prohibitions against nude entertainment are invalid, even if limited to taverns." Sekne v. City of Portland (Or. App. 1986), 726 P.2d 959, 964. We, too, concur in that reasoning. We, like New York, conclude that nothing in the 21st Amendment to the United States Constitution inhibits or modifies the Ohio Constitution's free speech clause. Bellanca II at 768. Additionally, the United States Supreme Court "has never espoused the proposition that the 21st Amendment of the Federal Constitution confers a power on the states which is superior to or free from the constraints of their own constitutions." Id. at 769. The reality is when using the LaRue balancing test, there is nothing to balance because Ohio is free of the 21st Amendment restraints on its free speech clause. Consequently, the sole question before us is whether, under federal free speech analysis, Rule 52 is unconstitutionally overbroad under Section II, Article I of the Ohio Constitution. We believe it is. The Ohio Free Speech Clause, Section II, Article I of the Ohio Constitution provides: -10- Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of the right, and no law shall be passed to restrain or abridge the liberty of speech, or of the press. The Ohio Supreme Court has held this clause is no broader than the United States Constitution, and the case law of the First Amendment to the United States Constitution is a proper basis for interpreting Ohio's free speech clause. Eastwood Mall v. Slanco (1994), 68 Ohio St.3d 221. Consequently, we must look to federal constitutional precedent and analysis when interpreting whether a regulation is overbroad on its face and as applied under the Ohio free speech clause. In Eastwood, the Ohio Supreme Court made it clear that our analysis should be lockstep and interstitially related to federal first amendment analysis. Using this analysis, we conclude non-obscene nude or topless dancing under the Ohio Constitution is entitled to free speech protection. Nudity by itself is not obscene; it is expressive conduct. Barnes v. Glen Theatre Inc. (1991), 501 U.S. 560, (where the court applied the 4-prong test of U.S. v. O'Brien (1968), 391 U.S. 367, and held nude dancing is entitled to free speech protection). See, also, Southeastern Promotions Ltd. v. Conrad (1975), 420 U.S. 546 (held city's prior restraint of free expression in the musical production "Hair," is unconstitutional). Ordinarily when speech or expressive activity forms a significant part of a law's target, the law is subject to a facial challenge, and it is invalid on its face if it is substantially overbroad and no constitutionally adequate narrowing construction suggests -11- itself. Broaderick v. Oklahoma (1973), 413 U.S. 601; Dombrowski v. Pfister (1965) 380 U.S. 479, Erznoznik v. City of Jacksonville (1975), 422 U.S. 205. Substantial overbreadth exists when a statute's illegitimate applications are too numerous when judged in relation to the statute's plainly legitimate sweep. Broaderick v. Oklahoma; Osborne v. Ohio (1990), 495 U.S. 103. Historically, it was enough if the statute swept into its coverage protected speech. Thornhill v. Alabama (1940), 310 U.S. 88. Additionally, it must be pointed out that overbreadth laws may be challenged by a litigant who is not in the protected class. United States v. Ranes (1960), 362 U.S. 17. However, if the litigant's activity falls within the legitimate sweep of the statute, it can not complain. Brockett v. Spokane Arcade, Inc. (1985), 472 U.S. 491. Under Brockett, the U.S. Supreme Court made it clear when the challenger's own conduct is constitutionally privileged, the trial court is duty-bound to invalidate the statute for its unconstitu- tional reach. The query for us is whether any of Rule 52 remains intact. Rule 52 does use language like obscene literature and lewd activity. If lewd was defined in Rule 52 as that which appealed to a prurient interest as opposed to confusing it with the unacceptably broad words such as "improper" and "immoral," it would have some intact qualities. However, Rule 52 does not make clear its intent to regulate only that which is obscene. The other categories are too numerous in its reach. -12- Under its usage a permit holder would be forbidden from reading or having read out loud "A Street Car Named Desire" or the modern "Victor Victoria." Furthermore, comics like Eddie Murphy and Richard Pryor would be censored. Also, Chaucer's Canterbury Tales, poetry or books describing rape, James Joyce's Ulysses, rap songs, and many television shows would be forbidden under Rule 52. Rule 52's reach is so broad that a permit holder would lose his license if a fight broke out between two customers regardless of the permit holder's efforts to stop the fight. Additionally, it would cause a permit holder to lose his license if a customer used profane language. In reading the bare language of Rule 52, it is difficult to ascertain its legitimate application. Obscene, immoral, and improper are used interchangeably in the rule. Consequently, it is difficult to determine if Rule 52 is restricted to sexually explicit material. Because Cleveland P.M. was cited for topless dancing, we must conclude that the line between nudity and sexual conduct is blurred under Rule 52's vision. Cleveland P.M. claims the women were wearing pasties and G-strings. One of the agents said he didn't see them, but if they were, this would be permissible. The agent said even if latex was used, the dance would still be improper and immoral. This, we believe is substantial overbreadth under Broaderick, and Rule 52 cannot be saved. Because Cleveland P.M.'s action of allowing topless dancing is protected, the question is whether Rule 52 is overbroad as applied to them. We conclude it is. We have earlier outlined that topless -13- dancing is subject to free speech protection. In this case, Cleveland P.M. was engaging in that activity. Under U.S. v. O'Brien, the government has the burden of establishing that Rule 52 is content-neutral and no less restric- tive alternatives existed. The government did not do that in this case. Here the government merely asserted its 21st Amendment right to regulate liquor. Where free speech rights are at issue, the government must do more. It must show that no less restrictive alternative exists. Here, there were less restrictive measures. A less restrictive measure would be to enforce the obscenity laws in place in Ohio and to enforce offenses against persons such as pandering obscenity under R.C. 2907.32. These laws do not infringe on expressive activity and do not target the overall message of dancing. See Turoso v. Cleveland Municipal Court (C.A. 6, 1982), 674 F.2d 486. Consequently, we conclude as applied Rule 52 is overbroad. Finally, during oral argument Cleveland P.M.'s attorney asked this Court to apply 44 Liquormart v. Rhode Island (1996), , U.S. , 116 S.Ct. 1495. We certainly appreciate his zeal in offering it but conclude for the most part it has no effect on topless dancing. The reality is the court disavowed LaRue when advertised speech is involved. It did not overrule it. Consequently, we decline to extend our ruling beyond the scope of the Ohio Constitution's free speech clause. As such, Rule 52 is facially overbroad and overbroad as applied. Judgment reversed. -14- This cause is reversed. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. SPELLACY, C.J., and NAHRA, J., CONCUR. PATRICIA ANN BLACKMON JUDGE "N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .