State v. Icon Entertainment Group, Inc.

2010 Ohio 5719, 937 N.E.2d 1112, 160 Ohio Misc. 2d 9
CourtFranklin County Municipal Court
DecidedSeptember 23, 2010
DocketNos. 2009 CRB 030175 and 2010 CRB 004041
StatusPublished

This text of 2010 Ohio 5719 (State v. Icon Entertainment Group, Inc.) is published on Counsel Stack Legal Research, covering Franklin County Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Icon Entertainment Group, Inc., 2010 Ohio 5719, 937 N.E.2d 1112, 160 Ohio Misc. 2d 9 (Ohio Super. Ct. 2010).

Opinion

Michael T. Brandt, Judge.

I. Introduction

{¶ 1} These two cases are before the court on the motions of the defendant, Icon Entertainment Group, Inc., to dismiss the complaints on the grounds that they fail to state an offense and are premised upon a statute that is unconstitutionally vague on its face. For the reasons set forth below, these motions are denied.

{¶ 2} In these cases, the defendant is charged with two counts of illegally operating a sexually oriented business in violation of R.C. 2907.40(B). R.C. 2907.40(B) states:

No sexually oriented business shall be or remain open for business between 12:00 midnight and 6:00 a.m. on any day, except that a sexually oriented business that holds a liquor permit pursuant to Chapter 4303 of the Revised Code may remain open until the hour specified in that permit if it does not conduct, offer, or allow sexually oriented entertainment activity in which the performers appear nude.

“Nude” is a defined term that means “the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft, or cleavage with less than a fully ■opaque covering; or the showing of the female breasts with less than a fully opaque covering of any part of the nipple.” R.C. 2907.39(A)(10). The complaints allege that topless female dancers performed at defendant’s Kahoots Gentlemen’s Club between 12:00 a.m. and 6:00 a.m. on October 22, 2008, and November 14, 2009.

{¶ 3} The defendant has moved to dismiss both complaints on two grounds. First, the defendant argues that the complaints are deficient in that they do not allege that defendant acted with recklessness. Second, the defendant argues that R.C. 2907.40(B) is unconstitutionally vague on its face. The state opposes these arguments by maintaining that the legislature deliberately created a strict-liability offense in R.C. 2907.40(B) and that the statute is not unconstitutionally vague.

[13]*13II. Law and Analysis

A. R.C. 2907.40(B) Plainly Indicates an Intent to Impose Strict Liability

{¶ 4} R.C. 2907.40(B) does not specify a culpable mental state for the offense. R.C. 2901.21(B) states:

When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.

In State v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299, 428 N.E.2d 428, the Ohio Supreme Court considered the mental state required by a statute criminalizing both bookmaking and facilitating bookmaking. In that statute, the legislature included the mental state of “knowingly” for the offense of facilitating bookmaking, but specified no mental state for the offense of bookmaking. Id. at 86. The Supreme Court held that the exclusion of any mental state for bookmaking, in light of the inclusion of a mental state for facilitating bookmaking in the same statute, plainly indicated a purpose to impose strict liability for bookmaking. Id. Likewise, the inclusion of the mental state of recklessness for permitting the use of premises for gambling and the exclusion of a mental state for using premises for gambling was held to have plainly indicated a purpose to impose strict liability for the latter offense. Id. at 87.

{¶ 5} Similarly, in State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, the Ohio Supreme Court again held that the General Assembly plainly indicated a purpose to impose strict liability when it explicitly set forth a mental state in one part of a statutory section defining a criminal offense, but not in another. In Maxwell, a defendant who had downloaded obscene images involving minors onto his computer argued that although he knew that the images were obscene and involved minors, he did not know that he was downloading them from a computer system in another state, which resulted in his importing the images into Ohio. The court held that based upon the language in the statute, the knowledge element of R.C. 2907.321(A) applied only to “the character of the material or performance involved,” and the absence of any knowledge requirement relating to actual importing of the material evidenced a plain intention to impose strict liability for that act. Id. at ¶ 30. This interpretation was supported by the General Assembly’s demonstrated history of assuming a “strong stance” against sex-related acts involving minors. Id.

{¶ 6} Like the statutes at issue in Wac and Maxwell, R.C. 2907.40 sets forth different discrete offenses. The one at issue in this case, in division (B), prohibits [14]*14sexually oriented businesses from having “sexually oriented entertainment activity in which the performers appear nude” after a certain time. R.C. 2907.40(B). The other discrete offenses under R.C. 2907.40(C) occur only when nude or seminude employees “knowingly touch” one another or when patrons “knowingly touch” those employees. R.C. 2907.40(C)(1) and (2). This court concludes that the omission of any mental state in R.C. 2907.40(B), a division in the immediate proximity of R.C. 2907.40(C), which includes mental states that the state must prove, sufficiently establishes that the General Assembly deliberately intended that a sexually oriented business conducting, offering, or allowing nude entertainment after midnight be held strictly liable for that conduct. Just like in Maxwell, this conclusion is supported by the General Assembly’s demonstrated history— which will be discussed at more length in the next section of this decision — of legislating to protect individuals and society at large from the social harms associated with the operation of sexually oriented businesses.1

{¶ 7} Accordingly, the court finds that R.C. 2907.40(B) states a strict-liability offense pursuant to R.C. 2901.21(B).

B. Strict Liability Under R.C. 2907.40(B) Is Constitutionally Permissible Under the First Amendment

{¶ 8} Although not raised as grounds for dismissal in its motions to dismiss, the defendant in its memoranda urges the court to find that the First Amendment to the Constitution of the United States and Section 11, Article I of the Ohio Constitution prohibit the imposition of strict liability for speech-related offenses.2 The defendant bases this argument on cases like Smith v. California (1959), 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, Handing v. United States (1974), 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, and Threesome Entertainment v. Strittmather (N.D.Ohio, 1998), 4 F.Supp.2d 710, but these cases establish no [15]*15blanket prohibition on statutes that impose strict liability when expressive conduct is involved. Instead, the courts in those cases simply examined whether the laws at issue punished or prohibited more speech than necessary to fulfill the legitimate governmental interests in regulating the conduct involved.

{¶ 9} In Smith,

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Bluebook (online)
2010 Ohio 5719, 937 N.E.2d 1112, 160 Ohio Misc. 2d 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-icon-entertainment-group-inc-ohmunictfrankli-2010.