[Cite as HDV Cleveland, L.L.C. v. Ohio Liquor Control Comm., 2017-Ohio-9032.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

HDV Cleveland, LLC, d.b.a. : 

Larry Flynt's Hustler Club, 

 : 

 Appellant-Appellant, 

 : No. 17AP-362 

v. (C.P.C. No. 16CV-10364)

 : 

Ohio Liquor Control Commission, (REGULAR CALENDAR) 

 : 

 Appellee-Appellee. 

 : 

 

D E C I S I O N 

Rendered on December 14, 2017 

 

On brief: Berkman, Gordon, Murray & DeVan, J. Michael 

Murray, and Steven D. Shafron, appellant. Argued: J. 

Michael Murray. 

On brief: Michael DeWine, Attorney General, and

Charles E. Febus, for appellee. Argued: Charles E. Febus. 

 

APPEAL from the Franklin County Court of Common Pleas 

SADLER, J. 

{¶ 1} Appellant-appellant, HDV Cleveland, LLC, d.b.a. Larry Flynt's Hustler Club, 

appeals from a judgment of the Franklin County Court of Common Pleas affirming orders 

of appellee-appellee, Ohio State Liquor Control Commission ("commission"), issued on 

September 9 and October 19, 2016 and April 25, 2017. For the reasons that follow, we 

affirm. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} Appellant operates an adult night club in Cleveland, Ohio. At all relevant 

times, appellant held a valid D-5 and D-6 liquor permit issued by the Ohio division of 
No. 17AP-362 2 

Liquor Control ("division"). According to appellant, the club operates a bar on the 

premises where patrons can sit and purchase alcoholic beverages. In addition to the bar 

area, the club contains a stage featuring female entertainers performing choreographed 

erotic dance. The club also contains a VIP area where entertainers can perform personal 

one-on-one dances for patrons who pay a fee. 

{¶ 3} On August 29, 2015, liquor control agent Kevin J. Cesaratto entered the club 

posing as a patron, and he paid the required fee for a personal one-on-one dance in the 

VIP area. According to Cesaratto's September 3, 2015 investigation report, during the 

private dance, the female entertainer "expos[ed] her naked breasts, * * * rubbed her bare 

nipple over [his] lips * * * and pulled away the clothing exposing her vagina [and] 

exposing her anus." Liquor control agents subsequently cited appellant for two violations 

of Ohio Adm.Code 4301:1-1-52, otherwise known as "Rule 52." Agents cited appellant for 

prohibited conduct in knowingly or willfully allowing dancers to "[a]ppear in a state of 

nudity," in violation of Ohio Adm.Code 4301:1-1-52(B)(2), and to "[e]ngage in sexual 

activity," in violation of Ohio Adm.Code 4301:1-1-52(B)(3). 

{¶ 4} The commission held a hearing on August 11, 2016 regarding the two 

charges stemming from the August 29, 2015 investigation, as well as two other charges 

arising out of a similar investigation on February 7, 2015. As a result of the hearing, 

appellant denied the August 29, 2015 charge alleging nudity but stipulated to the facts 

contained in agent Ceseratto's report. The commission dismissed the second charge of 

"sexual activity" arising from the August 29, 2015 investigation. The commission also 

dismissed the two charges arising out of the February 7, 2015 investigation. 

{¶ 5} On August 25, 2016, the commission issued an order finding that appellant 

committed one violation of Rule 52 and imposing the following penalty: 

It is the order of this Commission that the Permit Holder has 

the option to either pay a forfeiture in the amount of 

$100,000.00, or the permit will be REVOKED if the Permit 

Holder shall elect to pay the forfeiture, the Permit Holder has 

twenty-one (21) days after the date on which this order is sent 

to pay the full amount of the forfeiture. 

(Order at 1.) 
No. 17AP-362 3 

{¶ 6} The commission subsequently denied appellant's motion for 

reconsideration on October 19, 2016. On November 1, 2016, appellant filed a notice of 

appeal to the common pleas court pursuant to R.C. 119.12. The notice of appeal alleges 

the following errors by the commission: 

The grounds for the appeal are that the decisions below are 

not supported by reliable, substantial and probative evidence; 

that the decisions below are contrary to law; that Regulation 

4301:1-1-52 is unconstitutional on its face and as applied 

under Art. I, § 11 of the Ohio Constitution; that the forfeiture 

imposed is excessive and far greater than forfeitures imposed 

on permit holders that are similarly situated or whose 

violations were more egregious and denies HDV equal 

protection of the laws, as well as procedural and substantive 

due process under the Fourteenth Amendment to the United 

States Constitution, and Art. I, §§ 1, 2 and 16 of the Ohio 

Constitution. 

(Notice of Appeal at 1-2.) 

{¶ 7} On November 4, 2016, the trial court stayed the commission's order 

pending appeal. On December 19, 2016, appellant moved the trial court to supplement 

the administrative record with evidence in support of its contention that Rule 52 is 

unconstitutional. On April 25, 2017, the trial court issued a decision and entry affirming 

the commission's order and denying appellant's motion to supplement the administrative 

record. 

{¶ 8} Appellant timely appealed to this court from the trial court judgment. 

II. ASSIGNMENTS OF ERROR 

{¶ 9} Appellant sets forth the following three assignments of error: 

1. Rule 52 is unconstitutional on its face and as applied under 

Art. I, § 11 of the Ohio Constitution, and the court below erred 

in concluding otherwise. 

2. The court erred in sustaining the penalty imposed by the 

Commission that HDV pay $100,000 or have its license 

revoked because the penalty violated HDV's right to due 

process and equal protection under the United States and 

Ohio Constitutions and because it was not supported by 

substantial, reliable and probative evidence. 
No. 17AP-362 4 

3. The Court erred in denying HDV the opportunity to 

supplement the administrative record at an evidentiary 

hearing on the issue of the unconstitutionality of Rule 52 on 

its face under Art. I, § 11 of the Ohio Constitution, and of the 

unconstitutionality of the penalty that it imposed. 

III. STANDARD OF REVIEW 

{¶ 10} "Under R.C. 119.12, a common pleas court, in reviewing an order of an 

administrative agency, must consider the entire record to determine whether reliable, 

probative, and substantial evidence supports the agency's order and the order is in 

accordance with law." Yohannes Parkwood, Inc. v. Liquor Control Comm., 10th Dist. No. 

13AP-974, 2014-Ohio-2736, ¶ 9, citing Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 

110-11 (1980). "When a court of common pleas reviews an administrative determination 

such as that of the commission, its review is 'neither a trial de novo nor an appeal on 

questions of law only, but a hybrid review in which the court "must appraise all the 

evidence as to the credibility of the witnesses, the probative character of the evidence, and 

the weight thereof." ' " (Emphasis sic.) Gemini, Inc. v. Liquor Control Comm., 10th Dist. 

No. 07AP-112, 2007-Ohio-4518, ¶ 6, quoting Big Bob's, Inc. v. Liquor Control Comm., 151 

Ohio App.3d 498, 2003-Ohio-418, ¶ 14 (10th Dist.), quoting Lies v. Veterinary Med. Bd., 

2 Ohio App.3d 204, 207 (1st Dist.1981). "[T]he common pleas court must give due 

deference to the administrative agency's resolution of evidentiary conflicts, but the 

findings of the agency are not conclusive." Gemini at ¶ 6, citing Conrad at 111. The 

common pleas court conducts a de novo review of questions of law, exercising its 

independent judgment in determining whether the administrative order is "in accordance 

with law." Yohannes at ¶ 9, quoting Ohio Historical Soc. v. State Emp. Relations Bd., 66 

Ohio St.3d 466, 471 (1993). 

{¶ 11} An appellate court's review of an administrative decision is more limited 

than that of a common pleas court. Pons v. State Med. Bd., 66 Ohio St.3d 619, 621 (1993). 

"The appellate court reviews factual issues to determine whether the court of common 

pleas abused its discretion in determining that the administrative action either was or was 

not supported by reliable, probative and substantial evidence." Yohannes at ¶ 10, citing 

Alternative Residences, Two, Inc. v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 

04AP-306, 2004-Ohio-6444, ¶ 17. " '[A]buse of discretion' connotes more than an error 
No. 17AP-362 5 

of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or 

unconscionable." Yohannes at ¶ 10, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219 (1983). "Absent an abuse of discretion, a court of appeals may not substitute its 

judgment for that of an administrative agency or the common pleas court." Yohannes at 

¶ 10, citing Pons at 621. "An appellate court, however, has plenary review of purely legal 

questions." Yohannes at ¶ 10, citing Big Bob's at ¶ 15. 

IV. LEGAL ANALYSIS 

A. First Assignment of Error 

{¶ 12} In appellant's first assignment of error, appellant contends the trial court 

erred when it concluded that Rule 52 does not violate Article I, Section 11 of the Ohio 

Constitution either on its face or as applied to appellant. We disagree. 

{¶ 13} Rule 52 contains the following prohibition against improper conduct by 

permit holders: 

(B) Prohibited activities; no permit holder, his agent, or 

employee shall knowingly or willfully allow in and upon his 

licensed permit premises any persons to: 

* * * 

(2) Appear in a state of nudity. 

{¶ 14} Ohio Adm. Code 4301:1-1-52(A)(2) defines nudity as "the showing of the 

human male or female genital, pubic area or buttocks with less than a fully opaque 

covering; the showing of the female breast with less than a fully opaque covering of any 

part of the nipple and/or areola." 

{¶ 15} As noted above, appellant stipulated to the investigator's report, which sets 

forth sufficient facts to support the commission's finding that appellant committed a 

violation of Ohio Adm.Code 4301:1-1-52(B)(2). Appellant does not deny that conduct 

amounting to a violation of Rule 52 occurred. Rather, appellant challenges the 

constitutionality of Rule 52 on grounds that the rule violates appellant's right to freedom 

of expression guaranteed by Article I, Section 11 of the Ohio Constitution. According to 

appellant, Rule 52 is an unconstitutional prior restraint on appellant's freedom of 

expression both on its face and as applied to appellant. 
No. 17AP-362 6 

1. Constitutionality of Rule 52 Under the United States Constitution 

{¶ 16} Appellant concedes that Rule 52, in its current form, has previously 

withstood constitutional scrutiny under the First and Fourteenth Amendments to the 

United States Constitution. In WCI, Inc. v. Liquor Control Comm., 10th Dist. No. 16AP72, 2016-Ohio-4778, appellant, WCI, Inc., d.b.a. Cheeks, appealed a decision of the 

common pleas court affirming the commission's order requiring it to either pay a 

forfeiture of $25,000 or lose its liquor license due to a violation of Rule 52. In WCI, an 

investigator for the Department of Public Safety reported while he was posing as a 

customer, one of appellant's dancers knowingly touched him while nude or semi-nude 

and that she subsequently led the investigator to a table located at the entrance of the 

private area where she gave another employee an undetermined amount of money. 

Appellant was cited for a violation of Ohio Adm.Code 4301:1-1-52(B)(2), nudity. 

{¶ 17} Appellant appealed the penalty imposed by the commission on several 

grounds, including the constitutionality of Rule 52 under the First and Fourteenth 

Amendments to the United States Constitution. The common pleas court found that Rule 

52 was constitutional and the commission's order was supported by reliable, probative, 

and substantial evidence and was in accordance with law. In disposing of appellant's 

third assignment of error on appeal, this court noted that "[t]he question of whether Rule 

52 violates the First and Fourteenth Amendment to the United States Constitution has 

already been settled." Id. at ¶ 24. This court discussed the prior jurisprudence on the 

issue as follows: 

The United States Supreme Court held that content-neutral 

time, place and manner regulations of protected speech will 

survive constitutional scrutiny "so long as they are designed to 

serve a substantial governmental interest and do not 

unreasonably limit alternative avenues of communication." 

Renton v. Playtime Theatres, 475 U.S. 41, 47, 106 S. Ct. 925, 

89 L. Ed. 2d 29 (1986). "[T]he constitutionally of regulations 

that purport to ameliorate the deleterious secondary effects of 

sexually oriented establishments under the intermediatescrutiny standard announced in [Renton]." Entertainment 

Prods., Inc. v. Shelby Cnty., 721 F.3d 729, 734 (6th Cir.2013). 

"Rule 52 is a content-neutral regulation aimed at ameliorating 

the adverse secondary effects associated with nude dancing in 
No. 17AP-362 7 

an environment that sells liquor." J.L. Spoons, Inc. v. Ohio 

Dep't of Pub. Safety, 31 F. Supp. 3d 933, 938-39 (N.D.Ohio 

2014), See Renton at 47 (finding that the Renton ordinance is 

content neutral because it "is aimed not at the content of the 

films shown at 'adult motion picture theaters,' but rather at 

the secondary effects of such theaters on the surrounding 

community"). (Emphasis sic.) 

"Rule 52's requirement that dancers at establishments that 

serve alcohol wear, at a minimum, pasties, passes 

constitutional scrutiny." J.L. Spoons at 943. "The evidence 

establishes that the State, when it promulgated Rule 52, had a 

reasonable evidentiary basis for concluding that nude dancing 

in adult cabarets leads to undesirable secondary effects." Id. 

at 951. J.L. Spoons clearly shows that Rule 52 passes 

constitutional scrutiny. 

Id. at ¶ 25-27.1

{¶ 18} In this court's previous decision in 34 Jefferson, LLC v. Liquor Control 

Comm., 10th Dist. No. 11AP-868, 2012-Ohio-3231, we rejected appellant's contention that 

former Rule 52 violated the First Amendment to the United States Constitution on its face 

and as applied to appellant. In 34 Jefferson, the permit holder was cited for several Rule 

52 violations when a male dancer at the club exposed his buttocks and genitals during a 

performance. The commission found that the permit holder committed a violation of 

Ohio Adm.Code 4301:1-1-52(B)(1) prohibiting disorderly conduct and Ohio Adm.Code 

4301:1-1-52(B)(2) and (4) prohibiting public indecency. The commission ordered it to 

pay a forfeiture or serve a suspension order. The common pleas court upheld the 

violation for public indecency but not disorderly conduct. The permit holder appealed. 

{¶ 19} On appeal, this court held that former Rule 52, as it pertained to "nudity," 

did not violate the First Amendment of the United States Constitution either on its face or 

as applied to appellant. With regard to the permit holder's contention that former Rule 52 

was facially invalid due to overbreadth, this court set forth the relevant law as follows: 

In order for a statute to be facially challenged on overbreadth 

grounds, " 'there must be a realistic danger that the statute 

itself will significantly compromise recognized First 

 

1 Brunner, J., concurred as to the majority's resolution of appellant's first, third, and fourth assignments of 

error but dissented, in part, as to appellant's second assignment of error regarding the property rights of 

permit holders. 
No. 17AP-362 8 

Amendment protections of parties not before the Court.' " 161 

Dublin, [Inc. v. Liquor Control Comm., 10th Dist. No. 01AP134 (Dec. 27, 2001)], quoting Members of City Council of Los 

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S. 

Ct. 2118, 80 L. Ed. 2d 772 (1984). Further, "particularly 

where conduct and not merely speech is involved, * * * the 

overbreadth of a statute must not only be real, but substantial 

as well, judged in relation to the statute's plainly legitimate 

sweep." Broadrick v. Okla., 413 U.S. 601, 615, 93 S. Ct. 2908, 

37 L. Ed. 2d 830 (1973). The "mere fact that one can conceive 

of some impermissible applications of a statute is not 

sufficient to render it susceptible to an overbreadth 

challenge." Members of City Council at 800. 

One federal court has noted that "the Supreme Court has 

'vigorously enforced the requirement that a statute's 

overbreadth be substantial,' * * * and cautioned that 

invalidation for overbreadth be deployed sparingly and 'only 

as a last resort.' " Entertainment Prods., Inc. v. Shelby Cty., 

Tenn., 588 F.3d 372, 379 (6th Cir. 2009), citing Broadrick at 

613. Moreover, "[o]nly if a plaintiff demonstrates 'from the 

text of [the statute] and from actual fact that a substantial 

number of instances exist in which the law cannot be applied 

constitutionally,' is facial invalidation on overbreadth grounds 

appropriate." Entertainment Prods. at 379. 

34 Jefferson at ¶ 28-29. 

{¶ 20} In finding that the permit holder's overbreadth argument had no merit with 

regard to the prohibition on dancers appearing "in a state of nudity," the 34 Jefferson

court concluded that "we are not persuaded that the rule [is] susceptible to 'a substantial 

number of impermissible applications.' " Id. at ¶ 32, quoting New York v. Ferber, 458 

U.S. 747, 771 (1982).2

{¶ 21} The permit holder in 34 Jefferson also contended former Rule 52 was 

unconstitutional as applied to an expressive dance performance because it was a contentbased prohibition on performances likely to offend the viewer. In holding that Rule 52 

 

2 This court did find that the provision in former Ohio Adm.Code 4301:1-1-52 pertaining to "lewd activities" 

was unconstitutionally overbroad. Though Rule 52 was subsequently amended to remove the offending 

provisions, the specific prohibition against persons "[a]ppear[ing] in a state of nudity" remains part of Rule 

52. 
No. 17AP-362 9 

was not unconstitutional as applied to nude dancing, this court set forth the relevant legal 

principal as follows: 

The United States Supreme Court has recognized that "nude 

dancing * * * is expressive conduct, although * * * it falls only 

within the outer ambit of the First Amendment's protection." 

Erie v. Pap's AM., 529 U.S. 277, 289, 120 S. Ct. 1382, 146 L. 

Ed. 2d 265 (2000). In Barnes v. Glen Theatre, Inc., 501 U.S. 

560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991), the Supreme 

Court considered a public indecency statute as applied to 

nude dancing, and adopted the four-part test of United States 

v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 

(1968), in determining the constitutionality of a government 

rule or regulation proscribing protected expressive conduct. 

Under that test, a government regulation is sufficiently 

justified if it (1) is " 'within the constitutional power of the 

Government,' " (2) " 'furthers an important or substantial 

governmental interest,' " (3) " 'the governmental interest is 

unrelated to the suppression of free expression,' " and 

(4) " 'the incidental restriction on alleged First Amendment 

freedoms is no greater than is essential to the furtherance of 

that interest.' " Barnes at 567, quoting O'Brien at 377. 

The United States Supreme Court has recognized that "nude 

dancing * * * is expressive conduct, although * * * it falls only 

within the outer ambit of the First Amendment's protection." 

Erie v. Pap's AM., 529 U.S. 277, 289, 120 S. Ct. 1382, 146 L. 

Ed. 2d 265 (2000). In Barnes v. Glen Theatre, Inc., 501 U.S. 

560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991), the Supreme 

Court considered a public indecency statute as applied to 

nude dancing, and adopted the four-part test of United States 

v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 

(1968), in determining the constitutionality of a government 

rule or regulation proscribing protected expressive conduct. 

Under that test, a government regulation is sufficiently 

justified if it (1) is " 'within the constitutional power of the 

Government,' " (2) " 'furthers an important or substantial 

governmental interest,' " (3) " 'the governmental interest is 

unrelated to the suppression of free expression,' " and 

(4) " 'the incidental restriction on alleged First Amendment 

freedoms is no greater than is essential to the furtherance of 

that interest.' " Barnes at 567, quoting O'Brien at 377. 

Id. at ¶ 20. 
No. 17AP-362 10 

{¶ 22} This court disagreed with appellant's "as applied" argument, stating that 

"[i]n general, courts have recognized that [Rule 52] is a content-neutral regulation 

designed to address the negative secondary effects relating to adult establishments." Id.

at ¶ 25, citing J.L. Spoons, Inc. v. Dragani, 538 F.3d 379, 382 (2008). This court 

reasoned that the "undesirable secondary effects" Rule 52 was designed to thwart 

included "prostitution, drug trafficking, and assault, associated with nude dancing in an 

environment serving alcohol." 34 Jefferson at ¶ 25, quoting J.L. Spoons at 382; see also

Junction 615, Inc. v. Liquor Control Comm., 135 Ohio App.3d 33, 40 (11th Dist.1999). 

This court found "no merit to appellant's claims that the regulation * * * represent[s] a 

content-based prohibition on expressive performances; nor do we find that the trial court 

erred in concluding appellant failed to establish the regulation is unconstitutional as 

applied to the facts herein." 34 Jefferson at ¶ 26. 

2. Constitutionality of Rule 52 Under Article I, Section 11 of the Ohio 

Constitution 

{¶ 23} Appellant does not dispute the United States Supreme Court and the 

Supreme Court of Ohio have applied the secondary-effects doctrine in upholding local 

government's regulation of brick-and-mortar purveyors of adult sexually explicit conduct. 

Appellant also concedes that 34 Jefferson, WCI, and J.L. Spoons have determined that 

the "state of nudity" provision of Rule 52 does not violate the First Amendment of the 

United States Constitution either on its face or as applied to establishments providing 

choreographed erotic dancing. Appellant argues, however, that no Ohio court has 

considered a challenge to Rule 52 under the analogous provisions of Article I, Section 11 of 

the Ohio Constitution. Article I, Section 11, provides as follows: 

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. 

{¶ 24} Appellant claims that expressive conduct receives greater protection from 

government regulation under the Ohio Constitution than it does under the United States 

Constitution. Accordingly, appellant argues the case law establishing the constitutionality 

of Rule 52 under the United States Constitution does not foreclose appellant's argument 
No. 17AP-362 11 

in this case that Rule 52 violates Article I, Section 11 of the Ohio Constitution both on its 

face and as applied to appellant. We disagree. 

{¶ 25} Appellant cites the opinion of the Supreme Court of Ohio in Vail v. Plain 

Dealer Publishing Co., 72 Ohio St.3d 279 (1995), in urging this court to hold that Rule 52 

violates Article I, Section 11 of the Ohio Constitution. In Vail, the Plain Dealer Publishing 

Company ("Plain Dealer") published a column authored by appellant, Joe Dirck, 

concerning Vail's 1990 campaign for the Ohio Senate. Vail sued the Plain Dealer and 

Dirck alleging defamation. The Plain Dealer and Dirck argued the alleged defamatory 

statements in the article were privileged statements of opinion rather than actionable 

statements of fact. The trial court dismissed Vail's defamation claim for failure to state a 

claim for relief after concluding the alleged defamatory statements were constitutionally 

protected opinions. The Eighth District Court of Appeals reversed, holding that the 

statements at issue were actionable because the statements were capable of being proven 

false. 

{¶ 26} In Vail, the issue for the Supreme Court was whether, for purposes of 

determining if an alleged defamatory statement is a statement of fact or opinion, the court 

should follow the United States Supreme Court opinion in Milkovich v. Lorain Journal 

Co., 497 U.S. 1 (1990), or apply the four-part test earlier adopted by the Supreme Court of 

Ohio in Scott v. News-Herald, 25 Ohio St.3d 243 (1986).3 In Milkovich, the United States 

Supreme Court rejected the notion that an additional separate constitutional privilege for 

"opinion" is required to ensure the freedom of expression guaranteed by the First 

Amendment of the United States Constitution. Vail at 281, citing Milkovich at 21. 

{¶ 27} The Supreme Court of Ohio in Vail determined that "[r]egardless of the 

outcome in Milkovich, * * * [t]he Ohio Constitution provides a separate and independent 

guarantee of protection for opinion ancillary to freedom of the press." Vail at 281. 

Accordingly, the Supreme Court in Vail concluded that guarantee of protection for 

opinions in Article I, Section 11 of the Ohio Constitution will apply to the benefit of a 

 

3 Pursuant to Scott, a court should consider the specific language at issue, whether the statement is 

verifiable, the general context of the statement, and the broader context in which the statement appeared. 

Id. at syllabus. 
No. 17AP-362 12 

defamation defendant when the allegedly defamatory statements constitute statements of 

opinion under Scott's four-part test. Vail at 280. 

{¶ 28} Appellant contends that, pursuant to the reasoning Vail, this court should 

hold that the greater protections afforded to opinions under Article I, Section 11 of the 

Ohio Constitution should be extended to expressive conduct in the form of choreographed 

erotic dance. In making this argument, appellant notes that the Ohio Constitution 

includes the words "restrain or abridge," as opposed to simply the word "abridge." 

{¶ 29} The holding in Vail speaks only to the Article I, Section 11 protection 

afforded "opinion" in defamation and libel cases. Id. at 281. See also Eastwood Mall, Inc. 

v. Slanco, 68 Ohio St.3d 221, 222 (1994) ("the free speech guarantees accorded by the 

Ohio Constitution are no broader than the First Amendment, and * * * the First 

Amendment is the proper basis for interpretation of Section 11, Article I of the Ohio 

Constitution"), citing State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals, 

63 Ohio St.3d 354, 362-63 (1992). The Supreme Court of Ohio has not extended the 

additional constitutional protections afforded to opinion defamation cases to any other 

form of speech. We find no merit in appellant's argument that the Ohio Constitution 

provides more protection to expressive conduct in the form of choreographed erotic dance 

simply because it includes the words "restrain or abridge," as opposed to simply the word 

"abridge." As previously noted, though nude dancing is recognized as a protected form of 

expressive conduct, "it falls only within the outer ambit of the First Amendment's 

protection." 34 Jefferson at ¶ 20, citing Erie v. Pap's AM., 529 U.S. 277, 289 (2000). 

Accordingly, we hold the free speech guarantees afforded choreographed nude dancing 

under the Ohio Constitution are no broader than the protections afforded by the First and 

Fourteenth Amendments to the United States Constitution. 

3. Impact of Reed v. Gilbert

{¶ 30} Appellant contends that the opinion of the United States Supreme Court in 

Reed v. Gilbert, __ U.S. __, 135 S.Ct. 2218 (2015), requires this court to conduct a strict 

scrutiny analysis in determining whether Rule 52 is constitutionally overbroad because 

under Reed, Rule 52 can no longer be considered a content-neutral regulation. We 

disagree. 
No. 17AP-362 13 

{¶ 31} In Reed, the Supreme Court addressed the validity of a sign code that 

banned the display of outdoor signs anywhere in town without a permit but exempted 23 

classes of signs from this requirement. Id. at 2224. Under the Sign Code, signs that 

received varying levels of preferential treatment under the code included ideological signs, 

political signs, and temporary directional signs. Id. at 2224-25. Plaintiffs in the case 

challenged the less preferential treatment given to temporary directional signs. Id. at 

2224. The Ninth Circuit Court of Appeals determined that the Sign Code was content 

neutral.4 That court declared "Gilbert did not adopt its regulation of speech because it 

disagreed with the message conveyed," and its "interests in regulat[ing] temporary signs 

[were] unrelated to the content of the sign." Id. at 2226. 

{¶ 32} The United States Supreme Court reversed the Ninth Circuit, finding the 

"Sign Code is content based on its face" because the restrictions "depend entirely on the 

communicative content of the sign." Id. at 2227. The court held that a strict scrutiny 

analysis was appropriate, not intermediate scrutiny, and that it was error to look to the 

purpose of the Sign Code in determining the level of scrutiny that should be applied. Id. 

at 2228. In Reed, the United States Supreme Court instructed "[a] law that is content 

based on its face is subject to strict scrutiny regardless of the government's benign motive, 

content-neutral justification, or lack of 'animus toward the ideas contained' in the 

regulated speech." Id., quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 

(1993). "In other words, an innocuous justification cannot transform a facially contentbased law into one that is content neutral." Reed at 2228. 

{¶ 33} Appellant argues that the Reed case effectively overrules the secondaryeffects doctrine because a court reviewing a claim that a regulation unlawfully restrains or 

abridges free speech may no longer consider the purpose of the regulation in determining 

the level of scrutiny that should be applied. We disagree. 

{¶ 34} In Flanigan's Ents. v. Sandy Springs, 11th Cir. No. 16-14428 (Aug. 14, 

2017), the Eleventh Circuit Court of Appeals recently addressed the question whether 

Reed abrogated the secondary-effects doctrine as applied to businesses that offer sexually 

explicit entertainment. In Flanigan's, two adult-oriented businesses challenged city 

 

4 Reed v. Gilbert, 707 F.3d 1057, 1072 (9th Cir.2013). 
No. 17AP-362 14 

zoning ordinances banning the sale of liquor in establishments that feature nude dancing. 

The Eleventh Circuit upheld the district court decision granting summary judgment in 

favor of the city as to the First Amendment claims. In concluding that Reed did not 

abrogate the secondary-effects doctrine, the Eleventh Circuit made the following 

observations: 

There is no question that Reed has called into question the 

reasoning undergirding the secondary-effects doctrine. The 

secondary-effects doctrine allows a content-based, adultentertainment-related law to be subjected to less than strict 

scrutiny as long as the law can be justified by a legitimate 

interest in combating the harmful secondary effects of adult 

entertainment. The majority opinion in Reed, of course, 

rejected the lower court's reliance on the sign code's 

justification in conducting content-neutrality analysis; the 

Court also declared that content-based laws should be 

subjected to strict scrutiny. 

But significantly, the majority opinion in Reed did not address 

the secondary-effects doctrine. For this reason alone, we 

cannot read Reed as abrogating either the Supreme Court's or 

this Circuit's secondary-effects precedents. 

Id. See also Free Speech Coalition, Inc. v. Atty. Gen. United States, 825 F.3d 149 (3d 

Cir.2016) (if the secondary-effects doctrine survives Reed, case law counsels against 

expanding its application beyond regulations affecting physical purveyors of adult 

sexually explicit content); "Q" Lungian Ents. v. Windsor Locks, D.Conn. No. 3:13-cv01285 (Sept. 18, 2017) (declining to conclude that Reed repudiates prior decision of the 

United States Supreme Court applying the secondary-effects doctrine in ruling that the 

regulation of adult-oriented businesses is content-neutral regulation that warrants the 

application of intermediate scrutiny). 

{¶ 35} Because Reed did not expressly abrogate the secondary-effects doctrine as it 

applies to local government regulation of brick-and-mortar purveyors of adult sexually 

explicit conduct, this court need not apply a strict scrutiny analysis in determining the 

constitutionality of Rule 52 under Article I, Section 11 of the Ohio Constitution.5 

Furthermore, because this court has previously determined the provision of Rule 52 at 

 

5 We express no opinion whether Rule 52 would pass muster under the strict scrutiny test. 
No. 17AP-362 15 

issue in this case does not violate the First and Fourteenth Amendments of the United 

States Constitution, either on its face or as applied to adult-oriented establishments, and 

because Article I, Section 11 of the Ohio Constitution does not provide broader protections 

to such establishments, we hold that Ohio Adm.Code 4301:1-1-52(B)(2) does not violate 

Article I, Section 11 of the Ohio Constitution either on its face or as applied to appellant. 

{¶ 36} For the foregoing reasons, appellant's first assignment of error is overruled. 

B. Second Assignment of Error

{¶ 37} In appellant's second assignment of error, appellant argues the trial court 

erred in affirming the commission because the record does not contain substantial, 

reliable, and probative evidence in support of the commission's decision. More 

particularly, appellant contends that the evidence in the record does not support a 

forfeiture order of $100,000. 

{¶ 38} Pursuant to R.C. 4301.25(A), "[t]he liquor control commission may suspend 

or revoke any permit issued under this chapter or Chapter 4303. of the Revised Code for 

the violation of any * * * lawful rule of the commission." Similarly, R.C. 4301.252 permits 

the commission to order forfeiture in lieu of revocation. This court has held that, under 

the relevant statutory language, the commission may revoke a permit based on one 

violation. If there is reliable, probative, and substantial evidence supporting the order, 

the court of common pleas has no authority to reverse an order on the basis that the 

penalty is harsh and an abuse of discretion. DKA, Inc. v. Liquor Control Comm., 10th 

Dist. No. 03AP-316, 2004-Ohio-837, ¶ 13, citing Tolbert v. Liquor Control Comm. (In re 

Tolbert), 10th Dist. No. 98AP-285 (Dec. 3, 1998). 

{¶ 39} In WCI, appellant challenged the $25,000 forfeiture imposed by the 

commission for violations of Rule 52 as being unsupported by the evidence. In holding 

that substantial, reliable, and probative evidence supported the commission's decision, 

this court noted the following relevant facts: 

WCI did stipulate to certain facts in the investigator's report 

but the hearing brought to light other facts that support a 

forfeiture of $25,000 or revocation of the liquor license. (Tr. 

at 6.) There were cameras that were supposed to be 

monitoring the private dance rooms. (Tr. at 17.) WCI could 

not determine what the cameras were supposed to show. 

Either the cameras were malfunctioning or were not being 
No. 17AP-362 16 

monitored. Id. The investigator's report stated that at the end 

of the private dance the performer led the investigator to a 

table that was located at the entrance of the private area 

where she gave another employee an undetermined amount of 

money. (Public Safety Report at 2.) 

The Commission also noted at the hearing that WCI was 

recently before them for actions that occurred on January 3, 

2013 in which WCI's liquor license would have been revoked 

unless they paid a $10,000 forfeiture. (Tr. at 19.) The 

evidence indicates that the Commission has required 

substantial forfeitures from WCI before for similar violations. 

The Commission chose to impose an increased forfeiture of 

$25,000 rather than a $10,000 forfeiture that was imposed 

less than one year before. 

Id. at ¶ 13-14. 

{¶ 40} The facts are similar in this case. Here, as in WCI, appellant stipulated to 

the facts contained in the investigation report. Appellant does not deny one of its dancers 

appeared in a state of nudity while providing a one-on-one dance for Cesaratto in the 

club's VIP area. Appellant does not deny such conduct violated Ohio Adm.Code 4301:1-1-

52(B)(2) prohibiting appellant from knowingly or willfully allowing dancers to "[a]ppear 

in a state of nudity." Though the commission found appellant guilty of only one violation, 

the unrefuted information contained in Cesaratto's investigation report establishes that 

additional conduct occurred on appellant's premises that arguably supported a finding of 

further Rule 52 violations. For example, Cesaratto's investigation report establishes that 

appellant's dancer engaged in the following conduct: repeatedly "straddled his legs, sat on 

[his] groin and rubbed back and forth simulating a sexual act"; "started gyrating her hips 

in a circular motion * * * simulating a sexual act"; rubbed her exposed nipple on his lips; 

rubbed her finger on her clothed anus and vagina; went to her knees in front of Cesaratto 

and proceeded to rub her lips over his clothed penis while "humming to make a vibrating 

sensation"; and rubbed her head on his clothed penis. (Sept. 1, 2015 Investigation Report 

at 1.) After performing these activities during two songs, the dancer asked for $60, which 

Cesarrato paid. Such conduct is far well beyond simply allowing a dancer to "[a]ppear in a 

state of nudity," and it involved sexual touching. 
No. 17AP-362 17 

{¶ 41} The record also contains evidence appellant has been cited for four Rule 52 

violations in the past four years. In addition to the two citations issued by the division 

arising from the August 2015 investigation, an investigation in February 2015 resulted in 

two citations, one for nudity and the other for sexual activity. Though the commission did 

not find appellant guilty of those violations, the fact remains the division cited appellant 

for similar Rule 52 violations roughly seven months prior to the violation at issue. 

Additionally, the record shows the division issued citations to appellant for Rule 52 

violations on June 14, July 17, and October 24, 2014. Appellant acknowledges the three 

separate violations were consolidated for purposes of punishment, and appellant paid a 

forfeiture amount of $10,000 in lieu of revocation. 

{¶ 42} In the administrative hearing on the Rule 52 violation arising from the 

February investigation, appellant maintained it had taken steps following the 2014 

violations to educate staff and to increase surveillance of the VIP area to ensure 

compliance with the relevant regulations. According to appellant's manager, Jadranko 

Cvetovac, there are real-time cameras monitoring virtually the entire club, including the 

VIP area, but the cameras do not record. Cvetovac testified that prior to the violations in 

2014, a single employee monitored all the cameras from inside the camera room. In 

response to the chairperson's question regarding any additional measures taken 

subsequent to the 2014 violations, Cvetovac stated that one additional employee had been 

assigned to monitor the cameras from an iPad. Our review of the hearing transcript 

reveals, however, that appellant allows staff monitoring those cameras to receive tips from 

the dancers for referring customers. Neither of the two employees monitoring the 

cameras on August 29, 2015, recalled having observed the nudity violation detailed in 

Cesaratto's investigation report, even though the conduct described in the report occurred 

over the space of two song tracks. 

{¶ 43} Based on the foregoing, we find that substantial, reliable, and probative 

evidence supports the commission's decision to revoke appellant's liquor permit or, in lieu 

of revocation, forfeiture. We acknowledge that the $100,000 forfeiture in this case is 

much steeper than the $10,000 forfeiture previously imposed by the commission for 

appellant's prior Rule 52 violations and the $25,000 forfeiture imposed by the 

commission for the Rule 52 violations in WCI. However, the decision of the Supreme 
No. 17AP-362 18 

Court of Ohio in Henry's Cafe, Inc. v. Bd. of Liquor Control, 170 Ohio St. 233 (1959), 

provides as follows: 

2. On appeal from an order of an agency (as defined in 

Section 119.01, Revised Code) to the Court of Common Pleas, 

the power of the court to modify such order is limited to the 

ground set forth in Section 119.12, Revised Code, i.e., the 

absence of a finding that the order is supported by reliable, 

probative, and substantial evidence. 

3. On such appeal, the Court of Common Pleas has no 

authority to modify a penalty that the agency was authorized 

to and did impose, on the ground that the agency abused its 

discretion. 

Id. at paragraphs two and three of the syllabus. Followed by Aida Ents., Inc. v. Liquor 

Control Comm., 10th Dist. No. 01AP-1178, 2002-Ohio-2764, appeal not allowed, 96 Ohio 

St.3d 1533, 2002-Ohio-5351; Goldfinger Ents., Inc. v. Liquor Control Comm., 10th Dist. 

No. 01AP-1172, 2002-Ohio-2770; Lindner v. Liquor Control Comm., 10th Dist. No. 00AP1430 (May 31, 2001). 

{¶ 44} Appellant acknowledges that Henry's Cafe precludes this court from 

conducting an abuse of discretion analysis in reviewing the sanction imposed by the 

commission where we find that the commission's order is supported by substantial, 

reliable, and probative evidence and is in accordance with law. Appellant also 

acknowledges that the commission had the right to revoke its liquor permit based on a 

single Rule 52 violation, rather than providing appellant with the option to pay forfeiture. 

We note that R.C. 4301.252 imposes no monetary limit on the amount of forfeiture in lieu 

of revocation. Nevertheless, appellant asks this court to review the severity of the 

forfeiture under the due process and equal protection clauses of the United States and 

Ohio Constitutions. 

{¶ 45} Appellant argues that this court, in reviewing the size of a forfeiture order 

issued by the commission, should apply the test courts apply when reviewing the validity 

of punitive damage awards in a civil proceeding. See BMW of N. Am., Inc. v. Gore, 517 

U.S. 559 (1996); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 
No. 17AP-362 19 

(2001).6 Appellant also contends that the forfeiture in this case violates equal protection 

because the amount of the forfeiture is out of proportion to forfeitures imposed on other 

similarly situated permit holders for Rule 52 violations. Appellant asks us to compare the 

size of the forfeiture in this case to other forfeiture orders issued by the commission. 

{¶ 46} In Lindner, the commission revoked the permit holder's liquor permit 

because gambling had occurred on the premises. The permit holder admitted the 

violation but appealed to the common pleas court arguing that the sanction was excessive 

given the fact that the permit holder had no prior violations. The common pleas court 

found that substantial, reliable, and probative evidence supported the commission's 

order. 

{¶ 47} In her appeal to this court, the permit holder argued that the penalty of 

revocation was too severe. In rejecting appellant's argument, this court made the 

following observations: 

Having properly found the commission's order was supported 

by reliable, probative and substantial evidence, the common 

pleas court had no authority to modify the penalty lawfully 

imposed by the commission. 

* * * 

As a practical matter, courts have no power to review 

penalties meted out by the commission. Thus, we have little 

or no ability to review a penalty even if it seems on the surface 

to be unreasonable or unduly harsh. Though she had no prior 

violations, appellant had her liquor license revoked, not 

suspended for a period of time. Perhaps the time to 

reconsider Henry's Cafe has arrived, but the Supreme Court 

of Ohio must be the court to do that reconsideration. We, as 

an intermediate appellate court, are required to follow the 

syllabus of Henry's Cafe unless or until such reconsideration 

occurs. 

Lindner. 

 

6In deciding whether an award of punitive damages violates due process, courts have focused on the same 

three criteria: (1) the degree of the defendant's reprehensibility or culpability; (2) the relationship between 

the penalty and the harm to the victim caused by the defendant's actions; and (3) the sanctions imposed in 

other cases for comparable misconduct. Gore at 575-85. 
No. 17AP-362 20 

{¶ 48} The Supreme Court of Ohio has not reconsidered the rule of law set forth in 

Henry's Cafe. Appellant's due process and equal protection arguments in this case are a 

thinly veiled attempt to circumvent the holding of the Supreme Court in Henry's Cafe. As 

an intermediate appellate court, this court is required to follow the syllabus of Henry's 

Cafe unless or until such reconsideration occurs. Lindner. Accordingly, we find that 

appellant's due process and equal protection challenges to the amount of the forfeiture are 

without merit. 

{¶ 49} Because we have found that the trial court did not abuse its discretion when 

it determined that the commission's order was supported by substantial, reliable, and 

probative evidence and because the commission's order is in accordance with law, we 

overrule appellant's second assignment of error. 

C. Third Assignment of Error

{¶ 50} In appellant's third assignment of error, appellant argues the trial court 

erred by denying appellant's motion to supplement the administrative record with 

evidence in support of its contention that Rule 52 is unconstitutionally overbroad. More 

particularly, appellant sought leave to submit evidence there are approximately 2,400 

permit holders in Ohio and only about 1 percent of those permit holders operate adultoriented businesses. According to appellant, some of those permit holders include 

theaters and opera houses that occasionally feature performances containing nudity. 

Appellant argues Rule 52 might be impermissibly applied to suppress speech of great 

artistic merit. 

{¶ 51} This is precisely the argument this court considered and rejected in 34 

Jefferson. As we previously noted in 34 Jefferson, "the Supreme Court has vigorously 

enforced the requirement that a statute's overbreadth be substantial, * * * and cautioned 

that invalidation for overbreadth be deployed sparingly and only as a last resort. * * * 

[O]nly if a plaintiff demonstrates from the text of the statute and from actual fact that a 

substantial number of instances exist in which the law cannot be applied constitutionally, 

is facial invalidation on overbreadth grounds appropriate." (Internal citations and 

quotations omitted.) Id. at ¶ 29. In 34 Jefferson, this court agreed with the commission 

that the "ability to conceive of arguably impermissible applications of the rule or statute to 
No. 17AP-362 21 

constitutionally protected expression does not amount to real or substantial overbreadth." 

Id. at ¶ 31. 

{¶ 52} For the reasons set forth in 34 Jefferson, we hold the trial court did not err 

when it denied appellant's motion to supplement the administrative record. Accordingly, 

appellant's third assignment of error is overruled. 

V. CONCLUSION 

{¶ 53} Having overruled appellant's three assignments of error, we affirm the 

judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed.

KLATT and BRUNNER, JJ., concur. 

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