IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
4522 Kenny Road, L.L.C.,
:
dba Kahoots,
:
Appellant-Appellant,
:
No. 02AP-631
v.
(C.P.C. No. 01CVF03-2918)
:
City of Columbus,
(REGULAR CALENDAR)
Board of Zoning Adjustment,
:
Appellee-Appellee.
:
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O P I N I O N
Rendered on April 15, 2003
_________________________________________________
Smith & Hale, and Harrison W. Smith, Jr. , for appellant.
Richard C. Pfeiffer, Jr., City Attorney, and Keith S. Mesirow,
for appellee.
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APPEAL from the Franklin County Court of Common Ple as.
BOWMAN, J.
{¶1}
Appellant, 4522 Kenny Road, L.L.C., dba Kahoots, ap peals from a
judgment of the Franklin County Court of Common Ple as affirming the decision of
appellee, City of Columbus Board of Zoning Adjustme nt ("BZA"), finding appellant in
violation of the city's zoning code. For the reaso ns that follow, we reverse that judgment.
No. 02AP-631
2
{¶2}
Appellant operates "Kahoots" at 4522 Kenny Road in
Columbus, Ohio.
That business is in a Commercial Planned Developmen t District ("CPDD") which
prohibits, among other things, the operation of an
"adults only entertainment
establishment." An "adults only entertainment esta blishment" was defined in former
Columbus City Code Section ("C.C. Section") 3303.01
as "an establishment which
features totally nude, topless, bottomless, strippe rs, male or female impersonators, or
similar entertainment or services which are obscene or harmful to juveniles as defined by
Ohio Revised Code Section 2907.01(E) and (F) and Co lumbus City Codes Section
2307.01(E) and (F)." C.C. Section 3303.01 has rece ntly been amended, although the
amendment is not relevant to the present matter. " Bottomless" is defined in the code to
mean "less than a full opaque covering of male or f emale genitals, pubic area or
buttocks." Id. at 3303.02. "Topless" is defined to mean "less than a full opaque covering
below the top of the nipple." Id. at 3303.20.
{¶3}
Mike Farrenkopf, an investigator for the City of Co lumbus' Building and
Development Code Enforcement Section, visited Kahoo ts twice in June 1999. In his first
visit to Kahoots, Farrenkopf sat in a large dining
room with booths on either side. In the
middle of the room, he witnessed several female dan cers wearing bikinis or thong-type
bikini bottoms. He described the bikinis as having
very little back covering, so as to
expose the dancers' buttocks. He also testified th at he witnessed dancers performing
topless. He witnessed several of the dancers going into another room north of the main
dining room ("the Safari Room") in which the dancer s removed their bikini tops and
danced for a patron. Farrenkopf later witnessed a
parade of dancers coming out of the
Safari Room and into the main dining room. During
that parade, several dancers' jackets
opened up thereby exposing their breasts or nipples . In his second visit to Kahoots,
Farrenkopf was taken to another room, the Champagne
Room, where patrons could
watch topless dancing for an extended period of tim e.
{¶4}
As a result of these visits, appellant was served w ith a Zoning Code
Violation Order, alleging that Kahoots was operatin g an adult entertainment
establishment in violation of the CPDD. At a heari ng before the BZA, appellant argued
that, pursuant to the former C.C. Section 3303.01, there must be a determination that any
No. 02AP-631
3
topless or bottomless dancing was "obscene or harmf ul to juveniles" for Kahoots to be
classified as an adults-only entertainment establis hment.
In contrast, the city of
Columbus ("the city") contended that Kahoots was an
adults-only entertainment
establishment because it featured topless or bottom less dancing. The city argued that
the phrase "obscene or harmful to juveniles" contai ned in former C.C. Section 3303.01
modified only the words "similar entertainment or s ervices" and did not modify the words
"topless" or "bottomless." A majority of the BZA d etermined that appellant was operating
an adults-only entertainment establishment and, acc ordingly, was in violation of the
CPDD. No evidence was presented to establish that
the conduct at issue was obscene
or harmful to juveniles, and the BZA made no such d etermination.
{¶5}
Appellant appealed that decision to the Franklin Co unty Court of Common
Pleas, which affirmed the BZA's decision. The lowe r court determined that the definition
of an adults-only entertainment establishment conta ined in former C.C. Section 3303.01
was not ambiguous. The court further concluded tha t proof of topless or bottomless
dancing was sufficient to meet the definition of an
adults-only entertainment
establishment, and the city did not need to prove t hat the dancing was obscene or
harmful to juveniles to establish a violation.
{¶6}
Appellant now appeals, assigning the following erro r:
{¶7}
"The Common Pleas Court erred in sustaining the dec ision of the City of
Columbus Board of Zoning Appeals interpreting the C olumbus City Code in a way that
justified the conclusion that on the two dates in q uestion the activity observed in
appellant's place of business constituted 'adult en tertainment' as defined in said Code."
{¶8}
Initially, we note appellant's appeal is from a dec ision of the BZA which is
governed by R.C. Chapter 2506. The standard of rev iew in such a case has been set
forth by the Ohio Supreme Court as follows:
{¶9}
"* * * In an R.C. Chapter 2506 administrative appea l of a decision of the
board of zoning appeals to the common pleas court,
the court, pursuant to R.C. 2506.04,
may reverse the board if it finds that the board's
decision is not supported by a
preponderance of reliable, probative and substantia l evidence. An appeal to the court of
appeals, pursuant to R.C. 2506.04, is more limited
in scope and requires that court to
No. 02AP-631
4
affirm the common pleas court, unless the court of
appeals finds, as a matter of law, that
the decision of the common pleas court is not suppo rted by a preponderance of reliable,
probative and substantial evidence." Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34. See,
also, Elbert v. Bexley Planning Comm. (1995), 108 Ohio App.3d 59, 66.
{¶10}
Appellant contends in its sole assignment of error that, in order to satisfy the
definition of adults-only entertainment establishme nt, there must be a showing that the
establishment featured conduct of the type listed i n the code provision and a showing that
such conduct was obscene or harmful to juveniles.
Because the city presented no proof
that the topless or bottomless dancing at issue was obscene or harmful to juveniles, and
because the BZA made no such determination, appella nt argues it was error to find
Kahoots an adults-only entertainment establishment under former C.C. Section 3303.01.
Appellant does not challenge the constitutionality of this code section.
{¶11}
The city argues that the phrase "obscene or harmful to juveniles" modifies
only the last category of conduct identified in the code provision – "similar entertainment
or services," therefore, the BZA was not required t o find that the topless and bottomless
conduct at issue here was obscene or harmful to juv eniles. According to the city, it is
irrelevant that the words "nude," "topless" and "bo ttomless," as they appear in C.C.
Section 3303.01, are adjectives which do not appear to modify a particular noun. The city
reasons that, because the dancers in question perfo rmed in a manner fitting the code's
definition of "topless" and "bottomless," the enter tainment in question constituted "adults
only entertainment."
{¶12}
The validity of appellant's argument turns on the i nterpretation of former
C.C. Section 3303.01, which defines adults-only ent ertainment establishment. Because
zoning regulations constitute derogation of a perso n's property rights, they should be
given a fair and reasonable construction with due r egard for the conflicting interests
involved. State ex rel. Scadden v. Willhite (Mar. 26, 2002), Franklin App. No. 01AP-800.
A court should give the words in a zoning regulatio n the meaning commonly attributed to
them, unless a contrary intention appears in the re gulation. Akwen, Ltd. v. Ravenna
Zoning Bd. of Appeals (Mar. 29, 2002), Portage App. No. 2001-P-0029. The meaning of
the relevant provisions of the code must be derived
from the "context of the entire
No. 02AP-631
5
ordinance." Scadden, supra, citing In re University Circle, Inc. (1978), 56 Ohio St.2d 180,
184. Nevertheless, where there is ambiguity, court s must strictly construe restrictions on
the use of real property in favor of the property o wner. Saunders v. Zoning Dept. (1981),
66 Ohio St.2d 259, 261; Mishr v. Poland Bd. of Zoning Appeals (1996), 76 Ohio St.3d
238, 241; BP Oil Co. v. Dayton Bd. of Zoning Appeals (1996), 109 Ohio App.3d 423, 432;
Liberty Sav. Bank v. Kettering (1995), 101 Ohio App.3d 446, 451. This is because
such
restrictions are in derogation of the common law an d deprive a property owner of certain
uses of his land to which he would otherwise be law fully entitled. Saunders, supra, at
261.
{¶13}
When an ordinance is unambiguous and conveys a clea r meaning, a court
must only read and follow the words of the ordinanc e. See Fairborn v. DeDomenico
(1996), 114 Ohio App.3d 590, 593; State v. Waddell (1995), 71 Ohio St.3d 630, 631. In
such a case, there is no need to apply the rules of
construction. Cline v. Ohio Bur. of
Motor Vehicles (1991), 61 Ohio St.3d 93, 96;
BP Oil Co., supra. An ordinance is
ambiguous when it is subject to various interpretat ions. Id. Specifically, an ambiguity
exists if a reasonable person can find different me anings in the ordinance and if good
arguments can be made for either of two contrary po sitions. Id.
{¶14}
Appellant contends that the phrase "obscene or harm ful to juveniles"
modifies all that precedes it, both the catch-all c ategory of "similar entertainment or
services" as well as the words "totally nude, tople ss, bottomless, strippers, male or female
impersonators." Appellant points out that other adu lt-themed prohibitions in the CPDD,
such as adult bookstores and adult motion picture t heaters, require a showing that the
majority of the establishment's income be derived f rom adult material which is obscene or
harmful to juveniles. Therefore, appellant argues that the subject code provision should
also be read to require a showing of obscenity or h arm to juveniles to prove an adults-
only entertainment establishment.
Furthermore, app ellant contends that the phrase
"obscene or harmful to juveniles" must apply to all
of the conduct listed in the subject
code provision because it would be illogical to cla ssify all male or female impersonators
as adults-only entertainment regardless of the type of impersonation.
{¶15}
R.C. 1.47 provides:
No. 02AP-631
6
{¶16}
"In enacting a statute, it is presumed that:
{¶17}
"(A) Compliance with the constitutions of the state and of the United States
is intended;
{¶18}
"(B) The entire statute is intended to be effective ;
{¶19}
"(C) A just and reasonable result is intended[.]"
{¶20}
In determining a fair and reasonable construction o f the definition of an
"adults only entertainment establishment," we must look at that definition in the context of
the other provisions relating to adult-themed busin esses. Scadden. Also prohibited in the
CPDD are adult bookstores and adult motion picture theaters. The definitions of both of
these adult businesses require a showing that they derive a majority of their income from
materials which are obscene or harmful to juveniles
before they are to be considered
adult for purposes of the Code. It is reasonable t o interpret the definition of an "adults
only entertainment establishment" to require the en tertainment to be obscene or harmful
to juveniles when the other adult-themed prohibitio ns in the code require the same
showing.
{¶21}
Moreover, the city's preferred interpretation of th e code section would result
in the absurd conclusion that male or female impers onators are per se "adults only
entertainment." There is nothing per se "adult" ab out a male or female impersonator.
Such an interpretation would include many forms of
entertainment normally not
associated with "adult entertainment," such as the film "Some Like it Hot," in which Tony
Curtis and Jack Lemmon dress as women, or "Tootsie, " featuring Dustin Hoffman posing
as a woman, or the musical "Hairspray," in which Ha rvey Fierstein plays a woman, or
"Victor/Victoria," in which the lead character is a woman posing as a man performing as a
woman.
{¶22}
Further, we must note that the city's interpretatio n not only flies in the face
of grammatical rules but also ignores common sense.
At one point the city's brief states:
"In the context of the Columbus City Code, it makes
perfect sense to say that one went to
an adults only entertainment establishment yesterda y and saw bottomless." The city's
reading of the code section produces the circular c onclusion that, because the dancing
was adults-only entertainment, the establishment wa s an adults-only entertainment
No. 02AP-631
7
establishment. Yet the crux of this appeal—the que stion the court is being asked to
decide—is what constitutes "adults only entertainme nt" and whether the code section
gives adequate notice to all would-be purveyors of such entertainment. The city's reading
of the code does not assist this court in answering
that question, but merely proposes a
"you'll know a violation when you see one" standard
of proof. We are left with many
unanswered questions: Are both topless men and wome n prohibited? Is it only nude,
topless or bottomless dancing which is proscribed, or is the exposure itself the
problem?
Should the word "entertainment" in the latter part
of the sentence have been inserted
behind each of these adjectives? If nudity is not
intended to be entertainment, would it be
protected?
The only reasonable interpretation of t he code that would resolve this
ambiguity is to read the phrase "obscene or harmful to juveniles" as applying to all of the
preceding portions of the code section.
{¶23}
Finally, the city's interpretation of an "adults on ly entertainment
establishment" would require application of a more stringent standard of proof only where
the catch-all category of "similar entertainment or
services" is implicated.
It is not
reasonable to require a showing that a form of ente rtainment is obscene or harmful to
juveniles in every adult-themed prohibition in the CPDD except for "totally nude, topless,
bottomless, strippers," or "male or female imperson ators."
The more reasonable
interpretation would require topless or bottomless dancing to be obscene or harmful to
juveniles in order to be categorized as "adults onl y entertainment."
{¶24}
Strictly construing the "adults only entertainment establishment" definition in
favor of the land owner, we find that the BZA and t he lower court erred as a matter of law
in finding that Kahoots was an "adults only enterta inment establishment" as that term is
defined in the former Columbus City Code. A fair a nd reasonable construction of that
definition requires that the obscene or harmful to
juveniles phrase modify all that comes
before it, and not simply the preceding "similar en tertainment or services." Therefore, a
showing that the activity at Kahoots was obscene or
harmful to juveniles must be made
before Kahoots can be considered an "adults only en tertainment establishment." There
was no such finding made by the BZA or the lower co urt. Appellant's sole assignment of
error is sustained. The judgment of the Franklin C ounty Court of Common Pleas is
No. 02AP-631
8
reversed and this matter is remanded to the BZA to
determine whether the activities in
Kahoots were obscene or harmful to juveniles so as
to render Kahoots an "adults only
entertainment establishment."
Judgment reversed and cause remanded.
McCORMAC, J., concurs.
KLATT, J., dissents.
McCORMAC, J., retired of the Tenth Appellate Distri ct,
assigned to active duty under authority of Section
6(C),
Article IV, Ohio Constitution.
KLATT, J., dissenting.
{¶25}
I respectfully dissent as I believe that Section 33 03.01 is not ambiguous
with respect to whether there must be a showing of
obscenity or harm to juveniles to
satisfy the definition of an adults-only entertainm ent establishment. Words and phrases
shall be read in context and construed according to
the rules of grammar and common
usage. R.C. 1.42. Normally, modifying words or phr ases " 'only apply to the words or
phrases immediately preceding or subsequent to the word, and will not modify the other
words, phrases, or clauses more remote, unless the
intent of the legislature clearly
require[s] such an extension.' " State v. Bowen (2000), 139 Ohio App.3d 41, 44 , citing In
re Shaffer (N.D.Ohio 1998), 228 B.R. 892, 894. Applying this
general rule of construction
to the code section at issue, the phrase "obscene o r harmful to juveniles" modifies only
the category of conduct which immediately precedes
it, "similar entertainment or
services."
{¶26}
Moreover, it should be noted that there is no comma
or other connecting
words between the catch-all category "similar enter tainment or services" and the
subsequent modifying phrase "which are obscene or h armful to juveniles." The use of a
comma or a connecting word, such as "and," between
these phrases would have
indicated an intent to modify more than just the im mediately preceding catch-all category.
Edward H. Everett Co. v. Jadoil, Inc. (Jan. 26, 1987), Licking App. No. CA-3211.
Because these devices were not used, it is apparent that the modifying phrase "which are
No. 02AP-631
9
obscene or harmful to juveniles" was intended to on ly modify the preceding phrase
"similar entertainment or services" and not the mor e remote language contained in that
code provision. Bowen, supra; see, also, In re Bush (S.D. Ohio 2000), 253 B.R. 863,
865. This court must give effect to the legislativ e intent reflected in the language used.
State ex rel. Pennington v. Gundler (1996), 75 Ohio St.3d 171, 173.
{¶27}
Additionally, the Supreme Court of Ohio has held th at the word "or"
indicates an alternative between different or unlik e things. Pizza v. Sunset Fireworks Co.,
Inc. (1986), 25 Ohio St.3d 1, 4-5. These alternatives m ust be treated completely separate
from one another.
Shaffer, supra. In Section 3303.01, the catch-all category "simil ar
entertainment or services" is separated from the pr eceding list of conduct by the word
"or." Therefore, it appears that the "similar ente rtainment or services" catch-all category
was intended to be distinct from the other conduct
in that provision.
Bowen, supra;
Shaffer, supra. This lends further support to the city's co ntention that the drafters of this
definition intended the phrase "obscene or harmful to juveniles" to modify only the catch-
all category.
{¶28}
This interpretation is also consistent with common sense. It is hard to
imagine any form of topless or bottomless dancing t hat would not be considered adults-
only entertainment.
However, because of the broad
nature of the phrase "similar
entertainment or services," it is not surprising th at the city sought to limit that catch-all
category to entertainment or services "which are ob scene or harmful to juveniles." Such
limitation is not necessary for topless or bottomle ss entertainment which, by its very
nature, is adults-only. The fact that the city als o defined adults-only entertainment to
include "male or female impersonators" does not dem onstrate a different legislative intent,
although the wisdom of including that category of e ntertainment with "nude, topless,
bottomless, strippers" might well be questioned.
{¶29}
Because I find that Section 3303.01 is unambiguous and conveys a clear
and definite meaning, I would give effect to the la nguage used. Meeks v. Papadopulos
(1980), 62 Ohio St.2d 187, 190; BP Oil Co., supra. Section 3303.01 defines topless or
bottomless entertainment as adults-only entertainme nt and does not require a showing of
obscenity or harm to juveniles. This is the interp retation of Section 3303.01 utilized by the
No. 02AP-631
10
BZA and the trial court. I therefore would find no
error in the trial court's affirmance of the
BZA's decision.
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