IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
5411, Inc., dba Columbus Gold,
:
Appellant-Appellant,
:
No. 02AP-1010
v.
:
(C.P.C. No. 02CV-112)
City of Columbus,
:
(REGULAR CALENDAR)
Appellee-Appellee.
:
5411, Inc., dba Columbus Gold,
:
Appellant-Appellant,
:
No. 02AP-1178
(C.P.C. No. 02CV-112)
v.
:
(REGULAR CALENDAR)
City of Columbus Board of Zoning
:
Adjustment,
:
Appellee-Appellee.
:
5411 Sawmill Ltd.,
:
Appellant-Appellant,
No. 02AP-1224
:
(C.P.C. No. 02CV-221)
v.
:
(REGULAR CALENDAR)
City of Columbus Board of Zoning
Adjustment,
:
Appellee-Appellee.
:
O P I N I O N
Rendered on March 31, 2003
The Brunner Firm Co., LPA, Rick L. Brunner, Kevin E .
Humphreys and Jennifer A. Wiggins, for appellant 5411, Inc.
Smith & Hale, Ben W. Hale, Jr. and Nicholas C. Cavalaris, for
appellant 5411 Sawmill Ltd.
Nos. 02AP-1010, 02AP-1178 & 02AP-1224
2
Rick Pfeiffer, City Attorney, and Keith S. Mesirow, for
appellee.
APPEAL from the Franklin County Court of Common Ple as
TYACK, J.
{¶1}
On March 3, 2001, Jeff E. Pharion issued a graphic/ zoning order to 5411,
Inc., doing business as Columbus Gold. Mr. Pharion alleged that Columbus Gold was in
violation of zoning laws because it was operating a n adults only entertainment
establishment in the city of Columbus without havin g appropriate zoning clearance.
Columbus Gold filed a notice of appeal of this zoni ng order.
{¶2}
On December 13, 2001, the city of Columbus, Board o f Zoning Adjustment
("BZA") conducted a hearing on the appeal. The BZA
found that Columbus Gold was
operating an "Adults Only Entertainment Establishme nt" without having acquired the
appropriate zoning clearance. 5411 Sawmill, Ltd.,
as the landlord of Columbus Gold,
attempted to participate in the appeal but was deni ed an active role in the proceedings.
{¶3}
Columbus Gold next appealed to the Franklin County
Court of Common
Pleas. 5411 Sawmill, Ltd., also appealed under a s eparate case number and the two
appeals were consolidated. The BZA finding was aff irmed.
{¶4}
Columbus Gold next appealed to this court, assignin g four errors for our
consideration:
{¶5}
"1.
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
AFFIRMING THE DECEMBER 13, 2001 DECISION OF THE COL UMBUS BOARD OF
ZONING ADJUSTMENT AND OVERRULING COLUMBUS GOLD'S MO TION FOR
RELIEF FROM JUDGMENT AND/OR TO RECONSIDER ITS JULY
8, 2002 AND
AUGUST 14, 2002 DECISIONS AND/OR TO STAY JUDGMENTS ON ITS DECISIONS
BECAUSE THE APPELLANTS' CONSTITUTIONAL RIGHTS TO PR OCEDURAL DUE
PROCESS WERE VIOLATED.
{¶6}
"2.
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
AFFIRMING THE DECEMBER 13, 2001 DECISION OF THE COL UMBUS BOARD OF
ZONING ADJUSTMENT IN FINDNIG THAT SUBSTANTIAL, RELI ABLE AND
PROBATIVE EVIENCE IN THE RECORD THAT AN ALLEGED BAR E BREAST
CONSTITUTES LEGALLY COGNIZABLE ZONING VIOLATION.
Nos. 02AP-1010, 02AP-1178 & 02AP-1224
3
{¶7}
"3.
THE TRIAL COURT COMMITTED PREJUDICAL ERROR BY
AFFIRMING THE DECEMBER 13, 2001 DECISION OF THE COL UMBUS BOARD OF
ZONING ADJUSTMENT IN FINDING THAT SUBSTANTIAL, RELI ABLE AND
PROBATIVE EVIDENCE IN THE RECORD THAT APPELLANT COL UMBUS GOLD
LACKED PROPER ZONING CLEARANCE UNDER COLUMBUS CITY CODE § 3305.01
AS OF THE DATE OF THE MARCH 3, 2001 [sic] TO SUPPOR T A ZONING CODE
VIOLATION ORDER PREMISED ON THE OBSERVANCE OF A BAR E BREAST.
{¶8}
"4.
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
AFFIRMING THE DECEMBER 13, 2001 DECISION OF THE COL UMBUS BOARD OF
ZONING ADJUSTMENT BECAUSE THE ACTIONS BY THE CITY I NSPECTOR
VIOLATED APPELLANT'S FOURTH AMENDMENT CONSTITUTIONA L RIGHTS."
{¶9}
5411 Sawmill, Ltd., has also appealed assigning two
errors for our
consideration:
{¶10}
"A. THE FRANKLIN COUNTY COURT OF COMMON PLEAS ERRE D AS
A MATTER OF LAW IN AFFIRMING THE DECISION OF THE CO LUMBUS BZA BY
FINDING APPELLANT WAS OPERATING AN ADULTS ONLY ENTE RTAINMENT
ESTABLISHMENT WITHOUT A CERTIFICATE OF ZONING CLEAR ANCE.
{¶11}
"B. THE FRANKLIN COUNTY COURT OF COMMON PLEAS ERRE D AS
A MATTER OF LAW BY FINDING COLUMBUS CITY CODE DEFIN ITIONS 'IN
RELATION TO ADULTS-ONLY ENTERTAINMENT' ARE NOT UNCO NSTITUTIONALLY
VAGUE, AMBIGUOUS, OR OPERATE AS A PRIOR RESTRAINT."
{¶12}
We will address 5411 Sawmill, Ltd.'s first assignme nt of error in conjunction
with Columbus Gold's second and third assignments o f error because the three
assignments of error address the same fundamental i ssues.
{¶13}
The BZA, after running a fairly abbreviated evident iary hearing, made a
single finding of fact in affirming and enforcing t he order of inspector Jeff E. Pharion. That
finding of fact was "a bare breast was visible at t he time of the inspection." Based upon
this single finding, the BZA found Columbus Gold to
be an adults only entertainment
establishment.
{¶14}
"Adults only entertainment establishment" is define d in former Columbus
City Code ("C.C.") 3303.01(A) as follows:
Nos. 02AP-1010, 02AP-1178 & 02AP-1224
4
{¶15}
" 'Adults only entertainment establishment' means a n 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 Code Section
2307.01(E) and (F)."
{¶16}
The definition implies an on going course of conduc t. "Features" does not
apply to a single episode of partial nudity. Inste ad, "features" refers to a series of events.
No series of events was alleged or proved before th e BZA so no factual basis for finding
Columbus Gold to be an adults only entertainment es tablishment was presented.
{¶17}
In light of our finding with respect to the failure to demonstrate an on-going
course of conduct, we need not address appellants'
other arguments regarding the
application of C.C. 3303.01(A) to these facts.
{¶18}
Because the finding of the BZA is not supported by
the evidence, we
sustain Columbus Gold's second and third assignment s of error and 5411 Sawmill, Ltd.'s
first assignment of error.
{¶19}
Because this case is resolved based upon the applic ation of the city code
provisions, we will not reach out to address the va rious constitutional law issues argued
by the parties. We, therefore, declare 5411 Sawmil l, Ltd.'s second assignment of error to
be moot. We also find Columbus Gold's first and fo urth assignments of error to be moot.
{¶20}
In review, we sustain Columbus Gold's second and th ird assignments of
error. We also sustain 5411 Sawmill, Ltd.'s first
assignment of error. We find the
remaining assignments of error to be moot. We reve rse the judgment of the common
pleas court and remand the case with instructions t hat the common pleas court in turn
remand the case to the City of Columbus Board of Zo ning Adjustment with instructions to
sustain Columbus Gold's appeal of the zoning order issued March 3, 2001.
Judgment reversed and cause remanded
with instructions.
BROWN and KLATT, JJ., concur.