# 4522 Kenny Road, L.L.C. v. City of Columbus Board of Zoning Adjustment

> Ohio Court of Appeals · April 15, 2003 · 152 Ohio App. 3d 526

URL: https://www.frixlaw.com/law-library/cases/3714962

## Case

- **Full name:** 4522 Kenny Road, L.L.C., Dba Kahoots, Appellant-Appellant v. (c.P.C. No. 01cvf03-2918) City of Columbus, Board of Zoning Adjustment, Appellee-Appellee.
- **Court:** Ohio Court of Appeals
- **Decided:** April 15, 2003
- **Citations:** 152 Ohio App. 3d 526; 789 N.E.2d 246
- **Precedential status:** Published
- **Opinion:** Dissent by Klatt
- **Judges:** Bowman, McCormac, Klatt, Tenth, Ohio
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Klatt, Judge,
dissenting.
{¶ 25} I respectfully dissent, as I believe that C.C. 3303.01 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 entertainment 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 phrases “ ‘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 , 742 N.E.2d 1166 , 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 or 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 catchall category “similar entertainment or services” and the subsequent modifying phrase “which are obscene or harmful 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 immediately preceding catchall category.
Edward H. Everett Co. v. Jadoil, Inc.
(Jan. 26, 1987), Licking App. No. CA-3211, 1987 WL 5766 . Because these devices were not used, it is apparent that the modifying phrase “which are obscene or harmful to juveniles” was intended to modify only the preceding phrase “similar entertainment or services” and not the more 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 legislative intent reflected in the language
*534
used.
State ex rel. Pennington v. Gundler
(1996), 75 Ohio St.3d 171, 173 , 661 N.E.2d 1049 .
{¶ 27} Additionally, the Supreme Court of Ohio has held that the word “or” indicates an alternative between different or unlike things.
Pizza v. Sunset Fireworks Co., Inc.
(1986), 25 Ohio St.3d 1, 4-5 , 25 OBR 1, 494 N.E.2d 1115 . These alternatives must be treated completely separate from one another.
Shaffer,
supra In C.C. 3303.01, the catchall category “similar entertainment or services” is separated from the preceding list of conduct by the word “or.” Therefore, it appears that the “similar entertainment or services” catchall 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 contention that the drafters of this definition intended the phrase “obscene or harmful to juveniles” to modify only the catchall category.
{¶ 28} This interpretation is also consistent with common sense. It is hard to imagine any form of topless or bottomless dancing that would not be considered adults-only entertainment. However, because of the broad nature of the phrase “similar entertainment or services,” it is not surprising that the city sought to limit that catchall category to entertainment or services “which are obscene or harmful to juveniles.” This limitation is not necessary for topless or bottomless entertainment that, by its very nature, is adults-only. The fact that the city also defined adults-only entertainment to include “male or female impersonators” does not demonstrate a different legislative intent, although the wisdom of including that category of entertainment with “nude, topless, bottomless, strippers” might well be questioned.
{¶ 29} Because I find that C.C. 3303.01 is unambiguous and conveys a clear and definite meaning, I would give effect to the language used.
Meeks v. Papadopulos
(1980), 62 Ohio St.2d 187, 190 , 16 O.O.3d 212 , 404 N.E.2d 159 ;
BP Oil Co.,
supra. C.C. 3303.01 defines topless or bottomless entertainment as adults-only entertainment and does not require a showing of obscenity or harm to juveniles. This is the interpretation of C.C. 3303.01 utilized by the 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3714962. Public record. Not legal advice.