The opinion
Fain, Judge,
concurring in the judgment.
I write separately because my reasoning for overruling the first assignment of error differs somewhat. In all other respects, I concur in Judge Grady’s well-reasoned opinion.
As the ordinance at issue was explained by the city’s attorney during oral argument, it calls for the Huber Heights City Manager to wear up to three hats during the SOB licensing process. First, the city manager performs the ministerial task of determining whether the application is sufficient on its face. In my view, this is ministerial because the questions on the face of the application call for specific, objective facts that will either satisfy, or not satisfy, the requirements of the ordinance. No discretion is extended to the city manager in the review of the application on its face.
If the city manager finds that the SOB application, on its face, satisfies the requirements of the ordinance, the city manager then has discretion whether to grant the permit, or cause an investigation to be made. If the city manager exercises the discretion to cause an investigation to be made, he then becomes involved in an investigative function, either by conducting the investigation himself, or by directing other officers to do so. As a result of that investigation,
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the city manager may be satisfied that the information in the application, which is sufficient on its face, is correct, and proceed to issue the permit. Or the city manager may determine that the applicant has either withheld information, or has answered one or more questions falsely, which is a ground for denying the permit, pursuant to Section 10(C)(1)(c) of the ordinance.
If, after performing his investigative role, the city manager decides that there is reason to doubt the accuracy or completeness of the information in the application, the city manager then issues a show cause determination, and the applicant can request a hearing. At the ensuing hearing, the city manager wears his third hat: the adjudicator of disputed facts.
Although I agree that combining the investigative and adjudicatory functions in one person is not ideal, I would not find that this combination, by itself, rises to the level of a First Amendment violation. What troubles me is the absolute discretion vested in the city manager to decide whether to investigate — in other words, to look behind the face of the application. This unfettered discretion permits the city manager to exempt from any further inquiry the facially adequate application of an applicant whose speech is pleasing, or at least not irritating, to the city manager, while subjecting a facially adequate application of an applicant whose speech the city manager finds annoying to an investigation followed by a hearing at which the annoying applicant is put to the trouble of proving the facts set forth in the application.
For me, it is the existence in the ordinance of unregulated discretion — the discretion to decide which facially adequate applications will be approved without any further inquiry, and which facially adequate applications will be subjected to investigation and the requirement of proof at a hearing — that offends the First Amendment, because it gives the officer exercising that discretion, the city manager, too much of an opportunity to base the exercise of that discretion upon the content of the applicant’s speech.
If all applications were to be reviewed solely, and ministerially, to see whether they satisfy the ordinance on their face, or if all applicants were required to prove the necessary facts at a hearing, I would not have a problem with this part of the ordinance. It is the city manager’s unfettered discretion to determine which applicants will find their facially adequate applications approved without any further inquiry, and which will find themselves required to prove, at a hearing, the facts set forth in their applications, that I conclude offends the First Amendment.
With respect to the other assignments of error, I concur fully in the reasoning expressed in Judge Grady’s opinion.