My concurrence in the judgments herein is reluctant. It is impelled only by the reality that, in a former appeal of these cases to the Ohio Supreme Court involving at that time only a procedural question, based upon Justice Herbert's concurring opinion, the Ohio Supreme Court appeared poised to review the merit issues and to conclude that the liquor control commission had the lawful power and authority to suspend the appellee's liquor permit, and properly did so, for reasons resembling or coinciding with the majority opinion herein. (See 29 Ohio St. 2d 139. )
The claimed specific authority for the permit suspension is that exhibiting a female band with insufficient covering of the breasts violated regulation LCc-1-52 of the Ohio liquor control commission in that it constituted "improper conduct" or "indecent entertainment," within the meaning of that regulation, the pertinent parts of which are set forth verbatim in the majority opinion. *Page 15
It is my view that regulation LCc-1-52, proscribing "improper conduct" and "indecent entertainment," is invalid because of its unconstitutionally vague, indefinite and uncertain language. In the excellent analysis of the principle of unconstitutional vagueness and uncertainty by Judge Potter in State v.Saionz, 23 Ohio App. 2d 79 at p. 83, and paraphrasing his apt language therein, the challenged regulation LCc-1-52, to be valid, must describe an act which is "definable," and it is required to be definable "if we are to elude the `vice of vagueness'" (Lanzetta v. New Jersey, 306 U.S. 451; Watkins v.United States, 354 U.S. 178) and "if we are to prevent the trier of the cause from creating his own standard in each case" (Papachristou v. Jacksonville, 405 U.S. 156; Smith v. Florida (decided February 24, 1972), 405 U.S. 172; Winters v. NewYork, 333 U.S. 507; Herndon v. Lowery, Sheriff, 301 U.S. 242;Stromberg v. Calif., 283 U.S. 359; Connally v. Gen. Constr.Co., 269 U.S. 385; United States v. Cohen Grocery Co.,255 U.S. 81; Chicone v. Liquor Control Comm., 20 Ohio App. 2d 43; R. C. 4301.03(B); cf. Cincinnati v. Wayne, 23 Ohio App. 2d 91, andStouffer Corp. v. Board of Liquor Control, 165 Ohio St. 96).
Regulation LCc-1-52, as interpreted in the majority opinion, would not prevent the liquor control commission as "the trier of the cause from creating its own standards in each case." Conceivably, since, in these cases, the regulation was directed solely to dress, or the insufficiency thereof, this empowers the commission to suspend a liquor permit because the permit holder wilfully allowed "improper conduct" on the permit premises by consenting to the patrons' enjoyment of refreshments or entertainment, or both, without the adornment of bow ties, cuff links and pincenez glasses. The absence of standards or guidelines can conjure additional multitudinous absurd results.
The liquor control commission counters the void for vagueness principle which underlies the many cited cases in the third paragraph of this concurring opinion by advancing the propositions of law that a liquor permit holder does not have a property right but only a privilege, that he must be strictly regulated, and that he does not have the *Page 16 constitutional protection against laws or regulations which are "void for vagueness." The many cases cited by appellant, liquor control commission, to support such reasoning and the conclusion that the "void for vagueness" concept does not apply to a commission regulation — namely, Ziffrin v. Reeves,308 U.S. 132, 138; Crowley v. Christensen, 137 U.S. 86 at 91; Lewis v.City of Grand Rapids, 356 F.2d 276; State, ex rel. Zugravu, v.O'Brien, 130 Ohio St. 23; Solomon v. Liquor Commission, 4 Ohio St. 2d 31; Crouse v. Liquor Control Commission, Case No. 9268, Court of Appeals, Franklin County (distinguishable, but involving improper conduct through immoral dancing) — do not raise such a legal issue. Therefore, they do not attempt to establish by headnotes or holdings that the commission regulation is exempt from the "void for vagueness" principle. State v.Pugh, 43 Ohio St. 98; State, ex rel. Gordon, v. Rhodes, 158 Ohio St. 129; 14 Ohio Jurisprudence 2d 646, Section 215.
The Ohio General Assembly delegated rule-making power to the liquor control commission through R. C. 4301.03. An administrative agency, such as the liquor control commission, may not act arbitrarily or capriciously in the enactment of rules and regulations in the exercise of its delegated powers. An administrative regulation must be reasonable to be valid, and this requirement includes the enactment of rules which are not unconstitutionally void for vagueness. Manhattan GeneralEquipment Co. v. Commissioner of Internal Revenue, 297 U.S. 129 at 134, reh. denied, 297 U.S. 728; 2 American Jurisprudence 2d 131, Admin. Law, Section 303; cf. Boyce Motor Lines v. UnitedStates, 342 U.S. 337.
The case of Benny's, Inc., v. Liquor Control Commission, No. 9268, Franklin County Court of Appeals (1969), heavily relied upon by appellant is, for an additional reason, distinguishable because it involved not just claimed insufficient attire, but evidence of acts consisting of immoral dancing, thus improper conduct, and for somewhat additional reasons other cases relied upon by the Commission — namely, Broadway Enterprises, Inc., v.Liquor Control Commission, No. 9151, Court of Appeals, Franklin *Page 17 County (1968); Friedman v. Liquor Control Commission, No. 8938, Court of Appeals, Franklin County (1968) — are likewise distinguishable and inapposite. These three cited cases also do not raise the legal issues of void for vagueness of the commission regulation, and, consequently, are not dispositive of such issue. State, ex rel. Gordon, v. Rhodes, supra; 14 Ohio Jurisprudence 2d 646, Courts, Section 215.
It would be helpful if the liquor control commission would, concerning the subject matter covered by regulation LCc-1-52, spell out "in detail" what constitutes "improper conduct" or "indecent entertainment," as mandated by R. C. 4301.03(B).
The analysis of the applicable legal principles discussed above in no way is intended to express personal approval of or give a cloak of respectability to the rare exposition challenged in this case.