Courthouse News Service

Transcription

1 Courthouse News Service

2 VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs WineShop.com, Inc., d/b/a WineShop at Home (hereinafter WineShop ) and Carolyn Wright ( Wright ) (collectively Plaintiffs ), by and through counsel, state the following complaint against Terry Poole, in his official capacity as Superintendent of the Division of Liquor Control, Ohio Department of Commerce and Henry Guzmán, in his official capacity as Director of the Ohio Department of Public Safety (collectively Defendants ): INTRODUCTION 1. Ohio Senate Bill 150 (S.B. 150), which will become effective on September 1, 2008, adds clearly unconstitutional provisions to Ohio Revised Code Plaintiffs seek a declaration from this Court that newly-added paragraph three of R.C is unconstitutional, and for a preliminary and permanent injunction barring enforcement of the unconstitutional portions of the statute. WineShop s business model and hundreds of Ohio jobs are at stake. 2. S.B. 150 prohibits any manufacturer, supplier, distributor, broker, or retailer of alcoholic beverages (collectively, wineries ) from employing or using in any way marketing personnel at any place in Ohio that is not a licensed liquor premises. 3. S.B. 150 is facially unconstitutional because it violates Plaintiffs First Amendment free speech right to communicate to the public truthful, non-misleading information about lawful activities. The amended statute effectively prohibits - 2 -

3 WineShop and its representatives from communicating in Ohio with adult consumers about its products. 4. S.B. 150 is also facially unconstitutional because it violates the First Amendment right of assembly. The amended statute bans any function, event, or party, including in private homes, where any person whether or not they are affiliated with a winery acts in any manner to receive expressions of intent to purchase legal alcoholic beverages. 5. Additionally, S.B. 150 is discriminatory and violates the Dormant Commerce Clause of the United States Constitution. S.B. 150 s premise requirement unconstitutionally discriminates against out-of-state wineries by denying them the ability to market their products in the same manner as in-state wineries. The amendment violates the nondiscrimination principal of the Commerce Clause and subjects S.B. 150 to a virtual per se rule of invalidity. Granholm v. Heald, 544 U.S. 460, 476, 487 (2005) (citations omitted). 6. S.B. 150 is discriminatory in both purpose and effect, resulting in the economic protectionism expressly prohibited by the United States Supreme Court in Bacchus Imports, Ltd v. Dias, 468 U.S. 263, 270 (1984). The discrimination against out-of-state wineries is exacerbated when S.B. 150 is considered in context with other Ohio liquor statutes and regulations which permit in-state wineries but not out-of-state wineries to host off-site wine tastings. 7. Plaintiffs seek declaratory and injunctive relief to prevent the Division of Liquor Control, Ohio Department of Commerce and the Ohio Department of - 3 -

4 Public Safety from denying Plaintiffs their rights under the Constitution and laws of the United States. Plaintiffs seek an award of attorneys fees pursuant to 42 USC 1988 and costs. PARTIES 8. Plaintiffs hereby incorporate Paragraphs 1 through 7 of this Complaint as if fully restated herein. 9. Plaintiff WineShop is a corporation organized under the laws of Delaware, with its principal place of business in California. WineShop is in the business of making wine and selling it to consumers across the nation. WineShop is an S permit holder in the state of Ohio, allowing it to ship wine directly to Ohio consumers. 10. Plaintiff Carolyn Wright is a natural person over the age of 21, a United States citizen, and an Ohio resident. Ms. Wright is one of approximately 250 independent contractors in Ohio who earn commissions by promoting WineShop wines. On September 1, 2008, S.B. 150 threatens to terminate the ability of Ms. Wright and other Independent Wine Consultants to carry out their business in Ohio. 11. Defendant Terry Poole is the Superintendent of the Division of Liquor Control, Ohio Department of Commerce. Mr. Pool maintains his official office at 6606 Tussing Road, Reynoldsburg, Ohio, In that official capacity, Mr. Poole exercises authority to enforce the relevant provisions of the Ohio Liquor Code, Ohio Revised Code Chapter 43 and its accompanying regulations. Mr. Poole is named in this suit in his official capacity only

5 12. Defendant Henry Guzmán is the Director of the Ohio Department of Public Safety. Mr. Guzmán maintains his official office at 1970 West Broad Street, Columbus, Ohio In that official capacity, Mr. Guzmán exercises authority to enforce the relevant provisions of the Ohio Liquor Code, Ohio Revised Code Chapter 43 and its accompanying regulations. Mr. Guzmán is named in this suit in his official capacity only. 13. Defendants Mr. Poole, in his official capacity as Superintendent of the Division of Liquor Control, Ohio Department of Commerce, and Mr. Guzmán, in his official capacity as Director of the Ohio Department of Public Safety, are the proper parties because they are authorized to enforce the amended statute which is the subject of this Complaint. JURISDICTION AND VENUE 14. Plaintiffs hereby incorporate Paragraphs 1 through 13 of this Complaint as if fully restated herein. 15. Pursuant to 28 U.S.C. 1331, this Court has arising under federal question subject matter jurisdiction because Plaintiffs challenge certain provisions of the laws of the State of Ohio as unconstitutional under the United States Constitution. 16. This Court also has subject matter jurisdiction pursuant to 28 U.S.C. 1343(A)(3)-(4) because this action seeks to redress the deprivation, under color of state law, of rights secured by the United States Constitution, pursuant to 42 U.S.C

6 1983, and to secure equitable and other relief under an act of Congress for the protection of civil rights. 17. Federal subject matter jurisdiction is proper in this Court pursuant to 28 U.S.C because this action seeks declarations of Plaintiffs and Defendants rights and legal relations. 18. Venue is proper in this judicial district under 28 USC 1391(b) because a substantial part of the events giving rise to these claims occurred here, and because Defendants reside here and in the State of Ohio. FACTUAL BACKGROUND 19. Plaintiffs hereby incorporate Paragraphs 1 through 18 of this Complaint as if fully restated herein. Plaintiff WineShop At Home 20. WineShop is a small California winery, founded in WineShop currently produces less than 150,000 gallons of wine per year. 21. Since its founding, WineShop has expanded its operations and made its wine available to consumers in numerous states through direct shipments. As an Ohio S permit holder, and pursuant to R.C , WineShop is authorized to sell and ship its wine directly to Ohio residents. 22. WineShop has complied, and continues to comply, with all S permit holder requirements set forth in Ohio law. Before selling its products, WineShop makes a bona fide effort to ensure that the consumer is of legal drinking age. WineShop ships its alcoholic products only via an H permit holder, such as UPS or Federal Express, who is required to confirm the consumer s age upon delivery

7 WineShop maintains records of each shipment and submits a copy of each invoice and the appropriate payments to Ohio s Tax Commissioner. 23. In Ohio and other states, WineShop uses independent contractors, known as Independent Wine Consultants ( Consultants ), to help promote its products by providing educational and ordering information to consumers at private wine tasting events. Although WineShop primarily sells wines, it also sells other products such as gift baskets and gift items. 24. The Consultants are not WineShop employees. Consultants are not paid a salary, and are compensated on a commission basis. 25. Consultants do not carry wine inventory, and they do not sell wine to consumers. All sales transactions take place between the consumer and WineShop, which determines whether to accept orders in California. 26. All new Consultants receive orientation materials from WineShop, including a training manual. Ohio Consultants are given a training manual specific to Ohio. The Ohio training manual contains a Policies and Procedures section, which sets out WineShop s rules and protocols for Ohio Consultants. The WineShop training materials provide detailed information for the Consultant about conducting in-home tasting events, including suggestions on how to answer consumer questions about wine and orders which the consumers may place with WineShop. WineShop also provides Consultants with information on how to start and grow a successful home business

8 27. The Ohio training manual specifies that all guests at in-home wine tasting events must be over twenty-one years of age. 28. Consultants earn commissions from WineShop in two ways. First, Consultants earn a commission on sales of wine and other WineShop products which are attributable to the Consultant s marketing efforts, including sales made after an in-home tasting event, Internet sales, and telephone sales. Second, Consultants who refer new Consultants to WineShop receive a commission based on the amount of sales attributable to the referred Consultants, whether or not such consultants reside in Ohio. Plaintiff Carolyn Wright 29. Plaintiff Carolyn Wright ( Wright ) is a resident of Newark, Ohio, and a Consultant for WineShop at Home. Ms. Wright is married and a mother of two. 30. Prior to becoming a WineShop Consultant, Ms. Wright spent several years working with other direct sales companies, without as much success as she has enjoyed with WineShop. 31. In 2005, Ms. Wright discovered WineShop at Home on the Internet and found it to be an intriguing opportunity. She contacted WineShop about becoming a Consultant, and inquired about the legality of in-home wine marketing in Ohio. Being satisfied with the information WineShop provided, Ms. Wright agreed to become an Independent Wine Consultant. 32. At first, Ms. Wright s goals as a Consultant were modest. She wanted to earn enough money so that she could pay for some family expenses, such as the costs associated with the extracurricular activities of her children. Then her - 8 -

9 husband lost his job. Ms. Wright put her energy into developing her business as a Consultant, and the business grew. Today, Ms. Wright s WineShop commissions pay her family s mortgage and most other household bills. 33. Ms. Wright will effectively be unable to conduct her WineShop consultant business under S.B. 150, eliminating a significant part of her family s income. In-Home Tastings 34. WineShop s business derives mainly from sales made following inhome tasting events held by third-party hosts and attended by WineShop Consultants such as Plaintiff Carolyn Wright. Because WineShop has no premises in Ohio, the in-home wine tasting events allow WineShop to market its products directly to consumers in their own homes. 35. In-home wine tasting events are held by a private individual who has contacted or been contacted by a Consultant about hosting a wine-tasting event in his or her home. The wine-tasting is intended to be a fun and educational social event for the host and his or her friends, neighbors, co-workers, or other adults invited by the host. The host, not the Consultant, is responsible for invitations. 36. A host who is interested in holding a wine-tasting event purchases a wine tasting kit of five or six bottles of wine from WineShop. The wine kit is delivered to the host directly. As noted above, the Consultant maintains no wine inventory and conducts no sales of wine either to the host or guests of the host. 37. In preparation for the tasting event, the Consultant advises the host to limit the guest list to eight to twelve guests, all of whom must be over the age of - 9 -

10 twenty-one. The Consultant specifically asks the host not to serve any alcohol to the guests prior to the wine tasting. 38. At the wine-tasting, wine is poured using a measuring device, furnished by the Consultant, which limits pours to one ounce. 39. The Consultant s main role at the wine-tasting event is to educate the guests about various wine-related subjects, including how to taste and appreciate wine, and how to pair wine with various foods. After a particular wine is poured, the Consultant provides information and answers questions about each wine. To aid the guests, the Consultant provides a wine menu, which identifies the different wines and suggests the order in which they should be tasted. The Consultant encourages the guests to take notes about each wine. 40. At the end of the wine-tasting event, the Consultant distributes an Interest Form to the guests. A guest who is interested in purchasing directly from WineShop the wine he or she tasted can complete the form and return it to the Consultant. The average price of a bottle of WineShop wine is between $16 and $ The Interest Form specifically states that: By completing and submitting this form you are making an offer to purchase wine ( Offer ) from WSAH. WSAH reserves the right to reject Offers for any reason. If your Offer is accepted, you will be notified by confirming . A true and correct copy of a blank Interest Form is attached as Exhibit. 42. The Interest Form also contains space for the guest to provide credit card information for payment. Alternatively, the guest may give the Consultant a

11 check for the proper amount made payable to WineShop At Home. At the tasting event, the Consultant calculates Ohio tax and shipping and handling for each Interest Form. Consultants may not accept cash, or checks made payable to anyone other than WineShop. WineShop Sales Process 43. After WineShop receives an Interest Form, it examines the form for compliance with Ohio law, including whether the individual appears to be over twenty-one years of age and whether the individual has exceeded volume caps established by Ohio law on out-of-state wine orders. WineShop contacts each guest who completed an Interest Form to inform the guest whether their offer has been accepted or declined. 44. For accepted orders, WineShop finalizes the sale by processing the payment and shipping the wine to the consumer via an H permit holder, such as Federal Express or UPS. Pursuant to S permit requirements, the wine is shipped in a properly marked box indicating its contents. Under Ohio law, an H permit holder may only deliver to an individual who can verify by approved identification that he or she is over twenty-one. 45. WineShop next calculates the excise and use tax that is due to the State of Ohio. Because Ohio has not yet developed a form for communicating this information to the Division of Liquor Control or the Department of Taxation, WineShop utilizes the existing form entitled Direct Shipment of Alcoholic Beverages to Ohio Residents. The completed form reflects the total amount of tax due for a given month. WineShop submits the form along with a check for the

12 amount due and a complete and detailed list of each Ohio consumer that has ordered wine from WineShop, their address, number of bottles ordered, total bill and tax due for the order. The New Prohibitions 46. WineShop s marketing in Ohio, including the use of Independent Wine Consultants and in-home wine tasting events, is legal under current Ohio law. 47. In 2007, the Ohio Division of Liquor Control proposed amendments to Ohio law, including the amendment to R.C contained in S.B. 150 which gave rise to this suit. In a memorandum describing the purpose of the proposed amendment, the Division of Liquor Control made clear that the amendment was aimed directly at Plaintiffs business in Ohio: O.R.C This proposed amendment is intended to clarify that events at a private residence or at any other non-liquor permit premises may not include the solicitation for sale or taking orders for the purchase or sale of beer or intoxicating liquor, unless otherwise specifically permitted by statute or rule. 48. S.B. 150 includes the following language, which was enacted as the third paragraph of R.C : No manufacturer, supplier, wholesale distributor, broker, or retailer of beer or intoxicating liquor, or other person shall employ, retain, or otherwise utilize any person in this state to act as an employee, agent, solicitor, or salesperson, or act in any other representative capacity to sell, solicit, take orders, or receive offers to purchase or expressions of interest to purchase beer or intoxicating liquor from any person, at any location other than a liquor permit premises, except as specifically authorized by

13 Chapter or of the Revised Code or rules adopted thereunder. No function, event, or party shall take place at any location other than a liquor permit premises where any person acts in any manner to sell, solicit, take orders, or receive offers to purchase or expressions of intent to purchase beer or intoxicating liquor to or from any person, except as specifically authorized by Chapter or of the Revised Code or rules adopted thereunder. 49. On June 2, 2008, Governor Ted Strickland signed bill S.B. 150 into law. 50. On June 16, 2008, the Ohio legislature presented Governor Strickland with a capital appropriations bill, H.B. 562, which would have repealed the abovequoted language in S.B On June 24, 2008, Governor Strickland exercised a line-item veto and deleted the repeal provision of H.B By virtue of the veto, S.B. 150 will become law. 52. When S.B. 150 takes effect on September 1, 2008, its provisions threaten to put WineShop out of business in Ohio, destroying the small businesses operated by Plaintiff Carolyn Wright and approximately 250 other Consultants in Ohio. THE OHIO STATUTE IS UNCONSTITUTIONAL 53. Plaintiffs hereby incorporate Paragraphs 1 through 52 of this Complaint as if fully restated herein. The Ohio Statute Violates The First Amendment Because It Abridges Plaintiffs Rights To Free Speech And Assembly 54. Amended R.C unconstitutionally abridges Plaintiffs right to free speech. The United States Supreme Court has made clear that a speech

14 regulation cannot unduly impinge on the speaker s ability to propose a commercial transaction and the adult listener s opportunity to obtain information about products. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (invalidating outdoor advertising ban on tobacco products). 55. WineShop s business model in Ohio is based on its ability to share, through Independent Wine Consultants, truthful, non-misleading information about itself and its products to interested adult consumers at in-home wine tastings. 56. Consultants such as Plaintiff Carolyn Wright appear at in-home wine tasting events to provide general educational information to the attendees about wine and wine appreciation and to communicate truthful, non-misleading information about WineShop and its products. 57. Under the amended statute, WineShop would be prohibited from having any representative in Ohio act in any capacity to sell, solicit, take orders, or receive offers to purchase or expressions of interest to purchase wine at any location which is not a liquor permit premises. The statute s effect is to bar WineShop and its consultants from directly communicating in Ohio with interested adult consumers about its products, in violation of its First Amendment right to free speech. 58. The exception in the amended statute for liquor permit premises is illusory. As an out-of-state winery, WineShop by definition has no liquor permit premises in Ohio. Further, because it is a small producer which only sells wine via

15 direct shipments, WineShop s products are not sold through liquor retailers or any other liquor permit holder. 59. Thus, no forum exists in Ohio, under the amended statute, where WineShop, by and through its Consultants, can communicate directly with adult consumers. The amended statute imposes a blanket prohibition on WineShop using any person in Ohio to communicate directly with potential customers in an effort to sell or market its products, or to receive inquiries about purchasing WineShop s products. 60. This prohibition is operative despite the fact that consultants do not carry inventory; do not make sales; and all sales are made between Ohio consumers and WineShop in California. 61. For the same reasons, under the amended statute Plaintiff Carolyn Wright would be prohibited from discussing WineShop s products (i.e., soliciting ) with any person anywhere in Ohio, in violation of her First Amendment right to free speech. 62. For example, Ms. Wright could not tell a friend that she enjoyed a particular WineShop wine for fear that the friend might then make an illegal expression of interest in purchasing a bottle for herself, in violation of the statute. Indeed, third-parties could violate the statute, or cause Ms. Wright or WineShop to violate the statute, simply by making an unsolicited expression of interest in buying a bottle of WineShop s wine

16 63. Even more draconian is the statute s blanket prohibition, in violation of both the right to free speech and the right to assemble, of any function, event, or party, including in private homes, where any person whether affiliated with a winery or not acts to... receive offers to purchase or expressions of intent to purchase beer or intoxicating liquor from any person.... The statute s prohibition on private citizens even discussing an intent to purchase wine is facially unconstitutional. 64. The amended R.C is an unconstitutional infringement on Plaintiffs right to communicate truthful, non-misleading commercial and educational messages to adults in Ohio. The Ohio Statute Violates the Dormant Commerce Clause 65. In addition, the newly-enacted provisions of R.C facially discriminate against out-of-state wineries, including WineShop, to the benefit of local in-state wineries. 66. In Granholm v. Heald, 544 U.S. 460 (2005), the Supreme Court answered the following question in the affirmative: Does a State s regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the dormant Commerce Clause in light of 2 of the Twenty-first Amendment? Id. at Here, as in Granholm, the State s regulatory scheme violates the dormant Commerce Clause. Rather than focusing on shipping, Ohio would permit

17 in-state wineries to market their products directly to consumers while prohibiting out-of-state wineries from doing so. 68. The amended R.C bars wineries from using any representative in Ohio to sell, solicit, take orders, or receive offers to purchase or expressions of interest in purchasing their products except at a liquor permit premises. 69. By definition, out-of-state wineries such as WineShop do not have a liquor permit premises in Ohio. Thus, and unlike in-state wineries, out-of-state wineries are prohibited from directly marketing their products to consumers in Ohio, or from receiving expressions of interest in their products in Ohio. 70. Under the amended R.C , an out-of-state winery which wanted to directly market its products to consumers in Ohio, or to receive expressions of interest in their products in Ohio, would have only two choices. 71. First, the out-of-state winery could acquire a physical location in Ohio. In Granholm, the Supreme Court recognized that this option was futile because [f]or most wineries, the expense of establishing a bricks-and-mortar distribution operation in 1 State, let along in all 50, is prohibitive. Granholm, 544 U.S. at Second, the out-of-state winery could market its products on the liquor permit premises of an existing retailer. This option would unconstitutionally require out-of-state wineries, but not in-state wineries, to sell their products through wholesalers and retailers before they could even attempt to directly market their products to consumers

18 73. Under Ohio law, a manufacturer can only conduct consumer product instruction or provide samples on the premises of a retailer who is authorized to sell the products for on-premises consumption. R.C Further, the manufacturer s representative must first purchase the wine for sampling from the retail permit holder whose premises are involved at regular retail prices. Id. WineShop s products are not sold through retailers. 74. Thus, amended R.C would require[] all out-of-state wine, but not all in-state wine, to pass through an in-state wholesaler and retailer before the manufacturer could either market to consumers directly or receive expressions of interest from consumers. Granholm at 474. These two extra layers of overhead increase the cost of out-of-state wines to... consumers. The cost differential, and in some cases the inability to secure a wholesaler for small shipments, can effectively bar small wineries from the... market. Id. 75. The amended R.C is therefore facially discriminatory in favor of in-state wineries and against out-of-state wineries and therefore unconstitutional under the dormant Commerce Clause. 76. In addition to being facially discriminatory, this statute is discriminatory in purpose and effect. The statute s marketing ban is an example of economic protectionism designed to promote Ohio s wineries at the expense of outof-state wineries. The discriminatory purpose and effect is exacerbated by the fact that certain in-state permit holders, but not out-of-state S permit holders like

19 WineShop, can seek and obtain approval to conduct wine tasting events at places other than licensed liquor premises. See O.A.C. 4301: S.B. 150 is also discriminatory in purpose and effect because the statute acts as an unconstitutional end-around the United States Supreme Court s decision in Granholm. Under S.B. 150, in-state wineries can market their wines to Ohio consumers using agents or other persons to encourage Ohio consumers to make direct-shipping sales from the wineries. Out-of-state wineries, which are not permitted to use this marketing technique, will effectively lose all access to market to Ohio consumers, and thus lose their ability to compete on equal footing with Ohio wineries and make otherwise perfectly legal direct-shipping sales to the Ohio consumers. 78. WineShop wants to continue to utilize Consultants, such as Ms. Wright, to educate Ohio consumers about its wines in the comfort of the consumers own homes. Under the third paragraph of amended R.C , WineShop and its Ohio Consultants could not continue their marketing practices in Ohio, even while Ohio wineries are permitted to (1) continue to market directly to consumers in Ohio; and (2) seek and obtain exemptions from the statute s prohibitions and hold tasting events at locations other than liquor permit premises. See O.A.C. 4301: In its purpose and in its effect, the third paragraph of R.C discriminates against WineShop, denying WineShop and other out-of-state wineries the right to engage in interstate commerce free from undue restraint and to engage

20 in commercial speech which Ohio wineries are permitted. The purpose and effect of this legislation is to protect Ohio wineries at the expense of out-of-state wineries. 80. Additionally, S.B. 150 violates the commerce clause because the burden this statute imposes on interstate commerce is clearly excessive in relation to the putative local benefits of the legislation in violation of Pike v. Bruce Church, 397 U.S. 137, 142 (1970). 81. Plaintiff Wright wants the opportunity to continue to operate her business as a Consultant. In purpose and effect, the third paragraph of the amended statute abridges Ms. Wright s First Amendment right to free speech, and denies Ms. Wright her right to engage in interstate commerce by prohibiting her from receiving commission payments based on her marketing of WineShop products at in-home wine tasting events in Ohio. 82. If Ohio grants WineShop the same rights that Ohio wineries enjoy, WineShop will continue to fully comply with all laws and regulations of the State of Ohio, including the law and regulations relating to taxation and liquor permitting. COUNT ONE Declaratory Judgment Under 28 U.S.C Plaintiffs hereby incorporate Paragraphs 1 through 82 of this Complaint as if fully restated herein. 84. This case involves an actual controversy between Plaintiffs and Defendants regarding the constitutionality of the third paragraph of R.C in that Plaintiffs claim that the challenged Ohio law violates the First and Fourteenth Amendments and the nondiscrimination principal of the Commerce

21 Clause of the United States Constitution whereas Defendants maintain that the challenged provision of the law is valid and enforceable. 85. Enforcement of the third paragraph of amended R.C will threaten to put WineShop out of business in Ohio and force Ms. Wright out of business. Plaintiffs will be irreparably injured by Defendants enforcement of the unconstitutional statute. 86. For the reasons stated above, Plaintiffs are entitled to a declaration the third paragraph of amended R.C is unconstitutional under the First and Fourteenth Amendments and under the Commerce Clause. COUNT TWO Violation of the Civil Rights Act, 42 U.S.C Plaintiffs hereby incorporate Paragraphs 1 through 86 of this Complaint as if fully restated herein. 88. Defendants are persons who, under color of state law, will immediately be subjecting Plaintiffs to the deprivation of rights, privileges, and immunities secured by the Constitution and the laws of the United States, or causing Plaintiffs to be subjected to such deprivations. 89. Defendants conduct violates 42 U.S.C because their enforcement of the third paragraph of R.C denies Plaintiffs their right to Free Speech under the First and Fourteenth Amendments, and enforcement of this provision deprives Plaintiffs of their right to engage in interstate commerce in violation of the Commerce Clause, Article I, 8, cl. 1 of the United States Constitution

22 90. As a result of these deprivations in violation of the United States Constitution, Plaintiffs are entitled to relief under 42 U.S.C COUNT THREE Equitable and Ancillary Relief Under 28 U.S.C Plaintiffs hereby incorporate Paragraphs 1 through 90 of this Complaint as if fully restated herein. 92. Plaintiffs are entitled to equitable and ancillary relief, including a preliminary and permanent injunction prohibiting Defendants, their agents, and their employees from enforcing the third paragraph of R.C against Plaintiffs in violation of their rights, privileges, and immunities under the United States Constitution. 93. Preliminary injunctive relief is justified because: 1) Plaintiffs are likely to succeed on the merits of their claims; 2) enforcement of the third paragraph of R.C will cause Plaintiffs irreparable harm; 3) the continuing harm inflicted upon Plaintiffs by the challenged Ohio statute outweighs any imposition, hardship, or harm that would stem from enjoining the statute s enforcement; and 4) enjoining the enforcement of this statutory section is in the public interest. 94. Permanent injunctive relief is justified because Plaintiffs have no plain, adequate, or complete remedy to protect them from the continuing threat of enforcement of the challenged Ohio statute, depriving them of their constitutional rights, other than through injunctive relief. Permanent injunctive relief is justified because: 1) Plaintiffs will prevail on the merits; 2) Plaintiffs will suffer irreparable injury in the absence of injunction relief because the third paragraph of R.C

23 is a continuing violation of Plaintiffs constitutional rights; 3) the continuing harm that will be inflicted upon Plaintiffs by the challenged statute outweighs any imposition, hardship, or harm that will stem from enjoining the statute s enforcement; and 4) enjoining the challenged Ohio statute serves the public interest. 95. Pursuant to 28 U.S.C and the Court s equitable powers under 42 U.S.C and other federal law, this Court should grant Plaintiffs request for permanent and injunctive relief, enjoining Defendants, their agents, servants, employees, and all others acting on behalf of, through the authority of, or in concert with Defendants from enforcing the third paragraph of R.C against Plaintiffs in violation of their rights, privileges, and immunities under the United States Constitution. COUNT FOUR Claim for Attorneys Fees, 42 U.S.C. 1988(b) 96. Plaintiffs hereby incorporate Paragraphs 1 through 95 of this Complaint as if fully restated herein. 97. This is an action to enforce Plaintiffs constitutional and civil rights under 42 U.S.C An award of reasonable attorneys fees as part of Plaintiffs costs is therefore justified under 42 U.S.C. 1988(b)

24 PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor and the following relief: a. A declaration that R.C , as amended by S.B. 150, is unconstitutional under the United States Constitution and therefore unenforceable; b. A temporary restraining order, preliminary and permanent injunction restraining Defendants, their agents, servants, and employees, and all other persons acting on behalf of or through the authority of, or in concert with Defendants from enforcing or in any manner giving effect to R.C , as amended by S.B. 150; c. That the Court award to Plaintiffs their reasonable attorneys' fees and costs under 42 U.S.C. 1988(b). d. That the Court grant any and all other necessary and proper relief to which Plaintiffs are entitled, pursuant to 28 U.S.C Of Counsel: Greg R. Wehrer ( ) Mary C. Mertz ( ) Kristen M. Blankley ( ) SQUIRE, SANDERS & DEMPSEY L.L.P. 41 South High Street, Suite 1300 Columbus, Ohio Telephone: (614) Facsimile: (614) Davi W. Alexander ( ), Trial Attorney SQUIRE, SANDERS & DEMPSEY L.L.P. 41 South High Street, Suite 1300 Columbus, Ohio Telephone: (614) Facsimile: (614) dalexander@ssd.com - 24-