City of Brook Park v. Short , 61 Ohio App. 3d 519 ( 1989 )

Defendant-appellant Russell Short appeals his conviction for operating an overweight vehicle on local streets in violation of Brook Park Codified Ordinances Section 339.02.

I The facts are not disputed. On February 25, 1988, Sergeant Andrew Miles of the Brook Park Police Department observed appellant driving a commercial tractor on Frye Road in Brook Park. A sign posted in the immediate vicinity indicated "THRU VEHICLES OVER 3 1/2 TONS EMPTY WEIGHT PROHIBITED." As the officer's experience led him to believe that appellant's vehicle exceeded this weight restriction, Miles stopped appellant and requested his driver's license and registration. The registration indicated that the weight of the tractor was 15,970 pounds, or approximately eight tons.

Appellant explained that he was not operating a "through vehicle," as he was driving to his home on Cynthia Drive, within Brook Park. Nonetheless, Miles cited appellant for operating an overweight vehicle on local streets in violation of Brook Park Codified Ordinances Section 339.02 (hereafter referred to as "the Ordinance" or "the Brook Park Ordinance"), which provides in pertinent part as follows:

"No person shall operate or move a vehicle or combination of vehicles exceeding a size as specified in Section 339.03, or exceeding a gross weight of three and one-half tons, upon any street or highway under local jurisdiction, other than State routes, except pursuant to a permit granted by the Director of Public Safety. A permit need not be obtained for any movement necessitated by an emergency or for the purposes of making deliveries to or pickups from premises not located on State routes, provided such movement is conducted by the shortest route possible or by a route designated by the Director of Public Safety.

"* * *

"Streets or highways under local jurisdiction shall be posted with signs indicating ``no trucks — gross weight 3.5 tons' or words of similar import to apprise drivers of the limitations imposed by this section. No driver shall disobey the instructions indicated on any such sign."

Following a bench trial, appellant was found guilty and fined $100 plus costs. Execution of judgment has been stayed pending this appeal.

II For his first assignment of error, appellant contends that his conviction must be reversed because the traffic sign posted failed to provide him with notice that all overweight vehicles were prohibited on local streets, as required by the ordinance and R.C. 4511.07. We find this assignment of error to have merit.

R.C. 4511.07 provides in pertinent part that:

"No [local traffic ordinance or regulation] shall be effective until signs giving notice of the local traffic regulations are posted. * * *"

The Brook Park Ordinance likewise requires that streets under local jurisdiction shall be posted with signs which are appropriately worded to apprise drivers of the city's weight prohibition on local streets.

As to whether these notice requirements were satisfied with respect to appellant, we first note that the Ohio Department of Transportation's Manual of Uniform Traffic Control Devices (1987) indicates at Section 2B-1 that the standard signs shall be displayed for the specific purpose prescribed. The manual then lists the standard road signs, and groups them by number or series according to the purpose for which they are to be displayed. The series R-77 signs are the standard signs for prohibiting overweight vehicles, as the legends on these signs specifically advise drivers of the precise weight restrictions in effect. Id. at Section 2L-11. A different series of signs, the R-42 series, are the standard signs for prohibiting through vehicles, as the legends on these signs clearly indicate that through vehicles are not permitted. Id. at Section 2J-2. Thus, to prohibit overweight vehicles, R-77 signs, and not R-42 signs, should be posted.

We further note that the phrase "thru vehicles" or "through vehicles" is not defined in the city's Traffic Code. Brook Park Codified Ordinances Section 301 et seq. Thus, because the phrase is not defined, the plain meaning should be applied. In reGwinn (S.D.Ohio 1983), 34 B.R. 936, 945. Webster's Third New International Dictionary (1986) 2386, defines "thru" as a variation of "through." "Through" when used as an adjective, as in this case, is in turn defined as "initiated at and destined for points outside a local zone." (Emphasis added.)

In accordance with the foregoing, we hold that the sign posted in this case was insufficient to advise appellant that the city completely prohibits all overweight vehicles, contrary to the notice requirements of the Brook Park Ordinance and R.C.4511.07. Accord Cleveland v. Schlappal (May 27, 1982), Cuyahoga App. No. 44094, unreported, 1982 WL 5379; but, see, Brook Parkv. Pavlik (June 12, 1987), Cuyahoga App. No. 52290, unreported, 1987 WL 13023.

The first assignment of error is sustained.

III Appellant next contends that his conviction must be reversed because the Brook Park Ordinance violates Section 2312, Title 49, U.S. Code App. This contention lacks merit.

Part of the Surface Transportation Assistance Act of 1982, Section 2312 provides as follows:

"(a) No State may enact or enforce any law denying reasonable access to commercial motor vehicles subject to this chapter between (1) the Interstate and Defense Highway System * * * and (2) terminals, facilities for food, fuel, repairs, and rest, * * *

"(b) Nothing in this section shall be construed as preventing any State or local government from imposing any reasonable restriction, based upon safety considerations, on any truck tractor-semitrailer combination in which the semitrailer has a length not to exceed 28 1/2 feet * * *."

Appellant has presented no evidence to indicate, however, that his home qualifies as a terminal or facility for food, fuel, repair or rest. Moreover, he has failed to demonstrate that the Brook Park Ordinance was enacted to further objectives other than safety. Accordingly, we overrule the second assignment of error.

IV Finally, appellant argues that because the Brook Park Ordinance prevents him from bringing his tractor to his home, it deprives him of his constitutional rights of life, liberty, and property without due process of law. We disagree.

We first note that all legislative enactments are entitled to a strong presumption of validity. Schwan v. Riverside MethodistHosp. (1983), 6 Ohio St. 3d 300, 301, 6 OBR 361, 362,452 N.E.2d 1337, 1338. Courts must indulge and apply this presumption in order to uphold a statute assailed as unconstitutional if at all possible. State v. Dorso (1983), 4 Ohio St. 3d 60, 61, 4 OBR 150, 151, 446 N.E.2d 449, 450.

Further, assuming that appellant urges a substantive due process violation, we note that a legislative enactment will withstand a challenge on substantive due process grounds if it is neither unreasonable nor arbitrary, and it bears a real and substantial relation to the public health, safety, morals, or general welfare. Mominee v. Scherbarth (1986), 28 Ohio St. 3d 270,274, 28 OBR 346, 349-350, 503 N.E.2d 717, 720-721.

We find the Brook Park Ordinance to be a reasonable police regulation, which substantially advances public safety, especially in residential areas. Whitehall v. Moling (1987),40 Ohio App. 3d 66, 69, 532 N.E.2d 184, 187-188. Thus, we reject appellant's claim that the Ordinance violates his rights of substantive due process.

We further conclude that the Ordinance does not violate appellant's rights of procedural due process because we believe that appellant has no protected liberty or property interest in bringing his tractor to his home. Accord Rodic v. ThistledownRacing Club, Inc. (C.A.6, 1980), 615 F.2d 736, 739-740, 16 O.O.3d 386, 388-390.

Accordingly, the third assignment of error is overruled.

The judgment of the trial court is reversed.

Judgment reversed.

NAHRA, P.J., and JOHN F. CORRIGAN, J., concur.

PRYATEL, J., dissents.

AUGUST PRYATEL, J., retired, of the Eighth Appellate District, sitting by assignment.