City of Cleveland v. Isaacs ( 1993 )

I find the "full time and attention" provision of Cleveland Codified Ordinance 431.34 to conflict with R.C. 4511.202, and I respectfully dissent.

Municipalities have authority to exercise all powers of local self-government, except that with respect to police power and sanitary matters, municipal powers are limited to such regulations as are not in conflict with the general laws of the state. Ohio Assn. of Pub. School Emp., Chapter No. 471 v.Twinsburg (1988), 36 Ohio St.3d 180, 182, 522 N.E.2d 532, 534. Thus, municipalities are not permitted to adopt traffic regulations in conflict with Ohio general statutes. Ohio Constitution, Section 3, Article XVIII; Schwartz v. Badila (1938), 133 Ohio St. 441, 443-444, 11 O.O. 144, 145,14 N.E.2d 609, 610-611.

C.C.O. 431.34 provides:

"Failure to control; Weaving; Full Time and Attention

"(a) No person shall operate a motor vehicle or motorcycle upon any street or highway without exercising reasonable and ordinary control over such vehicle.

"(b) No person shall operate a motor vehicle or motorcycle upon any street or highway in a weaving or zigzag course unless such irregular course is necessary for safe operation or in compliance with law.

"(c) No person shall operate a motor vehicle or motorcycle without giving his full time and attention to the operation of such vehicle."

R.C. 4511.202 provides:

"Operation without reasonable control

"No person shall operate a motor vehicle, trackless trolley, or streetcar on any street, highway, or property open to the public for vehicular traffic without being in reasonable control of the vehicle, trolley, or streetcar."

This statute has been construed to require a showing that the driver failed to exercise the same degree of care as would a reasonably prudent person under similar circumstances. State v.Cichon (1980), 61 Ohio St.2d 181, 15 O.O.3d 209,399 N.E.2d 1259, syllabus.

In several instances, this court has considered a "full time and attention" ordinance. In each instance, the defendant cited for violating such ordinances had been involved in a motor vehicle collision. See Cleveland v. Truchanowicz (Mar. 19, 1981), Cuyahoga App. No. 42141, unreported; Seven Hills v.Gossick (Nov. 15, 1984), Cuyahoga App. No. 48088, unreported, 1984 WL 3582; Warrensville Hts. v. Milliken (Nov. 20, 1986), Cuyahoga App. No. 51309, unreported, 1986 WL 13343.

In this instance, defendant was not involved in a collision and at no time lost control of his vehicle, yet was cited under the "full time and attention" portion of C.C.O. 431.34. These facts clearly demonstrate that under the circumstances presented, C.C.O. 431.34 is in conflict with R.C. 4511.202. Moreover, this instance, where there is a "full time and attention" conviction in the absence of any demonstrated failure to exercise reasonable control, is tantamount to convicting defendant on the basis of his thoughts and intentions, rather than his actual conduct.

The reality of life is that there are dedicated bad drivers who devote their full time and attention to tailgating, speeding, weaving, etc. They are not, however, exercising reasonable control as mandated by R.C. 4511.202. They, therefore, should be charged under the statute and/or with the specific violation committed.