Lima v. Stepleton ( 2013 )

[Cite as Lima v. Stepleton, 2013-Ohio-5655.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
CITY OF LIMA,
PLAINTIFF-APPELLEE, CASE NO. 1-13-28
v.
THEODORE T. STEPLETON, OPINION
DEFENDANT-APPELLANT.
Appeal from Lima Municipal Court
Trial Court No. 12CRB03487
Judgment Reversed and Cause Remanded
Date of Decision: December 23, 2013
APPEARANCES:
Michelle L. Baumeister for Appellant
Tammie K. Hursh for Appellee
Case No. 1-13-28
ROGERS, J.
{¶1} Defendant-Appellant, Theodore Stepleton, appeals the judgment of the
Lima Municipal Court convicting him of failure to confine a vicious dog and
fining him $50.00. On appeal, Stepleton argues that the trial court erred by: (1)
failing to dismiss the criminal complaint due to lack of proper service; (2) denying
him an opportunity to rebut the evidence suggesting that the subject dog was
vicious in an administrative hearing; (3) ruling that the City of Lima’s vicious dog
ordinance does not conflict with the Revised Code’s treatment of vicious dogs; (4)
finding that the subject dog was “vicious” under the City’s ordinance; and (5)
purportedly ignoring the Revised Code’s treatment of vicious dogs when
performing its home rule analysis. For the reasons that follow, we reverse the trial
court’s judgment.
{¶2} On November 19, 2012, a criminal complaint was filed in Lima
Municipal Court charging Stepleton with one count of failure to confine a vicious
dog in violation of Lima City Ordinance (“LCO”) 618.125(D), a minor
misdemeanor. The complaint arose from an incident on November 16, 2012 in
which Stepleton allegedly failed to keep his dog confined on his property. At the
November 30, 2012 arraignment hearing, Stepleton pleaded not guilty to the count
charged in the complaint.
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{¶3} On January 3, 2013, Stepleton moved to dismiss the criminal
complaint. The basis for the motion was the alleged lack of sufficient process and
the purported conflict between LCO 618.125(D) and the Revised Code, which
rendered the ordinance unconstitutional. On that same day, Stepleton requested a
hearing to rebut evidence suggesting that his dog was “vicious.”
{¶4} On January 14, 2013, the magistrate granted Stepleton’s request for a
hearing regarding the dog’s status as “vicious.” In granting the request, the
magistrate “order[ed] a hearing date be set to hear evidence as to the proper
designation of [Stepleton’s] dog * * *. The hearing date shall precede any date for
the trial [in this matter].” (Docket No. 10). However, there is no indication in the
record before us that the hearing was either scheduled for a specific date or
actually held.
{¶5} On March 1, 2013, the City filed its response to Stepleton’s motion
and request.
{¶6} On March 18, 2013, the magistrate issued a decision denying
Stepleton’s motion to dismiss. It found that LCO 618.175(D) was not in conflict
with the Revised Code and was therefore constitutional under the Home Rule
Amendment to the Ohio Constitution. Stepleton filed objections to the
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magistrate’s decision on March 26, 2013. The trial court, however, overruled
Stepleton’s objections and adopted the magistrate’s decision.1
{¶7} On April 30, 2013, Stepleton withdrew his not guilty plea and instead
entered a no contest plea to the criminal complaint.2 On May 3, 2013, the
magistrate issued a decision journalizing Stepleton’s conviction and his $50.00
fine. The magistrate’s decision also included a separate section, signed by the trial
court, indicating that it was the trial court’s judgment to adopt the magistrate’s
decision as its own.
{¶8} Stepleton timely appealed the trial court’s judgment, presenting the
following assignments of error for our review.
Assignment of Error No. I
MUNICIPAL COURT ERRED BY NOT DISMISSING [THE]
CASE DUE TO IMPROPER SERVICE, AS REQUIRED
UNDER STATE LAW.
Assignment of Error No. II
MUNICIPAL COURT ERRED BY DENYING DEFENDANT
AN OPPORTUNITY TO REBUT THE PRIMA FACIE
EVIDENCE (ACCORDING TO LOCAL ORDINANCE) THAT
THE DOG IN QUESTION IS VICIOUS WITHOUT AN
ADMINISTRATIVE HEARING, AS REQUIRED BY STATE
LAW (THUS, AUTOMATICALLY SUBJECTING
APPELLANT TO EXTRA REQUIREMENTS BEFORE ANY
HEARING).
1
The trial court’s adoption of the magistrate’s decision was based on its independent review of only the
briefs offered by the parties because a transcript of the hearing on Stepleton’s motion was not prepared.
2
The record does not contain a transcript of the change of plea hearing.
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Assignment of Error No. III
MUNICIPAL COURT ERRED BY RULING THAT LIMA’S
LOCAL DOG ORDINANCE IS NOT IN CONFLICT WITH
THE NEW OHIO REVISED CODE STATUTES WHICH RE-
DEFINES [SIC] A VICIOUS/DANGEROUS/NUISANCE DOG
AND WHICH REQUIRES [SIC] AN OPPORTUNITY FOR AN
ADMINISTRATIVE HEARING BEFORE THE OWNER IS
CHARGED WITH A CRIMINAL OFFENSE.
Assignment of Error No. IV
MUNICIPAL COURT ERRED BY NOT DISMISSING THE
CASE BASED ON LIMA ORDINANCE WHICH IS
UNCLEAR, ASSUMING THE DOG IN QUESTION HAS
BEEN DEEMED VICIOUS, NEEDS TO BE CONTAINED ON
ONE’S PROPERTY.
Assignment of Error No. V
MUNICIPAL COURT ERRED BY RULING THAT HOME
RULE ALLOWS THE CITY OF LIMA TO IGNORE THE
NEW OHIO REVISED STATUTES.
{¶9} Due to the nature of the assignments of error, we elect to address them
out of order and to discuss the third and fifth assignments together and the first,
second, and fourth assignments of error together.
Assignments of Error Nos. III & V
{¶10} In his third and fifth assignments of error, Stepleton essentially
argues that his conviction should be reversed because LCO 618.125(D) is
unconstitutional under the Home Rule Amendment to the Ohio Constitution.
Specifically, Stepleton asserts that LCO 618.125(D) conflicts with certain
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provisions of R.C. Chapter 955. As such, he claims that the trial court erred in
applying LCO 618.125(D). We agree.
Presumption of Constitutionality
{¶11} All legislative enactments, including ordinances enacted by a
municipality, are entitled to a “strong presumption” of constitutionality. Village of
Hudson v. Albrecht, Inc., 9 Ohio St.3d 69, 71 (1984); accord City of Columbus v.
Kim, 118 Ohio St.3d 93, 2008-Ohio-1817, ¶ 18; City of Xenia v. Schmidt, 101
Ohio St. 437 (1920), paragraph one of the syllabus. We grant such deference to
legislative enactments because “the local legislative body is familiar with local
conditions and is therefore better able than the courts to determine the character
and degree of regulation required.” Albrecht at 71. Due to this presumption, the
party challenging an ordinance has the burden of demonstrating, beyond a
reasonable doubt, that the law is unconstitutional. Hilton v. City of Toledo, 62
Ohio St.2d 394, 396 (1980). Moreover, when considering the constitutionality of
a legislative enactment, we are called to “liberally construe [it] to save it from
constitutional infirmities.” State v. Robinson, 44 Ohio App.3d 128, 130 (12th
Dist. 1989). However, in applying our liberal construction, we are not permitted
to “simply rewrite laws in order to render them constitutional.” Id.-6-
Case No. 1-13-28
Home Rule Under the Ohio Constitution
{¶12} The Ohio Constitution provides municipalities with “the exclusive
power to govern themselves, as well as additional power to enact local health and
safety measures not in conflict with the general law * * *.” Am. Fin. Servs. Assn.
v. City of Cleveland, 112 Ohio St.3d 170, 2006-Ohio-6043, ¶ 26; see also
Cleveland Tel. Co. v. City of Cleveland, 98 Ohio St. 358, 380-81 (1918)
(describing the general contours of the authority granted to municipalities under
the Home Rule Amendment). This authorization for municipalities is contained in
Article XVIII, Section 3 of the Ohio Constitution, which provide as follows:
Municipalities shall have authority to exercise all power of local
self-government and to adopt and enforce within their limits such
local police, sanitary, and other similar regulations, as are not in
conflict with general laws.
When considering the language of Section 3 of Article XVIII, it is important to
note that “[t]he words ‘as not in conflict with general laws’ * * * modify the words
‘local police, sanitary and other similar regulations’ but do not modify the words
‘powers of local self-government.’ ” Rispo Realty & Dev. Co. v. City of Parma,
55 Ohio St.3d 101, 103 (1990). As such, Section 3 “preserve[s] the supremacy of
the [S]tate in matters of ‘police, sanitary and other similar regulations’ while
granting municipalities sovereignty in matters of local self-government, limited by
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other constitutional provisions.” City of Canton v. Whitman, 44 Ohio St.2d 62, 65
(1975).
{¶13} Soon after the Home Rule Amendment’s adoption in 1912, the
Supreme Court of Ohio stated that “[t]he object of the home rule amendment was
to permit municipalities to use [their] intimate knowledge and determine for
themselves in the exercise of all powers of local self-government how * * * local
affairs should be conducted.” Froelich v. City of Cleveland, 99 Ohio St. 376, 385
(1919). The Court has continually identified this principle as the basic purpose of
the Home Rule Amendment. See, e.g., N. Ohio Patrolmen’s Benevolent Assn. v.
City of Parma, 61 Ohio St.2d 375, 379 (1980) (“The purpose of the Home Rule
Amendments was to put the conduct of municipal affairs in the hands of those who
know the needs of the community best, to-wit, the people of the city.”).
{¶14} Based on the expansive language of the Home Rule Amendment,
reviewing courts have previously recognized that the amendment “grants a
significant degree of sovereignty” to municipalities. City of Tiffin v. McEwen, 130
Ohio App.3d 527, 531 (3d Dist. 1998). Further, because of the important policy
goals served by the Home Rule Amendment and the autonomy it secures for
municipal citizens, we must be “sensitive to the home rule authority of
municipalities.” The Payphone Assn. of Ohio v. City of Cleveland, 146 Ohio
App.3d 319, 328 (8th Dist. 2001). As a result, the general laws of the State and
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the challenged ordinance should be harmonized as much as the language allows.
N. Ohio Patrolmen at 377. Nevertheless, we must also recognize that
municipalities’ home rule authority “is not absolute.” Tiffin at 531; accord Weir v.
Rimmelin, 15 Ohio St.3d 55, 56 (1984) (“The Home Rule Amendment to the Ohio
Constitution confers a significantly high degree of sovereignty upon
municipalities. However, the amendment does not provide cities the absolute
power of self-government.”).
{¶15} The Supreme Court of Ohio has issued a three-part test for courts to
apply when determining whether a municipal ordinance is constitutionally sound
under the Home Rule Amendment. This test was most recently defined as
follows:
The first step is to determine whether the ordinance involves an
exercise of local self-government or an exercise of local police
power. If the ordinance relates solely to self-government, the
analysis ends because the Constitution authorizes a municipality to
exercise all powers of local self-government within its jurisdiction.
The second step, which becomes necessary only if the local
ordinance is an exercise of police power, requires a review of the
state statute to determine whether it is a general law under the
court’s four-part test announced in City of Canton v. State, 95 Ohio
St.3d 149, 2002-Ohio-2005, syllabus. If the statute qualifies as a
general law under this test, the final step is undertaken to determine
if the ordinance is in conflict with the statute.
In re Complaint of Reynoldsburg, 134 Ohio St.3d 29, 2012-Ohio-5270, ¶ 24.
Here, the City has conceded that LCO 618.125(D) is an exercise of the police
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power and that R.C. Chapter 955 is a general law. Appellee’s Brief, p. 8. Thus,
the only issue before us is whether LCO 618.125(D) conflicts with R.C. Chapter
955.
Applicable Tests for Conflict Analysis
{¶16} Conflicts between local ordinances and state statutes may arise in a
variety of circumstances. As such, three different tests may be employed to
determine whether such an ordinance/statute conflict exists. See generally
Mendenhall v. City of Akron, 117 Ohio St.3d 33, 2008-Ohio-270, ¶ 29-37
(describing the three tests). This matter implicates the “contrary directives” test,
id. at ¶ 29, which requires a reviewing court to consider “whether the ordinance
permits or licenses that which the statute forbids and prohibits, and vice versa,”
Village of Struthers v. Sokol, 108 Ohio St. 263 (1923), paragraph two of the
syllabus. If we answer this question in the negative, then no conflict exists. See
id. at 268 (“No real conflict can exist unless the ordinance declares something to
be right which the state law declares to be wrong, or vice versa.”). When applying
the contradictory directives test, we note that the degree of state regulation on the
same issue as the local ordinance is immaterial. See City of Cincinnati v.
Hoffman, 31 Ohio St.2d 163, 169 (1972) (“[I]n order for * * * a conflict to arise,
the state statute must positively permit what the ordinance prohibits, or vice versa,
regardless of the extent of state regulation concerning the same object.”).
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{¶17} Before applying this test, we must address the proper scope of our
conflict analysis. Here, Stepleton argues that LCO 618.125(D) conflicts with R.C.
955.11(A)(1), 955.221(B)(3), and 955.222(A). After reviewing these Revised
Code provisions, we find that there are two difficulties with fitting them into a
proper conflict analysis under the Home Rule Amendment. First, R.C.
955.221(B)(3) is inapplicable in a conflict analysis here insofar as it relates to a
direct conflict between LCO 618.125 and the Revised Code. Rather than being a
potential source of a direct conflict, R.C. 955.221(B)(3) is merely a truism that
reasserts the Ohio Constitution’s limitation of municipalities’ home rule authority
over police regulations. Compare Ohio Constitution, Article XVIII, Section 3
(“Municipalities shall have authority * * * to adopt and enforce within their limits
such local police, sanitary, and other similar regulations, as are not in conflict with
general laws.”) with R.C. 955.221(B)(3) (“A municipal corporation may adopt and
enforce ordinances within the municipal corporation that are not otherwise in
conflict with any other provisions of the Revised Code.”). Accordingly, we
disregard R.C. 955.221(B)(3) when considering a direct conflict with LCO
618.125(D).3
3
This provision may be pertinent to an indirect conflict under the “conflict by implication” test since R.C.
955.221(B)(3) relates to the General Assembly’s intent to control the subject exclusively. Mendenhall at ¶
31-32. However, unlike the dissent, we do not believe this matter implicates this test for conflicts so the
provision is ultimately immaterial in our analysis.
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{¶18} Second, both R.C. 955.222(A), which provides for an administrative
determination of a dog’s designation as “dangerous,” and the statutory definition
of “dangerous dogs” in R.C. 955.11(A)(1), are not proper starting points for the
conflict analysis in this matter. In City of Cincinnati v. Baskin, 112 Ohio St.3d
279, 2006-Ohio-6422, the parties and the court of appeals made the statutory
definition contained in R.C. 2923.11(E) “the focal point of their inquiry.” Id. at ¶
11. However, the Supreme Court declared that rather than focusing on the
statutory definitions, the parties should have focused on the statutory prohibition
contained in R.C. 2923.17(A) and the relevant definitions and other provisions that
influenced its meaning. Id. at ¶ 12.
{¶19} We follow Baskin’s guidance in forming our analysis here. LCO
618.125(D) essentially proscribes individuals from allowing vicious dogs to go
unconfined on their properties. The ordinance also has particular meanings for the
terms “vicious dogs” and “unconfined.” After reviewing R.C. Chapter 955, we
find that LCO 618.125(D)’s closest analogue is R.C. 955.22(D)(1), which likewise
has its own particular definitions and counterparts within the Revised Code. As
such, we start our conflict analysis by comparing LCO 618.125(D) with R.C.
955.22(D)(1) as opposed to the statutory sections cited by Stepleton.
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Relevant Precedents in Conflict Analysis
{¶20} When considering the possible conflict between LCO 618.125(D)
and R.C. 955.22(D)(1), we are unable to find much helpful guidance from the
Ohio Supreme Court or other courts. In City of Youngstown v. Traylor, 123 Ohio
St.3d 132, 2009-Ohio-4184, the Supreme Court of Ohio addressed the narrow
issue of “whether a Youngstown ordinance that requires vicious dogs to be
confined and requires the [S]tate to prove at trial that the dog is vicious or
dangerous as an element of the offense violates procedural due process.” Id. at ¶
1. As a result of this narrow issue, the Court merely held that the Youngstown
ordinance “is rationally related to the city’s legitimate interest in protecting
citizens from vicious dogs and is therefore constitutional.” Id. at syllabus. As
noted by the dissenting justices, the majority did not address the Youngstown
ordinance’s consistency with the Home Rule Amendment “in large part because
the parties did not argue the issue.” Id. at ¶ 35 (Pfeifer & Lanzinger, J.J.,
dissenting).4 Since Traylor did not involve a home rule analysis, we are unable to
find that it controls here.
{¶21} In support of its argument, the City has cited to a variety of other
cases upholding local ordinances that regulate the keeping of vicious dogs.
4
We note that the dissenting justices in Traylor indicated they believed that the Youngstown ordinance,
which is quite similar to the ordinance implicated here, was unconstitutional under the Home Rule
Amendment. Traylor at ¶ 34 (Pfeiffer & Lanzinger, J.J., dissenting).
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However, like Traylor, many of these cases are of limited import since they do not
apply a home rule analysis to vicious dog ordinances in relation to the current
version of R.C. Chapter 955. See City of Columbus v. Kim, 118 Ohio St.3d 93,
2008-Ohio-1817, ¶ 7-11 (upholding municipal ordinance regarding animal noise
against a void for vagueness challenge); City of Toledo v. Tellings, 114 Ohio St.3d
278, 2007-Ohio-3724, ¶ 30 (upholding municipal ordinance regarding
confinement of vicious dogs against procedural due process, substantive due
process, equal protection, and void for vagueness challenges); City of Steubenville
v. Thorne, 7th Dist. Jefferson No. 08 JE 3, 2008-Ohio-6299, ¶ 2 (upholding
municipal ordinance regarding harboring of barking dog against void for
vagueness and overbreadth challenges); State v. Conte, 10th Dist. Franklin No.
07AP-33, 2007-Ohio-5924, ¶ 18 (upholding vicious dog ordinance against due
process challenge); Singer v. City of Cincinnati, 57 Ohio App.3d 1 (1st Dist.
1990), paragraph three of the syllabus (upholding municipal ordinance regarding
ownership of pit bulls against equal protection and due process challenges).
{¶22} The only cases that we find in which courts have explicitly
determined whether a dog ordinance violates the Home Rule Amendment are City
of Akron v. Ross, 9th Dist. Summit No. 20338, 2001 WL 773235 (July 11, 2001),
and Tarquinio v. City of Lakewood, N.D. Ohio No. 1:11 CV 325, 2011 WL
4458165 (Sept. 23, 2011). We discuss each of these cases below in turn.
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{¶23} In Ross, the defendant was convicted of violating Akron City Code
92.25(B)(4), which prohibited owning, harboring, or possessing a dog that had
bitten a person while off the owner’s premises. * 1. The defendant appealed,
asserting that the ordinance was unconstitutional under the Home Rule
Amendment since it conflicted with certain provisions of R.C. Chapter 955. Id. at
* 2. The Ninth District rejected the defendant’s constitutionality challenge and
found no conflict. Id. at * 4. Specifically, the court found no conflict even though
the ordinance inculpated owners for their dogs’ first bites while the Revised Code
did not. Id. The court reasoned that “the Revised Code simply does not provide a
penalty for the first bite of a dog; it does not permit or encourage it. * * * We can
discern no conflict here, as the Revised Code simply does not speak to the issue of
the first bite of a non-vicious dog; rather this issue is left to be resolved by local
enactment pursuant to R.C. 955.221.” Id.5
{¶24} Meanwhile, in Tarquinio, the plaintiff sought a declaratory judgment
that a local ordinance banning the keeping of pit bull dogs was unconstitutional
under the Home Rule Amendment. * 1. The federal district court for the Northern
District of Ohio, however, denied the requested relief and instead found that the
ordinance was constitutional. Id. The district court reasoned as follows regarding
5
The Ninth District also rejected the defendant’s argument that there was an impermissible conflict due to
the differing levels of criminal and civil liability imposed under the ordinance and Revised Code. Ross,
supra.
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the purported conflict between the ordinance and R.C. Chapter 955’s requirements
that owners of vicious dogs take certain safety precautions:
The state statute sets forth limitations and obligations that must be
undertaken by any person who owns or harbors a vicious dog, which
under the statute includes all pit bulls, including restrictions on how
the dog must be contained, leashed, and handled. The state statute
does not explicitly permit pit bulls, or any dogs for that matter, to be
owned or harbored by every state resident. Therefore the ordinance
banning pit bulls [sic] dogs from Lakewood does not prohibit
anything that state law explicitly permits.
Id. at * 2.
{¶25} The district court also found no constitutional infirmity stemming
from the ordinance’s and Revised Code’s differing definitions of pit bull dog.
Former R.C. 955.11 indicated that R.C. Chapter 955’s provisions applied to a dog
that “[b]elongs to a breed that is commonly known as pit bull dog.” However, the
ordinance’s definition of pit bull dog was “ ‘any dog known as pit bull, pit bull
dog, or pit bull terrier,’ which [was] further defined as ‘any dog of mixed breed
which has the appearance and characteristics of being predominantly of such
breed.’ ” Id. at * 3. The district court viewed the statute’s and ordinance’s
language to have, “in all practicality, * * * the same effect.” Id. The district court
also noted that “[t]he state statute does not limit the designation of dangerous [or]
vicious dogs to a particular breed or type of dog, nor to any one particular
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behavior. Therefore, the [ordinance] does not prohibit something that the state
statute explicitly or implicitly allows.” Id. at * 4.
{¶26} While Ross and Tarquinio are helpful in illustrating the type of
statutory distinctions between municipal dog ordinances and provisions in R.C.
Chapter 955 that do not produce conflicts, we must note that there are several
deficiencies in both cases that preclude us from considering them as being on-
point. First, Tarquinio is a federal case interpreting the Ohio Constitution. This is
problematic because Ohio courts, not federal courts, are the final arbiters of our
Ohio Constitution’s proper interpretation. See Preterm Cleveland v. Voinovich, 89
Ohio App.3d 684, 707 (10th Dist. 1993) (“[T]his court is completely free to
interpret the Ohio Constitution without adherence to the outcome of court
decisions in similar cases on the federal level.”). Second, neither case specifically
interprets LCO 618.125(D) or an ordinance with substantially similar language to
it. And, finally, neither case implicates the newly revised provisions of R.C.
Chapter 955. Nevertheless, due to the dearth of other relevant case law, we must
employ the illustrations of Ross and Tarquinio, as well as the home rule analysis
principles announced by the Ohio Supreme Court, in resolving this matter.
LCO 618.125(D) and R.C. 955.22(D)(1)
{¶27} LCO 618.125(D) provides that “[n]o person who owns, harbors, or
has the care, custody, or control of a vicious dog shall permit such dog to go
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unconfined on the premises where such dog is located.” LCO 618.125(C)(1),
meanwhile, defines a “vicious dog” as follows:
(a) Any dog with a propensity, tendency, or disposition to attack,
bite, cause injury to, or which otherwise endangers the safety of, or
which attempts to attack, bite, cause injury to, or endanger the safety
of, a human being or domestic animal; or,
(b) Any dog which attacks, bites, causes injury to, or otherwise
endangers the safety of, a human being or other domestic animal one
or more times, with or without provocation; or
(c) Any dog which belongs to a breed that is commonly known as
a pit bull dog. The ownership, keeping, custody, control, or
harboring of such a breed of dog shall be prima facie evidence of the
ownership, keeping, custody, control, or harboring of a vicious dog.
The City also defines “unconfined” as follows:
(a) When a vicious dog is indoors, “unconfined” shall mean not
being restrained in a manner that will prevent the dog from being
able to come into physical contact with anyone lawfully in such
premises, unless the person lawfully in such premises has
specifically consented to such dog being unconfined while in his or
her presence.
(b) When a vicious dog is outdoors, “unconfined” shall mean not
being confined in a securely enclosed and locked pen or structure
which prevents the dog from escaping therefrom. Such pen or
structure must have secure sides and a secure top. If the pen or
structure has no bottom secured to the sides, the sides must be
embedded into the ground not less than one foot deep.
LCO 618.125(C)(2).
R.C. 955.22(D)(1) similarly provides, in pertinent part, as follows:
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[N]o owner, keeper, harborer, or handler of a dangerous dog shall
fail to do * * * the following:
While the dog is on the premises of the owner, keeper, or harborer,
securely confine it at all times in a locked pen that has a top, locked
fenced yard, or other locked enclosure that has a top.
Although LCO 618.125(D) refers to “vicious dogs,” the Revised Code uses the
term “dangerous dog” to refer to the same type of dogs as LCO 618.125(D). R.C.
955.11(A)(1) defines “dangerous dog” as follows:
(a) “Dangerous dog” means a dog that, without provocation and
subject to division (A)(1)(b) of this section, has done any of the
following:
(i) Caused injury, other than killing or serious injury, to any
person;
(ii) Killed another dog;
(iii) Been the subject of a third or subsequent violation of division
(C) of section 955.22 of the Revised Code.
(b) “Dangerous dog” does not include a police dog that has caused
injury, other than killing or serious injury, to any person or has killed
another dog while the police dog is being used to assist one or more
law enforcement officers in the performance of their official duties.
{¶28} “Without provocation” means that the “dog was not teased,
tormented, or abused by a person, or that the dog was not coming to the aid or the
defense of a person who was not engaged in illegal or criminal activity and who
was not using the dog as a means of carrying out such activity.” R.C.
955.11(A)(7).
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{¶29} After reading LCO 618.125(D) and the relevant definitions of the
terms used in it, we find that it essentially requires dog owners to keep “vicious
dogs” in a “locked pen that has secure sides and a secure top” when the dog is
outdoors, LCO 618.125(C)(2)(b), and “restrained” when the dog is indoors, LCO
618.125(C)(2)(a). This general requirement, taken at face value, is parallel to R.C.
955.22(D)(1)’s requirement that dog owners keep “dangerous dogs” in a “locked
pen that has a top, locked fenced yard, or other locked enclosure that has a top.”
{¶30} However, when we delve more into the statutory language of LCO
618.125(D) and R.C. 955.22(D)(1), we find that LCO 618.125(D) proscribes
conduct that is allowed by R.C. 955.22(D)(1). The ambit of “vicious dogs” is
much more expansive under LCO 618.125(D) than the ambit of “dangerous dogs”
under R.C. 955.22(D)(1). Pursuant to LCO 618.125(C)(1), vicious dogs include
those with the propensity to cause injury, those that have previously attacked or
endangered the safety of a person and caused injury, and those that belong to the
pit bull breed. Supplying this definition to LCO 618.125(D), we find that the
ordinance forbids the following dog owners, among others, from failing to confine
a “vicious dog” in a secured pen:
(1) The owner of a pit bull dog whose dog has never previously
injured a person or killed another dog or was unrestrained on three
previous occasions in violation of R.C. 955.22(C);
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(2) The owner of a dog with the disposition to attack, bite, cause
injury to, or otherwise endanger the safety of a person or other
animals, but has yet to actually do so;
(3) The owner of a police dog that has previously injured a person
or killed another dog in the course of assisting law enforcement with
official duties;
(4) The owner of a dog, who is lawfully engaged in hunting or is
training his or her dog for the purpose of hunting;6 and
(5) The owner of a dog who has previously injured a person or killed
another dog, but the dog was provoked.
{¶31} In contrast, R.C. 955.11(A)(1) only defines dogs that, “without
provocation,” have “caused injury” to a person, “killed another dog,” or have been
unrestrained in violation of R.C. 955.22(C) on at least three previous occasions as
“dangerous.” R.C. 955.11(A)(1) also includes a critical exemption for police dogs
who injured a person or killed another dog while assisting law enforcement
officers with their official duties. R.C. 955.11(A)(1)(b). Further, R.C. 955.22(D)
contains an exemption for dogs that are lawfully engaged in training for the
6
We note that in Lima, an owner of a dog can never be lawfully engaged in hunting, since hunting is
prohibited within the municipality. LCO 618.13. However, Lima does not have an ordinance which
prohibits the training of animals to hunt within its municipal borders.
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purpose of hunting. Thus, R.C. 955.22(D)(1) allows the dog owners described in
the examples above to forego confining their dogs in a secured pen.7
{¶32} The dissent limits its analysis to whether LCO 618.125(D) conflicts
with R.C. 955.22(D)(1), excluding the definitional sections contained elsewhere in
both the ordinance and the Revised Code. In support of this position, the dissent,
like us, relies upon Baskin. However, while we find that Baskin is distinguishable
from the present matter, the dissent misinterprets Baskin and finds it analogous.
{¶33} In Baskin, the Revised Code prohibited carrying a concealed
semiautomatic firearm capable of firing over 31 rounds, while the municipal
ordinance proscribed carrying a semiautomatic firearm capable of firing over 10
rounds. 2006-Ohio-6422, ¶ 17-18. To find that a conflict existed, the statute had
to have been interpreted “to not only prohibit the possession of any semiautomatic
firearm that can fire more than 31 rounds without reloading, but to also imply a
right to the possession of any semiautomatic firearm that can fire up to 31 rounds
without reloading.” (Emphasis added.) Id. at ¶ 21. As the Court could not find
that the right was implied, the statute and ordinance were not in conflict. Id. at ¶
25. Further, the Ohio Supreme Court noted that there was no provision in the
7
We also note that the former version of R.C. Chapter 955 defined pit bulls as “vicious dogs,” but that
definition was repealed in 2012 by Am.Sub.H.B. No. 14. The General Assembly’s explicit removal of the
reference to “pit bulls” in R.C. Chapter 955 clearly signals its intent that pit bulls, which are still defined as
“vicious dogs” in LCO 618.125, be exempted from confinement requirements like LCO 618.125(D) and
R.C. 955.22(D)(1) unless they previously injured a person or killed another dog.
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Revised Code which manifested an “intent to prevent municipalities from
regulating the possession of semiautomatic firearms that hold fewer than 32
rounds.” Id. at ¶ 23. Nor was there a provision which stated that “municipalities
may not prohibit the possession of lower-capacity firearms that are prohibited by
the statute.” Id.
{¶34} Baskin is distinguishable to the present matter because the Revised
Code expressly exempts certain dogs from being subject to confinement if: (1) it
had never previously injured a person or killed another dog or was unrestrained on
three previous occasions in violation of R.C. 955.22(C); (2) a dog with the
disposition to attack, bite, cause injury to, or otherwise endanger the safety of a
person or other animal, but has yet to actually do so; (3) a police dog that has
previously injured a person or killed another dog in the course of assisting law
enforcement with official duties; (4) a dog that is lawfully engaged in training for
the purposes of hunting; and (5) a dog that injures a person or kills another animal
but acted in response to provocation. Since LCO 618.125 prohibits conduct which
the Revised Code expressly permits, it is in direct conflict.
{¶35} Based on these manifest differences in the language of LCO
618.125(D) and R.C. 955.22(D)(1), we find that the two provisions submit Lima
city residents to different standards of conduct as the ordinance plainly proscribes
conduct that is allowed by state statute. As such, we must conclude that under the
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contrary directives test, there is an impermissible conflict between LCO
618.125(D) and R.C. 955.22(D)(1) that renders LCO 618.125(D) violative of the
Home Rule Amendment.
{¶36} This matter is also distinguishable from Ross and Tarquinio, which
compels us to reach the opposite conclusion from the ones reached in those cases.
Unlike Ross and Tarquinio, the implicated ordinance in this matter explicitly
proscribes that which the Revised Code explicitly allows, as discussed above.
Further, Tarquinio is also distinguishable because the new version of R.C. Chapter
955 has a significantly different definition of dangerous and vicious dogs. The
new statute, unlike the one addressed in Tarquinio, does not in all practicality have
the same effect as LCO 618.125(D). Due to these clear distinctions from this
matter, we find that Ross and Tarquinio do not support a finding that LCO
618.125(D) is constitutional.
{¶37} In sum, LCO 618.125(D) conflicts with R.C. 955.22(D)(1) and is
therefore unconstitutional under the Home Rule Amendment to the Ohio
Constitution. The trial court erred by finding otherwise and applying LCO
618.125(D). Thus, Stepleton’s conviction under LCO 618.125(D) was improper
and we must reverse both his conviction and his sentence.
{¶38} Accordingly, we sustain Stepleton’s third and fifth assignments of
error.
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Assignments of Error Nos. I, II, & IV
{¶39} The resolution of Stepleton’s third and fifth assignments of error
renders his remaining assignments of error moot and we consequently decline to
address them. See App.R. 12(A)(1)(c).
{¶40} Having found error prejudicial to Stepleton in his third and fifth
assignments of error, we reverse the trial court’s judgment and remand this matter
for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
SHAW, J., concurs.
/jlr
PRESTON, P.J., Dissents
{¶37} I respectfully dissent from the majority’s conclusion that LCO
618.125(D) violates Section 3, Article XVIII of the Ohio Constitution, the “Home
Rule Amendment.” The majority errs in concluding that LCO 618.125(D) violates
the contrary directives test, and the ordinance also does not violate the conflict by
implication test, because the General Assembly did not intend R.C. 955.22 to
govern dog confinement exclusively. LCO 618.125(D) does not, therefore,
conflict with R.C. 955.22(D)(1) for purposes of the Home Rule Amendment.
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{¶38} The only contested issue here is whether LCO 618.125(D) conflicts
with R.C. 955.22(D)(1). Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005,
syllabus. The majority states that three separate tests may be employed to
determine if a conflict exists, and then states that LCO 618.125(D) violates the
“contrary directives” test. Majority Op. at ¶ 16, 35. The first step in determining
whether a conflict exists is to identify the actual conduct that the statute and the
ordinance target. Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, ¶ 30.
Generally, LCO 618.125(D) prohibits the same type of conduct as R.C.
955.22(D)(1)—a person’s failure to confine a dog that is legislatively defined as
“dangerous” (state statute) or “vicious” (local ordinance). Because the two
legislative enactments prohibit the same conduct, they do not violate the contrary
directives test. Mendenhall at ¶ 29-30.
{¶39} While LCO 618.125(C)(2) defines “confinement” more rigorously
than R.C. 955.22(D)(1), and LCO 618.125(C)(1) defines “vicious dogs” more
broadly than R.C. 955.11(A)(1)(a), that does not create a conflict under the
contrary directives test. Home Rule enables a municipality such as Lima to enact
ordinances that enlarge upon or supplement state law. Cincinnati v. Baskin, 112
Ohio St.3d 279, 2006-Ohio-6422, ¶ 23-24. “‘[A]n ordinance [that] enlarges upon
the provisions of a statute by requiring more than the statute requires creates no
conflict therewith unless the statute limits the requirement for all cases to its own
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prescription.’” Id. at ¶ 38 (O’Connor and Stratton, J.J., concurring) (quoting 56
American Jurisprudence 2d (1971) 408–409, Municipal Corporations, Section
374.); Mendenhall at ¶ 37, 42 (“complimentary” or “supplemental” ordinance does
not conflict with state law).
{¶40} To find a conflict, the majority focuses not on the proscribed conduct
but on dog owners who are affected differently under LCO 618.125(D) by
examining the differing “confinement” requirements and differing definitions of
“dangerous dog” and “vicious dog.” Majority Op. at ¶ 27-31. This is strikingly
similar to the Appellate Court’s flawed analysis in Baskin. 158 Ohio App.3d 539,
2004-Ohio-5055, ¶ 14-23 (Painter, J., dissenting), overruled by Baskin, 112 Ohio
St.3d 279, 2006-Ohio-6422.8 The majority also makes the same erroneous
assumption as the Appellate Court made in Baskin—that by proscribing one form
of conduct (i.e., failing to confine a “dangerous dog” is prohibited), the State has
licensed all conduct outside of the specific proscription (i.e., failing to confine a
dog other than a “dangerous dog” is permissible). 2004-Ohio-5055, at ¶ 14-23
(Painter, J., dissenting); 2006-Ohio-6422, at ¶ 21. This analytical assumption
indicates that a conflict by implication analysis was required, but the majority did
8
The majority states “the two provisions submit Lima city residents to different standards of conduct as the
ordinance plainly proscribes conduct that is allowed by state statute.” Majority Op. at ¶ 35. Yet in Baskin,
the local gun ordinance was held constitutional, in part, because “if a person is in compliance with the
city’s ordinance, he is also in compliance with the statute.” 2006-Ohio-6422, at ¶ 46. The same is true
here: if a person is in compliance with LCO 618.125(D), he is also in compliance with R.C. 955.22(D).
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not choose to conduct such analysis. Baskin, 2006-Ohio-6422, at ¶ 32 (“If this
court were to adopt the concept of conflict purely by implication, we would
essentially be holding that a statute’s prohibiting one thing is the same as
permitting everything else.”).
{¶41} The question presented in a conflict by implication test is: “whether
the General Assembly indicated that the relevant state statute is to control a
subject exclusively.” Mendenhall at ¶ 32, citing Baskin, 2006-Ohio-6422, at ¶ 23;
Am. Financial Servs. Assn. v. Cleveland, 112 Ohio St.3d 170, 2006-Ohio-6043, ¶
41, 48. The General Assembly can explicitly or implicitly indicate its intent that
the state statute controls a subject exclusively. See Baskin at ¶ 44, 47 (O’Connor,
J., concurring). The former occurs when the General Assembly clearly states its
intent to control a subject exclusively either in the statutory language or language
in the Act. The latter may9 occur when the General Assembly enacts
comprehensive regulation in a field, uniformity is necessary to address a statewide
9
I say “may” because the list of factors is not exhaustive but merely illustrative and has not been fully
vetted in the case law. It is not clear whether all of these factors must be present to find a conflict by
implication where the General Assembly has not explicitly indicated that intent. Given the “significant
degree of sovereignty” the Home Rule Amendment provides municipalities, the sensitivity we must have to
Home Rule authority, and our general duty to, whenever possible, harmonize a local ordinance with state
law, courts should be hesitant to find a conflict by implication except when the General Assembly has
explicitly indicated that intent or the implicit indication is overwhelming. Tiffin v. McEwen, 130 Ohio
App.3d 527, 531 (3d Dist.1998); Payphone Assn. of Ohio v. Cleveland, 146 Ohio App.3d 319, 328 (8th
Dist.2001); N. Ohio Patrolman Benevolent Assn. v. Parma, 61 Ohio St.2d 375, 377 (1980).
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concern,10 and the General Assembly allocates fresh state resources to address the
state-wide concern.11 See id. at ¶ 45, 57; Am. Financial Servs. Assn. at ¶ 55-56,
61, 66, 73.
{¶42} The General Assembly did not explicitly indicate that R.C. 955.22
govern dog control exclusively in the statutory language, like it has in other
statutes. For example, in R.C. 1.63, governing loans and other forms of credit, the
General Assembly stated:
(A) The state solely shall regulate the business of originating,
granting, servicing, and collecting loans and other forms of credit in
the state and the manner in which any such business is conducted,
and this regulation shall be in lieu of all other regulation of such
activities by any municipal corporation or other political subdivision.
(B) Any ordinance, resolution, regulation, or other action by a
municipal corporation or other political subdivision to regulate,
directly or indirectly, the origination, granting, servicing, or
10
Two key factors signal that an issue is one of statewide concern: (1) a need for uniform regulation exists,
and (2) any local regulation of the matter would have extraterritorial effects. Am. Financial Servs. Assn. at
¶ 56, citing State ex rel. McElroy v. Akron, 173 Ohio St. 189, 194 (1962) (an issue of statewide concern is
one that “has become of such general interest that it is necessary to make it subject to statewide control so
as to require uniform statewide regulation”) and State ex rel. Evans v. Moore, 69 Ohio St.2d 88, 90 (1982)
(“municipal regulations which have significant extraterritorial effects are matters of statewide concern”).
11
Although a majority of the justices on the Ohio Supreme Court have expressly declined to adopt a
preemption analysis similar to that used to determine conflicts between state and federal law, the factors
Justice O’Connor identified in Baskin and Am. Financial Servs. Assn. are, nevertheless, helpful to
determine the General Assembly’s intent in conflict by implication cases. Mendenhall at ¶ 38. This list is
not exhaustive but illustrative.
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collection of loans or other forms of credit constitutes a conflict with
the Revised Code, including, but not limited to, Titles XI, XIII,
XVII, and XLVII, and with the uniform operation throughout the
state of lending and other credit provisions, and is preempted.
Am. Financial Servs. Assn., 2006-Ohio-6043, at ¶ 31, 33, 62-63, 68. See also
Ohioans for Concealed Carry, Inc. v. Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605,
¶ 20 (“[T]he General Assembly, by enacting R.C. 9.68(A), gave persons in Ohio
the right to carry a handgun unless federal or state law prohibits them from doing
so. A municipal ordinance cannot infringe on that broad statutory right.”); Baskin
at ¶ 47 (O’Connor and Stratton, J.J., concurring) (characterizing R.C. 9.68(A)’s
language as “preemption language”). No such language appears in R.C. 955.22.
{¶43} The General Assembly, when enacting Am.Sub.H.B. 14, also did not
amend R.C. 715.23 or 955.221(B)(3)—both affirming a municipal corporation’s
ability to adopt and enforce dog-control ordinances—indicating that the General
Assembly intended to maintain the status quo and allow continued local dog-
control regulation. Had the General Assembly intended to exclusively regulate
dog control, it would have removed these Revised Code sections, and at the very
least, it could have amended these sections to remove from local control the ability
to regulate dog confinement, specifically.
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{¶44} Am.Sub.H.B. 14, which amended R.C. 955.22 and 955.11, lacks
language indicating the General Assembly’s intent to govern dog control
exclusively. Am.Sub.H.B. 14’s preamble states, in pertinent part, Am.Sub.H.B.
14’s purpose is “to remove pit bulls from the definition of ‘vicious dog’ in state
law * * *.” (Emphasis added). Compare this language to Section 9 of H.B. 12
concerning concealed weapons:
The General Assembly finds that licenses to carry concealed
handguns are a matter of statewide concern and wishes to ensure
uniformity throughout the state regarding the qualifications for a
person to hold a license to carry a concealed handgun and the
authority granted to a person holding a license of that nature. It is the
intent of the General Assembly * * * to enact laws of a general
nature, and, by enacting those laws of a general nature, the state
occupies and preempts the field of issuing licenses to carry a
concealed handgun and the validity of licenses of that nature. No
municipal corporation may adopt or continue in existence any
ordinance, and no township may adopt or continue in existence any
resolution, that is in conflict with those sections, including, but not
limited to, any ordinance or resolution that attempts to restrict the
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places where a person possessing a valid license to carry a concealed
handgun may carry a handgun concealed.
After examining the statutory language of R.C. 955.22, 955.11, 715.23, and
955.221(B)(3), along with the preamble to Am.Sub.H.B. 14, a reviewing court can
readily conclude that the General Assembly did not explicitly indicate its intent
that R.C. 955.22 exclusively govern dog control.
{¶45} In addition, the General Assembly did not implicitly express its intent
to exclusively regulate dog control. There is no indication that the General
Assembly believed that dog confinement was a matter of statewide concern for
which uniformity was necessary. The likely genesis to Am.Sub.H.B. 14 was State
v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, wherein the Ohio Supreme Court
struck down the prior version of R.C. 955.22 for violating due process—
something the General Assembly sought to remedy by enacting R.C. 955.222.
Am.Sub.H.B. 14’s amendments to R.C. Chapter 955 all related to the definitions
of various types of dogs, the designation and registration of various types of dogs,
the confinement of various types of dogs, and penalties for failing to confine the
various types of dogs as newly defined. Am.Sub.H.B. 14 did not enact a new
comprehensive statutory scheme but merely modified the cooperative state and
local dog control system that had been in place for years. As mentioned above,
Am.Sub.H.B. 14 did not remove or amend R.C. 715.23 and 955.221(B)(3), which
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allow for additional local control of dogs. Am.Sub.H.B. 14 also did not amend
R.C. 955.01(A)(2), permitting the county commissioners to raise the dog
registration fee from the $2.00 set in R.C. 955.01(A)(1) for certain dogs.
{¶46} Finally, the General Assembly did not dedicate fresh state resources
to the field of dog control by enacting Am.Sub.H.B. 14. Am. Financial Servs.
Assn., 2006-Ohio-6043, at ¶ 65, 73 (O’Connor, J., concurring). County Auditors
are still responsible for issuing dog tags and maintaining records of registered
dogs, though Am.Sub.H.B. 14 made county auditors also responsible for issuing
dangerous dog registration certificates. R.C. 955.01(A)(1), 955.012, 955.013,
955.07, 955.08, 955.22(E)(4), (I). Instead of dedicating “fresh state resources,”
like tax dollars to county auditors for the increased burdens Am.Sub.H.B. 14
imposed, the General Assembly increased the dog-tag-replacement fee and created
a new fifty-dollar fee for dangerous dog registration certificates. R.C. 955.08,
955.22(I)(1)(a). County dog wardens12 and local enforcement officers are still
responsible for enforcing dog laws. R.C. 955.12; 955.22(E)(3), (I)(4). 1981 Ohio
Atty.Gen.Ops. No. 81-037 (municipality may hire person(s) to enforce dog
ordinances).
12
County dog wardens are charged with enforcing state laws throughout their county, including within the
municipal corporation limits, and may also enforce local ordinances through cooperative agreements. 1984
Ohio Atty.Gen.Ops. No. 84-034.
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Case No. 1-13-28
{¶47} Reviewing the applicable statutes, the preamble of Am.Sub.H.B. 14,
and the other conflict by implication factors, I conclude that the General Assembly
did not explicitly or implicitly indicate that R.C. 955.22 was to exclusively govern
dog control. Therefore, LCO 618.125(D) does not violate the conflict by
implication test.
{¶48} Because LCO 618.125(D) does not violate the contrary directives
test or the conflict by implication test, it is a valid enactment pursuant to the Home
Rule Amendment.13 I would, therefore, overrule Stepleton’s third and fifth
assignments of error and proceed to his remaining assignments of error.
/jlr
13
Stepleton did not argue that LCO 618.125(D) violated the “conflict regarding decriminalization” test, so I
will not discuss this test herein. Mendenhall, 2008-Ohio-270, at ¶ 35.
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