City of Cincinnati v. Billing

This cause came on to be heard upon the appeal from the Hamilton County Municipal Court.

The city contends that the defendant Ricky C. Billing¹ ("appellant") failed to comply with an order of the building inspector to "[t]ake down and remove illegally installed satellite dish antenna or submit plans and obtain proper permit for same."² The complaint herein was filed, the defendant entered his plea of not guilty and he then moved the court to dismiss the charge against him on the basis that the regulation of the conduct sought to be controlled by the ordinance (Cincinnati Municipal Code Section 503.10[C]) upon which the order of the building inspector was based had been preempted by an order of the Federal Communications Commission adopted January 14, 1986. That order is now found in Section 25.104, Title 47, C.F.R.

The trial court overruled the motion to dismiss the charge following which the appellant withdrew his plea of not guilty and entered a plea of no contest. The trial court found him guilty, imposed sentence and stayed execution pending this appeal.

The solitary error assigned on appeal is the overruling of appellant's motion that the complaint against him be dismissed. For the reasons hereinafter explicated we find the assignment to be meritorious.

The record available to this court to review the proceedings of the trial court has not facilitated our review. Although, in the proceedings on the motion to dismiss, the appellant caused to be identified and elicited testimony relative to defendant's exhibits 6, 5, 9, 11 and 21, none of said exhibits is in the record transmitted to this court. Likewise, the appellee in its case identified and elicited testimony relative to its exhibits 2, 3, and 4; none of those exhibits is in the record before us. The transcript does not reflect that the exhibits were offered or received in evidence. We are therefore relegated to an examination of a deficient record in the determination of this appeal.

The appellant was aware, apparently, that he was charged with violation of a building order that was based on the provision of Cincinnati Municipal Code Section 503.10(C). As previously noted, the building order is not contained in the record, and neither the complaint nor the affidavit upon which it is based makes reference to the subject ordinance. However, in his motion to dismiss appellant made specific reference to Section 503.10(C) of the Cincinnati Municipal Code. The ordinance which is involved is not in the record.³ The municipal code section contains only the restrictions on the height, placement and minimum distance from property lines of "a parabolic satellite TV reception antenna."⁴ The code section does not contain any statement of the considerations that moved the city council to adopt the ordinance.

On oral argument, counsel for appellee conceded that the section of the municipal code did treat satellite television reception antennas in a manner that differed from other television antennas. Therefore, under the provisions of the federal regulation, the federal government has preempted this area of concern.⁵ The federal order grants an exemption from such preemption if the local regulation meets two conditions.

The first of such conditions is that the local regulation "[h]ave a reasonable and clearly defined health, safety or aesthetic objective." The record before this court is devoid of any competent evidence of the legislative intent, purpose or objective in the enactment of the local ordinance. The prosecution had the burden of proof that the local ordinance was exempted from the federal preemption. The prosecution called but one witness in opposition to the appellant's motion to dismiss. That witness was the head of the zoning section of land use of the City Planning Department of the city of Cincinnati. His testimony on direct examination identified the following: the staff report establishing or proposing the regulation of satellite dish antennas (State's Ex. No. 2); the councilmanic motion requesting the city administration to consider ways to regulate the dishes (State's Ex. No. 3); and extracts from a technical report written by the American Planning Association (State's Ex. No. 4). As previously noted, none of these exhibits is contained in the record before this court for review. The rest of this witness's direct testimony is hearsay which, even though not the subject of objection, is not worthy of any weight. Cross-examination of this witness made clear the absence of any personal knowledge of this witness on the subject of the reasonable and clear definition of the required objectives.

In like manner, the record does not contain evidence showing that the effect of the ordinance does not violate the second condition of exemption from preemption. See fn. 5, supra.

The city has failed to submit evidence that its ordinance is exempted from the federal preemption of the regulation of satellite receive-only antennas. Therefore, the ordinance seeking to impose such regulation is invalid and the court erred in failing to dismiss the complaint.

The assignment of error is sustained. The judgment appealed from is reversed and the appellant is discharged.

Judgment reversed.

BLACK, P.J., DOAN and KLUSMEIER, JJ., concur.

¹ The defendant was so named in the complaint but in other papers in the record he is named as Rick Billing, Ricky Billing, or Rick C. Billing.

² Affidavit (undated) of Herbert Curry. The building order itself is not in the record.

³ During a colloquy involving the trial judge, counsel and the appellant, the prosecutor stated, "[h]ere is a copy of the ordinance. It is going to be an exhibit." As noted, the ordinance is not an exhibit in the case on review.

⁴ It should be noted, to avoid confusion, that the foregoing statement is derived from the brief of the appellant and not from any exhibit in the case.

⁵ Section 25.104, Title 47, C.F.R. provides:

"Section 25.104 Preemption of local zoning of earth stations

"State and local zoning or other regulations that differentiate between satellite receive-only antennas and other types of antenna facilities are preempted unless such regulations

"(a) Have a reasonable and clearly defined health, safety or aesthetic objective; and

"(b) Do not operate to impose unreasonable limitations on, or prevent, reception of satellite delivered signals by receive-only antennas or to impose costs on the users of such antennas that are excessive in light of the purchase and installation cost of the equipment.

"Regulation of satellite transmitting antennas is preempted in the same manner except that state and local health and safety regulation is not preempted."