719 N.E.2d 1074 (Ohio Co. 1999), 98 CRB 514, Jefferson v. Mirando

Docket Nº:98 CRB 514.
Citation:719 N.E.2d 1074, 101 Ohio Misc.2d 1, 1999-Ohio-63
Opinion Judge:ROBERT S. WYNN, Judge.
Party Name:VILLAGE OF JEFFERSON v. MIRANDO. [*]
Attorney:Jerome Lemire, Jefferson Village Solicitor, for plaintiff. Michael Mirando, Jefferson, for defendant.
Case Date:September 16, 1999
Court:County Court of Ohio
 
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Page 1074

719 N.E.2d 1074 (Ohio Co. 1999)

101 Ohio Misc.2d 1, 1999-Ohio-63

VILLAGE OF JEFFERSON

v.

MIRANDO. [*]

No. 98 CRB 514.

Ashtabula County Court of Ohio.

September 16, 1999.

Page 1075

[101 Ohio Misc.2d 2] Jerome Lemire, Jefferson Village Solicitor, for plaintiff.

Michael Mirando, Jefferson, for defendant.

ROBERT S. WYNN, Judge.

This matter is before the court upon defendant Sharon Mirando's motion to dismiss the complaint on grounds that Section 618.17 of the Village of Jefferson Code of Ordinances, under which she is charged, is unconstitutionally vague and [101 Ohio Misc.2d 3]also impermissibly conflicts with applicable state laws. Section 618.17 provides as follows:

"618.17 MAXIMUM NUMBER OF DOGS OR CATS PER DWELLING UNIT

"(a) No person shall harbor more than three dogs or cats per family dwelling unit, except that where litters have been born to a residing animal, a four-month grace period shall be granted to permit the distribution of such young animals after they have been weaned.

"(b) Whoever violates this section is guilty of a minor misdemeanor. A separate offense shall be deemed committed each day during or on which a violation occurs or continues. Punishment shall be as provided in Section 698.02.

"(Ord. 1446-A. Passed 9-4-79.)"

The court first observes that neither the state of Ohio nor the defendant requested a hearing upon defendant's motion to dismiss. The court is not required to conduct an evidentiary hearing where none has been requested. State v. Feltner (1993), 87 Ohio App.3d 279, 283, 622 N.E.2d 15, 18; State v. Haddix (1994), 92 Ohio App.3d 221, 223, 634 N.E.2d 690, 691; Univ. Hts. v. Morris (Apr. 18, 1996), Cuyahoga App. No. 69493, unreported, 1996 WL 191753; State v. Beltz (Oct. 21, 1997), Stark App. No. 1997CA00028, unreported. While the parties' respective memoranda do make reference to items of a factual nature, such reference is minimal. The court finds that defendant did not in her motion to dismiss and supporting briefs allege facts that if proved would require the granting of the relief sought by her. State v. Shindler (1994), 70 Ohio St.3d 54, 58, 636 N.E.2d 319, 322. The court therefore determines to adjudicate this motion to dismiss upon the briefs of the parties pursuant to Crim.R. 12(E).

The village of Jefferson's ordinance benefits from a strong presumption of...

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