Andrew White, Vena Jones-Cox, Cincinnatus Prop. Mgmt., Ltd. v. City of Cincinnati
| Decision Date | 10 November 2021 |
| Docket Number | C-210133 |
| Parties | Andrew WHITE, Vena Jones-Cox, Cincinnatus Property Management, Ltd., Tashaz, LLC, and Proffitt Real Estate Services, Inc., Plaintiffs-Appellants, v. City of CINCINNATI, Ohio, and Sonya Walker, in her official capacity as Alarm Administrator of the City of Cincinnati, Ohio, and in her personal capacity, Defendants-Appellees. |
| Court | Ohio Court of Appeals |
1851 Center for Constitutional Law, Maurice A. Thompson, Finney Law Firm and Christopher Finney, Cincinnati, for Plaintiffs-Appellants.
Andrew W. Garth, City Solicitor, Shuva J. Paul and Scott M. Heenan, Assistant City Solicitors, for Defendants-Appellees.
{¶1} Plaintiffs-appellants Andrew White, Vena Jones-Cox, Cincinnati Property Management, Ltd., Tashaz, LLC, and Proffitt Real Estate Services, Inc., filed a complaint in the Hamilton County Court of Common Pleas against defendants-appellees the city of Cincinnati and Sonya Walker, in her official capacity as Alarm Administrator for the city and in her personal capacity, (collectively "the city") challenging the constitutionality of the city's ordinances regulating alarm systems. The trial court denied appellants’ motion for partial summary judgment and granted summary judgment in favor of the city. Appellants present three assignments of error for review. We find merit in their assignments of error, and we reverse the trial court's judgment.
{¶2} The record shows that in 1986, the city enacted Ordinance 448-1986 to regulate security alarm systems because of the high cost of responding to false alarms. That ordinance was codified in Cincinnati Municipal Code Chapter 807 ("Chapter 807"), which sets forth registration fees for "alarm businesses" and "alarm users."
{¶3} Cincinnati Municipal Code 807-1-A states that "alarm business" means "the business * * * of selling, installing, leasing, maintaining, servicing, repairing, altering, replacing, moving, or monitoring any alarm system or causing to be sold, installed, leased, maintained, serviced, repaired, replaced, moved, or monitored any alarm system in or on any building, structure or facility." Cincinnati Municipal Code 807-1-A3 defines an "alarm user" as "any person, firm, partnership, association, corporation, company, or organization of any kind in control of premises wherein an alarm system is maintained."
{¶4} Cincinnati Municipal Code 807-1-A4 requires alarm businesses to register with the False Alarm Reduction Unit ("FARU") of the Cincinnati Police Department and provides penalties for failure to register. Alarm businesses must pay a registration fee of $250 annually. If an alarm business fails to register, the city imposes a $1000 civil penalty for each request for a police response related to an alarm system by an unregistered alarm business or for each request by an alarm user for registration of an alarm system installed by an unregistered alarm business.
{¶5} Alarm users must also register with FARU before an alarm system is activated. Residential alarm users must pay $50 every two years and nonresidential alarm users must pay $100 every two years. The city imposes a $100 civil penalty on an alarm user for using an unregistered alarm system, but the penalties may be waived if the alarm user completes registration within 21 days of the first notice of a violation. All fees imposed on both alarm businesses and alarm users are nonrefundable, nontransferable, and location-specific.
{¶6} Cincinnati Municipal Code 807-11 sets forth penalties for repeated false alarms. After the first and second false alarm, FARU will issue a warning but not a penalty. After the third false alarm, it imposes a $50 fee which may be waived if the violator takes an educational class offered by the police. The fees continue to escalate for further false alarms to a maximum of $800 for each false alarm after the tenth.
{¶7} Appellants are alarm businesses and alarm users in the city. They alleged that Cincinnati Municipal Code 807-1-A4 violates their rights to free speech, to petition the government for redress, and to defend themselves and their property. They also alleged that the regulatory scheme was an unconstitutional tax. They asked the trial court to declare that Cincinnati Municipal Code 807-1-A4 is unconstitutional on its face and as applied to them. They also asked for a preliminary and a permanent injunction prohibiting the city from enforcing it. Finally, they sought damages, including the return of fees they had already paid.
{¶8} The city filed a notice of removal of the case to federal court, and appellants filed a motion to remand to state court. A federal district court found that the regulatory assessments were a tax for purposes of the Tax Injunction Act, 28 U.S.C. 1341. The court stated that the act is jurisdictional and prevents federal courts from awarding declaratory or injunctive relief to plaintiffs who challenge state tax laws. Consequently, it granted appellants’ motion to remand.
{¶9} Subsequently, appellants filed a motion for partial summary judgment on their claims for injunctive and declaratory relief. Among the documents they submitted in support of their motion was the affidavit of Kathleen Frye who, along with her husband, has operated a security alarm installation company for several years in numerous political subdivisions. Her business is classified as an "alarm business" under Chapter 807.
{¶10} Frye stated that her company adheres to industry standards. Those standards include: (1) notifying their clients’ local police dispatcher to determine which phone number the police would like their agents to use for reporting notifications; (2) testing the security system and training the client on proper operation of his or her alarm system; (3) immediately calling the homeowner's primary phone number followed by a second number when it receives an alert; (4) calling the police only if the homeowner cannot be reached, or is reached and indicates danger; and (5) notifying the police that an alarm has been triggered, that the homeowner cannot be reached, and any relevant surrounding circumstances.
{¶11} She stated that alarm-monitoring agents in the city are "live people," who place a phone call to the police. They do not call 911, but instead use the number the police have asked them to use. The agents cannot force the police to respond. They simply pass the information to the police, who decide how to respond.
{¶12} Frye further indicated that to her knowledge, only three other municipalities in southwest Ohio besides Cincinnati maintain any security-alarm-system regulations. The regulations of the other three municipalities are not as extensive or expensive as the city's, and only the city requires a registration fee. Further, the other municipalities penalize false alarms directly by imposing fines beginning with the third or fourth false alarm. They impose no fees for the first several false alarms.
{¶13} She said that her company must pay the annual registration fee to operate and that if all jurisdictions imposed an annual registration fee, "it would make it impossible for small local alarm businesses * * * to operate profitably and stay in business." Finally, she stated that based on her experience and expertise, "the alarm user registration fees do nothing to reduce the number of false alarms within a city, except for the possibility that those fees may cause fewer homeowners to install security alarms in the first place."
{¶14} The city filed a motion for summary judgment on all of appellants’ claims. In support of its motion it submitted three affidavits. One was the affidavit of Chris Bingham who, at the time, was the city's budget director. He stated that the Cincinnati Police Department estimated that the city's response to alarm calls requires a minimum of eight full-time police officers annually, as well as an estimated 20 percent in supervisory costs and other related costs. The estimated costs for 2015 through 2019 far exceeded the revenue from registration fees and penalties in those years.
{¶15} Bingham explained that although Chapter 807 sets the maximum dollar amounts that FARU may charge for registration fees and fines for false alarms, the actual dollar amounts are not determined by Cincinnati City Council, but by FARU staff on a case-by-case basis. Funds collected by FARU are deposited into the city's general fund. FARU staff uses appropriate account codes that are specific to FARU. He further stated that police and the Emergency Communications Center ("ECC") expenditures are funded for the most part by the general fund, and Chapter 807 revenue is deposited in the general fund to defray a portion of the costs associated with responding to and regulating alarm systems.
{¶16} The city also submitted the affidavit of Alice M. Hoctor, who is the Finance Division Manager for the Cincinnati Police Department. She also described the amount of costs the city incurs related to alarm systems and false alarms, which far exceed revenue. She indicated that FARU's collection efforts involved repeated notices and efforts to resolve outstanding amounts owed to the city by alarm users.
{¶17} Finally, the city presented the affidavit of Rachel L. Baldwin, who had been employed as a police officer by the Cincinnati Police Department for approximately 23 years. She described the impact of what the police refer to as "alarm drops," which are requests from ECC for an immediate police, fire or medical dispatch to premises where an alarm system on site has been activated. She stated that alarm drops are typically prompted by either an alarm company that monitors the alarm system, or by neighbors or passersby impacted by the sound produced by an activated alarm system. Regardless of who initiates the call, all alarm drops have one thing in common, which is that the person or persons in control of the premises...
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