Cincinnati v. Hawkins

• Decision Date: 27 December 1993
• Docket Number: 93-CRB-21967,93-CRB-21972 and 93-CRB-28249,Nos. 93-CRB-16441,s. 93-CRB-16441
• Citation: 643 N.E.2d 1184,67 Ohio Misc.2d 4
• Parties: CITY OF CINCINNATI v. HAWKINS et al. *
• Court: Ohio Court of Common Pleas

Page 4

67 Ohio Misc.2d 4

643 N.E.2d 1184

CITY OF CINCINNATI v. HAWKINS et al. ^*

Nos. 93-CRB-16441, 93-CRB-21967, 93-CRB-21972 and 93-CRB-28249.

Hamilton Municipal Court, Ohio.

Decided Dec. 27, 1993.

Kevin O. Donovan and Melanie J. Reising, Asst. City Prosecutors, for the prosecution.

Robert Gutzwiller, Cincinnati, for defendant Albert Hawkins.

Douglas M. Mansfield, Columbus, for defendants Linda Norwell and Vann Ryther.

PAINTER, Judge.

I Facts and Introduction

This opinion consolidates several cases in which defendants, licensed street peddlers, were charged with "selling or offering for sale tickets to a sporting-type event at greater than face value within twenty feet of a crosswalk" in violation of Cincinnati Municipal Code ("C.M.C.") 839-11(e). This opinion will address in order the following issues: (1) the prosecution's motion for relief from joinder; (2) the effect of defendant Hawkins' no contest plea; (3) whether C.M.C. 839-11(e) defines "tickets" as merchandise; (4) whether it is unconstitutionally vague; and (5) whether it violates the Home Rule Amendment of the Ohio Constitution.

In case No. 93-CRB-16441, defendant Albert Hawkins pled no contest to the charge and now argues that he should be found not guilty because the charges do not constitute a violation of C.M.C. 839-11(e). In case No. 93-CRB-21967, defendant Vann Ryther, and in case Nos. 93-CRB-21972 and 93-CRB-28249, defendant Linda Norwell, were also charged with the same offense. Before trial, defendants Ryther and Norwell filed a motion to dismiss on the following grounds: (1) "Tickets" are not "goods, wares, or merchandise" as that term is used in C.M.C. 839-11(e); (2) C.M.C. 839-11(e) is unconstitutional under Section 3, Article XVIII, Ohio Constitution because it is in conflict with R.C. 715.63 and 715.64; (3) the complaint fails to charge an offense against defendants; and (4) C.M.C. 839-11(e) is unconstitutional and void for vagueness. These grounds were subsequently adopted by defendant Hawkins at a consolidated oral argument. Also, the prosecution has filed a motion to sever the cases.

This court commends counsel for defendants for raising the myriad issues involved here--our profession is honored by counsel who care about legal issues. Seldom do we see real legal advocacy in cases such as this. Just when we are inclined to think otherwise, the tradition and the profession live. Also, counsel for the prosecution have answered defendants' arguments with skillful research and analysis.

II Prosecution's Motion for Relief from Prejudicial Joinder

The court consolidated all cases for briefing and oral argument. The prosecution moved for relief from prejudicial joinder on the theory that defendant Hawkins waived his right to raise constitutional issues by pleading no contest. The prosecution fears that if the court rules in favor of defendant Hawkins, the prosecution will be foreclosed from appealing this court's decision. The prosecution has a point in that this court should not, pursuant to "no contest" plea, find defendant not guilty on the grounds of unconstitutionality of the ordinance involved. Rather, the assertion of unconstitutionality should be made as a motion to dismiss, under Crim.R. 12, as was done by defendants Ryther and Norwell. The prosecution's argument isn't really about prejudicial joinder, but a legal argument that defendant Hawkins should not be able to argue unconstitutionality given the procedural posture of the case. Because of the court's resolution of the various issues in the case, the issue is moot, and the prosecution's motion is overruled.

III No Contest Plea

The next issue is the procedural matter of defendant Hawkins' no contest plea. Defendant Hawkins pled no contest to the charge and then argued that he should be found not guilty because the allegations he was admitting did not constitute a violation of C.M.C. 839-11(e). The prosecution contends that defendant Hawkins' no contest plea is sufficient for a finding of guilty. The prosecution's argument is simply this--"it is unfair to plead no contest and then argue the law." While unusual in this court (not to plead no contest but to argue the law), this procedure is in fact legal.

A defendant's no contest plea constitutes a stipulation that a court can make a finding of guilty or not guilty from the prosecution's explanation of the circumstances. R.C. 2937.07. Cuyahoga Falls v. Bowers (1984), 9 Ohio St.3d 148, 9 OBR 438, 459 N.E.2d 532, holds that R.C. 2937.07 is not procedural but contains substantive rights and therefore is not superseded by Crim.R. 11. " '[A] defendant has a substantive right to be discharged by a finding of not guilty where the statement of facts reveals a failure to establish all the elements of the offense. If this were not so, assuming the complaint or indictment to be properly worded, the trial court would be bound to ignore a failure of the facts to establish a necessary element of a case and simply make the finding of guilty in a perfunctory fashion. We do not believe that is what the rule intends, and it is difficult for us to conceive a more substantive right than to be found not guilty under proper circumstances.' " Id. at 150, 9 OBR at 440, 459 N.E.2d at 535, quoting Springdale v. Hubbard (1977), 52 Ohio App.2d 255, 259-260, 6 O.O.3d 257, 259, 369 N.E.2d 808, 812.

Furthermore, Crim.R. 11(B) states: "(2) The plea of no contest is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment, information, or complaint and such plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding." A no contest plea relieves the prosecution of the burden of presenting evidence sufficient to prove the defendant guilty beyond a reasonable doubt. State v. Stow Veterans Assn. (1987), 35 Ohio App.3d 45, 519 N.E.2d 660. However, a conviction is improper when statements of factual matter presented to the court in support of the complaint negate the existence of an essential element of the offense charged. Stow Veterans and Bowers, supra.

Defendant's no contest plea is an admission that defendant was selling tickets at greater than face value within twenty feet of a crosswalk. This admission relieves the prosecution of the burden of proving this allegation beyond a reasonable doubt. Nonetheless, defendant Hawkins should be found not guilty, then, if selling tickets at greater than face value within twenty feet of a crosswalk does not constitute a violation of C.M.C. 839-11(e).

IV

"Tickets" as "Merchandise"

Defendants first argue that they have not violated C.M.C. 839-11(e) because "tickets" do not fall within the definition of "merchandise." The interpretation of a statute "starts and ends with the words chosen by the legislature, but is not limited to the words alone, because the context of the enactment must be considered. The process of interpretation requires (1) a decision about the purpose to be attributed to the statute and (2) a decision about the meaning of the legislature's words that will carry out that purpose. The words have a double function: they serve as guides to discovery of the purpose and they serve as limitations on the extent of the statute's applications. The words must be taken in their usual, normal, customary meaning." State v. Cravens (1988), 42 Ohio App.3d 69, 72, 536 N.E.2d 686, 689. In other words, courts should construe words to mean what they normally mean.

C.M.C. Chapter 839 addresses the activities of peddlers and itinerant vendors. The chapter was drafted, in general, in response to concerns about inconvenience or hazards to passersby from the activities of peddlers or vendors engaging in outdoor sales on city property, sidewalks, and streets. Judging by the zealousness with which the city of Cincinnati enforces these provisions, the danger must be extreme indeed. The ancient and honorable trade of peddler is unloved in Cincinnati.

Unfortunately and unquestionably C.M.C. Chapter 839 stands out as an example of poor statutory drafting. See Cincinnati v. Champion (Oct. 5, 1988), Hamilton App. Nos. C-870590 through 870592, unreported, 1988 WL 76421, which gives several examples. C.M.C. Chapter 839 is set out in a footnote, if for no other reason than to furnish legal drafting classes with a "before" exercise. It has, in fact, been so used. ¹ The civil servants who drafted this section were probably not paid by the word, or by the pound. The court is thus unable to discover any mitigation of their offense.

Consistent with its poor drafting, C.M.C. Chapter 839 does not define the terms "tickets" or "merchandise." However, the opening paragraph of C.M.C. 839-11 uses all-encompassing language to describe what peddlers are prohibited from displaying or selling. C.M.C. 839-11 states that no person licensed as peddler shall sell or offer for sale "goods, wares, merchandise, food, confection or drink * * *." Defendants argue that "goods, wares, and merchandise" are general, tangible items that are manufactured (as opposed to grown, harvested, or mined).

Over the years, the phrase "goods, wares, and merchandise" has evolved into a term of art (another example of lawyers' tendency to use three words when one will do). Black's Law Dictionary defines "goods, wares, and merchandise" as "[a] general and comprehensive designation of such chattels and goods as are ordinarily the subject of traffic and sale." Black's Law Dictionary (6 Ed.1990) 694. However, the subsections of 839-11 do not use the term of art "goods, wares, and merchandise" but simply use the term "merchandise."

The Oxford English Dictionary defines "merchandise" as "(2) the commodities of commerce * * * (c) * * * a saleable commodity, and article of commerce." This definition of "merchandise" is not limited to tangible physical goods. It defines the term broadly to include the buying and selling of anything than can be bought or sold. Even...