City of Akron v. Holley

• Decision Date: 16 November 1989
• Docket Number: No. 89,89
• Citation: 53 Ohio Misc.2d 4,557 N.E.2d 861
• Parties: CITY OF AKRON v. HOLLEY. * CRB 6683.
• Court: Ohio Court of Common Pleas

Page 4

53 Ohio Misc.2d 4

557 N.E.2d 861

CITY OF AKRON v. HOLLEY. ^*

No. 89 CRB 6683.

Akron Municipal Court, Ohio.

Nov. 16, 1989.

[557 N.E.2d 862] Syllabus by the Court

1. A municipality is granted authority to enact and enforce local police regulations within its jurisdiction pursuant to Section 3, Article XVIII of the Ohio Constitution. Legislation enacted pursuant to this authority is presumed to be constitutional when it is found to have a substantial relation to the public peace, health, safety, or welfare and

is not arbitrary, discriminatory, capricious or unreasonable

2. An ordinance which sets forth clear and definite criteria for citizens and law enforcement officers, and requires an unlawful intent along with an overt act or circumstance, is constitutional and not void for vagueness. Such an ordinance protects individuals from arbitrary and unreasonable police action.

3. While loitering, loafing and associating are all protected activities under the First Amendment to the United States Constitution, loitering activity coupled with an illegal purpose manifested by some overt act can be made criminal.

Gregg Manes, Asst. City Prosecutor, for City of Akron.

Belinda Hinton, for defendant.

TED SCHNEIDERMAN, Judge.

On September 26, 1989, the defendant, Jason Holley, through his attorney, filed a motion to dismiss claiming that the ordinance under which the defendant is charged is unconstitutional on its face. Defendant was charged with violating the recently enacted ordinance of the city of Akron captioned "Loitering for the Purpose of Engaging in Drug-Related Activity," as set forth in Section 138.26 of the Akron Codified Ordinances. ("Section" 138.26 is set forth in the Appendix.)

The defendant in his motion to dismiss and supporting brief argues three separate grounds for the unconstitutionality of the ordinance, which are as follows: (1) The ordinance is void for vagueness; (2) The ordinance is overbroad in its reach as it prohibits constitutionally protected conduct; and (3) The ordinance violates the Equal Protection Clause of the United States Constitution.

Time was granted and then extended to allow the parties adequate time to consider the issues. Both sides spent considerable time and energy in the preparation of their respective briefs, supplements and responses, and they are commended for their efforts.

Since the effective date of the ordinance, June 30, 1989, over one hundred fifty individuals have been charged with violating Section 138.26, and many of these cases are awaiting a ruling on the same or similar issues raised by counsel in this case. The other five Akron Municipal Court judges have under consideration the constitutionality of this ordinance, and as far as this judge knows, no determination has been announced. It has been the subject of considerable discussion and disagreement between some of the members of the city of Akron Prosecutor's Office, Summit County Legal Defender's staff and other interested persons. The following is this court's modest attempt to wrestle with the wording of Section 138.26 and the issues raised by the defendant's attorney.

Since mid-summer of 1988, illegal drug use in Akron has increased to an alarming level, and the number of drug-related arrests has skyrocketed. To date, most of the increase is caused by the influx of crack cocaine. The level of other crime has also increased, particularly violent crime. Much of this increase is believed to be drug related. So-called drug houses have sprung up all over Akron, especially in the older neighborhoods. The number of drug houses is reported to be in the hundreds, and the number is constantly changing. The presence of drug houses not only causes illegal drug trade but also other crime. The very existence of some residential areas is threatened. The ordinance is a reaction to this crisis. In enacting the ordinance Akron A municipality is granted authority to adopt and enforce local police regulations within their jurisdiction under Section 3, Article XVIII of the Ohio Constitution. Such legislation must have a real and substantial relation to the public peace, health, safety, welfare or morals. Cleveland v. Raffa (1968), 13 Ohio St.2d 112, 42 O.O.2d 329, 235 N.E.2d 138; Benjamin v. Columbus (1957), 167 Ohio St. 103, 4 O.O.2d 113, 146 N.E.2d 854. Generally, as long as the legislation has that real and substantial relation and is not arbitrary, discriminatory, capricious or unreasonable, it will not infringe upon the United States and Ohio Constitutions. Kelley v. Johnson (1976), 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708; Cincinnati v. Correll (1943), 141 Ohio St. 535, 26 O.O. 116, 49 N.E.2d 412. The defendant is not questioning this general authority.

City Council, in Section 3, declared it to be an emergency measure " * * * because the city's drug problems are increasing rapidly, causing immediate and imminent danger to the public health and safety and to property in the area where drug sales and use are taking place. * * * "

This legislation is presumptively constitutional. State, ex rel. Jackman, v. Court of Common Pleas (1967), 9 Ohio St.2d 159, 38 O.O.2d 404, 224 N.E.2d 906; Hoover v. Bd. of Franklin Cty. Commrs. (1985), 19 Ohio St.3d 1, 19 OBR 1, 482 N.E.2d 575; South Euclid v. Jemison (1986), 28 Ohio St.3d 157, 28 OBR 250, 503 N.E.2d 136. Local governments are presumed to be familiar with their community conditions and the needs of their citizens, and they can best formulate the appropriate legislation. Allion v. Toledo (1919), 99 Ohio St. 416, 124 N.E. 237, 6 A.L.R. 426. The burden is on the defendant to demonstrate that the action of the city council is clearly erroneous. Benjamin v. Columbus, supra. The vagueness and overbreadth arguments will be defined and then discussed together.

(1) VAGUENESS. The defendant maintains that Section 138.26 is void for vagueness due to the fact that it does not give fair notice of the proscribed conduct and fails to prevent arbitrary enforcement of the law.

When considering whether or not an enactment is void for vagueness, a two-part test must be applied. First, a law must give a person of ordinary intelligence an opportunity to know what is prohibited so that he can act accordingly. In other words, the criminal enactment must give fair notice as to what is prohibited. Second, the law must provide explicit standards for those who apply them so as to avoid arbitrary and discriminatory enforcement. Grayned v. City of Rockford (1972), 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222; State v. Young (1980), 62 Ohio St.2d 370, 16 O.O.3d 416, 406 N.E.2d 499. In Kolender v. Lawson (1983), 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, Justice O'Connor put the proposition a little differently when she stated:

" * * * [W]e have recognized recently that the more important aspect of the vagueness doctrine 'is not actual notice, but the other principal element of the doctrine--the requirement that a legislature establish minimal guidelines to govern law enforcement.' * * * "

(2) OVERBREADTH. Defendant argues that Section 138.26 adversely impacts on the right of association encompassed within the First Amendment.

Loitering, loafing, and associating are all constitutionally protected activities. Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. An ordinance may violate constitutional rights if it sweeps within its prohibition what may not be punished under the First and Fourteenth Amendments. And even though a statute written clearly and precisely may not be vague It is a long-accepted principle that the mere status of an individual cannot be made criminal. Robinson v. California (1962), 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758. An ordinance cannot make an activity criminal which is normally innocent, nor can a city outlaw vagrancy when it empowers police to arrest all "suspicious" persons. Papachristou v. City of Jacksonville, supra. In Kolender v. Lawson, supra, a California loitering statute was found unconstitutional because it required a person to account for his presence and provide identification without a clear standard or clarification. A local example of an unconstitutionally vague ordinance can be found in Akron v. Goins (July 15, 1987), Summit App. Nos. 12582, 12583, 12584 and 12585, unreported, 1987 WL 14430. The ordinance prohibited any person from being on premises that he knew or had reasonable cause to believe was used to sell or give away intoxicating liquors in violation of law.

it may be found overbroad if in its reach it prohibits constitutionally protected conduct. Grayned v. City of Rockford, supra.

The question of whether Section 138.26 is void for vagueness or is overbroad on its face turns on the interpretation of the language in that section. The eleven subparagraphs listed in Section 138.26(B) have no bearing on this question as they are "[a]mong the circumstances which may be considered in determining whether such purpose is manifested * * * " (emphasis added), Section 138.26(B). A prosecution under Section 138.26 may suggest the use of any one, all or none of the "circumstances" under Section 138.26(B) and the question of the constitutionality of any separate subparagraph must await its application in a particular case.

Section 138.26(A) is the part of the ordinance which makes certain conduct a crime. It states that no person shall loiter in certain places in a manner and under circumstances manifesting a purpose to engage in prohibited drug-related activity contrary to the provisions of R.C. Chapter 2925. The word "loiter" has a meaning that is clear to most people, the "place" is determinable except it may be subject to interpretation in a particular case, and the words "drug-related activity contrary to * * * [R.C.] Chapter 2925" are determinable, although the phrase may be a challenge to a judge giving instructions to a jury. The phrase that is open to argument is ...