City of Canton v. Burns
| Decision Date | 05 July 2016 |
| Docket Number | 2015CA00164.,Nos. 2015CA00163,s. 2015CA00163 |
| Parties | CITY OF CANTON, Plaintiff–Appellee v. Roland K. BURNS III, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Tyrone Haurtiz, Canton City Prosecutor, Jennifer L. Fitzsimmons, Canton, OH, for Plaintiff–Appellee.
Stephen J. Kandel, Canton, OH, for Defendant–Appellant.
{¶ 1} In Case Numbers 2015CA00163 and 2015CA00164, Defendant–Appellant Roland K. Burns III appeals his convictions and sentences by the Canton Municipal Court on four counts of Failure to Comply with an Order to Correct in violation of Canton Codified Ordinance 1351.03(l ). Burns raises the same arguments in both appeals. The appeals are not consolidated, but for ease of discussion, we consider both appeals in one opinion. Plaintiff–Appellee is the State of Ohio.
{¶ 2} In 2011, the City of Canton adopted the 2006 edition of the International Property Maintenance Code. Canton Codified Ord. 1351.01(a). The owner of any non-owner occupied or vacant residential structure in Canton is subject to the interior and exterior requirements of the Code. Canton Codified Ord. 1351.01(b).
{¶ 3} The City of Canton amended and supplemented the International Property Maintenance Code in Canton Codified Ord. 1351.03. Pertinent to this appeal, Canton Codified Ord. 1351.03(l ) states as follows:
{¶ 4} Defendant–Appellant Roland K. Burns III owns four rental properties located in Canton, Ohio. On June 26, 2014, the Code Enforcement Division of the City of Canton notified Burns by letter that it documented violations at 1233 Oxford Avenue NW following a visual field inspection. The City of Canton ordered Burns to abate the violations by July 3, 2014. The letter instructed as follows:
If the owner fails to correct the attached listed violations within the prescribed period of time permitted, the Chief Building Official will take the necessary actions. A $100.00 fine shall be imposed upon the property owner. Additional fines may be imposed if violations are not corrected. Whoever knowingly fails to comply with an order issued pursuant to Section 1351 shall be guilty of a minor misdemeanor on the first offense, on each subsequent offense such person shall be guilty of a misdemeanor of the fourth degree.
{¶ 5} The letter notified Burns that he had the right to appeal the order pursuant to Canton Building Code 1351. The letter further stated that if the fines were not paid by Burns within 30 days after the date of the written notice, the City of Canton could recover the fines by an action at law or by assessment.
{¶ 6} On July 3, 2014, the Code Enforcement Division of the City of Canton notified Burns by letter that it documented violations at his property located at 1003 Third Street NW. Burns was ordered to abate the violations by July 29, 2014. The letter further notified Burns that if the violations were not abated by July 29, 2014, Burns would be subject to a $100.00 fine and possibly additional fines. The letter informed Burns that, "Whoever knowingly fails to comply with an order issued pursuant to Section 1351 shall be guilty of a minor misdemeanor on the first offense, on each subsequent offense such person shall be guilty of a misdemeanor of the fourth degree." Finally, the letter stated that if the fines were not paid within 30 days of the written notice, the fines could be recovered in an action at law or by assessment.
{¶ 7} On November 18, 2014, the Code Enforcement Division notified Burns by letter there was an open complaint on his property located at 1338 Logan Avenue NW. The letter stated Burns failed to correct exterior violations and the property was referred to the Canton Law Department. Due to failed inspections, the property was assessed the following fines: 09/09/2013, $100.00; 04/22/2014, $250.00; 05/08/2014, $250.00; 11/17/2014, $500.00. Burns was ordered to pay the fines by December 18, 2014. The letter instructed Burns he had the right to appeal the fines pursuant to Canton Codified Ord. 1351. If the fines were not paid within 30 days of written notice, the fines could be recovered in an action at law.
{¶ 8} On February 12, 2015, the Code Enforcement Division notified Burns by letter that it documented violations at his property located at Market Avenue North. Burns was ordered to abate the violations by February 17, 2015. The letter further notified Burns that if the violations were not abated by February 17, 2015, Burns would be subject to a $100.00 fine and possibly additional fines. The letter included the same language regarding the possible criminal penalties.
{¶ 9} On June 15, 2015, the City of Canton charged Burns with four counts of Failure to Comply with an Order to Correct, a first-degree misdemeanor in violation of Canton Codified Ord. 1351.03(l ). In Case No. 2015CRB2625, Burns was charged for his failure to correct code violations at 1003 Third Street NW and 1338 Logan Avenue NW (Appellate Case No. 2015CA00164). In Case No. 2015CRB2558, Burns was charged for his failure to correct code violations at 1233 Oxford Avenue NW and Market Avenue North (Appellate Case No. 2015CA00163). Burns pleaded not guilty to the charges and demanded a jury trial.
{¶ 10} Burns filed a motion to declare Canton Codified Ord. 1351.03(l )(5) void for vagueness, or in the alternative, to sever the vague portion. He argued the language of the ordinance was vague because it gave the City of Canton discretion to assess a fine based on a tiered schedule if a violator failed to comply with a notice to correct, or the City of Canton could charge the violator with a first-degree misdemeanor if a violator failed to comply with a notice to correct. The City of Canton could charge a first-time violator with a first-degree misdemeanor without first assessing a fine. The trial court overruled the motion.
{¶ 11} On August 17, 2015, Burns appeared in court and changed his plea to no contest. The trial court found Burns guilty on the four counts of Failure to Comply with an Order to Correct. The trial court sentenced Burns to the Stark County Jail for 59 days and ordered him to pay $961.00 in fines and costs. He was also ordered to correct all code violations.
{¶ 12} It is from this judgment Burns now appeals.
{¶ 13} Burns raises three Assignments of Error:
{¶ 14} "I. CANTON CITY ORDINANCE 1351.03 IS UNCONSTITUTIONALLY VAGUE.
{¶ 15} "II. A PROSECUTION FOR A VIOLATION PURSUANT TO CANTON CITY ORDINANCE 1351.03(L)(5) IS BARRED BY THE DOUBLE JEOPARDY CLAUSES OF THE OHIO AND UNITED STATES CONSTITUTIONS.
{¶ 16}
{¶ 17} In his first Assignment of Error, Burns claims he was denied due process of law because the ordinance he was charged with violating is void for vagueness. He contends the provisions in Canton Codified Ord. 1351.03(l ) allowing the City of Canton to assess a progressive fine schedule or charge the violator with a first-degree misdemeanor is vague and overreaching.
{¶ 18} The void-for-vagueness doctrine ensures that individuals can ascertain what the law requires of them. State v. Rober, 6th Dist., 2015-Ohio-5501, 55 N.E.3d 641, ¶ 18 citing State v. Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991). In determining whether a statute or ordinance is void for vagueness, the court must consider whether the enactment "(1) provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific enough to prevent official arbitrariness or discrimination in its enforcement." Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 84. A statute is not void for vagueness simply because it could have been worded...
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