City of Cleveland v. Howard

• Decision Date: 23 November 1987
• Docket Number: No. 87,87
• Parties: CITY OF CLEVELAND v. HOWARD. * CRB 17568.
• Court: Ohio Court of Common Pleas

Page 7

40 Ohio Misc.2d 7

532 N.E.2d 1325

CITY OF CLEVELAND v. HOWARD. ^*

No. 87 CRB 17568.

Cleveland Municipal Court, Ohio.

Nov. 23, 1987.

Patricia A. Blackmon, Chief Prosecutor, Cleveland, and William D. Ailer, for plaintiff.

Francis A. Gorczyca and Janet L. Miggins, Cleveland, for defendant.

ADRINE, Judge.

On September 2, 1987, defendant Kelly Howard was arrested and charged with a violation of Cleveland Codified Ordinances Section 619.11. This section prohibits loitering for the purpose of engaging in prostitution, solicitation or procurement.

The defendant has moved the court to dismiss the complaint. She argues that Section 619.11 is unconstitutional both on its face and as applied to her and others similarly situated.

The ordinance which the defendant now questions was the product of more than five years of debate and deliberation before Cleveland City Council. It was patterned after guidelines found in the American Law Institute's Model Penal Code, Proposed Official Draft, Sections 250.6 and 251.2. The ordinance states in part:

"No person shall remain or wander in a public place and repeatedly beckon to, or repeatedly attempt to engage passersby in conversation, or repeatedly stop or attempt to stop motor vehicles, or repeatedly interfere with the free passage of other persons for the purpose of engaging in soliciting or procuring sexual activity for hire."

Certain circumstances are set forth in the ordinance that a court might consider in an effort to determine the purpose of a defendant at the time of an arrest for its violation:

"The circumstances which may be considered in determining whether such purpose is manifested are: That such person is a known prostitute or panderer, repeatedly beckons to, stops or attempts to stop, or engages passersby in conversation or repeatedly stops or attempts to stop motor vehicle operators by hailing, waving arms or any other bodily gestures."

The defendant's challenges to the ordinance are founded upon what she perceives as violations of her rights under the First and Fourteenth Amendments to the United States Constitution, as well as Sections 11 and 16, Article I of the Ohio Constitution. These challenges may be summarized as follows:

1. The ordinance impermissibly restricts the right to free speech.

2. The ordinance sweeps under its coverage both protected and unprotected speech and is, therefore, overbroad, and a denial of due process.

3. The ordinance is vague in its terms, and fails to inform the average citizen of what conduct is forbidden. It also does not contain standards clear enough to curb the unfettered discretion of the arresting officer. These infirmities also deny due process.

4. Individuals who have previously been convicted of prostitution or pandering are treated differently under the ordinance than other citizens and are therefore denied their right to equal protection.

The prosecution counters that the defendant's constitutional arguments are groundless. It has, therefore, moved the court to deny the defendant's motion.

As this court embarks upon an analysis of the merits of the positions of the respective parties, it is mindful of the parameters within which its review must be conducted. Those parameters were cogently set forth by the Court of Appeals for the Ninth Judicial District of this state in Akron v. Parrish (Mar. 10, 1982), Summit App. No. 10385, unreported. The court in that case was called upon to evaluate constitutional challenges similar to those sub judice. The Akron municipal ordinance involved therein employed language nearly identical to that used in the Cleveland ordinance presently before the bench.

The Parrish court began its evaluation by making the following observations, at 2-3:

"It is well settled that legislative enactments benefit from a strong presumption of constitutionality. Xenia v. Schmidt (1920), 101 Ohio St. 437, 130 N.E. 24; State, ex rel. Lourin v. Indus. Comm. (1941), 138 Ohio St. 618, 37 N.E.2d 595; American Cancer Society, Inc. v. Dayton (1953), 160 Ohio St. 114, 114 N.E.2d 219; State, ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 128 N.E.2d 59; State, ex rel. Jackman v. Court of Common Pleas of Cuyahoga County (1967), 9 Ohio St.2d 159, 224 N.E.2d 906; Ohio Public Interest Action Group v. Public Util. Comm. (1975), 43 Ohio St.2d 175, 331 N.E.2d 730; and State v. Renalist, Inc. (1978), 56 Ohio St.2d 276, 383 N.E.2d 892. In construing legislative enactments, the courts are bound to avoid an unconstitutional construction if it is reasonably possible to do so. Co-operative Legislative Committee v. Public Util. Comm. (1964), 177 Ohio St. 101, 202 N.E.2d 699; Schneider v. Laffoon (1965), 4 Ohio St.2d 89, 212 N.E.2d 801; Bedford Hts. v. Tallarico (1971), 25 Ohio St.2d 211, 267 N.E.2d 802; United Air Lines v. Porterfield (1971), 28 Ohio St.2d 97, 276 N.E.2d 629, app. dismd. (1972), 407 U.S. 917, 92 S.Ct. 2461, 32 L.Ed.2d 803. Moreover, one who challenges the constitutionality of a legislative enactment bears the burden of proving its invalidity 'beyond a reasonable doubt.' Miami County v. Dayton (1915), 92 Ohio St. 215, 110 N.E. 726; Davis v. State (1927), 26 Ohio App. 340, 159 N.E. 575, aff'd (1928), 118 Ohio St. 25, 160 N.E. 473; Espy v. Montgomery (1971), 30 Ohio App.2d 65, 283 N.E.2d 177; State, ex rel. Dickman v. Defenbacher, supra; and State v. Renalist, Inc., supra."

These observations shall likewise guide this court throughout the present inquiry. See, also, State v. McDonald (1987), 31 Ohio St.3d 47, 48, 31 OBR 155, 156, 509 N.E.2d 57, 59.

The court's research on the questions now before it has uncovered numerous jurisdictions which have enacted statutes or ordinances whose language and import are substantially similar to that of the ordinance under scrutiny here. Many of these enactments have been in force for many years. Most have withstood constitutional challenges involving the self-same issues which the defendant now raises. See Akron v. Massey (1978), 56 Ohio Misc. 22, 10 O.O.3d 216, 381 N.E.2d 1362; Akron v. Parrish, supra; State v. Evans (1985) 73 N.C.App. 214, 326 S.E.2d 303; Seattle v. Jones (1971), 79 Wash.2d 626, 488 P.2d 750; People v. Smith (1978), 44 N.Y.2d 613, 407 N.Y.S.2d 462, 378 N.E.2d 1032; In re D. (1976), 27 Or.App. 861, 557 P.2d 687; Lambert v. Atlanta (1978), 242 Ga. 645, 250 S.E.2d 456; Short v. Birmingham (Ala.Ct.Crim.App.1981), 393 So.2d 518; Ford v. United States (D.C.App.1985), 498 A.2d 1135; South Bend v. Jones (Ind.App.1982), 434 N.E.2d 104; State v. Armstrong (1968), 282 Minn. 39, 162 N.W.2d 357. For those jurisdictions where similar ordinances have been found unconstitutional, see Detroit v. Bowden (1967), 6 Mich.App. 514, 149 N.W.2d771; Profit v. Tulsa (Okla.Ct.Crim.App.1980), 617 P.2d 250; Brown v. Anchorage (Alaska 1978), 584 P.2d 35; Johnson v. Carson (M.D.Fla.1983), 569 F.Supp. 974; Christian v. Kansas City (Mo.App.1986), 710 S.W.2d 11; Milwaukee v. Wilson (1980), 96 Wis.2d 11, 291 N.W.2d 452.

A comparative application of some of the above-cited authorities to the issues presented by the defendant's motion is instructive:

I

Free Speech

The gist of the defendant's free speech argument is that Section 619.11 authorizes the arrest of an individual, who happens to be known to the police as a prostitute or panderer, for such constitutionally protected activities as waving at or engaging in conversation with a passerby on a public street. A similar argument was rejected by the Court of Appeals of New York in People v. Smith, supra. In disposing of the issue, the court held, 44 N.Y.2d at 623, 407 N.Y.S.2d at 468, 378 N.E.2d at 1037-1038:

" * * * Clearly, any criminal statute penalizes conduct and may, in the abstract, be said to impinge on speech or association in some fashion. But the protections afforded by the First Amendment are not absolute and the statute at issue here does not impermissibly sweep 'within its prohibitions what may not be punished under the First and Fourteenth Amendments' (Grayned v. City of Rockford, 408 U.S. 104, 115 [92 S.Ct. 2294, 2302, 33 L.Ed.2d 222]. * * *). That defendant may have employed language and the public streets to ply her trade does not imbue her conduct with the full panoply of First Amendment protections. On the contrary, the statute, by its terms, is limited to conduct 'for the purpose of prostitution * * *'--behavior which has never been a form of constitutionally protected free speech (see Broadrick v. Oklahoma, 413 U.S. 601, 615 [, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830] * * *; Colten v. Kentucky, 407 U.S. 104, 111 [92 S.Ct. 1953, 1957, 32 L.Ed.2d 584] * * *; Shuttlesworth v. Birmingham, 382 U.S. 87, 91 [86 S.Ct. 211, 214, 15 L.Ed.2d 176] * * *; Cox v. Louisiana, 379 U.S. 559, 563 [85 S.Ct. 476, 480, 13 L.Ed.2d 487] * * *)." See, also, Short v. Birmingham, supra, at 522.

The Smith court's rationale is equally applicable to Section 619.11. Defendant's First Amendment attack upon the ordinance is not well-founded and therefore cannot be sustained.

II

Overbreadth

A statute or ordinance may be found to be impermissibly overbroad, even though its language is clear, precise and definite, if it sweeps constitutionally protected conduct within the perimeters of its prohibitions. Grayned v. City of Rockford (1972), 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222; Keyishian v. Bd. of Regents (1967), 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Shelton v. Tucker (1960), 364 U.S. 479, 489, 81 S.Ct. 247, 252, 5 L.Ed.2d231; Thornhill v. Alabama (1940), 310 U.S. 88, 97, 60 S.Ct. 736, 741-42, 84 L.Ed.1093; Akron v. Parrish, supra.

The defendant maintains that the ordinance under discussion here attempts to set forth a standard by which law enforcement officials might recognize that conduct which it seeks to outlaw. In so doing, she argues, it sweeps constitutionally protected conduct, to wit, "attempting to engage a passerby in conversation," within its prohibitions. She concludes that the ...