City of Dayton v. Allen

• Decision Date: 18 May 1971
• Docket Number: No. 337720,337720
• Citation: 271 N.E.2d 574,28 Ohio Misc. 181
• Parties: , 56 O.O.2d 366, 57 O.O.2d 351 CITY OF DAYTON, Plaintiff, v. Betty ALLEN, Defendant.
• Court: Ohio Court of Common Pleas

Page 181

28 Ohio Misc. 181

271 N.E.2d 574, 56 O.O.2d 366, 57 O.O.2d 351

CITY OF DAYTON, Plaintiff, v. Betty ALLEN, Defendant.

No. 337720.

Dayton Municipal Court, Ohio, Criminal Division.

May 18, 1971.

Henry Phillips, City Pros. Atty., Dayton, for City of Dayton.

Ted Rice, Dayton, for defendant.

RICE, Judge.

1. FACTS

Late in the evening of March 6, 1970, two City of Dayton Police Officers, one of whom was Patrolman Kirkland, observed the Defendant, Betty Allen, a known prostitute whom Kirkland had previously arrested for prostitution, and several other females, also known prostitutes, standing in front of the premises located at 1419 West Third Street, a known house of prostitution. The ladies were waving at automobiles and attempting to stop them. The Defendant was arrested and charged with Congregating in a Place of Prostitution.

This was not the first time that Officer Kirkland had seen this Defendant at this location in the company of known prostitutes. On March 3, 1970, some three days prior to the arrest, Officer Kirkland and his partner had observed the Defendant and other known prostitutes walk to the curb in front of 1419 West Third Street and attempt to flag down passing automobiles. At that time, all the girls, the Defendant included, were not only advised by the Police of the new City 'congregating' ordinance, which purports to prohibit one from knowingly congregating in a place where prostitution is carried on, but also were advised that several arrests had been previously made at that location under the 'congregating ordinance' (the location being a known house of prostitution), and that if they did not leave the area or if they were once again observed 'congregating' at these premises, an arrest would follow.

Again, on March 4, March 5, and early in the afternoon of March 6, 1970, the Defendant was seen in front of the same location, 1419 West Third Street, in the company of known prostitutes engaging in the same course of conduct. When the officers observed her for the second time on March 6, an arrest under the 'congregating ordinance' was made.

At trial, the Defendant made little attempt to defend the case on factual grounds, but rather interposed a legal defense based on the alleged unconstitutionality of the congregating ordinance in that: 1. 'Same was unconstitutionally vague to the point where it lacks ascertainable standards of guilt and is so imprecise and indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application, and 2. The ordinance violates one's constitutional rights to peaceful assembly and thus is an unconstitutional exercise of the police power by the City of Dayton.'

A motion to dismiss the affidavit on the above constitutional grounds was made prior to the taking of testimony and was taken under advisement by the Court.

The 'congregating ordinance', Section 926 of the Code of General Ordinances of the City of Dayton reads, in pertinent part, as follows:

'It shall be unlawful for any person or persons to knowingly congregate in or about any house of ill fame or any place, building, structure of conveyance where prostitution, lewdness, or assignation is permitted, conducted, or carried on; in or about any place, building, or structure where betting, bookmaking, the playing of any game of change for money or anything of value, the playing or operation of any machine, apparatus, or device for purposes of gambling or any lottery, game of policy, game of chance or gambling in any form whatsoever is permitted, conducted or carried on; or in or about any poolroom, soft drink establishment, saloon, or any premises where intoxicating liquors, barbituates, narcotic drugs, or hallucinogenic drugs are unlawfully manufactured, possessed, sold, dispensed, or given away; provided that such person or persons who congregate in or about the above-named areas or establishments have knowledge that such activities do take place therein.'

2. THE ISSUE

Is Section 926 of the Code of General Ordinances of the City of Dayton-the 'Congregating Ordinance'-Constitutional?

3. THE DECISION

A. The Holding

The City of Dayton 'Congregating Ordinance' which prohibits one from knowingly congregating in or about any one of certain named areas or establishments where certain stated illegal activities are being carried on with knowledge that such activities take place therein is UNCONSTITUTIONAL in the following respects:

1. Violative of the due process clause of the 14th Amendment to the United States Constitution in that the Ordinance imposes sanctions upon conduct that might or might not manifest an unlawful purpose, that it makes no distinction between conduct calculated to harm and conduct which is essentially innocent, thus raising the very real risk that the ordinance will be selectively or discriminatingly enforced with the standard of conduct specified in the ordinance dependent upon each individual police officer's sensitivity or discretion. The Ordinance is thus violative of due process of law in that its language is vague to the point that it lacks ascertainable standards of guilt, fails to give one fair notice of what acts are prohibited and will be punished, and is so imprecise and indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application.

2. Violative of the First Amendment to the United States Constitution made applicable to the States through the Due Process Clause of the 14th Amendment and Article One, Section Three of the Ohio Constitution in that it violates one's right of free or peaceful assembly, and is thus an unconstitutional exercise of the police power by the City of Dayton.

B. The Law

1. Background

Before going into a detailed explanation of the 'congregating ordinance,' it would be wise, at the beginning, to emphasize that the ordinance is a departure from the usual vagrancy, loitering, suspicious person, breach of the peace, or disorderly conduct statute or ordinance which Courts (both Federal and State) have been striking down for years as unconstitutional. The 'congregating ordinance' is an attempt to, while achieving the purposes of those other ordinances, stay within the bounds of what has been declared constitutional.

The aforementioned types or categories of laws have been held to be unconstitutional for the reason that they are vague and open ended laws which delegate to the police too much power over the citizen's liberty.

These laws, those which have been declared to be unconstitutional, share one common characteristic or possess one 'golden thread' running throughout-by making criminality turn on the policeman's suspicion or his satisfaction with the citizen's account of himself (note that the burden is put on the citizen to explain his presence or actions) or his view of what is orderly or disorderly, the statutes or ordinances in question delegate to the policeman too much power over the citizen's liberty-the citizen is subjected to the discretion, be it arbitrarily exercised or not, of the policeman as to whether his actions are to be, in the given case, classified as criminal. The Courts have held, in invalidating these ordinances, that they do not describe with reasonable enough certainty, the act which is forbidden. State v. Coterel, 97 Ohio App. 48, 123 N.E.2d 438, 55 O.O. 272; State v. Bovee, 60 N.P., N.S., 337. The crime and the elements constituting it must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Columbus v. Thompson,25 Ohio St.2d 26, 266 N.E.2d 571 (1971).

The 'congregating ordinance' in question herein is a direct outgrowth of the City of Dayton's loitering statute's being declared unconstitutional. Although an attempt has been made through skillful draftsmanship to avoid the constitutional pitfalls that befell the laws referred to above, it is clear that the constitutionality of the 'congregating ordinance,' being the successor the these laws, must be determined with reference to the case law that interpreted these loitering, vagrancy, suspicious person and other similar statutes. Reference to that case law, both in Ohio and in the Federal system, clearly indicates that the 'congregating ordinance,' like its predecessor, although beyond reproach in so far as its purpose is concerned, is constitutionally deficient and must be declared invalid.

It is clear that the purpose or the motive behind the enactment of the 'congregating ordinance' is a valid one. City of Columbus v. DeLong, 173 Ohio St. 81, 180 N.E.2d 158. The police authority feels that crime can be reduced by prohibiting the clustering of groups of people around and about places where criminal activity is known to occur, to wit: Houses of prostitution, gambling, and places where narcotics traffic is known to flourish. No matter how noble or understandable a purpose the prevention of crime may be (it is always better to prevent crime from occurring rather than to punish it after it has occurred), and no matter how valuable an enforcement weapon the 'congregating ordinance' may be for law enforcement agencies, the language of the statute must, under the law, comport with fundamental due process in order to be valid. Columbus v. Thompson, 25 Ohio St.2d at p. 31, 266 N.E.2d 571 (1971).

2. The ordinance is constitutionally void for vagueness and indefiniteness

It is difficult to discuss this first constitutional deficiency in the 'congregating ordinance' without overlapping into a discussion of what is, in the Court's opinion, the equally serious constitutional defect that the ordinance in question violates one's constitutional right to free or peaceful assembly guaranteed him by both the Ohio and the Federal constitution. However difficult the task, a few words must be spoken with reference to this defect in the language of the ordinance.

Basic to any criminal statute is the...