City of Lebanon v. McClure, CA87-06-048

• Decision Date: 11 April 1988
• Docket Number: No. CA87-06-048,CA87-06-048
• Parties: CITY OF LEBANON, Appellee, v. McCLURE, Appellant. *
• Court: Ohio Court of Appeals

Page 114

44 Ohio App.3d 114

541 N.E.2d 1073

CITY OF LEBANON, Appellee, v. McCLURE, Appellant. ^*

No. CA87-06-048.

Court of Appeals of Ohio, Twelfth District, Warren County.

April 11, 1988.

Syllabus by the Court

1. A legislative body may enact legislation declaring that previously unlawful activity will thereafter be deemed a nuisance, and such legislation will be upheld against constitutional challenge if it comes within the police power.

2. Local authorities, in respect of the enactment of ordinances, are presumed to be familiar with local conditions and to know the needs of the community.

3. A municipal building code section requiring property owners to keep surfaces of premises "painted or protected with other approved coating or material where necessary for the purposes of preservation and avoiding a blighting influence on adjoining properties" and to maintain surfaces free of "broken glass, loose shingles, crumbling stone or brick, peeling paint or other conditions reflective of deterioration or inadequate maintenance" is not unconstitutionally vague. The terms of the ordinance are sufficiently certain when viewed in their context so as to provide adequate notice to persons of common intelligence of what is and is not forbidden.

J. William Duning and James Whitaker, for appellee.

Lila Rae McClure, pro se.

PER CURIAM.

On or about August 14, 1986, Doug Johnson, a Lebanon building official, notified defendant-appellant, Lila Rae McClure, of twelve separate building code violations upon her property located at 102 North High Street in Lebanon. The real estate had excessive peeling of paint from every outside wall visible from the street and exposed structural members which were not painted or protected with any other coating or material to preserve them from decay. There were also various portions of the structure which were decayed to differing degrees, the worst of which were the structural supports to the porch on the southeast corner of the house. There were loose shingles, peeling paint, and apparent general neglect of the real estate, reflective of deterioration and inadequate maintenance to the extent that the property itself was not being preserved or protected from the elements. There was also debris littering the rear yard consisting of chairs, plastic bags, sheet plastic, parts from a telescope, a rug and other miscellaneous items.

On September 9, 1986, appellant was cited for violating four sections of the Lebanon Building Code. She subsequently filed a motion to dismiss the charges based upon the unconstitutionality of specific sections of the building code. On November 13, 1986, the Lebanon Municipal Court issued a decision and judgment striking one sentence of Section 1301.01(C)(1)(a) as being unconstitutionally void for vagueness. The court found the entire Section 1301.05(D)(2)(b) to be constitutionally enacted, and the entire Section 1301.05(E)(1) to be unconstitutionally void for vagueness. The court struck one phrase from Section 1301.05(E)(4) and retained the remainder as passing constitutional muster.

On April 21, 1987, the case proceeded to trial upon the filing of an amended two-count complaint, charging appellant with violations of Sections 1301.05(C)(1)(a) and (E)(4) of the Lebanon Building Code, which sections had been amended following the court's November 13, 1986 decision. Appellant was thus charged with violating these sections which, as amended, read as follows:

"Section 1301.05 Property Maintenance

"C. Maintenance Standards

"1. General Maintenance

"a. The owner and/or occupant shall keep the exterior of all premises and every structure thereon including, but not limited to, walls, roofs, cornices, chimneys, drains, towers, porches, landings, fire escapes, stairs, store fronts, signs, windows, doors, awnings, and marquees in good repair and all surfaces thereof shall be kept painted or protected with other approved coating or material where necessary for the purposes of preservation and avoiding a blighting influence on adjoining properties. All surfaces shall be maintained free of broken glass, loose shingles, crumbling stone or brick, peeling paint or other conditions reflective of deterioration or inadequate maintenance, to the end that the property itself may be preserved safely, fire hazards eliminated, and adjoining properties and the neighborhood protected from blighting influences.

" * * *

"E. Maintenance of Premises

"4. Removal of Miscellaneous Debris--All yards, courts or lots shall be kept free of unsightly materials not appropriate to the area and debris which may cause a fire hazard or may act as a breeding place for vermin or insects."

The matter proceeded to trial on April 21, 1987 on the two counts as set forth above, and by decision dated April 23, 1987, the court found appellant guilty on both counts, and entered its judgment with sentence, suspending same pending disposition of the instant appeal. It is from this judgment that appellant filed her appeal.

Appellant's sole assignment of error is that the trial court erred in overruling her motion to dismiss the charges based on an overbroad and unconstitutionally vague city ordinance. Appellant contends that the sections of the Lebanon Building Code which she is accused of violating are unconstitutionally void for vagueness because they do not provide adequate standards by which her activity can be determined as legal or illegal. Appellant claims that the statute fails to apprise an ordinary individual of what conduct is forbidden.

We begin our analysis, as we did in State v. Wear (1984), 15 Ohio App.3d 77, 15 OBR 106, 472 N.E.2d 778, and as the trial court did, with the proposition that a presumption of constitutionality exists and that the defendant bears the burden of demonstrating the unconstitutionality of the ordinance. Downing v. Cook (1982), 69 Ohio St.2d 149, 23 O.O.3d 186, 431 N.E.2d 995; Mayfield-Dorsh, Inc. v. South Euclid (1981), 68 Ohio St.2d 156, 22 O.O.3d 388, 429 N.E.2d 159. It has also been the practice for courts to liberally construe a statute in order to save it from constitutional infirmities. State v. Slatter (1981), 66 Ohio St.2d 452, 20 O.O.3d 383, 423 N.E.2d 100. Nevertheless, a court, in interpreting a statute, cannot simply rewrite it in order to make it constitutional. Peebles v. Clement (1980), 63 Ohio St.2d 314, 17 O.O.3d 203, 408 N.E.2d 689. The test for determining whether a statute is unconstitutionally vague is set forth in the case of Kolender v. Lawson (1983), 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903, where the United States Supreme Court stated that:

"As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. * * * " (Citations omitted.) Id. at 357, 103 S.Ct. at 1858.

Thus, in order to avoid a finding of vagueness, the statute must give sufficient warning so that individuals may conduct themselves so as to avoid that which is prohibited by law. Rose v. Locke (1975), 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185.

This standard for determining if a statute is vague has been adopted in Ohio in the case of State v. Phipps (1979), 58 Ohio St.3d 271, 12 O.O.3d 273, 389 N.E.2d 1128. In Phipps, the Ohio Supreme Court adopted the vagueness doctrine as set forth in Connally v. Gen. Constr. Co. (1926), 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, wherein it was held that:

" * * * [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. * * * " See, also, State v. Young (1980), 62 Ohio St.2d 370, 16 O.O.3d 416, 406 N.E.2d 499, certiorari denied (1980), 449 U.S. 905, 101 S.Ct. 281, 66 L.Ed.2d 137.

Appellant argues that Lebanon Building Code Section 1301.05(C)(1)(a), and in particular the words "approved coating or material," and the words "conditions reflective of deterioration or inadequate maintenance," and other "subjective" terms, are susceptible to as many definitions and distinctions as there are people to apply them, and are so vague...