City of Pagedale v. Murphy

• Decision Date: 15 June 2004
• Docket Number: No. ED 83655.,ED 83655.
• Citation: 142 S.W.3d 775
• Parties: CITY OF PAGEDALE, Respondent, v. Sean MURPHY, Appellant.
• Court: Missouri Court of Appeals

142 S.W.3d 775

CITY OF PAGEDALE, Respondent, v. Sean MURPHY, Appellant.

No. ED 83655.

Missouri Court of Appeals, Eastern District.

June 15, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 29, 2004.

Application for Transfer Denied September 28, 2004.

Appeal from the Circuit Court, St. Louis County, Sandra Farragut-Hemphill, J Paul J. D'Agrosa, St. Louis, MO, for appellant.

Gregory K. Allsberry, Troy, MO, for respondent.

BOOKER T. SHAW, Judge.

Sean Murphy ("Murphy") appeals from the trial court's judgment finding him guilty of possessing a pit bull in violation of City of Pagedale ("City") Ordinance No. 1169 and sentencing him to pay a fine of $100. Murphy argues the trial court's judgment is not supported by sufficient facts and that City Ordinance No. 1169 is unconstitutionally vague and indefinite because it fails to provide a definition for "pit bull." We disagree and affirm the trial court's judgment.

Murphy is a resident of the City and was charged with possession of a pit bull on his premises in violation of City Ordinance No. 1169. Murphy demanded a jury trial and the case was transferred to the Circuit Court of St. Louis County. However, in lieu of trial, Murphy and the City entered into a Joint Stipulation of Facts. The parties agreed to the following pertinent facts: On November 2, 2002 and November 16, 2002, Murphy owned, maintained and possessed a pure bred American Staffordshire Terrier in the City. According to the www.realpitbull.com website ("Website"), the only breed that can be called a "Pit Bull" (with the p and b capitalized), is the American Pit Bull Terrier. Also according to the Website, the term "pit bull" (with the p and b not capitalized) "is used to describe The American Pit Bull Terrier and any other similar, related, or look-a-like breed or mix." The Website further recognizes that "use of the term `pit bull' to describe a specific group of dogs has become commonplace in certain circles ... and breeds that are typically referred to as pit bulls include ... American Staffordshire Terriers...."

City Ordinance No. 1169 states in relevant part that, "No person shall within the City raise, maintain or possess within his or her custody or control a dog of the `pit bull' breed." (Emphasis added). The trial court found Murphy guilty of violating City Ordinance No. 1169 and sentenced him to pay a fine of $100. This appeal follows.

In his only point on appeal, Murphy argues the trial court's judgment is not supported by sufficient facts and that City Ordinance No. 1169 is unconstitutionally vague and indefinite because it fails to provide a definition for the term "pit bull."

Although the issue of this Court's jurisdiction has not been raised by either party, we have a duty to address our jurisdiction sua sponte. G.Q. Gentlemen's Quarters, Inc. v. City of Lake Ozark, 83 S.W.3d 98, 100 (Mo.App. W.D.2002). While the Supreme Court of this State generally has exclusive jurisdiction over cases dealing with the validity of a statute or a constitutional provision of this State, "[c]laims that municipal ordinances are constitutionally invalid are not within the exclusive appellate jurisdiction of the Missouri Supreme Court." Id. Therefore, we have jurisdiction to initially address the constitutionality of City Ordinance No. 1169 on appeal.

We will affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Rose v. Board of Zoning Adjustment Platte County, 68 S.W.3d 507, 512 (Mo.App. W.D.2001).

An ordinance will not be declared void for uncertainty if it is susceptible to any reasonable construction that will sustain it. City of Clarkson Valley v. Jones, 872 S.W.2d 531, 532 (Mo.App. E.D.1994). There is a presumption that ordinances enacted pursuant to a municipality's police powers are reasonable. Id. There is also a presumption that local government ordinances are constitutional. Id.

"An ordinance is void for vagueness when it uses terms `so vague that a person of common intelligence must guess at its meaning and would differ as to its application.'" Opponents of Prison Site, Inc. v. Carnahan, 994 S.W.2d 573, 582 (Mo.App. W.D.1999) (quoting, Jones, 872 S.W.2d at 532). The vagueness doctrine is premised upon the due process requirements in the United States and Missouri constitutions. Id.

Here, City Ordinance No. 1169 states, "No person shall within the City raise, maintain or possess within his or her custody or control a dog of the `pit bull' breed." (Emphasis added). There does not appear to be any Missouri case addressing the precise issue of whether the use of the term "pit bull" in an ordinance or statute without a definition is so vague and indefinite that the law is unconstitutional. However, the Supreme Court of Ohio in State v. Anderson, 57 Ohio St.3d 168, 566 N.E.2d 1224 (Oh.1991), cert. denied, Anderson v. Ohio, 501 U.S. 1257, 111 S.Ct. 2904, 115 L.Ed.2d 1067 (1991), has addressed the constitutionality of a similar law in their jurisdiction. We find its reasoning and holding instructive and apply it here.

In that case, the Ohio statute stated that a "vicious dog" was any dog that "`belong[ed] to a breed that is commonly known as a pit bull dog,'" and that "`[t]he ownership, keeping, or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog.'" Id. at 1225 (quoting Ohio R.C. 955.11(A)(4)(a)(iii)). The dog owner in that case claimed on appeal that this statute was unconstitutionally void for vagueness. Id. at 1226.

The court disagreed with the dog owner and held that the statute was not unconstitutionally void for vagueness. The court reasoned that "pit bull dogs are distinctive enough that the ordinary dog owner knows or can discover with reasonable effort whether he or she owns such a dog." Id. at 1227. The court specifically discussed certain distinguishable physical characteristics¹ of pit bulls, as well as certain distinctive behavioral features.² Id. at 1227-28. The court concluded that "the physical and behavioral traits of pit bulls together with the commonly available knowledge of dog breeds typically acquired by potential dog owners or otherwise possessed by veterinarians or breeders are sufficient to inform a dog owner as to whether he owns a dog commonly known as a pit bull dog." Id. at 1228. Additionally, the court noted that whether a particular dog is a pit bull and covered by the law is an evidentiary issue to be determined at trial, not a constitutional law issue. Id. at 1228-29 (citing Vanater, 717 F.Supp. at 1244).

We agree with the court's reasoning in ...