City of South Euclid v. Richardson, 88-1885

• Decision Date: 07 March 1990
• Docket Number: No. 88-1885,88-1885
• Citation: 49 Ohio St.3d 147,551 N.E.2d 606
• Parties: CITY OF SOUTH EUCLID, Appellant, v. RICHARDSON, Appellee. CITY OF SOUTH EUCLID, Appellant, v. RICHARDSON, Appellee.
• Court: Ohio Supreme Court

Page 147

49 Ohio St.3d 147

551 N.E.2d 606

CITY OF SOUTH EUCLID, Appellant, v. RICHARDSON, Appellee.

CITY OF SOUTH EUCLID, Appellant, v. RICHARDSON, Appellee.

No. 88-1885.

Supreme Court of Ohio.

Submitted Nov. 22, 1989.

Decided March 7, 1990.

Jones, Day, Reavis & Pogue, Dennis M. Kelly, Albert J. Lucas, Victor E. DeMarco, Law Director, Cleveland, and Robert P. DeMarco, South Euclid, for appellant.

Berkman, Gordon, Murray & Palda, J. Michael Murray and Ann N. Butenhof, Cleveland, for appellee.

Lois Robinson, Cleveland, urging affirmance for amicus curiae, American Civil Liberties Union of Cleveland Foundation, Inc.

PER CURIAM.

On October 14, 1986, the Council of the city of South Euclid passed Ordinance No. 36-86. The ordinance makes it a first degree misdemeanor for any person to own, operate, maintain or manage a brothel and defines "brothel," in relevant part, as follows:

" * * * any place, house or dwelling maintained and/or operated by any person, organization, club or association, for the purposes of engaging in group sex, sexual conduct and sexual acts, as herein defined, lewdness or acts of gross and wanton indecency in sexual relations or other sexual activity which corrupts or tends to corrupt the morals of persons in the community."

On December 30, 1986, each of the defendants was charged with violating Ordinance No. 36-86, as set forth in the Codified Ordinances of the city of South Euclid. Upon motions to dismiss in the South Euclid Municipal Court, the court dismissed the charges against both defendants, holding that the term "brothel" as defined in the ordinance makes the ordinance void for vagueness and overbroad. The court of appeals affirmed.

We adopt the August 29, 1988 decision of the court of appeals, which decision is attached as an Appendix to this entry, and affirm the decision of the court of appeals for the reasons stated therein.

Judgment affirmed.

MOYER, C.J., and SWEENEY, HOLMES and HERBERT R. BROWN, JJ., concur.

DOUGLAS, WRIGHT and RESNICK, JJ., dissent.

APPENDIX

DAVID T. MATIA, P.J.

In case No. 54247, plaintiff-appellant, the city of South Euclid, appeals from the South Euclid Municipal Court's dismissal of plaintiff-appellant's criminal complaint against defendant-appellee Daiva Richardson. In case No. 54248, plaintiff-appellant, the city of South Euclid, appeals from the South Euclid Municipal Court's dismissal of plaintiff-appellant's criminal complaint against defendant-appellee Ronnie Richardson.

Pursuant to this court's order of August 28, 1987, in response to South Euclid's motion to consolidate appeals, and in accordance with App.R. 3(B) and Eighth District Court of Appeals Local Rule 3(B)(3), case No. 54247, South Euclid v. Daiva Richardson, and case No. 54248, South Euclid v. Ronnie Richardson, were consolidated for appeal and are therefore discussed and decided together.

On October 14, 1986, the South Euclid City Council, by a vote of 6-0, passed South Euclid City Ordinance No. 36-86, designating it an emergency ordinance:

"Section 1. That Section 666.01 Definitions, as contained in Chapter 666, Sex Related Offenses, of Part Six-General Offenses Code of the Codified Ordinances of the City of South Euclid, Ohio be and the same is hereby amended by adding, thereto, new subsections 'l' and 'm' to read as follows:

" '666.01 DEFINITIONS

"['] (l ) "Brothel" means any place, house or dwelling maintained and/or operated by any person, organization, club or association, for the purposes of engaging in group sex, sexual conduct and sexual acts, as herein defined, lewdness or acts of gross and wanton indecency in sexual relations or other sexual activity which corrupts or tends to corrupt the morals of persons in the community.

"['m] "Lewdness" means sexual conduct or relations of such gross indecency and so notorious as to corrupt community morals.'

"Section 2. That Section 666.07, Procuring, as contained in Chapter 666, Sex Related Offenses, of Part Six-General Offenses Code of the Codified Ordinances of the City of South Euclid, Ohio be and the same is hereby amended to read as follows:

" '666.07 BROTHEL; PATRONIZING; PROCURING; PROSTITUTION.

" ' * * *

"['](c) NO PERSON, ORGANIZATION, CLUB OR ASSOCIATION SHALL OWN, OPERATE, MAINTAIN OR MANAGE A BROTHEL OR SOLICIT, INVITE OR ENTICE ANOTHER TO PATRONIZE A BROTHEL OR TO ENGAGE IN ACTS OF LEWDNESS OR SEXUAL CONDUCT AS HEREIN DEFINED.

"['](d) WHOEVER VIOLATES THIS SECTION IS GUILTY OF A MISDEMEANOR OF THE FIRST DEGREE AND SHALL BE PUNISHED AS PROVIDED IN SECTION 698.02.[']

" * * *

"Section 4. That this Ordinance is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, safety and welfare of the City, and for the further reason that same is necessary in the current operation of the Police Department. Wherefore, this Ordinance shall take effect upon passage and approval."

Ordinance No. 36-86 amended two then-existing sections, 666.01 and 666.07, of the Codified Ordinances of the city of South Euclid. Section 666.01 was amended by adding definitions of "brothel" and "lewdness" to the codified ordinances. Section 666.07 was amended by adding paragraphs (c) and (d).

At some point subsequent to the passage of Ordinance No. 36-86, although the exact date is not clear from the record, Codified Ordinance No. 666.01 was renumbered to 533.01, and Codified Ordinance No. 666.07 was renumbered to 533.08.

On December 30, 1986, defendants-appellees, Daiva Richardson and Ronnie Richardson, were each charged in separate complaints with operating a brothel in violation of South Euclid Codified Ordinance Section 533.08(C), a first degree misdemeanor. Both defendants-appellees entered pleas of not guilty to the charges.

On March 13, 1987, the appellees filed identical motions to dismiss the complaints filed against them, with identical memoranda in support of the motions. On that same date, the American Civil Liberties Union of Cleveland ("ACLU") filed a motion for leave to file a brief as amicus curiae.

The appellees' motions to dismiss the complaints alleged that Ordinance No. 36-86 was "unconstitutional on its face and as applied," citing the following reasons: vagueness, overbreadth, abridgement of freedom of association, abridgement of a right to privacy, and a denial of equal protection. On April 27, 1988, the ACLU filed a brief which argued that the statute was "unconstitutionally vague and facially invalid."

On April 27, 1987, an oral hearing on appellees' motions to dismiss was held in the South Euclid Municipal Court. No transcript of this hearing is included in the record on appeal. On May 12, 1987, South Euclid filed a brief in opposition to appellees' motions to dismiss, claiming, inter alia, that Ordinance No. 36-86 is "neither vague [nor] overbroad."

On June 26, 1987, the South Euclid Municipal Court issued a twenty-one-page opinion, dismissing the charges against both appellees. The court found that:

" * * * [L]egislation must satisfy the requirements of the law and meet the standards of, and not be in conflict with, the Constitutions of the United States and [the] State of Ohio. It is these requirements and standards that Ordinance [No.] 36-86 does not meet." (Trial opinion at 5.)

Specifically, the court held that the statute was vague in its definition of the word "brothel" (Section 533.01 [L] ). The court examined exhaustively each term used by the city in its attempt to define "brothel" and noted the following at page 19 of its opinion:

" * * * The problem here, as previously explained, is that the definition of 'brothel' in Section 533.01(L) is completely different from the well-accepted, long-standing meaning in the law of 'brothel[.]' In this Court's opinion[,] no one of ordinary or even superior intelligence would define 'brothel' in the manner set forth in Section 533.01(L); therefore, the Prosecutor's argument that Section 533.01(L) is not vague and overbroad because any citizen of ordinary intelligence knows what a 'brothel' is cannot withstand analysis. Simply stated, it is true that ordinary citizens know what a 'brothel' is, but this fact cannot save 533.01(L). This is so because no one could anticipate that 'brothel' had the meaning attributed to it by Section 533.01(L), and Section 533.01(L) is written in a manner that cannot withstand constitutional analysis."

The charges against the appellees were dismissed. From this dismissal, South Euclid appeals.

South Euclid submits the following assignment of error:

"The trial court erred in granting each defendant's motion to dismiss [the] complaint and in discharging each such defendant."

The trial court set forth three reasons behind its decision that the South Euclid ordinance under which the appellees were charged is unconstitutional: " * * * [T]he manner in which 'brothel' is defined in Section 533.01(L) is void for vagueness, overbreadth and is unconstitutional on its face." (Trial opinion at 5-6.)

A statute is void for vagueness if it " 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.' " Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110. The Ohio Supreme Court has stated that " * * * 'the proper standard for determining if a statute is vague is found in Connally v. General Construction Co. (1926), 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322] * * *.' " State v. Young (1980), 62 Ohio St.2d 370, 372, 16 O.O.3d 416, 417, 406 N.E.2d 499, 501.

" 'That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common...