City of Tiffin v. McEwen
| Decision Date | 20 November 1998 |
| Docket Number | No. 13-98-28.,13-98-28. |
| Citation | 130 Ohio App.3d 527,720 NE 2d 587 |
| Parties | CITY OF TIFFIN, Appellant, v. McEWEN, Appellee. |
| Court | Ohio Court of Appeals |
Randy F. Hoffman, City Prosecutor, for appellant.
Kristopher B. McEwen, pro se.
This is an appeal by the city of Tiffin from the judgment of the Municipal Court of Tiffin, Ohio, dismissing the charges against defendant Kristopher B. McEwen and finding Tiffin Codified Ordinance 509.11(a) to be an unconstitutional exercise of police power in violation of the defendant's rights under the First Amendment to the United States Constitution.
At approximately 1:57 a.m. on May 9, 1998, Tiffin Police Officer David Horn was sitting in a police cruiser parked at the far end of Tiffin City Lot # 5 working on reports. As Officer Horn was working, he heard "music that was loud and starting to get louder," coming from the direction of South Washington street. Officer Horn determined that the music was emanating from an approaching vehicle and drove through the parking lot towards South Washington street, a distance of over two hundred feet. He pulled out behind the passing vehicle, which was being driven by defendant Kristopher B. McEwen, and initiated a traffic stop. He issued defendant a citation for violating Tiffin Codified Ordinance 509.11, "Operation of Radios or Other Soundmaking Devices or Instruments in Vehicles," which provides:
The officer's stop was based entirely on his own observations, and there is no indication in the record that any other person was annoyed or harassed by the volume of defendant's music. A bench trial in the matter was set for May 27, 1998. At the close of the city's case-in-chief, the court sua sponte dismissed the case and found that the ordinance unconstitutionally infringed on the defendant's rights under the First Amendment to the United States Constitution.1 Although the trial court did not file an opinion explaining its reasoning, the court stated on the record that it believed that the ordinance proscribed First Amendment expression and that a restriction on such expression is only "a proper exercise of police power when that First Amendment expression annoys someone else." Because there was no "victim" in this case, the court evidently believed that the ordinance as applied exceeded the city of Tiffin's police powers. The city now takes this appeal, and asserts one assignment of error:
"The trial court erred in dismissing the case against defendant while finding enforcement of Tiffin City Ordinance Section 509.11(a) an unconstitutional infringement of defendant's First Amendment right to free expression."
Our reading of the record indicates that the trial court found the Tiffin ordinance to be unconstitutional because the ordinance allowed for a conviction in this case and others like it, where there is no evidence that any member of the community was "annoyed" by defendant's loud music. The court apparently believed that the Home Rule provisions of the Ohio Constitution place limits upon the authority of cities to enact ordinances that affect First Amendment activities. Although the basis for the court's decision is not entirely clear, it does not appear that the court directly considered the question of whether the statute comports with the requirements of the First Amendment. Thus, we will address this case primarily as a question of the limits of municipal authority under Ohio's Home Rule provisions as applied to the facts of this case, rather than a direct First Amendment challenge.2
At the outset, we observe that it is beyond question that Ohio municipalities are permitted to regulate noise. See State v. Dorso (1983), 4 Ohio St.3d 60, 64, 4 OBR 150, 153-154, 446 N.E.2d 449, 452-453. R.C. 715.49(A) provides:
"Any municipal corporation may prevent riot, gambling, noise and disturbance, and indecent and disorderly conduct or assemblages, preserve the peace and good order, and protect the property of the municipal corporation and its inhabitants."
We have found no authority for the trial court's contention that the noise that the ordinance prohibits "can...
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State v. Adams, 2004 Ohio 3199 (OH 6/14/2004)
...than one hundred feet from the property where it is created." This ordinance was upheld on appeal. Finally, in Tiffin v. McEwem (1998), 130 Ohio App.3d 527, 720 N.E.2d 587, the City of Tiffin established an ordinance prohibiting noise that was, "[p]lainly audible at a distance of 100 feet o......
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City of Lima v. Stepleton
...recognized that the amendment “grants a significant degree of sovereignty” to municipalities. City of Tiffin v. McEwen, 130 Ohio App.3d 527, 531, 720 N.E.2d 587 (3d Dist.1998). Further, because of the important policy goals served by the Home Rule Amendment and the autonomy it secures for m......
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Mullins v. City of St. Marys
...Nevertheless, we must also recognize that municipalities' home rule authority "is not absolute." City of Tiffin v. McEwen , 130 Ohio App.3d 527, 531, 720 N.E.2d 587 (3d Dist.1998) ; accord Weir v. Rimmelin , 15 Ohio St.3d 55, 56, 472 N.E.2d 341 (1984) ("The Home Rule Amendment to the Ohio C......
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People v. Arguello
...restriction of 30 feet as exercise of police power, although there was no claim of unconstitutionality); City of Tiffin v. McEwen, 130 Ohio App.3d 527, 532, 720 N.E.2d 587, 590 (1998) (ordinance prohibiting sound from a vehicle that was audible from 100 feet or more was upheld as not violat......