Linda Norwell and V'ann Ryther v. City of Cincinnati, Duane Reynolds, Tom Prem, David Holloway, Richard Haun, and Dennis Luken
| Decision Date | 28 May 1999 |
| Docket Number | C-980366,99-LW-2251 |
| Court | Ohio Court of Appeals |
| Parties | LINDA NORWELL and V'ANN RYTHER, Plaintiff-Appellants v. CITY OF CINCINNATI, DUANE REYNOLDS, TOM PREM, DAVID HOLLOWAY, RICHARD HAUN, And DENNIS LUKEN, Defendants-Appellees. APPEAL |
Douglas M. Mansfield, for Plaintiff-Appellants,
John J Williams, for Defendant-Appellee City of Cincinnati,
Donald E. Hardin, Special Counsel for Defendants-Appellees Reynolds, Prem, Holloway, Haun, and Luken.
Linda Norwell and V'Ann Ryther appeal from the trial court's order entering summary judgment against them in their action against the city of Cincinnati for federal civil-rights violations and related state-law torts. The claims of Norwell and Ryther arise from their arrests by Cincinnati police officers for alleged violations of city ordinances regulating sidewalk sales of goods and merchandise. In their single assignment of error, they contend that the trial court erred because genuine issues of material fact preclude summary judgment under Civ.R. 56(C). We find this assignment well taken with respect to their federal claims against the city under Section 1983, Title 42, U.S. Code, and with respect to some, but not all, of their state-law tort claims against the city. Therefore, we reverse in part and affirm in part.
Norwell and Ryther are self-described ticket brokers who were arrested on four separate occasions by members of the Cincinnati police "scalping detail" for selling Cincinnati Reds tickets on sidewalks and streets. In addition to making the arrests and issuing citations, police officers seized unsold tickets from both Norwell and Ryther. Three of the charges resulted in acquittal in the Hamilton County Municipal Court; the fourth was dismissed first for want of prosecution and then, upon remand from this court, at the request of the prosecutor.
The two women subsequently filed a civil suit in which they sought only money damages from the city of Cincinnati and the various arresting officers. The arresting officers were sued in their "official capacity as * * * law enforcement officer(s) of the City of Cincinnati." Along with alleged violations of federal civil-rights statutes, the complaint set forth state-law claims for false arrest, false imprisonment, malicious prosecution, tortious interference with business relations, and conversion. The gist of the allegations was that the city, through its police, embarked on a crusade to eliminate the practice of ticket scalping, and to put Norwell and Ryther out of business, by enforcing an anti-scalping policy when there was no law making such activity illegal.
The trial court originally granted summary judgment against Norwell and Ryther on all counts of their complaint. This court reversed that decision in Norwell v. Cincinnati (May 28, 1997), Hamilton App. No. C-960500, unreported, because certain depositions remained under seal. Upon remand, the trial court, after examination of the entire record, again granted summary judgment in favor of the city and the individual police officers. For the reasons that follow, we reverse in part.
The history of the city's anti-scalping policy is necessary to determine the lawfulness of Norwell and Ryther's conduct on the dates they were arrested. Although previous ordinances made the act of reselling tickets at greater than face value itself illegal, the last version of the ordinance, which required an excessive license fee, was declared unconstitutional by the court of common pleas, and was not replaced or reenacted. Consequently, at the time of Norwell and Ryther's arrests, ticket scalping at greater than face value was not-as it still is not-illegal in the city of Cincinnati.
There does remain, however, as the city acknowledges, a police "scalping detail." According to the city, the "scalping detail," despite its name, is "not assembled to address the sale of tickets for greater than face value." Rather, as described by the city in its brief, "[a] scalping detail is a temporary assignment [that] enforces Cincinnati's Municipal Code during special events like the opening day of the Cincinnati Reds' baseball season." The purpose of the "scalping detail," according to the city, is to enforce traffic laws and city ordinances regulating the sale of goods, merchandise, food, drink, and other commodities during special events.
Chapter 839 of the Cincinnati Municipal Code contains the city ordinances regulating these sales and applies to two types of sellers referred to as either "itinerant vendors" or "peddlers." Cincinnati Municipal Code 839-1-I and 839-1-P. The code defines the two types of sellers as follows:
"Itinerant vendor" shall mean and include any person, firm or corporation, except peddlers on the street from vehicles or door-to-door, who engages in or conducts, either as principal or agent, in the city of Cincinnati, a temporary or transient business buying or selling goods, wares, merchandise, food, confectionery or drink with the intention of continuing such business in any one place for a period of not more than 120 days.
Cincinnati Municipal Code 839-1-I.
"Peddler" shall mean and include any person who goes from city-to-city, or from place to place, or from door-to-door, selling or offering to sell or barter, or carrying for sale or barter, or exposing therefore, any goods, wares, merchandise, food, confectionery, drink, or other commodity, carried by hand, from portable stands or tables, or by manually propelled vehicles, or by motor- or animal-drawn vehicles.
Cincinnati Municipal Code 839-1-P.
Specifically excluded from the definitional activities of an "itinerant vendor" or "peddler" is the "sale of tickets to entertainment/sporting type events at face value or less." Cincinnati Municipal Code 839-5. The only limitation imposed by Chapter 839 on the sale of tickets at face value or less is that they not be displayed or sold to the occupants of vehicles stopped in traffic, or in a manner that "blocks, obstructs or restricts the free passage of pedestrians or vehicles in the lawful use of the sidewalks or highways or ingress or egress to the abutting property." Id.
The city's position is that a person reselling tickets on the street at face value or above fits the definition of a "peddler" and therefore must be licensed [1] and must comply with the requirements of Cincinnati Municipal Code 839-11. That section imposes on licensed peddlers selling "goods, wares, merchandise, food, confection or drink" limitations on the manner and location in which they may operate. Among them is the requirement that licensed peddlers not display or sell their goods within twenty feet of an intersection or on a sidewalk that is narrower than twelve feet in width. Cincinnati Municipal Code 839-11(d) and (e). It is under the authority of these provisions, the city argues, that the police properly arrested either Norwell or Ryther or both on each of the four occasions summarized below.
The claims against the city and its officers stem from the following four separate incidents resulting in the arrest of either Norwell or Ryther or both by the named officers, all of whom were members of the police "scalping detail." Although the facts of each incident are extremely important and must be considered in their entirety, they are too lengthy to describe in detail here. We therefore summarize only the primary factual disputes.
The first incident occurred on April 6, 1992, which was the opening day of the baseball season for the Cincinnati Reds. Before the game, Norwell, the owner of a business called "Ticket Connection," and Ryther, her employee, were in the downtown area. Norwell stated that she carried approximately one hundred and fifty tickets to the game in a "pouch/purse."
Officers Luken and Haun, operating in plainclothes, approached the two women on the corner of Hammond and Sycamore. Both Norwell and Ryther denied that either was selling, displaying, or advertising tickets at the time that they were stopped. Norwell stated that Officer Luken asked if she had any tickets to sell, to which she replied, having recognized the two men as police, "I don't have any tickets for police officers." Both women claimed at that point they were placed under arrest, thoroughly searched, and deprived of their entire inventory of tickets by the two officers.
The case went to trial on December 23, 1992. According to Officer Luken's testimony, the arrests were precipitated when he saw a group of approximately six to eight people congregated around Norwell and Ryther. According to him, both women were displaying tickets and engaging in discussions concerning prices above face value. He testified that he interrupted the discussion to ask for four tickets in the blue seating section and was directed toward Ryther, who asked him several times if he was a police officer. Each inquiry met with a denial. When Ryther finally quoted him a price, Luken testified, he arrested the two women and cited them for "selling tickets in excess of face value, and on [a] sidewalk less than 12 feet wide." Officer Holloway's testimony corroborated that of his partner.
Following the presentation of the evidence, the trial judge found both Norwell and Ryther not guilty without giving any explanation for his decision.
The second incident occurred on June 29, 1993, and involved Norwell and Ryther and Officers Prem, Priestle, and Holloway. Officer Prem testified that, while patrolling in a vehicle on "scalping detail" with Officers Priestle and Holloway, in plainclothes, he observed Ryther in the marked crosswalk on the corner of Third and Sycamore. According to Officer Prem,...
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