Mullins v. City of St. Marys

• Decision Date: 11 December 2017
• Docket Number: NO. 2–17–17,2–17–17
• Citation: 2017 Ohio 8934,91 N.E.3d 786
• Parties: Shawn MULLINS, et al., Plaintiffs–Appellees, v. CITY OF ST. MARYS, Defendant–Appellant.
• Court: Ohio Court of Appeals

91 N.E.3d 786

2017 Ohio 8934

Shawn MULLINS, et al., Plaintiffs–Appellees,

v.CITY OF ST. MARYS, Defendant–Appellant.

NO. 2–17–17

Court of Appeals of Ohio, Third District, Auglaize County.

Date of Decision: December 11, 2017

Zach G. Ferrall, for Appellant

William E. Huber, Auglaize, for Appellees

SHAW, J.

{¶ 1} Defendant-appellant, City of St. Marys ("the City"), appeals the July 7, 2017 judgment of the Auglaize County Municipal Court finding in favor of plaintiffs-appellees, Shawn and Veronica Mullins ("the Mullins"), on their appeal of the City's designation of their dog as a "Dangerous Dog" under the local ordinance. The trial court determined that the local ordinance was in conflict with the state statutes governing control of dogs and found that the state law constitutionally preempted the local ordinance.

Facts and Procedural History

{¶ 2} On May 4, 2017, the Mullins initiated this case by filing an appeal and requesting a hearing on the City's designation of their dog, Titan, as a "Dangerous Dog" under St. Marys City Ordinance ("SMCO") 505.15(a)(2). The Mullins attached the "Official Notice" informing them of the "Dangerous Dog" designation, which indicated two incidents occurred one on April 1, 2017 and the other on April 15, 2017.¹ The Mullins raised a constitutional challenge to the local ordinance defining a "Dangerous Dog" on the grounds that it was in conflict with the corresponding Ohio Revised Code provisions and that the ordinance fails to provide proper notice to a dog owner by leaving certain key terms undefined. The City maintained that the local ordinance was a permissible exercise of its local police power under the Home Rule Amendment to the Ohio Constitution and did not conflict with state law.

{¶ 3} On July 7, 2017, the trial court issued a judgment entry finding the state law to take precedence over the local ordinance. The trial court granted the Mullins relief on their appeal of the "Dangerous Dog" designation by the City and found the local ordinance to be invalid.

{¶ 4} The City filed an appeal, raising the following assignments of error.

ASSIGNMENT OF ERROR NO. 1

MUNICIPAL COURT ERRED BY RULING THAT ST. MARYS LOCAL DOG ORDINANCE IS IN CONFLICT WITH OHIO REVISED CODE STATUTES WHICH DEFINE A VICIOUS/DANGEROUS/NUISANCE DOG.

ASSIGNMENT OF ERROR NO. 2

MUNICIPAL COURT ERRED BY RULING THAT ST. MARYS LOCAL DOG ORDINANCE IS OVERBROAD OR OVERREACHED IN ITS SCOPE.

{¶ 5} We elect to address the assignments of error together due to the fact that both assignments of error challenge the trial court's determination invalidating the St. Marys City Ordinance on constitutional grounds.

First and Second Assignments of Error

{¶ 6} In their first and second assignments of error, the City maintains that the trial court erred in determining SMCO 505.15 was constitutionally infirm on the basis of it being in conflict with the state-wide comprehensive statutory provisions forth in Revised Code Chapter 955 titled "Dogs"—in particular, R.C. 955.11, which defines a "Dangerous Dog." On appeal, the City argues that SMCO 505.15 is permissible under the Home Rule Amendment to the Ohio Constitution and is a valid exercise of its local police power.

Standard of Review

{¶ 7} The constitutionality of a statute or ordinance presents a question of law and is therefore reviewed under a de novo standard. Andreyko v. Cincinnati , 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 11 (1st Dist.). In determining the constitutionality of an ordinance, we are mindful of the fundamental principle requiring courts to presume the constitutionality of lawfully enacted legislation. Akron v. Molyneaux , 144 Ohio App.3d 421, 426, 760 N.E.2d 461 (9th Dist. 2001), citing Univ. Hts. v. O'Leary , 68 Ohio St.2d 130, 135, 429 N.E.2d 148 (1981). We grant such deference to legislative enactments because "the local legislative body is familiar with local conditions and is therefore better able than the courts to determine the character and degree of regulation required." Lima v. Stepleton , 3d Dist. Allen, 2013-Ohio-5655, 5 N.E.3d 721, ¶ 11, citing Village of Hudson v. Albrecht, Inc. , 9 Ohio St.3d 69, 71, 458 N.E.2d 852.

{¶ 8} Due to this presumption, the party challenging an ordinance has the burden of demonstrating, beyond a reasonable doubt, that the law is unconstitutional. Hilton v. City of Toledo , 62 Ohio St.2d 394, 396, 405 N.E.2d 1047 (1980). Moreover, when considering the constitutionality of a legislative enactment, we are called to "liberally construe [it] to save it from constitutional infirmities." State v. Robinson , 44 Ohio App.3d 128, 130, 541 N.E.2d 1092 (12th Dist.1989). However, in applying our liberal construction, we are not permitted to "simply rewrite laws in order to render them constitutional." Id.

Home Rule Amendment

{¶ 9} Section 3, Article XVIII of the Ohio Constitution (the "Home Rule Amendment") states that municipalities are authorized "to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." As a result, the general laws of the State and the challenged ordinance should be harmonized as much as the language allows. N. Ohio Patrolmen's Benevolent Assn. v. City of Parma , 61 Ohio St.2d 375, 377, 402 N.E.2d 519 (1980). 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 Constitution confers a significantly high degree of sovereignty upon municipalities. However, the amendment does not provide cities the absolute power of self-government.").

{¶ 10} Conflicts between local ordinances and state statutes may arise in a variety of circumstances. In determining SMCO 505.15 to be in conflict with corresponding Revised Code provisions governing a "Dangerous Dog," the trial court employed the "contrary directives" analysis, which requires a reviewing court to consider "whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa."² Stepleton at ¶ 16, quoting, Village of Struthers v. Sokol , 108 Ohio St. 263, 140 N.E. 519 (1923), paragraph two of the syllabus. "If we answer this question in the negative, then no conflict exists." See id. , citing Sokol at 268, 140 N.E. 519 ("No real conflict can exist unless the ordinance declares something to be right which the state law declares to be wrong, or vice versa."). When applying the contradictory directives test, we note that the degree of state regulation on the same issue as the local ordinance is immaterial. See City of Cincinnati v. Hoffman , 31 Ohio St.2d 163, 169, 285 N.E.2d 714 (1972) ("[I]n order for * * * a conflict to arise, the state statute must positively permit what the ordinance prohibits, or vice versa, regardless of the extent of state regulation concerning the same object.").

Relevant Law

{¶ 11} At the outset, we note that under R.C. 955.221(B)(3)"[a] municipal corporation may adopt and enforce ordinances to control dogs within the municipal corporation that are not otherwise in conflict with any other provision of the Revised Code." In the case sub judice , the City designated the Mullins' dog, Titan, a "Dangerous Dog" under SMCO 505.15(a)(2). The local ordinance defines a "Dangerous Dog" in the following manner:

(a) The following definitions shall apply to this section:

(1) "Dangerous dog" is defined as a dog that, without provocation, has chased or approached in either a menacing fashion or an apparent attitude of attack, or has attempted to bite or otherwise endanger any person, while that dog is off the premises of its owner, keeper or harborer and not under the reasonable control of its owner, keeper, harborer or some other responsible person, or not physically restrained or confined in a locked pen which has a top or other locked enclosure which has a top.

(2) "Dangerous dog" is further defined as a dog which has, whether or not the dog is on or off the premises of its owner, keeper or harborer and not under the reasonable control of its owner, keeper, harborer or some other responsible person or not physically restrained, killed or caused serious injury to any person or to another animal.

(3) The definition of a "dangerous dog" for the purposes of this section does not include a "police dog" that has been trained or may be used to assist one or more law enforcement officers in the performance of their official duties.

(Emphasis added).

{¶ 12} Section 955.11 of the Revised Code defines "Dangerous Dog," as follows:

(A) As used in this section:

(1)(a) "Dangerous dog" means a dog that, without provocation, and subject to division (A)(1)(b) of this section, has done any of the following:

(i) Caused injury, other than killing or serious injury, to any person;

(ii) Killed another dog;

(iii) Been the subject of a third or subsequent violation of division (C) of section 955.22 of the Revised Code.³

(b) "Dangerous dog" does not include a police dog that has caused injury, other than killing or serious injury, to any person or has killed another dog while the police dog is being used to assist one or more law enforcement officers in the performance of their official duties.

{¶ 13} Section 955.11 of the Revised Code further defines key terms used in the statute.

(5) "Serious injury" means any of the following:

(a) Any physical harm that carries a substantial risk of death;

(b) Any physical harm that involves a permanent incapacity, whether partial or total, or a temporary, substantial incapacity;

(c) Any physical harm that involves a permanent disfigurement or a temporary, serious disfigurement;

(d) Any physical harm that involves acute pain of a duration that results in substantial suffering or any degree of prolonged or intractable pain.

(7) "Without provocation" means that a dog

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