Singer v. City of Cincinnati

• Decision Date: 25 April 1990
• Docket Number: No. C-890060,C-890060
• Citation: 57 Ohio App.3d 1,566 N.E.2d 190
• Parties: SINGER et al., Appellants, v. CITY OF CINCINNATI et al., Appellees.
• Court: Ohio Court of Appeals

Page 1

57 Ohio App.3d 1

566 N.E.2d 190

SINGER et al., Appellants, v. CITY OF CINCINNATI et al., Appellees.

No. C-890060.

Court of Appeals of Ohio, First District, Hamilton County.

April 25, 1990.

Syllabus by the Court

1. An ordinance prohibiting the owning, keeping or harboring of "pit bull terriers" within municipal limits is a valid exercise of a city's police powers.

2. Where a police-power regulation does not affect a fundamental right or classify people based on suspect categories, the test to determine its constitutionality, under both equal protection and due process analysis, is whether the statute bears a rational relationship to a legitimate state interest.

3. An ordinance prohibiting the owning, keeping or harboring of "pit bull terriers" within municipal limits does not violate equal protection or due process guarantees under a "rational basis" test when the city's previous attempt to protect its citizens against pit bull attacks through legislation which regulated and constrained the possession of these dogs was ineffective.

4. One to whose conduct a law clearly applies does not have standing to challenge the law for vagueness.

Allen Brown, Cincinnati, for appellants.

Richard A. Castellini, City Sol., and William Gustavson, Cincinnati, for appellees.

PER CURIAM.

This cause came on to be heard upon an appeal from the Hamilton County Court of Common Pleas.

In January 1987, council members for defendant-appellee, the city of Cincinnati ("city"), enacted an ordinance forbidding the "owning," "keeping," or "harboring" of pit bull terriers in Cincinnati. Plaintiffs-appellants, Rochelle Singer and Richard Foreman, owners and breeders of registered American Staffordshire Terriers, a type of bull specifically banned by the ordinance, sought a declaratory judgment and a permanent injunction against the named defendants and challenged the constitutionality of the ordinance.

A hearing ensued. On the basis of the evidence and the testimony and arguments presented by both sides, the trial court upheld the constitutionality of the ordinance.

The ordinance at issue, Cincinnati Municipal Code Section 701-24, states:

"No person shall own, keep, or harbor a pit bull terrier, as defined herein, within the municipal limits of Cincinnati.

" 'Pit bull terrier' as used herein is hereby defined as any Staffordshire Bull Terrier or American Staffordshire Terrier breed of dog, or any mixed breed of dog which contains as an element of its breeding the breed of Staffordshire Bull Terrier or American Staffordshire Terrier as to be identifiable as partially of the breed of Staffordshire Bull Terrier or American Staffordshire Terrier.

"This section is a necessary control to eliminate the risk of attack by pit bulls, as defined herein, on human beings in the city which has become a threat to the health, safety and welfare of the public in all areas of the city; and the lack of knowledge or lack of intent is not a defense to any violation thereof."

Under the first assignment of error, appellants assert equal protection and due process violations, alleging that the ordinance is an arbitrary, capricious, and unreasonable exercise of the police power and is intrinsically overbroad. Appellants specifically contend that the ordinance is arbitrary because it provides for "total banning" as opposed to constraint or regulation, and because it deprives owners of their dogs based solely upon the dog's breed rather than upon proof of a vicious propensity. Appellants also urge that the ordinance is unreasonable because it violates procedural due process guarantees by denying the owners a hearing in connection with what amounts to the deprivation of their property right in the ownership of the dogs.

Where, as here, a police-power regulation does not affect a fundamental right or classify people based on suspect categories, the test to determine its constitutionality, under both an equal protection and due process analysis, is whether the statute bears a rational relationship to a legitimate state interest. Ohio Bureau of Employment Services v. Hodory (1977), 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513; Holloway v. Brown (1980), 62 Ohio St.2d 65, 16 O.O.3d 47, 403 N.E.2d 191; Vanater v. South Point (S.D.Ohio 1989), 717 F.Supp. 1236.

Any discussion of the constitutionality of a legislative enactment must begin with the premise that all legislative enactments enjoy a strong presumption of constitutional validity. South Euclid v. Jemison (1986), 28 Ohio St.3d 157, 28 OBR 250, 503 N.E.2d 136; State v. Robinson (1989), 44 Ohio App.3d 128, 541 N.E.2d 1092. A party challenging a public-safety law must prove by clear and convincing evidence that the legislative enactment is unconstitutional. Hilton v. Toledo (1980), 62 Ohio St.2d 394, 16 O.O.3d 430, 405 N.E.2d 1047. ¹

The record indicates that prior to the enactment of the ordinance in question the city had several laws in effect which regulated pit bull ownership. One regulation required owners of pit bulls and other vicious dogs to confine their dogs indoors or to secure them outdoors in an enclosed pen. ² Another ordinance banned the sale of pit bulls within the city limits. ³ In 1984, a resolution to ban pit bulls was defeated by city council. However, in May 1986, the resolution was reintroduced, and ultimately passed, in response to a pit bull's attack on a nine-year-old boy, and to the allegedly numerous complaints council received regarding the ineffectiveness of the regulation of pit bulls under the existing vicious-dog ordinance.

At the hearing regarding the ordinance's constitutionality, the trial court was presented with evidence which established that the specific breeds targeted by the ordinance possess inherent characteristics of aggression, strength, viciousness and unpredictability not found in other dog breeds. The evidence indicated that, unlike other breeds that retreat if they are injured in a fight or an attack, a pit bull will often bite, clamp down with its powerful jaw, and maintain its hold until...