State v. Dorso

• Decision Date: 23 March 1983
• Docket Number: No. 82-425,82-425
• Citation: 4 Ohio St.3d 60,4 OBR 150,446 N.E.2d 449
• Parties: , 4 O.B.R. 150 The STATE of Ohio (City of Cincinnati), Appellant, v. DORSO, Appellee.
• Court: Ohio Supreme Court

Page 60

4 Ohio St.3d 60

446 N.E.2d 449, 4 O.B.R. 150

The STATE of Ohio (City of Cincinnati), Appellant, v. DORSO, Appellee.

No. 82-425.

Supreme Court of Ohio.

March 23, 1983.

Syllabus by the Court

Section 910-9 of the Cincinnati Municipal Code, entitled "Loud Musical Noises," is not unconstitutionally void for vagueness.

On December 12, 1980, appellee, Michael Dorso, manager of Cincinnati Gardens Roller Rink, was charged in the Hamilton County Municipal Court with having violated Section 910-9 of the Cincinnati Municipal Code. ¹ At appellee's trial, which commenced January 21, 1981, his motion for dismissal of the complaint, based upon the alleged constitutional infirmity of the predicate statute, was overruled. He was subsequently found guilty and sentenced.

Upon appeal, the appellate court reversed the lower court decision upon finding the subject ordinance, particularly as it employed the term "neighborhood," to be unconstitutionally vague.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Richard A. Castellini, City Sol., Paul J. Gorman, City Pros., and John L. Hanselman, Jr., Cincinnati, for appellant.

Wm. Luke Leonard, Cincinnati, for appellee.

LOCHER, Judge.

In the case at bar, this court is asked to determine whether the city of Cincinnati's "Loud Musical Noises" ordinance, Section 910-9, meets constitutional prescriptions for definiteness. To accomplish this task we must examine specifically the language in the ordinance that establishes the threshold for the attachment of criminal liability for, inter alia, playing music or amplifying sound, i.e., such activities may not be conducted "in such manner as to disturb the peace and quiet of the neighborhood, having due regard for the proximity of places of residence, hospitals or other residential institutions and to any other conditions affected by such noises."

Appellant resolutely asserts that the ordinance provides the public with the requisite "fair notice" of what behavior shall be deemed criminal. Appellee and a majority of the court of appeals, however, disagree. Indeed, appellee finds impermissibly vague not only the ordinance's use of the term "neighborhood" but also that of the phrase "as to disturb the peace and quiet." Additionally, appellee argues that the ordinance's imposition upon a party playing music or amplifying sound of the obligation to consider the proximity of residential properties and other sound sensitive activities contravenes constitutional principles of due process. A review of relevant common-law precedent and the applicable rules of construction, however, clearly shows that appellant states the far better case.

It is axiomatic that all legislative enactments enjoy a presumption of constitutionality. ² Benevolent Assn. v. Parma (1980), 61 Ohio St.2d 375, 377, 402 N.E.2d 519 ; State, ex rel. Taft v. Campanella (1977), 50 Ohio St.2d 242, 246, 364 N.E.2d 21 ; State, ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 128 N.E.2d 59 , paragraph one of the syllabus. Similarly uncontroverted is the legal principle that the courts must apply all presumptions and pertinent rules of construction so as to uphold, if at all possible, a statute or ordinance assailed as unconstitutional. State v. Sinito (1975), 43 Ohio St.2d 98, 101, 330 N.E.2d 896 ; Wilson v. Kennedy (1949), 151 Ohio St. 485, 492, 86 N.E.2d 722 ; Eastman v. State (1936), 131 Ohio St. 1, 1 N.E.2d 140 , paragraph four of the syllabus. Specifically, as to challenges to a statute based upon its alleged vagueness, the United States Supreme Court has stated, " * * * [I]f this general class of offenses [to which the statute applies] can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction." United States v. Harriss (1954), 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989. Thus, we are obligated to indulge every reasonable interpretation favoring the ordinance in order to sustain it.

The court, in Harriss, also articulated the standard to be followed in determining whether a statute is impermissibly vague or indefinite. The court wrote: "The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, supra, at page 617, 74 S.Ct. at page 811. See, also, Marks v. United States (1977), 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260; Parker v. Levy (1974), 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439.

A statute or ordinance is not necessarily void for vagueness, however, merely because it could have been more precisely worded. Roth v. United States (1957), 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498; United States v. Petrillo (1947), 332 U.S. 1 7-8, 67 S.Ct. 1538, 1541-1542, 91 L.Ed. 1877. The Constitution does not mandate a burdensome specificity. As the United States Supreme Court observed in Rose v. Locke (1975), 423 U.S. 48, at pages 49-50, 96 S.Ct. 243, at pages 243-244, 46 L.Ed.2d 185, the " * * * prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for '[i]n most English words and phrases there lurk uncertainties.' Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945)." In the case at bar, the challenged ordinance cannot reasonably be described as so indefinite as to be constitutionally repugnant.

Appellee's primary assault on Cincinnati's "Loud Musical Noises" ordinance is mounted against the ordinance's adoption of the term "neighborhood." He asserts that the term is ambiguous and that the municipal council erred in failing to define it. In support of his contentions, appellee cites Connally v. General Constr. Co. (1926), 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322.

A legislative body need not define every word it uses in an enactment. See Kiefer v. State (1922), 106 Ohio St. 285, 139 N.E. 852. Moreover, any term left undefined by statute is to be accorded its common, everyday meaning. As this court previously stated in paragraph five of the syllabus in Eastman v. State, supra (131 Ohio St. 1, 1 N.E.2d 140): "Words in common use will be construed in their ordinary acceptation and significance and with the meaning commonly attributed to them."

Given the context in which it appears, the meaning of "neighborhood," as used in the herein controverted ordinance, is hardly likely to confound the person of ordinary intelligence seeking "fair warning" of what conduct the ordinance proscribes. Webster's Third New International Dictionary defines "neighborhood" to mean "the quality or state of being immediately adjacent or relatively near to something." According to Webster's Third New Collegiate Dictionary, "neighborhood" denotes "a place or region near" and "the people living near one another."

Clearly, the concept of neighborhood and the closeness it implies are well within the ken of the ordinary person. Indeed, that the definition of "neighborhood" was well within appellee's own comprehension is evident as at trial he specifically referred to those who initiated the criminal complaint against him as his "neighbors" and people who lived "very close" to his business. "Neighborhood," as employed in the statute, meets constitutional standards. We cannot reasonably have expected the municipal council to have quantified, by assigning metes and bounds, or otherwise further defined the term. The Constitution simply does not demand such specificity.

Notwithstanding appellee's protestations, we find Connally v. General Constr. Co., supra, inapposite to our present deliberations. In Connally, an Oklahoma statute, which sought to match certain workers' pay rates with those prevailing in the locality where the work was performed, was invalidated. The court ruled that the term "locality," as used in the statute, was impermissibly vague given the mobility of the construction trade.

The instant action does not, however, involve a mobile business. Neither appellee's roller rink nor the surrounding neighborhood is a transient entity. Furthermore, the Connally court explicitly limited its ruling to the facts of the case. The court stated: "In other connections or under other conditions the term 'locality' [which the court found synonymous with "neighborhood"] might be definite enough * * *." Connally v. General Constr. Co., supra, 269 U.S. at page 395, 46 S.Ct. at page 129. The case at bar presents a compelling example of the "other connection or condition" referred to in Connally. As used in the subject ordinance, "neighborhood" possesses the clarity and certainty which the Constitution demands.

Citing Coates v. Cincinnati (1971), 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214, appellee additionally contends that the phrase "to disturb the peace and quiet" is impermissibly vague as it establishes no objective measure for gauging what "disturbs." In Coates, the United States Supreme Court invalidated an ordinance which prohibited citizens from, under certain conditions, assembling and acting in a manner "annoying" to others. Again, appellee's reliance is misplaced.

The court, in Coates, did not abrogate the ordinance for the failure of its drafters to employ a term more precise than "annoying." Rather, the court's action was premised upon the state court's failure to interpret the word "annoying" in a fashion that endowed it with the requisite specificity. ³ The United States Supreme Court in its critique of the state court's treatment of the case stated, at page 613, 91 S.Ct. at page 1687:

" * * * the only construction put upon the ordinance by the state court was its unexplained conclusion that ' * * * the standard of conduct which it specifies is not dependent upon...