State v. McKinley
| Decision Date | 09 June 2016 |
| Docket Number | Nos. 15 MA 0052,15 MA 0054.,s. 15 MA 0052 |
| Citation | 66 N.E.3d 200 |
| Parties | STATE of Ohio, City Of Youngstown, Plaintiff–Appellee, v. William McKINLEY, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Jeffrey Moliterno, Assistant Prosecuting Attorney, Youngstown, OH, for Plaintiff–Appellee.
Richard Wm. Machuga, Youngstown, OH, for Defendant–Appellant.
{¶ 1} Defendant-appellant, William McKinley, appeals from his February 12, 2015, convictions for failure to comply with the Youngstown Property Maintenance Code in two cases in Youngstown Municipal Court following a bench trial.
{¶ 2} On October 23, 2014, a criminal complaint was filed against Appellant for failing to comply with the Youngstown Property Maintenance Code in violation of Youngstown City Ordinance (YCO) 1309.02(j). That ordinance requires that all commercial demolition work in the City of Youngstown, once begun, continue daily until finished (excluding holidays, Sundays, and inclement weather days). The complaint related to commercial property formerly known as the Woodside Receiving Hospital at 800 E. Indianola Ave.
{¶ 3} On October 24, 2014, a second criminal complaint was filed against Appellant for failing to comply with the same ordinance which also requires that all residential demolition projects be completed within 72 hours after they begin. This complaint was with regard to residential property at 1824 Selma.
{¶ 4} Appellant filed a motion to dismiss both complaints on February 9, 2015, arguing that the ordinance is unconstitutional on its face because it requires individuals not compensated by the City "to work daily at its direction" and that failure to comply could result in incarceration; that the ordinance is in violation of the Thirteenth Amendment to the U.S. Constitution and Article I, Section 6 of the Ohio Constitution, both of which prohibit involuntary servitude; and that the ordinance was unreasonable. The City filed a response on February 12, 2015.
{¶ 5} The trial court held a hearing on Appellant's motion on February 12, 2015. After hearing argument from both parties, the trial court denied Appellant's motion to dismiss.
{¶ 6} Immediately after the trial court's denial of Appellant's motion to dismiss, both parties indicated they were prepared to proceed to trial, whereupon a bench trial took place.
{¶ 7} The City presented two witnesses, Abigail Brubaker and Officer Russell Davis. Brubaker testified that she is the City's code enforcement officer and blight remediation superintendent and is charged with overseeing demolition work. She testified that, with regard to the Indianola property, there were numerous days when the weather was sunny and warm in the middle of summer during which no work was performed. Brubaker testified that she has overseen between 50 and 100 commercial projects of similar size that were completed in five to eight months after demolition started, including the GE building on Market Street, the Wean United building, and car lots on Wick Avenue. She testified that she visited the Indianola property between 50 and 75 times and that the project began in August, 2012, but was still not completed in February, 2015. With regard to the Selma property, Brubaker testified that demolition began in September, 2014, and ended in November, 2014, although she did not know the exact dates.
{¶ 8} Officer Davis testified that he has been a Youngstown City police officer for over 20 years and was responsible for patrolling the section of the City where the Indianola property is located during the entire period of time in question. He testified that he observed the property on approximately 75% of the days he worked during this time frame and that there had been no activity at the site for the few months preceding his testimony. He testified that during this time frame there were many days, including sunny days, when no work was being performed.
{¶ 9} Appellant offered no evidence.
{¶ 10} Appellant was found guilty on both complaints. With regard to the Indianola property, Appellant was sentenced to three days incarceration and electronic monitored house arrest for one year. The electronic monitored house arrest would terminate earlier upon successful completion of the demolition and cleanup. Appellant also received two years of intensive probation, a $250.00 fine, and a $100.00 reimbursement sanction for Community Control Supervision. With regard to the Selma property, Appellant was sentenced to electronic monitored house arrest for one year. The electronic monitored house arrest would terminate earlier upon successful completion of the demolition and cleanup (the City acknowledged that the project is complete), two years of intensive probation supervision, a $250.00 fine and a $100.00 reimbursement sanction for Community Control Supervision. Appellant's sentence was stayed on March 27, 2015, pending this appeal.
{¶ 11} Appellant filed timely appeals in both cases on March 27, 2015.
{¶ 12} Appellant's First Assignment of Error states:
THE TRIAL COURT ERRED IN FINDING YOUNGSTOWN CITY ORDINANCE SECTION 1309.02(j) A VALID EXERCISE OF THE CITY'S POLICE POWER.
{¶ 13} The Ohio Constitution, Article XVIII, Section 3, provides:
Municipalities shall have authority 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.
{¶ 14} Legislative enactments are presumed to be constitutional. State ex rel. Scott v. Cleveland, 112 Ohio St.3d 324, 327, 2006-Ohio-6573, 859 N.E.2d 923, ¶ 18 (2006) ; McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 20. In Arnold v. Cleveland, 67 Ohio St.3d 35, 38–39, 616 N.E.2d 163 (1993), the Ohio Supreme Court explained:
In determining the constitutionality of an ordinance, we are mindful of the fundamental principle requiring courts to presume the constitutionality of lawfully enacted legislation. Univ. Hts. v. O'Leary (1981), 68 Ohio St.2d 130, 135, 22 O.O.3d 372, 375, 429 N.E.2d 148, 152 ; and Hilton v. Toledo (1980), 62 Ohio St.2d 394, 396, 16 O.O.3d 430, 431, 405 N.E.2d 1047, 1049. Further, the legislation being challenged will not be invalidated unless the challenger establishes that it is unconstitutional beyond a reasonable doubt. Id. See, also, Hale v. Columbus (1990), 63 Ohio App.3d 368, 372, 578 N.E.2d 881, 883.
{¶ 15} In State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 147, 128 N.E.2d 59 (1955), the Ohio Supreme Court explained:
A regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality. This court has held enactments of the General Assembly to be constitutional unless such enactments are clearly unconstitutional beyond a reasonable doubt.
To establish that an ordinance is unconstitutional is a heavy burden.
{¶ 16} Appellant does not assert that YCO 1309.02(j) is in conflict with any general laws. See Ohio Constitution, Article XVIII, Section 3. Instead, Appellant asserts that this ordinance is not a reasonable ordinance in that it does not take into consideration daily work demands of a contractor, such as equipment failures, personnel issues, other business interests, and business judgment. In effect, Appellant argues that the City took over operation of the Appellant's business. The ordinance also, according to Appellant, interferes with private rights by apparently allowing only Sunday as a day for religious observances. Appellant relies on Hausman v. Dayton, 73 Ohio St.3d 671, 678, 653 N.E.2d 1190 (1995) and Teegardin v. Foley, 166 Ohio St. 449, 143 N.E.2d 824 (1957), paragraph one of the syllabus, quoted in Hausman.
Id., paragraph one of the syllabus.
{¶ 18} Appellant asserts that the ordinance in question here fails the Teegardin and Hausman test because it places work demands upon Appellant without considering Appellant's changing factors involved in the operation of a business such as equipment failures, personnel issues, other business interests or contracts, and Appellant's own business judgment. Appellant cites no analogous cases or other authority to support these assertions. Appellant offers no evidence that any of these potential problems affected him but only makes these assertions in the abstract.
{¶ 19} In response, the City notes that the purpose of the ordinance is to allow some degree of control over demolition projects in the City of Youngstown. The City explains that the Indianola project is a large demolition project and is next door to a preschool. Appellant does not assert that this is an area over which the City is incapable of exercising some control. The City notes it has many nuisance properties and an interest in ensuring that once a commercial demolition project begins, it is competently managed. As the City notes, once a project begins, there is rubble and construction equipment on the site. There is a need to fence the property. All of this, according to the City, relates to public safety and health and is not unreasonable. Appellant has failed to articulate why the ordinance does not relate to these health and safety concerns of the City.
{¶ 20} In the last sentence of his First...
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