State v. Michael Dorso
| Decision Date | 20 January 1982 |
| Docket Number | C-810115,82-LW-4677 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. MICHAEL DORSO, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
APPEAL FROM THE HAMILTON COUNTY MUNICIPAL COURT HAMILTON COUNTY OHIO.
Messrs Richard A. Castellini, Paul J. Gorman, John L. Hanselman Jr., and Timothy Ruttle, Room 200-A, Alms and Doepke Building, 222 East Central Parkway, Cincinnati, Ohio 45202, for Plaintiff-Appellee.
Mr. Wm. Luke Leonard, 8 West Ninth Street, Cincinnati, Ohio 45202, for Defendant-Appellant.
Defendant-appellant, Michael Dorso, manager of a roller rink annexed to the Cincinnati Gardens, was charged by complaint®1¯ with a violation of Section 910-9 of the Code of Ordinances of the City of Cincinnati.®2¯ Defendant moved to dismiss the complaint on several grounds, including the asserted unconstitutionality of the Ordinance. On the day of trial, the court, following arguments, overruled the motion to dismiss. Following the ensuing trial to the court pursuant to his plea of not guilty, defendant was convicted and given the maximum sentence under the Ordinance of one hundred dollars plus costs. Appeal was timely filed, with three assignments of error presented for review, considered hereafter in reverse order.
Footnote 1 . The instant complaint alleged, in pertinent part, that defendant:
Footnote 2 . Section 910-9 of the Code of Ordinances of the City of Cincinnati, entitled "Loud Musical Noises," provides as follows:
In his third assignment of error, defendant argues that the penalty imposed by the trial court was contrary to law, inasmuch as R.C. 715.56 prescribes penalties not to exceed fifty dollars for breaches of ordinances enacted pursuant to the authority conferred upon municipalities by R.C. 715.55, dealing with punishment for disturbances of the public peace. Since the instant Ordinance prescribes a maximum penalty of one hundred dollars, and since defendant was assessed that maximum amount, a conflict arises with the general law, it is argued, requiring that the Ordinance yield to general law. OHIO CONST. Art. 18, ] 3.
The precise point was first considered in Village of Leipsic v. Folk (3d Dist. 1931), 38 Ohio App. 177, 182, 176 N.E. 95, 96-97, where the court, on authority of Village of Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519, and City of Youngstown v. Evans (1929), 121 Ohio St. 342, 168 N.E. 844, held:
This court therefore is of the opinion that the mere fact that Section 1 of Ordinance No. 397 of the village of Leipsic provides that a fine of not more than $100 may be imposed and Section 3665 of the General Code of Ohio [now codified at R.C. 715.56] provides that the fine shall in no case exceed $50 does not invalidate the ordinance of the village of Leipsic.
The rationale consistently expressed for the foregoing is the following:
Whether a municipal ordinance conflicts with the general laws is not determined by the penalties prescribed but rather whether the ordinance permits or licenses that which the statute prohibits or forbids, and vice versa.
In re Calhoun (2d Dist. 1949), 87 Ohio App. 193, 196, 94 N.E.2d 388, 391. See also Eastlake v. Board of Bldg. Stds. (1981), 66 Ohio St. 2d 363, 422 N.E.2d 598; State, ex rel. Cities Service, v. Orteca (1980), 63 Ohio St. 2d 295, 409 N.E.2d 1018; Garcia v. Siffrin (1980), 63 Ohio St. 2d 259, 407 N.E.2d 1369.
Given the foregoing, we cannot agree with defendant that the Ordinance here in question is in conflict with the general laws of the State simply because the City prescribes a different penalty, since the substance of the prohibition contained in the regulation is entirely consistent with the general laws. The third assignment of error is without merit and accordingly overruled.
In his second assignment of error, defendant argues that the judgment was contrary to the manifest weight of the evidence. It was not. A review of the record reveals that two of the five resident freeholders within auditory proximity, together with two police officers called to the scene in the early hours of the morning, testified with unusual vividness to the level of irritating and disruptive noise in the form of disco music emanating from the rink during the night hours of the period in question, and extending, indeed, until six o'clock in the morning. The fact that this testimony was controverted by two occupants of another household, among others, merely establishes an issue of credibility for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St. 2d 230, 197 N.E.2d 548; State v. Antill (1964), 176 Ohio St. 61, 197 N.E.2d 548. This issue was determined adversely to defendant, and we find no reason why it could not have been. The second assignment of error is overruled.
In his final assault on the judgment in question, defendant argues the principal question presented in this appeal: that the trial court erred in overruling his motion to dismiss the complaint on constitutional grounds. This attack assumes two forms. First, the Ordinance is said to discriminate unlawfully against certain types of businesses and, hence, to violate Fourteenth Amendment standards as to equal protection of laws. Second, the Ordinance is said to be void as unconstitutionally vague under the Fourteenth Amendment because it is imprecise to the degree that a person of ordinary understanding would find it impossible to conform himself to its dictates.
Insofar as defendant's assignment of error rests upon equal protection grounds, it is without merit. The Ordinance here in question imposes upon places of entertainment noise restrictions not imposed upon other forms of business or industry. Defendant contends that such classification is unconstitutional because it is arbitrarily discriminatory and not a valid exercise of the City's police powers. We disagree. All legislation, by its very nature, is discriminatory insofar as it erects official classifications and meter out penalties or benefits based upon those legislatively-created distinctions. See, e.g., Sturgell v. Casey (6th Cir. 1981), 640 F.2d 843; Kinney v. Kaiser-Aluminum & Chem. Corp. (1975), 41 Ohio St. 2d 120, 322 N.E.2d 880. Where this discrimination is not based upon any "suspect" classifications or does not infringe upon any fundamental right, as is true in the instant case, the question of the regulation's validity turns on whether it is supported by a rational basis or, more precisely, whether there exists a logical nexus between the end sought to be achieved and the means adopted to attain that end. Board of Educ. v. Walter (1979), 52 Ohio St. 2d 318, 390 N.E.2d 813, cert. denied (1980), 444 U.S. 1015, 100 S. Ct. 665; Primes v. Tyler (1975), 43 Ohio St. 2d 195, 331 N.E.2d 773. In the instant case, suffice it to say that the regulation is, in our judgment, a legitimate and rational exercise of the constitutional police powers of the municipality to protect the public health, safety and welfare. E.g., Clifford v. Daugherty (1980), 62 Ohio St. 2d 414, 406 N.E.2d 517. Insofar as the instant assignment is predicated upon equal protection grounds, it is overruled.
We conclude, with some reluctance, that the matter is otherwise, however, with respect to defendant's contention that the Ordinance is unconstitutionally vague in its prohibition against the amplification of noise ". . . in such a manner as to disturb the peace and quiet of the neighborhood. . . ." Specifically, defendant contends that the term "neighborhood" does not admit of any ready definition or common understanding and, hence, its inclusion in a criminal statute renders such statute unenforceable on its face. We agree.
In Connally v. General Constr. Co. (1926), 269 U.S. 385, 391, 46 S. Ct. 126, 127, the United States Supreme Court reiterated a well-established principle:
That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions...
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