State v. Rosa, 95 C.A. 262 and 95 C.A. 263.

• Decision Date: 23 June 1998
• Docket Number: No. 95 C.A. 262 and 95 C.A. 263.,95 C.A. 262 and 95 C.A. 263.
• Citation: 716 NE 2d 216,128 Ohio App.3d 556
• Parties: The STATE of Ohio; City of Youngstown, Appellee, v. ROSA, Appellant.
• Court: Ohio Court of Appeals

128 Ohio App.3d 556

716 NE 2d 216

The STATE of Ohio; City of Youngstown, Appellee, v. ROSA, Appellant.

Nos. 95 C.A. 262 and 95 C.A. 263.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Decided June 23, 1998.

COPYRIGHT MATERIAL OMITTED

Dionne M. Almasy, City Prosecutor, for appellee.

Emmor F. Snyder, for appellant.

GENE DONOFRIO, Presiding Judge.

Defendant-appellant, Carmelo Rosa, appeals from decisions rendered in the Youngstown Municipal Court, finding appellant guilty of unfair or deceptive acts or practices in connection with consumer transactions in violation of Youngstown City Ordinance 727.02(a).

On July 10, 1995 and July 20, 1995, the city of Youngstown filed complaints against appellant, charging that appellant violated C.O. 727.02(a).

The charges brought forth against appellant, a business owner, stemmed from a consumer transaction conducted on January 31, 1995, in which appellant accepted money from Mildred Montalvo for services and permitted more than eight weeks to elapse without completing the services ordered. Also, on June 3, 1995, appellant accepted $100 from Tonya Stevens to repair her automobile and permitted eight weeks to elapse without giving Stevens an estimate for repairs or seeking permission to perform such repairs. Appellant refused to release Stevens's car upon her request.

In separate trials to the court, appellant was found guilty on both charges of committing an unfair or deceptive act or practice in connection with a consumer transaction in violation of Youngstown City Ordinance 727.02(a). On December 5, 1995, the trial court sentenced appellant to six months of incarceration in a minimum security facility for each violation of C.O. 727.02(a) to run concurrently. On December 22, 1995, appellant filed a timely notice of appeal. Appellant filed separate, but identical, briefs in support of his appeal of both convictions. As such, both appeals will be considered together.

In the first assignment of error, appellant argues:

"The ordinance, the provisions of which the defendant was found guilty, is in abrogation to powers conferred on municipalities under the provisions of the Constitution of Ohio, Article XVIII, section 3."

Appellant argues that Youngstown City Ordinance 727.01 et seq. and the Substantive Rules incorporated therewith ("Substantive Rules") are in conflict with the Ohio Consumer Sales Practices Act found in R.C. 1345.01 et seq. Thus, appellant contends, the ordinance is unconstitutional because it is in violation of Section-3, Article XVIII, Ohio Constitution.

The standard of review for determining the constitutionality of an ordinance was articulated in Akron v. Parrish (Mar. 10, 1982), Summit App. No. 10385, unreported, 1982 WL 5902:

"It is well settled that legislative enactments benefit from a strong presumption of constitutionality. Xenia v. Schmidt (1920), 101 Ohio St. 437, 130 N.E. 24; State ex rel. Lourin v. Indus. Comm. (1941), 138 Ohio St. 618 21 O.O. 490, 37 N.E.2d 595; American Cancer Society, Inc. v. Dayton (1953), 160 Ohio St. 114 51 O.O. 32, 114 N.E.2d 219; State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142 57 O.O. 134, 128 N.E.2d 59; State ex rel. Jackman v. Court of Common Pleas of Cuyahoga County (1967), 9 Ohio St.2d 159 38 O.O.2d 404, 224 N.E.2d 906; Ohio Public Interest Action Group v. Public Util. Comm. (1975), 43 Ohio St.2d 175 72 O.O.2d 98, 331 N.E.2d 730; and State v. Renalist, Inc. (1978), 56 Ohio St.2d 276 10 O.O.3d 408, 383 N.E.2d 892. In construing legislative enactments, the courts are bound to avoid an unconstitutional construction if it is reasonably possible to do so. Co-Operative Legislative Committee v. Public Util. Comm. (1964), 177 Ohio St. 101 29 O.O.2d 266, 202 N.E.2d 699; Schneider v. Laffoon (1965), 4 Ohio St.2d 89 33 O.O.2d 468, 212 N.E.2d 801; Bedford Hts. v. Tallarico (1971), 25 Ohio St.2d 211 54 O.O.2d 321, 267 N.E.2d 802; United Air Lines v. Porterfield (1971), 28 Ohio St.2d 97 57 O.O.2d 288, 276 N.E.2d 629, app. dismd. (1972), 407 U.S. 917, 92 S.Ct. 2461, 32 L.Ed.2d 803. Moreover, one who challenges the constitutionality of a legislative enactment bears the burden of proving its invalidity `beyond a reasonable doubt.' Miami County v. Dayton (1915), 92 Ohio St. 215, 110 N.E. 726; Davis v. State (1927), 26 Ohio App. 340, 159 N.E. 575, affd. (1928), 118 Ohio St. 25, 160 N.E. 473; Espy v. Montgomery (1971), 30 Ohio App.2d 65 59 O.O.2d 166, 283 N.E.2d 177; State ex rel. Dickman v. Defenbacher, supra; and State v. Renalist, Inc., supra." (Parallel citations added.)

The home authority rule gives great deference to municipalities in enacting ordinances. It states:

"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." (Emphasis added.) Section 3, Article XVIII, Ohio Constitution.

The test for determining whether an ordinance is in conflict with general laws was articulated in Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519, at syllabus:

"In determining whether an ordinance is in `conflict' with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa."

Both C.O. 727.02(a) and R.C. 1345.02(A) prohibit deceptive acts or practices in connection with consumer transactions. Applying the Struthers test to the instant case, C.O. 727.02(a) meets the conflict test, as it does not permit deceptive acts in connection with consumer transactions that are prohibited by R.C. 1345.02(A) or vice versa.

But the Sokol test is not exclusive. Cleveland v. Betts (1958), 168 Ohio St. 386, 389, 7 O.O.2d 151, 152-153, 154 N.E.2d 917, 919; Cincinnati v. Hoffman (1972), 31 Ohio St.2d 163, 180, 60 O.O.2d 117, 126, 285 N.E.2d 714, 725. As stated in Betts:

"Although the ordinance * * * does not permit what the statute prohibits, and vice versa, it does contravene the expressed policy of the state with respect to crimes by deliberately changing an act which constitutes a felony under state law into a misdemeanor, and this creates the kind of conflict contemplated by the Constitution. Conviction of a misdemeanor entails relatively minor consequences, whereas the commission of a felony carries with it penalties of a severe and lasting character." (Citation omitted.) Id. at 389, 7 O.O.2d at 153, 154 N.E.2d at 919

Changing an offense from a misdemeanor to a felony is also unconstitutional. Niles v. Howard (1984), 12 Ohio St.3d 162, 165, 12 OBR 232, 234-235, 466 N.E.2d 539, 541.

As stated in Toledo v. Best (1961), 172 Ohio St. 371, 16 O.O.2d 220, 176 N.E.2d 520, at syllabus:

"Where the only distinction between a state statute and a municipal ordinance, proscribing certain conduct and providing punishment therefore, is as to the penalty only but not to the degree (misdemeanor or felony) of the offense, the ordinance is not in conflict with the general law of the state." (Emphasis added .)

R.C. 1345.07(D) creates civil and private remedies for acts in violation of R.C. 1345.02(A). See State ex rel. Celebrezze v. Hughes (1991), 58 Ohio St.3d 273, 275, 569 N.E.2d 1059, 1062. However, C.O. 727.99 creates criminal sanctions for acts in violation of C.O. 727.02(a).

In enacting C.O. 727.02(a), Youngstown changed the classification of the offense of committing deceptive acts or practices in connection with consumer transactions from a civil violation to a criminal violation. Comparatively, if changing a misdemeanor offense to a felony, or vice versa, is in conflict with general state law, changing the classification of an act from a civil to a criminal violation would also be in conflict. Therefore, Youngstown has created an ordinance that is in conflict with a general law of the state, and, as a result, C.O. 727.02(a) is unconstitutional.

Appellant's first assignment of error is with merit.

In his second assignment of error, appellant contends:

"The ordinance is void for vagueness as it does not inform a person of normal intellect of the acts or practices that are prohibited and which establish criminal conduct."

Appellant argues that the rules of construction for the Substantive Rules contradict the rules of construction for the Criminal Code found in R.C. 2901.04.

R.C. 2901.04 reads:

"(A) Sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused."

The rules of construction for the Substantive Rules are found in COcp-3-01.01(A), which reads:

"A. PURPOSES, RULES OF CONSTRUCTION

"These substantive rules * * * are adopted * * * pursuant to division 1345.05(B) and Chapter 119 of the Revised Code. Without limiting the scope of any section of the Revised Code or any other rule, these rules shall be liberally construed and applied to promote their purposes and policies."

The first purpose of the Substantive Rules found in COcp-3-01.01(A)(1) reads:

"The purposes and policies of these rules are to:

"(1) define with reasonable specificity acts and practices which violate sections 1345.02 or 1345.03 of the Revised Code."

Nothing in the language of the rules of construction suggests that the Substantive Rules are to be applied strictly against the accused and liberally in favor of the state. In contrast, the rules of construction, albeit in a convoluted manner, promote specificity in the application of C.O. 727.02(a), as their purpose is to specifically define acts in violation of R.C. 1345.02, which prohibits deceptive acts or practices in connection with consumer transactions. The Substantive Rules are to be liberally construed only to promote that purpose. Thus, the rules of construction for the Substantive Rules do not contradict the rules of construction found in R.C. 2901.04.

Appellant also asserts that C.O. 727.02(a) violates his constitutional right of due...