The City of Fairlawn, Ohio A. Municipal Corp. v. Ted Bare Enterprises, Inc.

• Decision Date: 07 September 1988
• Docket Number: 13465,88-LW-3117
• Parties: The CITY OF FAIRLAWN, Ohio A Municipal Corporation, Plaintiff-Appellant, v. TED BARE ENTERPRISES, INC., et al, Defendants-Appellees.
• Court: Ohio Court of Appeals

The CITY OF FAIRLAWN, Ohio A Municipal Corporation Plaintiff-Appellant, v. TED BARE ENTERPRISES, INC., et al Defendants-Appellees.

No. 13465.

88-LW-3117 (9th)

Court of Appeals of Ohio, Ninth District Summit

September 7, 1988

Appeal From Judgment Entered in the Common Pleas Court County of Summit, Ohio. Case No. CV 86 2 0696.

James R. Graves, Law Director, Fairlawn for plaintiff.

James H. Woodring, Cleveland, for plaintiff.

David E. Williams, Kent, for defendants.

DECISION AND JOURNAL ENTRY

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

GEORGE Judge.

Plaintiff-appellant, the City of Fairlawn, commenced a suit against defendant-appellees, Cinemotion Cinemas Corporation, Ted Bare Enterprises, Inc., and Rudd J. Bare, II, to collect unpaid taxes. These unpaid taxes were a result of the enactment of an admission tax ordinance. Appellees answered the complaint and raised as a counterclaim the unconstitutionality of the admission tax ordinance.

Appellant filed a motion for summary judgment which was denied by the trial court. After briefs were filed on the constitutionality of the admission tax ordinance, the trial court held that the admission tax ordinance violated the equal protection and due process clauses of both the United States and Ohio Constitutions. Thereafter, the trial court entered judgment for the appellees. It is from this judgment that the appellant appeals.

ASSIGNMENTS OF ERROR

"1.The trial court erred in failing to grant a strong presumption of constitutionality to plaintiff-appellant's admissions tax ordinance.

"2.The trial court erred in failing to require defendants-appellees to establish the unconstitutionality of plaintiff-appellant's admissions tax ordinance with proof that established such unconstitutionality beyond a reasonable doubt.

"3.The trial court erred in holding that plaintiff-appellant's admissions tax, which is imposed on amounts paid for admission to certain public places on a per entry basis, violated the equal protection and due process clauses of the United States and Ohio Constitutions because plaintiff-appellant did not impose said admissions tax on certain other places which are private and/or which do not require that an amount be paid for admission on a per entry basis."

Under the admission tax ordinance, other than the appellees, the only places upon which the admission tax is imposed are the Summit Mall Theatre, and once a year for the Tournament of Champions at Riviera Lanes. Exempt under the admission tax ordinance are recreational facilities where a membership fee is required, i.e. the Fairlawn Country Club, Scandinavian Health Spa, and The Fort Island Swim Club.

The admission tax ordinance imposed a five percent tax on the price of admission to certain recreational places. The City of Fairlawn Codified ordinances provides, in Section 892.01(b):

" "Place' includes, but is not restricted to, theaters, dance halls, amphitheaters, auditoriums, stadiums, athletic pavilions and fields, baseball and athletic parks, circuses, sideshows, swimming pools, outdoor amusement parks, and such attractions as merry-go-rounds, ferris wheels, dodge 'ems, roller coasters, observation towers and golf courses."

Section 892.01(a) defines admission charge as:

" "Admission charge' means the charge made for the right or privilege to enter into a place; however, if the charge includes rental of property or services, it shall be deemed to be an admission charge if so designated, unless the charge is for rental or services and persons who do not use such property or services are admitted free. If a lesser charge is made to persons who do not desire to use the property or services offered, the lesser charge shall constitute the admission charge. The designation of the charge as a rental or service charge shall not be construed to avoid the application of the tax if it is in effect a charge for admission."

The purpose of the ordinance was "to provide additional revenue to help off-set the cost of acquisition, construction, and maintenance" of the City of Fairlawn's park and recreational facilities. Section 892.12 provided for disposition of the collected funds as follows:

"All funds collected hereunder shall be used to pay the capital debt of the Fairlawn Bicentennial Park until such time as the park is dedicated and accepted by the City. Thereafter, all funds collected shall be appropriated for the operation and maintenance of City parks. Should there be any fund balance from the taxes levied herein at the end of any calendar year, such balance shall be transferred to the General Fund of the City."

In 1983, Section 892.12 was amended to provide:

"(1) All funds collected shall be used to further expand the City's park system through the acquisition, capital improvement and structural repairs to existing facilities. Sixty (60) percent of the tax monies collected shall be designated to the general fund under the line item "Park & Recreation General Operating Expense', and forty (40) percent of said tax funds collected shall be permitted to accumulate and shall be utilized in accordance with Section 1(a)(2) herein. [Acquisition, capital improvements and structural repairs of existing facilities.]"

Ordinance 1983-76S.

A legislative act is presumed in law to be within the constitutional power of the body making it, whether that body be a municipal or a state legislative body. City of Xenia v. Schmidt (1920), 101 Ohio St. 437, paragraph one of the syllabus. Thus, legislative enactments enjoy a strong presumption of constitutionality. See, Benevolent Assn. v. Parma (1980), 61 Ohio St.2d 375, 377 and State, ex rel. Swetland v. Kinney (1982), 69 Ohio St.2d 567.

On review of legislative acts, a court is bound to give a constitutional rather than an unconstitutional construction, if one is reasonably available. United Air Lines v. Porterfield (1971), 28 Ohio St.2d 97; State v. Meyer (1983), 14 Ohio App.3d 69. It must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible. See State, ex rel. Dichman v. Defenbacher (1955), 164 Ohio St. 142; Monroeville v. Ward (1971), 27 Ohio St.2d 179, 182.

Appellees contend that the admission tax ordinance violated both the Ohio and the United States Constitution, because it denies due process and equal protection of the law. The due process and equal protection rights under the state and federal constitutions are functionally equivalent. See State, ex rel. Heller, v. Miller (1980), 61 Ohio St.2d 6.

Due process may be violated if it is demonstrated that the legislation cannot be supported on any rational basis of fact that can reasonably be...