City of Alliance v. Carbone

909 N.E.2d 688

181 Ohio App.3d 500

2009-Ohio-1197

CITY OF ALLIANCE, Appellee, v. CARBONE, Appellant.

No. 2008-CA-00057.

Court of Appeals of Ohio, Fifth District, Stark County.

Decided March 16, 2009.

Andrew L. Zumbar, Alliance Law Director, and Jennifer Arnold, Assistant Prosecuting Attorney, for appellee.

Mark Whitaker, Alliance, for appellant.

DELANEY, Judge.

{¶ 1} Defendant-appellant, Mark Carbone, appeals from his conviction of one count of disorderly conduct in violation of Alliance Municipal Ordinance ("A.M.O.") 941.06(h) for loitering in or near a toilet building. The city of Alliance is plaintiff-appellee.

STATEMENT OF THE CASE AND FACTS

{¶ 2} On September 12, 2007, Lieutenant William Morris of the Alliance Police Department was working a sting operation in the restroom area of Butler-Rodman Park. The operation was a result of several complaints of lewd activity in the restrooms and on trails behind the restrooms at the park.

{¶ 3} Lieutenant Morris testified that on that day, there were no sporting activities in the park, nor were there any reunions or gatherings at the park. He first observed appellant's car around 1:00 p.m. when he was sitting in an unmarked car just north of the restrooms on the west side of the park. Lieutenant Morris first observed appellant as appellant drove by in his car. According to Lieutenant Morris, appellant looked at him and nodded. Lieutenant Morris nodded back as appellant drove past him. He looked in his side mirror and observed appellant slow down his car and pump his brakes repeatedly. He testified that the pumping of brakes is one of the signals that people use when they are interested in getting together with each other in a park.

{¶ 4} Lieutenant Morris exited his car and entered the bathroom, which had a "No Loitering" sign near the entrance. As he entered the bathroom, appellant drove his car around the parking lot and parked his car perpendicular to the painted lines, as Lieutenant Morris had.

{¶ 5} Lieutenant Morris stated that he was in the restroom approximately two minutes before appellant entered the restroom. When appellant entered the restroom, he immediately went to a stall and urinated. After leaving the stall, the two men engaged in a brief conversation, and appellant asked Lieutenant Morris, "What's going on?" Lieutenant Morris responded, "Nothing much," and the two men walked out together. Lieutenant Morris then asked appellant, "Are you looking to get together?" to which appellant hesitated and responded, "Sure."

{¶ 6} Lieutenant Morris then furthered the conversation by asking, "Here in a restroom or would you like to go into the woods?" Lieutenant Morris testified that that is normally what occurs. Appellant responded, "No, it's too risky." According to Lieutenant Morris, appellant then said, "I own a business down the road." Lieutenant Morris then offered to follow appellant to the business, and appellant agreed and gave him directions to the business. At that point, Lieutenant Morris identified himself as an undercover police officer and arrested appellant pursuant to A.M.O. 941.06(h) for disorderly conduct for loitering in or near a toilet building.

{¶ 7} On February 13, 2008, appellant challenged the constitutionality of the statute, arguing that the law was unconstitutionally void for vagueness and that it was overbroad. On that same day, the trial court denied his motion. Appellant exercised his right to trial on February 14, 2008, and a jury found him guilty of disorderly conduct.

{¶ 8} Appellant raises three assignments of error:

{¶ 9} "I. Alliance Municipal Ordinance 941.06(H) violates the due process clause of the Fourteenth Amendment of the United States Constitution, and Section 1 Article 1 of the Ohio Constitution, because it is unconstitutionally void for vagueness by failing to give fair notice of the proscribed conduct and failing to set forth minimum standards to prevent arbitrary enforcement of the law.

{¶ 10} "II. Alliance Municipal Ordinance 941.06(H) violates the due process clause of the Fourteenth Amendment to the U.S. Constitution, and Section 1 Article 1 of the Ohio Constitution because it is overbroad and adversely impacts the rights of association and free speech encompassed within the First amendment.

{¶ 11} "III. Appellant's conviction for one count of disorderly conduct in the parks is against the manifest weight of the evidence."

I & II

{¶ 12} In appellant's first and second assignments of error, he challenges the constitutionality of A.M.O. 941.06(h), arguing that it is both vague and overbroad and therefore violates the Due Process Clause of both the U.S. and Ohio Constitutions.

{¶ 13} Statutes enjoy a strong presumption of constitutionality, and a party seeking to have a statute declared unconstitutional must prove its unconstitutionality beyond a reasonable doubt. In re Brayden James, 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, at ¶ 13; State v. Anderson (1991), 57 Ohio St.3d 168, 171, 566 N.E.2d 1224. An appellate court's review of the constitutionality of a statute is de novo. State v. Cook (1998), 83 Ohio St.3d 404, 411, 700 N.E.2d 570.

{¶ 14} "A municipality's power to pass ordinances to promote the health, safety, morals, or general welfare of the public is broad, and not subject to precise definition." Whitehall v. Khoury, 10th Dist. No. 07AP-711, 2008-Ohio-1376, 2008 WL 787670, citing Columbus v. Truax (1983), 7 Ohio App.3d 49, 51, 7 OBR 60, 454 N.E.2d 184. A city's police power is not unlimited, however, and a municipal ordinance "`must not be arbitrary, discriminatory, capricious or unreasonable and must bear a real and substantial relation to the health, safety, morals or general welfare of the public.'" Id., quoting Cincinnati v. Correll (1943), 141 Ohio St. 535, 26 O.O. 116, 49 N.E.2d 412, paragraph one of the syllabus.

I. VAGUENESS

{¶ 15} In considering a challenge to an ordinance or statute as void for vagueness, a court is required to determine whether the enactment "(1) provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific enough to prevent official arbitrariness or discrimination in its enforcement." Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, at ¶ 84. A statute is not void for vagueness simply because it could have been worded more precisely or with additional certainty. Rather, the "critical question in all cases is whether the law affords a reasonable individual of ordinary intelligence fair notice and sufficient definition and guidance to enable him to conform his conduct to the law." Id. at ¶ 86.

{¶ 16} Appellant contends that A.M.O. 941.06(h) is void for vagueness both on its face and as it applies to him. In order to determine what constitutes loitering for the purposes of the ordinance, appellant claims that there is no guidance as to what is legal and not legal conduct, and accordingly, the law is unconstitutional as written because it reaches a wide range of innocent conduct.

{¶ 17} The freedom to loiter for innocent purposes is a recognized liberty in the United States that is protected by the Due Process Clause of the Fourteenth Amendment. Chicago v. Morales (1999), 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67. The Supreme Court has specifically held that this "right to remove from one place to another according to inclination" is an "attribute of personal liberty" protected by the Constitution. Id. at 1858, 119 S.Ct. 1849, 144 L.Ed.2d 67, citing Williams v. Fears (1900), 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.Ed. 186. "[A]n individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is `a part of our heritage.'" Id., citing Kent v. Dulles (1958), 357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d 1204.

{¶ 18} "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. * * * Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. * * * Third, but related, where a vague statute `abut[s] upon sensitive areas of basic First Amendment freedoms,' it `operates to inhibit the exercise of [those] freedoms.'" Akron v. Rowland (1993), 67 Ohio St.3d 374, 381, 618 N.E.2d 138.

{¶ 19} The Ohio Supreme Court has recognized that loitering and vagrancy laws "have a long and troubling history in Anglo-American jurisprudence." Rowland, 67 Ohio St.3d at 377, 618 N.E.2d 138. See also State v. Griffin (1999), 133 Ohio App.3d 490, 728 N.E.2d 1097 (courts generally disfavor loitering laws, as they have the potential to punish persons who use public streets innocently or when exercising constitutional rights). In the 1970s and 1980s, most American vagrancy laws were held unconstitutional by the United States Supreme Court, most famously in Papachristou v. Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. In Papachristou, the court considered a vagrancy law that penalized "rogues and vagabonds," "dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, * * * persons wandering or strolling around from place to place without any lawful purpose or object, [and] habitual loafers * * *." Id. at 156-157, 92 S.Ct. 839, 31 L.Ed.2d 110. Determining that the ordinance was vague, the court held that enforcement of the ordinance violated due process. Specifically, the court held that the Jacksonville ordinance "makes criminal activities which by modern standards are normally innocent." Id. at 163, 92 S.Ct....