City of Bowling Green v. Schabel

970 N.E.2d 484

2005 -Ohio- 6522

CITY OF BOWLING GREEN, Appellee,

v.SCHABEL et al., Appellants.

No. WD–05–013.

Court of Appeals of Ohio, Sixth District, Wood County.

Decided Dec. 9, 2005.

Matthew L. Reger, Bowling Green Prosecuting Attorney, for appellee.

Rodney A. Fleming, Michael S. Skulina, Bowling Green, and Angelita Cruz Bridges, Toledo, for appellants.

PIETRYKOWSKI, Judge.

{¶ 1} This appeal is before the court from the Bowling Green Municipal Court, wherein, appellants were each convicted of violating a nuisance-party ordinance. Because we find that the ordinance is not unconstitutionally vague, overbroad, or an unconstitutional exercise of legislative power, we affirm the convictions.

{¶ 2} In the fall of 2004, each appellant was separately cited under Bowling Green Codified Ordinances 132.18 for hosting a nuisance party. On November 18, 2004, the case of appellant, Craig J. Schabel, was heard. At that time, the trial court received oral arguments on motions to dismiss filed by all the appellants. These motions all asserted that the ordinance was unconstitutional. The trial court took that matter under advisement and proceeded immediately to trial on the charge against appellant Schabel.

{¶ 3} At appellant Schabels' trial, the state presented the testimony of Bowling Green Police Officer Robin Short, the officer who responded to an anonymous loud-party complaint in the early morning hours of September 11, 2004. Upon approaching Schabel's residence, Officer Short heard loud noises coming from the area and loud music coming from inside the residence. Officer Short also observed at least 20 people standing in the front yard. Several people dropped beer cans and vacated as she approached. A few individuals went inside the residence and shut the door. Officer Short knocked on the door several times, but no one opened it. Eventually, Schabel approached Officer Short by her police vehicle and produced identification that indicated that he was 19 years old. Officer Short testified that there were indications that Schabel had recently consumed alcohol. He had bloodshot eyes and smelled of alcohol. Schabel represented to Officer Short that he resided at the property and that he was responsible for the party. Appellant also acknowledged the presence of litter in the yard. Officer Short issued a nuisance-party citation to Schabel.

{¶ 4} In a December 16, 2004 decision and judgment entry, the trial court rejected appellants' constitutional challenge to the ordinance and denied appellants' motion to dismiss. In another December 16, 2004 decision and judgment entry, the trial court found appellant Schabel guilty of violating the nuisance-party ordinance, specifically citing the littering and unlawfully loud noise conditions that had occurred on the property. Similarly, on January 26, 2005, the remainder of appellants who had each entered a no-contest plea to the charge of violating the nuisance-party ordinance were found guilty of the charge.

{¶ 5} Appellants raise the following assignments of error:

{¶ 6} “I. The trial court erred by failing to find Bowling Green Ordinance § 132.18 unconstitutionally vague in violation of the due process clause.

{¶ 7} “II. The trial court erred by failing to find Bowling Green Ordinance § 132.18 unconstitutionally broad in violation of the fundamental rights of free assembly and association.

{¶ 8} “III. The trial court erred by failing to find Bowling Green Ordinance § 132.18 an unconstitutional exercise of legislative power.

{¶ 9} “IV. The trial court erred in finding defendant-appellants guilty of violating Bowling Green Ordinance § 132.18 without evidence that defendant-appellants had the requisite mens rea.”

{¶ 10} We first set forth the language of Bowling Green Codified Ordinances 132.18:

{¶ 11} “(A) Nuisance party defined. A social gathering or party which is conducted on premises within the city and which, by reason of the conduct of the persons in attendance, results in any one or more of the following conditions or events occurring at the site of the said party or social gathering, or on neighboring public or private property: disorderly conduct; illegal open container; outdoor urination or defecation in a public place; unlawful sale, furnishing, dispensing or consumption of beer or intoxicating liquor; sale or furnishing of beer or intoxicating liquor to an underage person; possession or consumption of beer or intoxicating liquor by an underage person; illegal use of a controlled substance; public indecency; unlawful deposit of litter or refuse; the damage or destruction of property without the consent of the property owner; unlawful pedestrian or vehicular traffic; standing or parking of vehicles that obstructs the free flow of traffic on the public streets and sidewalks or that impedes the ability to render emergency services; unlawfully loud noise; or any other conduct or condition that threatens injury, inconvenience, or alarm to persons or damage to property which is hereby declared to be an unlawful public nuisance.

{¶ 12} “(B) Duty to control premises. Any person who is an owner, occupant, tenant, or otherwise has rightful possession or possessory control, individually or jointly with others, of any premises, who either sponsors, conducts, hosts, invites, or permits a social gathering or party on said premises which is or becomes a nuisance party, as defined in division (A), and which nuisance is either the intentional result of, or within the reasonable expectations of, the person or persons having such possessory control is deemed to be in violation of this section.

{¶ 13} “(C) Order to cease and disperse. A party or social gathering that is or becomes a nuisance party, as defined in division (A), shall cease upon the order of the Police Chief, or the Police Chief's designee; and all persons not residing therein at the site of such social gathering or party shall leave the premises immediately. Any person who fails or refuses to obey and abide by such an order shall be guilty of a violation of this section.

{¶ 14} “(D) Penalty. Whoever violates this section is guilty of a minor misdemeanor; for a second offense committed within six months after the commission of the first offense, the person shall be guilty of a fourth degree misdemeanor.”

{¶ 15} In appellants' first assignment of error relative to due process, they contend that since “social gathering,” “party,” and “neighboring” property are not defined by the ordinance, it is vague, and thus, a defendant would not have proper notice that his conduct could result in criminal sanctions. Appellants also assert that the mens rea requirement of the host's “intentional” or “reasonable expectation” with regard to the nuisance conditions or events that occur at the gathering fail to give fair warning to the ordinary person. Finally, appellants contend that the ordinance fails to define its scope and thus impermissibly delegates policy matters to police, judges, and juries on a subjective basis.

{¶ 16} “ ‘The due process clause of the Constitution provides the foundation for the void for vagueness doctrine.’ ” Buckley v. Wilkins, 105 Ohio St.3d 350, 2005-Ohio-2166, 826 N.E.2d 811, at ¶ 17, quoting Columbia Natural Resources, Inc. v. Tatum (C.A.6, 1995), 58 F.3d 1101, 1104. “Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.” Chicago v. Morales (1999), 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67. “Laws must ‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,’ and laws must also ‘provide explicit standards' for the police officers, judges, and jurors who enforce and apply them.” Buckley at ¶ 17, quoting Grayned v. Rockford (1972), 408 U.S. 104, 108–109, 92 S.Ct. 2294, 33 L.Ed.2d 222.

{¶ 17} In weighing a constitutional challenge to a law, a court must “adhere to the oft-stated rule that a court's power to invalidate a statute ‘is a power to be exercised only with great caution and in the clearest of cases.’ ” Buckley, 105 Ohio St.3d 350, 2005-Ohio-2166, 826 N.E.2d 811, at ¶ 18, quoting Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 16. “Laws are entitled to a ‘strong presumption of constitutionality,’ and any party challenging the constitutionality of a law ‘bears the burden of proving that the law is unconstitutional beyond a reasonable doubt.’ ” Id.

{¶ 18} “The void-for-vagueness doctrine ‘does not require statutes to be drafted with scientific precision.’ ” Buckley, 105 Ohio St.3d 350, 2005-Ohio-2166, 826 N.E.2d 811, at ¶ 19 quoting Perez v. Cleveland (1997), 78 Ohio St.3d 376, 378, 678 N.E.2d 537. “Rather, ‘it permits a statute's certainty to be ascertained by application of commonly accepted tools of judicial construction, with courts indulging every reasonable interpretation in favor of finding the statute constitutional.’ ” Buckley at ¶ 19, quoting Perez, 78 Ohio St.3d at 378–379, 678 N.E.2d 537. “The fact that the fertile legal imagination can conjure up hypothetical cases in which the meaning of disputed terms could be questioned does not render the provision unconstitutionally vague.” (Citations omitted.) Buckley, 105 Ohio St.3d 350, 2005-Ohio-2166, 826 N.E.2d 811, at ¶ 19.

{¶ 19} Regarding the terms “social gathering” and “party,” we note that because they are undefined by the ordinance, they must be construed according to the rules of grammar and common usage. State v. Coburn (1992), 84 Ohio App.3d 170, 173, 616 N.E.2d 567;R.C. 1.42. Among the definitions for “party” provided in Webster's Ninth New Collegiate Dictionary is “a social gathering; also: the entertainment provided for it.” Webster's Ninth New Collegiate Dictionary (1...