Court of Appeals of Ohio, Third District, Auglaize
from Auglaize County Municipal Court Trial Court No. 2017 CVH
G. Ferrall for Appellant.
William E. Huber for Appellees.
Defendant-appellant, City of St. Marys ("the
City"), appeals the July 7, 2017 judgment of the
Auglaize County Municipal Court finding in favor of
plaintiffs-appellees, Shawn and Veronica Mullins ("the
Mullins"), on their appeal of the City's designation
of their dog as a "Dangerous Dog" under the local
ordinance. The trial court determined that the local
ordinance was in conflict with the state statutes governing
control of dogs and found that the state law constitutionally
preempted the local ordinance.
and Procedural History
May 4, 2017, the Mullins initiated this case by filing an
appeal and requesting a hearing on the City's designation
of their dog, Titan, as a "Dangerous Dog" under St.
Marys City Ordinance ("SMCO") 505.15(a)(2). The
Mullins attached the "Official Notice" informing
them of the "Dangerous Dog" designation, which
indicated two incidents occurred one on April 1, 2017 and the
other on April 15, 2017. The Mullins raised a constitutional
challenge to the local ordinance defining a "Dangerous
Dog" on the grounds that it was in conflict with the
corresponding Ohio Revised Code provisions and that the
ordinance fails to provide proper notice to a dog owner by
leaving certain key terms undefined. The City maintained that
the local ordinance was a permissible exercise of its local
police power under the Home Rule Amendment to the Ohio
Constitution and did not conflict with state law.
July 7, 2017, the trial court issued a judgment entry finding
the state law to take precedence over the local ordinance.
The trial court granted the Mullins relief on their appeal of
the "Dangerous Dog" designation by the City and
found the local ordinance to be invalid.
The City filed an appeal, raising the following assignments
OF ERROR NO. 1
COURT ERRED BY RULING THAT ST. MARYS LOCAL DOG ORDINANCE IS
IN CONFLICT WITH OHIO REVISED CODE STATUTES WHICH DEFINE A
OF ERROR NO. 2
COURT ERRED BY RULING THAT ST. MARYS LOCAL DOG ORDINANCE IS
OVERBROAD OR OVERREACHED IN ITS SCOPE.
elect to address the assignments of error together due to the
fact that both assignments of error challenge the trial
court's determination invalidating the St. Marys City
Ordinance on constitutional grounds.
and Second Assignments of Error
their first and second assignments of error, the City
maintains that the trial court erred in determining SMCO
505.15 was constitutionally infirm on the basis of it being
in conflict with the state-wide comprehensive statutory
provisions forth in Revised Code Chapter 955 titled
"Dogs"âin particular, R.C. 955.11, which defines a
"Dangerous Dog." On appeal, the City argues that
SMCO 505.15 is permissible under the Home Rule Amendment to
the Ohio Constitution and is a valid exercise of its local
The constitutionality of a statute or ordinance presents a
question of law and is therefore reviewed under a de
novo standard. Andreyko v. Cincinnati, 153 Ohio
App.3d 108, 2003-Ohio-2759, Â¶ 11(1st Dist). In determining
the constitutionality of an ordinance, we are mindful of the
fundamental principle requiring courts to presume the
constitutionality of lawfully enacted legislation. Akron
v. Molyneaux, 144 Ohio App.3d 421, 426 (9th Dist. 2001),
citing Univ. Hts. v. O'Leary, 68 Ohio St.2d 130,
135 (1981). We grant such deference to legislative enactments
because "the local legislative body is familiar with
local conditions and is therefore better able than the courts
to determine the character and degree of regulation
required." Lima v. Stepleton, 3d Dist. Allen
No. 1-13-28, 2013-Ohio-5655, Â¶ 11, citing Village of
Hudson v. Albrecht, Inc., 9 Ohio St.3d 69, 71.
Due to this presumption, the party challenging an ordinance
has the burden of demonstrating, beyond a reasonable doubt,
that the law is unconstitutional. Hilton v. City of
Toledo, 62 Ohio St.2d 394, 396, (1980). Moreover, when
considering the constitutionality of a legislative enactment,
we are called to "liberally construe [it] to save it
from constitutional infirmities." State v.
Robinson, 44 Ohio App.3d 128, 130 (12th Dist.1989).
However, in applying our liberal construction, we are not
permitted to "simply rewrite laws in order to render
them constitutional." Id.
Section 3, Article XVIII of the Ohio Constitution (the
"Home Rule Amendment") states that municipalities
are authorized "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." As a result, the
general laws of the State and the challenged ordinance should
be harmonized as much as the language allows. N. Ohio
Patrolmen's Benevolent Assn. v. City of Parma, 61
Ohio St.2d 375, 377 (1980). Nevertheless, we must also
recognize that municipalities' home rule authority
"is not absolute." City of Tiffin v.
McEwen, 130 Ohio App.3d 527, 531 (3d Dist.1998);
accord Weir v. Rimmelin, 15 Ohio St.3d 55, 56 (1984)
("The Home Rule Amendment to the Ohio Constitution
confers a significantly high degree of sovereignty upon
municipalities. However, the amendment does not provide
cities the absolute power of self-government.").
Conflicts between local ordinances and state statutes may
arise in a variety of circumstances. In determining SMCO
505.15 to be in conflict with corresponding Revised Code
provisions governing a "Dangerous Dog, " the trial
court employed the "contrary directives" analysis,
which requires a reviewing court to consider "whether
the ordinance permits or licenses that which the statute
forbids and prohibits, and vice versa."
Stepleton at Â¶ 16, quoting, Village of Struthers
v. Sokol, 108 Ohio St. 263 (1923), paragraph two of the
syllabus. "If we answer this question in the negative,
then no conflict exists." See id., citing
Sokol at 268 ("No real conflict can exist
unless the ordinance declares something to be right which the
state law declares to be wrong, or vice versa."). When
applying the contradictory directives test, we note that the
degree of state regulation on the same issue as the local
ordinance is immaterial. See City of Cincinnati v.
Hoffman, 31 Ohio St.2d 163, 169 (1972) ("[I]n order
for * * * a conflict to arise, the state statute must
positively permit what the ordinance prohibits, or vice
versa, regardless of the extent of state regulation
concerning the same object.").
At the outset, we note that under R.C. 955.221(B)(3)
"[a] municipal corporation may adopt and enforce
ordinances to control dogs within the municipal corporation
that are not otherwise in conflict with any other provision
of the Revised Code." In the case sub judice,
the City designated the Mullins' dog, Titan, a
"Dangerous Dog" under SMCO 505.15(a)(2). ...