Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Municipal Court Trial Court Case No.
MICHAEL BLY, Atty. Reg. No. 0042074, GERALD L. MCDONALD,
Atty. Reg. No. 0078525 and MICHELLE T. SUNDGAARD, Atty. Reg.
No. 0096006, 2700 Kettering Tower, 4 North Main Street,
Dayton, Ohio 45423 Attorneys for Plaintiff-Appellant
M. PAYSON, 120 West Second Street, Suite 400, Dayton, Ohio
45402 Defendant-Appellee-Pro Se
1} Plaintiff-appellant the City of Huber Heights
appeals from a judgment of the Montgomery County Municipal
Court dismissing its criminal complaint against
defendant-appellee, Frank Payson. The City contends that the
trial court erred by determining that Section 505.11 of the
City's Ordinances is unconstitutionally vague. The City
further contends that even if the statute is
unconstitutional, it does not affect the constitutionality of
Section 505.01(a) which is the provision that Payson
allegedly violated. For the reasons set forth below, we
agree. Accordingly, the judgment of the trial court is
reversed and remanded for further proceedings.
Facts and Procedural History
2} On January 25, 2017, Huber Heights Police
Sergeant C. Taylor responded to a complaint regarding persons
feeding stray cats on the premises of the Kettering Health
Network Huber Health Center located at 8701 Old Troy Pike.
When he arrived at the location, Taylor observed Payson and
his wife feeding cats. After speaking with Payson, Taylor
issued him a citation for violating Huber Heights Code
(hereinafter "the Code") Section 505.01 (a), a
minor misdemeanor. That section provides in relevant part as
CATS AND OTHER ANIMALS RUNNING AT LARGE.
(a) No person shall knowingly or negligently allow any dog,
cat or other animal owned or kept by such person to run at
large upon any public way or the property of another.
3} Payson, an attorney, appeared on his own behalf
for arraignment and entered a plea of not guilty. A trial
date was set for April 28, 2017. On April 13, 2017, Payson
filed a motion to suppress. On April 20, 2017, he filed a
motion to dismiss the complaint contending that the City
violated his due process rights. He argued that because this
was his first offense, Section 505.01 of the Code required
that he be issued a warning rather than a citation. On April
24, 2017, Payson filed a motion for declaratory judgment
seeking a determination that Section 505.11 of the Code is
void for vagueness.
4} On April 28, 2017, the parties appeared before
the court. At that time, the court indicated that it would
rule upon the various motions prior to starting the trial.
Following testimony from Sandy Payson and Sergeant Taylor,
the trial court overruled the motion to suppress. The trial
court then heard arguments regarding the motion to dismiss
and the motion for declaratory judgment.
5} Payson argued that Code Section 505.11, which he
asserts is the "definitional statute of
owner/harborer" for purposes of Section 505.01, is void
for vagueness. Section 505.11 provides as follows:
OF ANIMAL OWNER, KEEPER OR HARBORER.
person shall be presumed to be the owner, keeper or harborer
of an animal if ...