Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Timothy G. Dobeck, City of Parma Director of Law, and Richard
D. Summers and Milos Veljkovic, Assistant Directors of Law,
Mancino, Mancino & Mancino, and Paul A. Mancino, Jr., for
JOURNAL ENTRY AND OPINION
C. GALLAGHER, PRESIDING JUDGE.
1} Lazaro Burgos appeals the injunction entered
against his continued residence at 1611 Grovewood Avenue in
the city of Parma ("Grovewood property"). The
Grovewood property is owned by Burgos's wife. Burgos is a
Tier II sex offender and has a 25-year reporting requirement
following a 2012 conviction. In 2016, Burgos updated his
registration to reflect his residence at the Grovewood
property. According to Parma, the Grovewood property was
located approximately 615 feet from a child day-care center
premises. Under R.C. 2950.034, which is applicable to Burgos
as a registered sex offender, Parma successfully sought an
injunction enjoining Burgos from his continued residency at
the Grovewood property because it was located within 1, 000
feet of a child day-care center.
2} Burgos claims that he would have to trespass
across neighboring properties and cross a heavily wooded
ravine if attempting to access the day-care center's
property in a straight line. According to the map introduced
by Parma, there are at least eight properties between the
Grovewood property and the day-care center premises. No
intersecting ravine is apparent from the map. The ravine and
river Burgos discussed during the hearing appears to be
adjacent to all the properties involved, but it does not
intersect the straight-line path between the two properties.
Along that same vein, Burgos asks to apply a "reasonably
navigable path" calculation as a more appropriate method
of calculating the "within 1, 000 feet"
restriction. Burgos does not define what constitutes a
"reasonably navigable path" but claims that the
calculation should be limited to the travelled distance
between the two properties when traversing surface streets
and sidewalks. If calculated in this manner, his residence
was over the 1, 000-foot restriction and in compliance with
R.C. 2950.034(A) (the distance between the two properties if
walking along the road is approximately 1, 500 feet according
Thus, the dispute in this case is limited to one of statutory
interpretation. Statutory interpretation is a question of
law, reviewed de novo. State v. Lindstrom, 8th Dist.
Cuyahoga No. 96653, 2011-Ohio-6755, ¶ 8, citing
State v. Sufronko, 105 Ohio App.3d 504, 506, 664
N.E.2d 596 (4th Dist.1995). When examining the actual
language of a statute, words should be given their common and
ordinary meaning unless the legislature has clearly expressed
a contrary intention. Youngstown Club v.
Porterfield, 21 Ohio St.2d 83, 86, 255 N.E.2d 262
(1970); R.C. 1.42.
4} R.C. 2950.034 precludes sex offenders from
establishing a residence "within 1, 000 feet" of
any school, preschool, or child day-care center premises.
Parma contends that the measurement contemplated in R.C.
2950.034(A) is calculated "as a crow flies," or
through the "straight-line" approach. Parma
presented a geographical information systems
("GIS") map calculating the straight-line distance
between the Grovewood and child day-care center properties to
be approximately 615 feet. State ex rel O'Brien v.
Heimlich, 10th Dist. Franklin No. 08AP-521,
2009-Ohio-1550, ¶ 19, citing State v. Franklin,
164 Ohio App.3d 758, 2005-Ohio-6854, 843 N.E.2d 1267 (12th
Dist.) (GIS is an acceptable tool to calculate the distance
between two fixed points). Burgos did not contest the
evidence. In this context, the trial court necessarily
concluded that the statutory phrase "within 1, 000
feet," refers to the straight-line path between the two
points. Thus, the sole issue is whether R.C. 2950.034 uses
the "straight line" or "reasonably navigable
path" to measure whether a sex offender resides within
1, 000 feet of a restricted premises.
The trial court did not err. The reasonably navigable path
interpretation of calculating statutory distance restrictions
has been previously rejected. In State v. Shepherd,
61 Ohio St.2d 328, 331, 401 N.E.2d 934 (1980), the defendant
argued that because the General Assembly did not specify the
method to calculate whether a weigh station was "within
three miles" of the point of the traffic stop, the
defendant's interpretation of using the actual road miles
from the point of origin was a reasonable one. The
"actual road miles" is indistinguishable to the
"reasonably navigable path" definition as discussed
6} As was relevant in Shepherd, R.C.
4515.33 permitted police officers to require a motorist to
weigh its vehicle if the traffic stopped occurred
"within three miles" of a weigh station.
Id. The statute was silent as to the meaning of
"within three miles." According to the factual
record in Shepherd, the weigh station was within one
mile from where the defendant was stopped if calculating the
distance by a straight-line or "as the crow flies"
measurement. Id. The actual road miles to the weigh
station, however, was seven miles in light of the fact that
there was no road directly leading to the station.
Id. The Ohio Supreme Court concluded that the
statutory phrase "within three miles" is to be
given its ordinary meaning of a straight-line distance
measurement between the two points. According to the Ohio
Supreme Court, the phrase "within three miles" was
not ambiguous or susceptible to multiple interpretations.
7} In State ex rel. O'Brien v. Messina,
10th Dist. Franklin No. 10AP-37, 2010-Ohio-4741, ¶ 16,
the Tenth District extended Shepherd to the similar
language used in R.C. 2950.034(A) - interpreting the phrase
"within 1, 000 feet" to be unambiguous in light of
the ordinary meaning of the word "within." In doing
so, the Messina court concluded that "the
straight line approach provides more predictability and more
uniform application than does the navigable distance
approach, which would put the distance between the two
locations in flux depending on the construction or
destruction of infrastructure." Id.
8} Burgos limited his application of a
"reasonably navigable path" to the shortest
distance between two properties as calculated by traversing
the streets and sidewalks that connect the two properties.
Even if we entertained the notion that R.C. 2950.034
contemplated a "reasonably navigable path"
calculation as Burgos suggests, nothing limits that path to
streets and sidewalks alone. Hypothetically speaking, if a
residence was located directly next to a restricted premises,
but the shortest paved route involved roads connecting the
two properties that were miles in length, Burgos's
limited method of calculation would lead to absurd results.
In that situation, a registered sex offender could live
directly next to a restricted premises. Further, the fact
that Burgos would have to trespass to navigate in the
straight line is of little consequence. Under the above
hypothetical, even if there were a vacant property between
the restricted premises and the sex offender's residence,
limiting the distance calculation to roads or sidewalks would
permit sex offenders to live in close proximity to the
restricted premises. Such an interpretation could nullify
9} In light of this observation, Messina is
persuasive. The straight-line measurement offers uniformity
in application. It is for this reason that courts generally
favor a straight-line method of measuring distances in
statutes that do not specify the particular method of
distance calculation. M6 Motors, Inc. v. Nissan of N.
Olmsted, L.L.C., 2014-Ohio-2537, 14 N.E.3d 1054, ¶
55 (8th Dist). This is especially true when the legislature
defines the specified boundary in terms of being
"within" a set distance. Id., citing
Shepherd, 61 Ohio St.2d 328, 401 N.E.2d 934. If the
legislature contemplates a different method of calculation,
the Ohio Supreme Court has directed that there must be an
alternate phrase "explicitly indicating that
intent." Shepherd at ¶ 331; M6
Motors at ¶ 62; see also Heimlich, 10th
Dist. Franklin No. 08AP-521, 2009-Ohio-1550, ¶ 20. R.C.
2950.034 does not expressly indicate an intent to measure the
residency restriction other than with the straight-line
10} In this case, it is undisputed that the
Grovewood property is within 1, 000 feet of a child day-care
center premises when the distance is measured by the
straight-line measurement. Burgos has not otherwise
challenged the injunction. App.R. 16(A)(7). In light of the
foregoing, the trial ...