Opinion
Nos. 90 CRB 29846, 90 CRB 24497.
Decided July 2, 1991.
Mark A. McClain, Chief Prosecutor, and Traci Hixson, Assistant Prosecutor, for the city.
Thomas M. Shaughnessy, for defendant.
The defendant, Henry Powell, has moved this court for an order declaring Sections 605.09 and 605.10 of the Codified Ordinances of the city of Cleveland (hereinafter "M.C.") to be unconstitutional and dismissing the charges against him accordingly. It is the defendant's contention that both ordinances are drafted in so vague a fashion that they "`fail to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden * * *'" by law. Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115; United States v. Harriss (1954), 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996.
All legislative enactments enjoy a presumption of constitutionality. An enactment will not be held unconstitutionally vague if the court can make it constitutionally definite by applying a reasonable construction. State v. Dorso (1983), 4 Ohio St.3d 60, 61, 4 OBR 150, 151, 446 N.E.2d 449, 450; United States v. Harriss, supra, 347 U.S. at 618, 74 S.Ct. at 812, 98 L.Ed. at 996-997. The court is, therefore, required to indulge any reasonable interpretation which favors the preservation of these ordinances.
The Constitution does not require impossible standards. All that is required is that the language of the enactment conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. United States v. Petrillo (1947), 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1541-1542, 91 L.Ed. 1877, 1883; Roth v. United States (1957), 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498, 1510.
Applying these enunciated principles, the court turns now to examine individually the ordinances in question.
I M.C. 605.09(a)
M.C. 605.09(a) proscribes unlawful congregation and reads as follows:
"No person shall congregate with others on the sidewalk, street corner or within the parks or public grounds, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned by the serious annoyance to pedestrians or by threatening, insulting or abusive conduct, and refuse to move on when ordered by a police officer."
The defendant's claim that this ordinance is facially defective is premised on his position that it leaves to the discretion of police officers the determination of "whether defendant, and others, since one can't congregate alone, congregated to provoke a breach of the peace or seriously annoy pedestrians by threatening, insulting or abusive conduct." (Defendant's brief, page 2.)
While the court has been unable to locate any cases dealing with this issue as it relates specifically to the ordinance under scrutiny, the pronouncements of two courts which dealt with the ordinance's predecessors are instructive. In Cleveland v. Baker (App. 1960), 83 Ohio Law Abs. 502, 167 N.E.2d 119, Baker, an evangelist, was arrested for a violation of Cleveland Ordinance No. 13.0941 (2050-5), Unlawful Congregation on Sidewalks. His arrest occurred upon his refusal to move the presentation of his religious views from in front of the Terminal Tower to the part of Public Square which was at that time reserved for public speaking.
Cleveland Ordinance No. 13.0941 (2050-5) read as follows:
"`It shall be unlawful for persons having no occupation or business at the places hereinafter named, to congregate upon or occupy the sidewalks, or at the corners of any street of the city, or in such manner as to occupy the sidewalks in front of any dwelling or place of business in the city, or in such manner as to occupy the sidewalks in Monumental park or other public parks of the city, or in front of any place of worship or amusement. And it shall be and is hereby made the duty of the police force of the city to prevent such gatherings or occupation of sidewalks and street corners, and to arrest persons found violating the provisions of this section. * * *'" Id. at 503, 167 N.E.2d at 120-121.
In reversing the defendant's municipal court conviction and ordering him discharged, the Eighth District Court of Appeals found that the ordinance was unconstitutionally vague and, therefore, violative of the first essential of due process of law. It went on to state, citing American Cancer Society, Inc. v. Dayton (1953), 160 Ohio St. 114, 51 O.O. 32, 114 N.E.2d 219, that "[a]n ordinance which delegates authority as to its enforcement without laying down any rules or standards, properly within the police power, for such decision, grants an arbitrary power to interfere with constitutional rights and is void." Cleveland v. Baker, supra, 83 Ohio Law Abs. at 504, 167 N.E.2d at 121.
In February 1961, the city of Cleveland adopted a revised ordinance in an effort to cure the constitutional infirmities identified by the court of appeals. The revised Cleveland Ordinance No. 13.0941 read:
"* * * `Any person who congregates with others on the sidewalk, street corner, or within the parks or public grounds, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned by the serious annoyance to pedestrians or by threatening, insulting or abusive conduct, and who refuses to move on when ordered by a police officer, shall be guilty of disorderly conduct * * *.'" Cleveland v. Denny (M.C. 1961), 89 Ohio Law Abs. 312, 317.
The revised ordinance was almost immediately challenged under circumstances nearly identical to those involved in Baker, supra.
In Cleveland v. Denny, supra, three defendants were arrested and charged under the revised ordinance for obstructing the sidewalk while street preaching during evening rush hour on the south side of Euclid Avenue just east of Public Square. The case came on for hearing in the Cleveland Municipal Court.
The court overruled the defendants' demurrer, which had been filed based upon their contention that their First and Fourteenth Amendment rights under the United States Constitution had been abridged.
The court held: "There can be no argument * * * that the police do have the power to arrest those who congregate with the intent to provoke a breach of the peace, or those who congregate, and use insulting or abusive conduct." Id. at 317.
The court also found that the ordinance was worded in a manner so that the officers in the enforcement and the courts in the interpretation of the law could have a consistent standard of enforcement or decision. Id. at 318.
The unlawful congregation ordinance was revised to its current form in 1976. This court finds the defendant's challenge to its constitutionality to be a case of first impression.
Loitering, loafing and associating on street corners have been held to be constitutionally protected activities. Papachristou v. City of Jacksonville, supra. Necessarily, congregating on the city's streets and in its parks must also enjoy the same protected status, as long as such conduct does not interfere with the personal liberty of others. See Johnson v. Carson (M.D.Fla. 1983), 569 F. Supp. 974, 976. Thus if the ordinance seeks to prohibit the mere act of congregating on the city's streets and in its parks, and no more, it is unconstitutional and must fail.
A cursory reading of the ordinance, however, reveals the constitutionally protected overt act of congregating is prohibited by the ordinance only when it is coupled with an intent to engage in conduct which is not constitutionally protected, to wit: breaching, or causing a breach of, the peace. Because of this required union of overt act and unlawful intent, a defendant is protected from punishment either for harmless conduct, or for harmful conduct — the criminality of which has not been fairly communicated to him or her. State v. Armstrong (1968), 282 Minn. 39, 162 N.W.2d 357.
The court finds that Cleveland Codified Ordinances Section 605.09 is not impermissibly vague. It is held, therefore, that the defendant's right to due process has not been violated and his attack on the constitutionality of the ordinance cannot prevail.
II M.C. 605.10
In 1985 the city of Cleveland passed an ordinance outlawing unnecessary noises. M.C. 605.10(a) provides:
"(a) No person shall make, or cause, suffer, allow, or permit to be made within the City any unreasonably loud, disturbing and unnecessary noise, or noises of such character, intensity and duration as to be detrimental to the life and health of any individual."
In 1990, subsection (b) of the ordinance, which specifically delineated nine varieties of noise declared to be loud, disturbing and unnecessary under the ordinance, was amended. Subdivision 2 of subsection (b) (which prohibited the playing of a radio, phonograph or musical instrument at any time, but particularly at night, in such a manner as to disquiet or discomfort persons when the noise could be distinctly heard fifty feet from its source), and subdivision 9 (which prohibited the use of any drum, loudspeaker or other instrument or device to make noise to attract attention for a commercial purpose) were both deleted.
They were replaced by a new subdivision 2, which prohibited the keeping of a noisy animal which could be heard outside the property lines where it was kept, and a new subdivision 9, which prohibited the making of any loud, unseemly, or unnecessary noise by operating a sound amplifying device in violation of a provision in Chapter 683 of the Codified Ordinances.
The defendant's constitutional attack on this ordinance is premised on much the same grounds as his attack on the unlawful congregation ordinance. He maintains that the noise ordinance fails to provide fair notice that the contemplated conduct is forbidden and that it fails to set reasonably clear guidelines for those charged with its administration, resulting in arbitrary and unequal enforcement.
The United States Supreme Court reviewed a similar noise ordinance in Grayned v. City of Rockford (1972), 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222. The issue of vagueness was raised and was considered by that court. In finding that that ordinance was not impermissibly vague, the court said:
"* * * City Council has made the basic policy choices, and has given fair warning as to what is prohibited. * * *" Id. at 114, 92 S.Ct. at 2302, 33 L.Ed.2d at 231.
This court believes that the same can be said in regard to the instant review. The ordinance sets forth in greater detail than most that which is prohibited. The general language is more than sufficiently modified by the nine sections of examples which describe the types of noise which the law seeks to forbid.
The court therefore finds Section 605.10 of the Codified Ordinances of the city of Cleveland is not unconstitutionally vague, and the defendant's challenge to it on First and Fourteenth Amendment grounds is not well taken.
Judgment Entry
Defendant's motion to declare Sections 605.09 and 605.10 of the Codified Ordinances of the city of Cleveland unconstitutional is denied.
Reporter's Note: The cause was subsequently dismissed on other grounds and there was no appeal.