2021 Ohio 3093
Ohio Ct. App.2021Background
- Ohio and U.S. Fish & Wildlife conducted an undercover ginseng operation; Wildlife Officers stopped Brian Davis at a Guernsey County gas station on Sept. 10, 2020.
- Davis produced three containers of ginseng, admitted digging some roots on Aug. 15 (before the legal season), and some roots were dried. He could not produce required harvest records on the spot.
- Davis was charged under R.C. 1533.882(E) (possession/buying of uncertified ginseng outside the buying season) and R.C. 1533.882(F) (failure to keep required records).
- Davis moved to dismiss, arguing both statutory provisions were unconstitutionally vague (relying on this court’s earlier decision in State v. Hayes). The trial court denied the motion; Davis pleaded no contest, was convicted, and appealed.
- After State v. Hayes, Ohio Adm.Code 1501:31-40-01 was amended to require daily records, recording before midnight on the date of harvest, and making records available for inspection at reasonable times; Adm.Code 1501:31-40-02(B) sets buying/possession blackout dates for dry and green ginseng.
- The Fifth District affirmed: the amended administrative rules supply the timing and clarity needed to avoid vagueness; convictions were upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 1533.882(F) (failure to keep records) is void for vagueness | The statutory/regulatory scheme, as amended, gives fair notice (daily records; record before midnight; make records available on request). | R.C. 1533.882(F) is vague (per Hayes): prior rule lacked timing for when records must be created and produced. | Not void: amended Adm.Code supplies timeframes and inspection rules; statute/regulation constitutional. |
| Whether R.C. 1533.882(E) (possession/buying of uncertified ginseng) is void for vagueness | R.C. 1533.882(E) delegates buying-season timing to rules; Adm.Code 1501:31-40-02(B) clearly sets blackout dates for dry vs. green ginseng. | Statute is silent about dry/green distinctions and thus fails to give fair notice of prohibited possession. | Not void: statute plus Adm.Code provides fair notice of prohibited dates for dry and green uncertified ginseng; possession on Sept. 10 of dry uncertified ginseng violated the rule. |
Key Cases Cited
- State v. Hayes, 63 N.E.3d 184 (5th Dist. 2016) (found prior statutory/regulatory scheme vague as to timing of recordkeeping and production)
- City of Norwood v. Horney, 853 N.E.2d 1115 (Ohio 2006) (void-for-vagueness standard: fair notice requirement)
- State v. Anderson, 566 N.E.2d 1224 (Ohio 1991) (criminal statutes need not be drafted with scientific precision)
- State v. Collier, 581 N.E.2d 552 (Ohio 1991) (presumption that legislative enactments are constitutional)
- State v. Tanner, 472 N.E.2d 689 (Ohio 1984) (void-for-vagueness values: notice, prevent arbitrary enforcement, protect freedoms)
- Ohio Am. Health Care, Inc. v. Ohio Bd. of Nursing, 11 N.E.3d 1241 (10th Dist. 2014) (administrative regulations need not meet the same specificity as criminal statutes)