CITY OF BLUE ASH, OHIO, Plaintiff-Appellant, vs. MATTHEW PRICE, Defendant-Appellee.
APPEAL NO. C-170347; TRIAL NO. 17TRD-2386
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
March 23, 2018
[Cite as Blue Ash v. Price, 2018-Ohio-1062.]
O P I N I O N.
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From: Stands
Date of Judgment Entry on Appeal: March 23, 2018
Dinsmore & Shohl LLP, Bryan E. Pacheco, Mark G. Arnzen, Jr., and Kelly E. Pitcher, for Plaintiff-Appellant,
Cohen Todd Kite & Stanford LLC and Richard R. Campbell, for Defendant-Appellee.
{¶1} In this discretionary appeal, plaintiff-appellant the City of Blue Ash, Ohio, challenges the trial court‘s decision made in a criminal proceeding brought against defendant-appellee Matthew Price in which the trial court held Blue Ash‘s toy-vehicle ordinance unconstitutional. The judgment of the trial court finding Price not guilty is not appealed. However, we determine that the trial court erred as a matter of law in declaring Blue Ash‘s ordinance unconstitutional.
Facts and Procedural History
{¶2} In October 2016, Price was riding on a motorized skateboard in a crosswalk on Kenwood Road in the city of Blue Ash when the driver of a vehicle hit him. Blue Ash police cited Price for violating
{¶3} Price was found guilty of violating the toy-vehicle ordinance in the Blue Ash Mayor‘s Court, and he appealed to the Hamilton County Municipal Court. The trial court held a bench trial. The trial court determined that the toy-vehicle ordinance was “void for vagueness” and violated “a constitutional right of movement and personal enjoyment by confining skateboards to play zones.” As a result, the trial court found Price not guilty.
{¶4} Blue Ash appeals from the trial court‘s decision holding the toy-vehicle ordinance unconstitutional.
Jurisdiction
{¶5} Blue Ash filed this appeal under
{¶6} In addition to
{¶7} Here, Blue Ash filed a motion for leave to appeal under
Constitutional Right to Travel
{¶8} Blue Ash‘s first assignment of error challenges the trial court‘s conclusion that the toy-vehicle ordinance violates a “constitutional right of movement and personal enjoyment.”
{¶9} Although Ohio has not recognized a right of movement and personal enjoyment, Ohio has recognized a right of intrastate travel on public roads as a fundamental right in State v. Burnett, 93 Ohio St.3d 419, 428, 755 N.E.2d 857 (2001). In Burnett, the defendant was charged with violating a Cincinnati ordinance prohibiting a person from entering certain portions of the city after that person had been arrested for or convicted of a drug-related offense. The defendant later challenged his conviction, arguing that the ordinance unconstitutionally infringed on his right to travel. The Ohio Supreme Court recognized that a fundamental right to travel exists under the Due Process Clause of the
{¶10} Although the Ohio Supreme Court and the United States Court of Appeals
{¶11} Unlike the ordinance at issue in Burnett, which completely prohibited a class of citizens from entering areas of the city by foot, vehicle, or any mode of transportation, the toy-vehicle ordinance prohibits citizens from using toy vehicles or similar devices on roadways, highways, or public lots, unless designated a play street or play lot. A burden on a mode of transportation, here toy vehicles, does not implicate the right to travel. The toy-vehicle ordinance does not unconstitutionally infringe on citizens’ right to travel, and the trial court erred in so holding.
{¶12} Therefore, we sustain Blue Ash‘s first assignment of error and determine that the trial court erred in holding that the toy-vehicle ordinance violates a constitutional right of movement and personal enjoyment.
{¶13} Blue Ash‘s second assignment of error asserts that even if a constitutional right of movement and personal enjoyment to operate a motorized skateboard exists, the trial court erred by not balancing the respective interests prior to holding the toy-vehicle ordinance unconstitutional. Because of our resolution of Blue Ash‘s first assignment of error, Blue Ash‘s second assignment of error is moot and need not be addressed. See
Void for Vagueness
{¶14} In its third assignment of error, Blue Ash argues that the trial court erred in holding the toy-vehicle ordinance void for vagueness.
{¶15} It is unclear whether the trial court held the toy-vehicle ordinance unconstitutional as applied to Price or on its face. According to the judgment entry, it appears that the trial court held the toy-vehicle ordinance void for vagueness, because “motorized skateboard is yet to be properly defined.” When a party makes a void-for-vagueness challenge to a legislative enactment as applied to the circumstances of a particular case, then the challenge is an as-applied challenge. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17. Because the toy-vehicle ordinance does not contain the phrase “motorized skateboard,” and the underlying facts involve a motorized skateboard, then the trial court likely undertook an as-applied analysis. Therefore, we assume that the trial court held the toy-vehicle
{¶16} When a statute is alleged to be void for vagueness, all doubts are to be resolved in favor of the constitutionality of the statute. State v. Harrington, 159 Ohio App.3d 451, 2004-Ohio-7140, 824 N.E.2d 153, ¶ 20 (12th Dist.). In order to survive a void-for-vagueness challenge, a legislative enactment “must be written so that a person of common intelligence is able to determine what conduct is prohibited,” and the legislative enactment “must provide sufficient standards to prevent arbitrary and discriminatory enforcement.” State v. Williams, 88 Ohio St.3d 513, 532, 728 N.E.2d 342 (2000). A legislative enactment is not void for vagueness because it could have been worded more precisely, nor does every word in the enactment need a definition, because an undefined term can be given its common, everyday meaning. State v. Dorso, 4 Ohio St.3d 60, 446 N.E.2d 449 (1983).
{¶17} The toy-vehicle ordinance prohibits a person from riding on “roller skates,” or “any sled, toy vehicle, skateboard, or similar device” on any street, highway, or public lot unless designated a play street or play lot. See
{¶18} Moreover, the toy-vehicle ordinance specifically includes a “skateboard” as a prohibited mode of travel in streets. A “skateboard” is defined as “a short board mounted on small wheels that is used for coasting and for performing athletic stunts.” Merriam-Webster Online, available at https://www.merriam-webster.com/dictionary/skateboard (accessed February 27, 2018). A motorized skateboard could fall within the category of a “skateboard,” or at least a “similar device.” Therefore, a person of common intelligence would not have to guess as to whether the toy-vehicle ordinance applies to the conduct of riding a motorized skateboard on a street, and the ordinance provides sufficient standards to law enforcement to prevent arbitrary and discriminatory enforcement.
{¶19} We determine that the trial court erred in holding the toy-vehicle ordinance void for vagueness because “motorized skateboard is yet to be properly defined.” We sustain the third assignment of error.
Confining Skateboards to “Play Zones”
{¶20} In its fourth assignment of error, Blue Ash asserts that the trial court erred in holding that the toy-vehicle ordinance unlawfully confines “skateboards” to “play zones.”
{¶21} According to Blue Ash, the plain language of the toy-vehicle ordinance does not limit the use of toy vehicles or similar devices to play zones; therefore, those items could be used in other areas, such as on a sidewalk. We agree. The toy-vehicle ordinance prohibits a person from riding a toy vehicle or the like on streets, highways, or public lots—where motor vehicles travel. See
{¶22} We sustain Blue Ash‘s fourth assignment of error.
Conclusion
{¶23} In conclusion, the trial court erred in holding that
Judgment accordingly.
ZAYAS, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.