317 N.E.2d 246 | Ohio Ct. App. | 1974
This is an appeal from a conviction and a fine levied for the violation of Section
In his first assignment of error, appellant claims that "Section
"Parking more than five hours prohibited. *11
No vehicle shall park, stop, stand or be permitted to remain on any street in the City longer than five hours between 10:00 p. m. and 8:00 a. m. of the following day, except on streets where it is determined that off-street parking facilities are not adequate and which have been designated by the City Manager. However, on such streets so designated by the City Manager, no vehicle shall park, stop, stand or be permitted to remain for a period in excess of twenty-four consecutive hours."
Appellant asserts that this ordinance is arbitrary and unreasonable because it permits a motor vehicle to be parked in one place for nineteen consecutive hours during the day and early evening when the volume of traffic is the greatest while forbidding the same motor vehicle to be parked in the same place for more than five hours during a time when traffic is very light.
The Constitution of the state of Ohio, Section 3, Article XVIII states:
"Muncipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
A duly enacted municipal ordinance is presumed constitutional, and the burden of establishing the unconstitutionality of such an ordinance is upon the one challenging its validity. AliceRealty, Inc., v. City of Columbus (1957), 76 Ohio Law Abs. 311, 314; Cleveland v. Antonio (1955).
A local ordinance is valid unless it clearly bears no real and substantial relation to public health, safety, morals, or general welfare or is unreasonable and arbitrary. GhasterProperties, Inc., v. Preston, Dir. (1964),
Applying these legal principles we find that appellant *12
has not rebutted the presumption of constitutionality properly given Codified Ordinance
In his second assignment of error appellant contends that "[n]o parking regulation may be enforced and no person may be lawfully charged with a violation of such regulation unless and until signs have been posted at appropriate places where such regulation is intended to be in effect, reasonably calculated to inform the public of such parking regulation."
The record reveals that no signs informing persons of the overnight parking ban have been posted in the City of East Cleveland. Appellant submits that the absence of such signs renders the ordinance in question unconstitutional. For the reasons given below, we disagree.
R. C.
"Sections
"(A) Regulating the stopping, standing, or parking ofvehicles, trackless trolleys, and streetcars; [Emphasis added] * * *
"No ordinance or regulation enacted under divisions (D), (E), (F), (G), or (I) of this section shall be effective *13 until signs giving notice of such local traffic regulations are posted upon or at the entrance to the highway or part thereof affected, as may be most appropriate.
"No ordinance or regulation enacted under division (J) of this section shall be effective until signs giving notice of such local traffic regulations are posted wherever a through highway enters a municipal corporation, and at the entrances to highways or streets leading from freeway exits."
Conspicuously absent from that portion of R. C.
The appellant further contends in his third assignment of error that "[t]he plaintiff failed to establish `guilt' of of the defendant beyond a reasonable doubt."
Appellant first asserts that the appellee city did not establish that it was the appellant, Thomas Palmer, who parked the car. However, Codified Ordinance
"Prima-Facie Evidence of Unlawful Parking.
"In any proceeding for violation of any parking provision of this Traffic Code including parking meter violations, the license or registration plate on a motor vehicle shall constitute in evidence a prima facie persumption that the owner of such motor vehicle was the person who parked or placed such vehicle at the point where such violation occurred."
Appellant is admittedly the owner of the vehicle in question. Nowhere in the record does the appellant attempt to rebut the presumption created in Section
Appellant also states that the appellee city did not prove that his car had been parked for longer than five consecutive hours in the same place. Officers Bayerl and Bell, patrolmen for the City of East Cleveland, both testified that while on their tours of duty they kept a log of the license numbers of cars indicating the time and location of cars parked during the hours of the parking ban. These officers also testified that on February 1, and February 23, appellant's car was found parked in the same place, in the same sequence with other parked cars, when checked at intervals of greater than five hours between 10:00 p. m. and 8:00 a. m. To rebut this testimony, appellant again offered the mere possibility that someone may have moved the car in the period between the checks made by the police officers. Considering this state of the record, the trier of fact had ample evidence from which he could reasonably conclude that the ordinance had been violated, and we find appellant's argument to be without merit.
In his fourth assignment appellant contends that the sentence imposed by the court was improper and unlawful for the reason that no ordinance of the plaintiff authorizes the court to impose such sentence.
Appellant was fined $75 and costs. East Cleveland Ordinance
We find, however, that the fifth assignment of error asserted by appellant is well taken.
The record discloses that the trial court, in imposing sentence, stated:
"Recognizing, gentlemen, that there are two (violations) that had been introduced in evidence, in considering for purposes of determining the fine, that there are other alleged violations, the court feels that a reasonable fine would be $75.00 and costs." (Tr. 69)
The consideration of these "other alleged violations" in determining the penalty to be imposed was improper and constituted an abuse of discretion by the court. Therefore, the judgment is reversed and the cause remanded, with instructions to impose sentence consistent with this judgment.
Judgment reversed and cause remanded.
MANOS, C. J., and HUNSICKER, J., concur.
HUNSICKER, J., retired, of the Ninth Appellate district, assigned to active duty pursuant to Section 6(c), Article IV of Constitution, sitting by designation in the Eighth Appellate District. *16