{¶ 1} In this case of first impression, we are asked to rule on the legality of a municipal ordinance that holds the parent or legal guardian of a child under the age of 18 criminally liable, in the absence of intent or action, if that child commits a delinquent act that would be considered a felony or misdemeanor if committed by an adult. Appellant city of Maple Heights charged defendant-appellee Thelma Ephraim with a violatiоn of its “parental responsibility” ordinance after her 17-year-old son had been arrested and charged with offenses that would be felonies if committed by an adult. The municipal court declared the ordinance unconstitutional because it was vague and overbroad and conflicted with state law. The city appeals.
I
{¶ 2} The facts are undisputed for purposes of appeal. A police report showed that officers were dispatched to investigate a report of “a group of people fighting.” When they arrived on the scene, they saw a car driven by Ephraim’s son in the intersection of the street, with all four of its doors open. The
{¶ 8} The city charged Ephraim under Maple Heights Ordinance 648.20, titled “Parental Responsibility to Supervise a Minor,” which states:
{¶ 4} “(a) A person commits the offense of failing to supervise a minor if: the person is the parent, legаl guardian, or person with legal responsibility for the safety and welfare of a child under 18 years of age, and the child has committed a status offense, 1 unruly act or a delinquent act that would be a misdemeanor or felony of any degree if committed by an adult.
{¶ 5} “(b) It shall be a defense to the offense of failure to supervise a minor if the person took reasonable steps to control the conduct of the child at the time the person is alleged to have failed to supervise.
{¶ 6} “(c) In addition to any fine or penalty imposed pursuant to this section, the court may order the person to pay restitution to a victim of the minor’s conduct. The amount of restitution ordered pursuant to this section shall not exceed three thousand dollars ($3,000).
{¶ 7} “(d) Whoever violates division (a) of this section is guilty of failing to supervise a minor, a minor misdemeanor for a first offense. For a secоnd offense, such person is guilty of a misdemeanor of the fourth degree. For a third and subsequent offense, such person is guilty of a misdemeanor of the first degree. The penalty shall be as provided in Section 698.02.
{¶ 8} “(e) The first time a person is convicted of an offense described in division (a), the person shall not be required to pay a fine (other than court costs) if the person successfully participates and completes a pаrent effectiveness program to the satisfaction of the court.”
{¶ 10} “(A) Except as provided in division (B) of this section, a person is not guilty of an offense unless both of the following apply:
{¶ 11} “(1) The person’s liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing;
{¶ 12} “(2) The person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense.” The court held that the ordinance allowed a person to be convicted without either a voluntary act or an omission to perform an act or duty that the person is capable of performing. The court also found that the ordinance was vague because it granted the city’s prosecuting attorney too much latitude in deciding when to charge a person with violating the ordinance. Finally, the court held that the ordinance overbroadly included all parents, regardless of whether a particular parent had actual oversight of the child at the time the child committed the delinquent act.
II
{¶ 13} Because it is a basic principle of appellate review that we should avoid deciding questions of constitutional law if a case can be decided on nonconstitutional grounds, see
Kinsey v. Police & Firemen’s Disability & Pension Fund Bd. of Trustees
(1990),
A
{¶ 14} Section 3, Article XVIII of the Ohio Constitution (the “Home Rule Amendment”) states that municipalities are authorized “to exercise all powers of local self-government and to adopt and enforce within their limits suсh local police, sanitary and other similar regulations, as are not in conflict with general laws.”
{¶ 15} An ordinance is in “conflict” with general laws when it allows that which the statute does not, and vice versa.
Struthers v. Sokol
(1923), 108
{¶ 16} In
Mendenhall v. Akron,
{¶ 17} “We use a three-part test to evaluate claims that a municipality has exceeded its powers under the Home Rule Amendment. ‘A state statute takes precedence over a local ordinance when (1) the ordinance is in conflict with the statute, (2) the ordinance is an exercise of the police power, rather than of local self-government, and (3) the statute is a general law.’
Canton v. State,
B
{¶ 18} When considering whether the ordinanсe is an exercise of the police power, rather than of local government, we acknowledge that “[i]f an allegedly conflicting city ordinance relates solely to self-government, the analysis stops, because the Constitution authorizes a municipality to exercise all powers of local self-government within its jurisdiction.”
Am. Fin. Servs. Assn. v. Cleveland,
{¶ 19} “An ordinance created under the power of local self-government must relate ‘solely tо the government and administration of the internal affairs of the municipality.’
Beachwood v. Cuyahoga Cty. Bd. of Elections
(1958),
{¶ 21} The police power has been said to have originated “in the inherent need of government to impose certain restraints on the private actions of citizens for the benefit оf all.” (Footnote omitted.) Hodge, The Role of New Federalism and Public Health Law (1997), 12 J.L. & Health 309, 320. The rationale for the police powers is:
{¶ 22} “Where individual actions or other elements constitute threats to the public welfare, governments should be able to use their powers to reduce, deter, or enjoin the resulting harms to society. In order for individuals to exist peacefully and beneficially in societal groups, governments must be able to control individual rights and uses of property in the interests оf increasing the benefits and reducing societal drawbacks. Sovereign police powers represent as much a grant of power to governments from the people as they do an inherent attribute of governmental power over the people. ‘The public welfare demands that the rights of the individual give way to those of the people as a whole.’ ” (Footnotes omitted.) Id.
{¶ 23} The police power “extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the state.”
Marmet v. State
(1887),
{¶ 24} “Legislative concern for public safety is not only a proper police power objective — it is a mandate.” The police power of the state is premised not only on protecting the “public health, safety, morals and general welfare,” but “in promoting the comfort, convenience and peace of mind” of its citizens. See
Ghaster Properties, Inc. v. Preston
(1964),
{¶ 25} Statistical data show that juvenile crime is a matter that affects the public health, safety, morals, and general welfare. Statistics compiled by the Federal Bureau of Investigation show that in 2006, there were 1,382,848 arrests of persons under 18 years of age. See Federal Bureau of Investigation, Crime in the United States Annual Report 2006. During that same year, the Ohio Office of Criminal Justice Services reported a total of 42,134 arrests in Ohio. See Ohio Department of Public Safety, Ohio Office of Criminal Justice Services, 2006 Juvenile Arrests in Ohio by Crime Type, available at http://www.crimestats.ohio. gov/CrimeByCounty2006.pdf. The Office of Criminal Justice Services reported
{¶ 26} Statistics show that the number of juvenile crimes decreased seven percent between 1995 and 2004. See OJJDP Fact Sheet: Delinquency Cases in Juvenile Courts, 2004 (Feb. 2008, No. 01), United States Department of Justice Office of Juvenile Justice, available at (http://www.ncjrs.gov/pdffilesl/ojjdp/fs 200801.pdf). However, more rеcent data compiled by the FBI show that in 2006, there was a 0.8 percent increase in juvenile arrests over 2005, and that “[ajrrests of juveniles (under 18 years of age) for murder rose 3.4 percent in 2006 compared with 2005 arrest data; for robbery, arrests of juveniles increased 18.9 percent over the same 2-year period.” Crime in the United States Annual Report 2006, Table 36, available at http://www.fbi.gov/ucr/cius2006/data/table_36.html. The FBI also reported that the numbеr of juvenile arrests for “violent crime,” which it defines as “murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault,” increased by 3.6 percent in 2006. Id.
{¶ 27} By any measure, the number of juvenile arrests is troubling. The FBI estimates that in 2006, 14,380,370 arrests occurred nationwide for all offenses except traffic violations. Id. Juvenile arrests comprised nearly ten percent of all arrests made in 2006. Id.
{¶ 28} Legislative approaches to the prevention of juvenile crime have typically involved “1) increasing penalties, including finite and lengthier periods of incarceration for young offenders; 2) lowering the age and other prerequisites for transferring juveniles accused of serious crimes from juvenile to adult court (where adult sanctions can be imposed); and 3) funding new detention and correctional centers as well as ‘boot camps’ with rigid, military-like regimens.” Davidson, No Consequences — Reexamining Parental Responsibility Laws (1995), 7 Stan.L. & Policy Rev. 23. These methods, however, do not address why a juvenile becomes an offender.
{¶ 29} Various theories addressing the cause of juvenile offending have been developed over the years. See Note, To Enhance or Not to Enhance: Civil Penalty Enhancement for Juvenile Hate Crime Offenders (2007), 41 VaLU.L.Rev. 1685, 1709. One theory, positive causation theory, attributes crime to the offеnder’s background and environment, including “personal, social, or environmental factors [that] contribute to juvenile delinquency.” Note, Creating Problems Rather Than Resolving Them: Why Criminal Parental Responsibility Laws Do Not Fit Within Our Understanding of Justice (1997), 66 Fordham L.Rev. 1029, 1035-1036. Consistent with this theory, some criminologists have concluded that “ ‘certain functions and characteristics of the family are among the
{¶ 30} The data permit no firm conclusions as to whether parental responsibility laws are efficacious. Nevertheless, “the object of a criminal penalty is to punish the accused, deter others from crime, and to protect the public.”
State v. Meyer
(1955),
C
{¶ 31} We next consider whether R.C. 2901.21(A) is a general law. In
Canton,
{¶ 32} “To constitute a general law for purposes of home-rule analysis, a statute must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, (3) set forth pоlice, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally.”
{¶ 33} There is no question that R.C. 2901.21(A) is a general law. It is contained within R.C. Title 29, it applies to all parts of the state, sets forth a police regulation, and prescribes a rule of conduct upon all citizens generally.
D
{¶ 34} The crucial issue for consideration is whether the ordinance conflicts with R.C. 2901.21(A). In
Cincinnati v. Baskin,
{¶ 35} “It has long been established that ‘[i]n determining whether an ordinance is in “conflict” with general laws, the test is whether the ordinance permits or licenses that which the statute forbids or prohibits, and vice versa.’
Struthers
{¶ 36} “It is also well established that ‘in order for such a conflict to arise, the state statute must positively permit what the ordinance prohibits, or vice versa, regardless of the extent of state regulation concerning the same object.’
Cincinnati v. Hoffman
(1972),
{¶ 37} R.C. 2901.21(A) embodies the long-recognized principle that a crime is composed of both an actus reus and a mens rea — the voluntary act (or the failure to act when required to do so) and the requisite mental state to commit that act.
State v. Colon,
{¶ 38} In some circumstances, the mens rea requirement is inapplicable; for example, in strict-liability offenses. The violation of a strict-liability crime imposes criminal liability on the defendant in the absence of criminal intent or mens rea. See
United States v. Bailey
(1980),
{¶ 39} Strict liability may also be imposed when the harm does not consist of a wrongful act, but of a failure to act at all. The law imposes strict liability upon sexual offenders who fail to register as a sexual offender in violation of R.C. 2950.04, see
State v. Beckley,
Cuyahoga App. No. 83254,
{¶ 40} Corporate criminal liability and the vicarious liability it imposes “is a substantial departure from the ordinary rule that a principal is not answerable criminally for the acts of his agent without the principal’s authorization, consent or knowledge, and thus corporate criminal liability continues to be a matter of vigorous debate.” (Footnotes omitted.) 1 LaFave & Scott, Substantive Criminal Law (1986) 364, Section 3.10(b). See also
Comer v. Risko,
{¶ 41} The common law did not allow thе invocation of the doctrine of respondeat superior in a criminal case because it would run counter to the notion that guilt must be individual and through personal causation:
{¶ 42} “The common law is wedded to the concept of personal, rather than vicarious, responsibility for crimes. [One commentator] has described the notion that criminal liability is ‘intensely personal’ as ‘deeply rooted.’ Our demand that responsibility be personal is the result of the ‘inarticulate, subconscious sense of justice of the [person] on the street.’ Personal responsibility is the ‘only sure foundation of law.’ Causation, then, is the instrument we employ to ensure that responsibility is personal. It links the actor to the harm. It helps us to understand who should be punished by answering how the harm occurred. Causation is * * * ‘an ultimate notion, deeply characteristic of human thought and expressed even among the most primitive people, in their effort to understand the “way of things.” ’ ” (Footnotes omitted.) Dressier, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem (1985), 37 Hastings L.J. 91, 103.
{¶ 43} Despite being a departure from generally accepted principles of criminal culpability, vicarious criminal liability is sometimes applied beyond corporations to individuals. In
Pinkerton v. United States
(1946),
{¶ 44} Ohio permits the imposition of vicarious criminal liability against organizations under R.C. 2901.23(A)(2) when (1) the General Assembly expresses an intеntion to impose liability, (2) the act constituting a criminal offense was committed by the employee on behalf of the organization, and (3) the act was within the scope of employment. Ohio does not, however, allow for the imposition of individual vicarious criminal liability under R.C. 2901.21(A).
{¶45} The city’s ordinance very plainly imposes individual vicarious criminal liability because it does not require that the offender commit any act or omission as a predicate for culpability. An offense is committed by a parent once the child “has committed a status offense, unruly act or a delinquent act that would be a misdemeanor or felony of any degree if committed by an adult.” Our conclusion is inescapable: the ordinance allows that which R.C. 2901.21(A) prohibits and is in direct conflict with R.C. 2901.21(A).
{¶ 46} R.C. 2901.21(A) takes precedence over the ordinance, so we invalidate the ordinance as a matter of lаw and declare it void. See
Marich,
Judgment affirmed.
Notes
. Status offenses are acts for which only juveniles can be arrested, that is, an otherwise legal act that is considered illegal only because of the juvenile status of the person committing the act. See R.C. 2151.022. Status offenses include truancy, unruly behavior, and liquor-law violations (minor in possession of alcohol, underage drinking).