766 N.E.2d 167 | Ohio Ct. App. | 2001
Lead Opinion
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The facts are undisputed. In June 1997, the city enacted the Outdoor Payphone Ordinance, Cleveland Codified Ordinance 670B. The preamble to the act states:
WHEREAS, this Council has determined that additional regulations concerning the placement and permitting of outdoor pay telephones on private property and the right-of-way are needed to further protection of the public health, safety and welfare; and
WHEREAS, such additional regulations are needed due to the proliferation of outdoor pay telephones in the City and the resultant increase in the congregation of persons around and about such phones, both of which have created noise, have created congestion for the public using the right-of-way, parking lots, services stations and other businesses, as well as seeking to enter and leave their own or other residences in the City, and have created aesthetic pollution and physical obstacles, blocking sightlines and causing confusion for the police, pedestrians and drivers; and such proliferation of outdoor pay telephones has also magnified the existing atmosphere conducive to the attraction of drug related crimes and criminals, prostitution, gang activity, vandalism, youth crimes and other public nuisances; * * *.
To effectuate the goals of the legislation, the city banned payphones (for clarity, our references to "payphones" means outdoor payphones) on any vacant land other than a public park; on any property where there is a vacant building; on any property which has a premises licensed for the sale of alcoholic beverages (other than beer or wine); in a residential use district or within 100 feet of a residential use district; at a location where use from a vehicle is possible which would cause the vehicle to stand in a driveway or aisle in a parking lot or in the right of way; and on any property or location which has been determined by the director of public safety to create a nuisance based upon prior actual use. See Cleveland Codified Ordinance No. 670B.02(c).
A "nuisance" exists when (1) the payphone has been used in the commission of illegal drug transactions or other criminal activity, or substantially contributes by its presence to the commission of illegal drug transactions or other criminal activity as evidenced by significant numbers of crimes occurring in the vicinity of the payphone; (2) the existence of the payphone substantially contributes by its presence to the congregation of persons who have made loud noises and other disturbances that have disrupted persons or businesses located near the payphone; (3) the existence of the payphone substantially contributes by its presence to the congregation of persons consuming alcoholic beverages, except where the consumption is expressly authorized by state license; (4) the existence of the *324 payphone substantially contributes by its presence to the congregation of persons who interfere with pedestrian or vehicular traffic in the public right of way near the payphone; (5) usage of the pay telephone between the hours of 1:00 a.m. and 5:00 a.m. is significantly and repeatedly above normal for similarly situated payphones so as to indicate that the pay telephone is being used in the commission of illegal drug activity or other criminal activity; or (6) the pay telephone has been used to abuse the 911 system. Cleveland Codified Ordinance 670B.07(a). Any owner of a payphone that has been determined to be a nuisance may appeal that determination with the board of zoning appeals. Cleveland Codified Ordinance 670B.07(f).
All payphones are required to automatically block all incoming telephone calls and provide outgoing service only; prevent the use of pagers; use electrical wiring for electrical connections; be well lighted; and be kept clean and free of graffiti. Cleveland Codified Ordinance No. 670B.02(e). The payphones must be equipped with "smart" technology that can provide lists containing the destination of outgoing calls and the time, date and duration of those calls. Cleveland Codified Ordinance 670B.02(f).
As applicable here, the legislation contained two essential parts: regulation of payphones on the public right-of-way and regulation of pay telephones on private property.
Any person wishing to install a payphone on the public right-of-way must first enter into a contract with the city's director of finance, after receiving approval from the city council. Cleveland Codified Ordinance 670B.03(a). Those payphone owners who do not reach an agreement with the city are required to remove their payphones at their expense. Cleveland Codified Ordinance 670B.03(c). Permission must be obtained for the placement of each individual payphone, and the member of council in whose ward the payphone is to be placed has the right to object to the placement.
All persons wishing to install a payphone on private property must obtain a biennial license, Cleveland Codified Ordinance 670B.04(a), although the possession of a license does not guarantee the licensee that a payphone installation will be permitted. Cleveland Codified Ordinance 670B.04(b). The license costs $200. Cleveland Codified Ordinance 670B.04(c). The licensee must then acquire a $60 biennial permit for each individual payphone. Cleveland Codified Ordinance 670B.05(b).
Payphones installed on private property may not be placed within 1,000 feet of any other payphone on private property. Cleveland Codified Ordinance 670B.02(g). Not more than one payphone shall be installed in the right-of-way within 1000 feet of any other payphone in the right-of-way. Id. An owner may seek an exemption from the 1000 foot restriction. *325
All payphones installed on private property may not be located closer than five feet from any public sidewalk, or within five feet of the entrance to any structure, cross-walk, bus shelter, mail box or parking meter. Cleveland Codified Ordinance 670B.02(k). No payphone may be installed within five feet of any driveway or area used for ingress or egress, an aisle way for vehicular public parking or an area used for parking. Id.
The city granted a franchise contract to only one payphone carrier — Ameritech Ohio. That contract granted Ameritech the authority to place three hundred fifty-three payphones in the public right-of-way. The city then sent notices to other owners of pay telephones informing them that their payphones located on the rights-of-way were subject to removal. The evidence shows this notice affected 562 payphones located on private property. When those owners did not remove their payphones, the city began to remove them. As of July 1999, fifty payphones had been removed.
Four members of the Payphone Association of Ohio — Americall, Inc.; Nationwide Communications, Inc.; Coin Communications, Inc.; and Northeast Ohio Telephone Company — brought this action after their payphones had been removed. The court granted a preliminary injunction prohibiting the city from removing any more payphones pending resolution of the substantive issues. The parties then filed their cross-motions for summary judgment. In a detailed opinion, the court found that R.C. Chapter 4931 prohibits the state or any political subdivision from discriminating among utility service providers. The court also held that the ordinance was a police regulation outside the city's home rule authority which conflicted with the state law and must be preempted.
An ordinance constitutes a valid exercise of a city's police powers when it directly promotes the general health, safety, welfare or morals; is reasonable; the means adopted to accomplish the legislative purpose are suitable to the end in view; the legislation is impartial in operation; the ordinance has a real and substantial relation to the legislative purpose and does not interfere with private rights beyond the necessities of the situation. Teegardin v. Foley (1957),
The preamble to Cleveland Codified Ordinance 670B states that the ordinance is a law intended for the protection of the public health, safety and welfare. The city submitted with its motion for summary judgment a number of affidavits from city council members and concerned citizens attesting to complaints of loitering, illegal drug dealing, gang activity, graffiti, prostitution and other criminal activity occurring near and through the use of outdoor payphones. See, e.g., Affidavit of Martin Sweeney, appended as Exhibit B to the City's Opposition to Plaintiff's Motion for Summary Judgment.
The association disputes the existence of any problems associated with its payphones, pointing to evidence to show that only six complaints concerning payphones were received in 1994 and ten complaints were received in 1995. The association argues that the low number of complaints cannot stand to show a problem serious enough to warrant the adoption of such stringent regulations for the placement of payphones.
Applying the "real and substantial" test, we find the ordinance does bear a substantial relation to the public health and welfare of the city. "Legislative concern for public safety is not only a proper police power objective — it is a mandate." Arnold v. Cleveland (1993)
The applicable section of the Ohio Public Utilities Act is R.C.
(A) A utility service provider or cable operator has the right to construct, repair, position, maintain, or operate lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities along, across, over, upon, and under any public way in the state, subject to the applicable provisions of this chapter and any other chapter of the Revised Code. The lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities shall be constructed and positioned in such a way that safety is not unreasonably compromised in the use of the public way.
(B) The state, or any political subdivision of the state, shall not discriminate among utility service providers or cable operators, or grant a preference to any utility service provider or cable operator, in the issuance of permits or the passage of laws, ordinances, or resolutions for the use of public ways, or create or erect any requirements for entry upon and use of the public ways that are not necessary to protect the health, safety, and welfare of the public.
(C) Nothing in this section shall be construed to authorize any utility service provider or cable operator to construct lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities along, across, upon, and under any public way owned by a political subdivision without first obtaining the consent of the political subdivision for such construction, if consent is required by the political subdivision.
The court found that the non-discrimination provisions of R.C.
In State ex rel. Mill Creek Metro. Park Dist. Bd. of Commrs. v. Tablack (1999),
* * * we must resolve whether (1) the challenged ordinances involve the exercise of powers of local self-government, (2) the state statutes are general or special laws, and (3) there is any conflict between the ordinances and state law. See Ohio Assn. of Private Detective Agencies, Inc. v. N. Olmsted (1992),
65 Ohio St.3d 242 ,244-245 ,602 N.E.2d 1147 ,1149-1150 ; Fairview Park v. Barefoot Grass Lawn *328 Serv., Inc. (1996),115 Ohio App.3d 306 ,310 ,685 N.E.2d 300 ,302 , discretionary appeal not allowed (1997),77 Ohio St.3d 1544 ,674 N.E.2d 1184 .
We agree that regulation of outdoor payphones under the facts presented in this case is a proper function of the city's police power. Hence, in order to avoid being cast under the net of R.C.
General laws are "statutes setting forth police, sanitary or similar regulations and not statutes which purport only to grant or to limit the legislative powers of a municipal corporation to adopt or enforce police, sanitary or other similar regulations." See West Jefferson v. Robinson (1965),
General laws are defined as those "operating uniformly throughout the state * * *, which prescribe a rule of conduct upon citizens generally, and which operate with general uniform application throughout the state under the same circumstances and conditions. Garcia [v. Siffrin Residential Assn. (1980),
63 Ohio St.2d 259 ] at 271, 17 O.O.3d at 174, 407 N.E.2d at 1377-1378, citing Leis v. Cleveland Ry. Co. (1920),101 Ohio St. 162 ,128 N.E. 73 .
The courts are sensitive to the home rule authority of municipalities because a disregard of that authority would be an effective nullification of the constitutional right. The kinds of general laws which prevail over conflicting powers of home rule authority municipalities are those that show a "concern of the state for the peace, health and safety of all of its people, wholly separate and distinct from, and without reference to, any of its political subdivisions — such as those which regulate the morals of people, the purity of their food, the protection of the streams, the safety of buildings and similar matters." Fitzgerald v. City of Cleveland,
The General Assembly has declared the placement of telecommunications equipment to be "a matter of statewide concern." See R.C.
We are sympathetic to the city's argument that control over its public ways is a purely local issue, unrelated to the state's need for uniform laws. This seems particularly true when the stated purpose of the ordinances is to alleviate crime occurring as a result of the placement of payphones. Certainly, R.C.
Nevertheless, the city's argument, at best, suggests that regulation of payphones presents a mixed concern between state and local governmental interests. We resolve this conflict in favor of the state's larger interest in maintaining uniformity of access and service in both interstate and intrastate communications. We find that R.C. Chapter 4939 is a general law.
The remaining consideration is whether the ordinance conflicts with the general law. In Sheffield v. Rowland (1999),
The court found the entirety of Cleveland Codified Ordinance 670B conflicted with the general law. We only agree in part with this conclusion.
Cleveland Codified Ordinance 670B.03(a) states that the city's director of finance shall have the authority to enter into contracts that grant "one or more owners" the privilege of installing and maintaining payphones in the public right-of-way. To date, only one franchise has been granted to a payphone operator *330 despite each of the individual members of the association making separate applications. No justification for this appears in the record, and we fail to discern any valid reasons for only awarding one franchise.
We find it beyond debate that the city's refusal to grant more than one franchise has had the effect of creating a barrier to entry in the payphone market in a manner that would violate R.C.
We cannot agree, however, with the court's decision to invalidate Cleveland Codified Ordinance 670B in its entirety merely because the city discriminated by refusing to issue more than one franchise. The city's attempt to discriminate against payphone operators has been a complete obstacle — it does not mean that other provisions in the ordinance have the same effect. The court made no findings that each and every provision of the ordinance conflicted with the general law. Some of those provisions appear, at least facially, to be related to the health, safety and welfare of the public. For example, the requirement that payphones be equipped with so-called "smart" technology does not appear to be a kind of discrimination against payphone operators since we can think of colorable *331 arguments which would support a finding that smart technology is intended to advance the health, safety, and welfare of the citizens near those payphones.
We are likewise concerned with the court's decision to invalidate the nuisance provisions of the ordinance. Again, it seems to us highly unlikely that declaring an existing payphone to be a nuisance would amount to discrimination under R.C.
Our list is not meant to be exhaustive. We recognize that many of these issues will not be ripe for review until after the city opens its payphone market to all other providers in conformity with this opinion. For now, it will suffice to say that the court acted precipitously by invalidating the ordinance in its entirety without considering whether individual portions of the ordinance would not conflict with the general law.
We therefore sustain in part the city's second assignment of error and remand this back to the court for a determination of whether individual sections of the ordinance conflict with R.C.
The city's remaining arguments raise constitutional issues in one form or another — questions concerning the one-subject rule under Article
Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.
This cause is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.
Costs assessed against The Payphone Association of Ohio, plaintiff-appellee.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TERRENCE O'DONNELL, J., CONCURS. ANNE L. KILBANE, J., CONCURS WITH SEPARATE CONCURRING OPINION.
We cannot, however, rely on this federal statute as grounds for our decision since the association did not raise federal law as a ground for relief in its complaint.
Concurrence Opinion
On this appeal from the decision of Judge Bridget M. McCafferty, I agree with the majority that the City's exclusive grant of a franchise to Ameritech alone requires reversal and that the case should be remanded for each section of Cleveland Codified Ordinances ("C.C.O.") 670(B) to be separately evaluated for *332 adherence to the limits of the City's home-rule authority. I write separately, however, because it is a logical inconsistency to decline to address the constitutionality of R.C. 4939 while at the same time applying it to the City's detriment in ruling that C.C.O. 670(B) conflicts with R.C. 4939, a "general law" containing an anti-discrimination provision.
The City's counterclaim in this declaratory judgment action asserted that C.C.O. 670(B) was enacted under its home-rule powers and, regardless of whether its provisions conflicted with those of R.C. 4939, that statute was created in violation of the one subject provision of the Ohio Constitution and should be invalidated in toto.
Courts find it unnecessary to address constitutional issues where the party raising that issue can prevail on other grounds, making constitutional decisions unnecessary because any assumed constitutional infirmity does not prejudice the complaining party.2 The majority, however, chooses to ignore the City's constitutional issue of whether R.C. 4939 is valid, despite knowledge that its application results in a partially injurious result for the City. In this case, the constitutional issues should be decided before the statute is actually applied.
Ohio has adopted the "one subject rule," through Article II, Section 15(D) of its constitution, in order to prevent state legislators from combining unrelated issues in one bill because such a practice prevents legislators from fully voting their position on each major issue and promotes pork-barrel politics. It also prevents groups of minority blocs from voting for a bill in order to secure passage of one tiny part of the bill they support — a practice known as "logrolling."
"With these principles in mind, [The Ohio Supreme Court has] adopted the position that "the one-subject provision is not directed at plurality but at disunity in subject matter."3 Thus, "the mere fact that a bill embraces more than one topic is not fatal, as long as a common purpose or relationship exists between the topics."4 However "when there is an absence of common purpose or relationship between specific topics in an act and when there are no discernible practical, rational or legitimate reasons for combining the provisions in one act, there is a strong suggestion that the provisions were combined for tactical *333 reasons, i.e., logrolling. Inasmuch as this was the very evil the one-subject rule was designed to prevent, an act which contains such unrelated provisions must necessarily be held to be invalid in order to effectuate the purpose of the rule."5"6
R.C. 4939, consisting of four sections, was enacted in 1999 as part of the General Assembly's Biennial Operating Appropriations legislation.7
It deals with the restrictions and licensing requirements political subdivisions may place upon any utility or cable provider within that subdivision. That portion of the act, which also repealed R.C.
"[W]hen a court strikes down a statute as unconstitutional, and the offending statute replaced an existing law that had been repealed in the same bill that enacted the offending statute, the repeal is also invalid unless it clearly appears that the General Assembly meant the repeal to have effect even if the offending statute had never been passed."8 The precursor statutes to R.C. 4939 are found in R.C. 4931, and the judge should have evaluated C.C.O. 670(B) as a valid use of the city's constitutional police power against the backdrop of the relevant sections of Chapter 4931 which were replaced by Chapter 4939.9
Expressly stated in R.C.
The Ohio Attorney General attempts to gloss over the fatal flaws of the legislation by suggesting that the "common purpose" element of the single subject analysis was satisfied because R.C.
In this case, the only necessary inquiry would be to determine if each section of C.C.O. 670(B), as enacted or enforced, oversteps the bounds of the City's full home-rule powers.