STATE OF OHIO, Plaintiff-Appellee -vs- MILES S. PILLAR, Defendant-Appellant
Case No. 2012 AP 01 0007
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
August 24, 2012
2012-Ohio-3926
Hon. W. Scott Gwin, P. J., Hon. John W. Wise, J., Hon. Julie A. Edwards, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the New Philadelphia Municipal Court, Case No. CRB 0901001 A, B, C; JUDGMENT: Affirmed
For Appellee
RONALD L. COLLINS DOVER CITY PROSECUTOR 714 North Wooster Avenue Dover, Ohio 44622
For Appellant
MATTHEW P. MULLEN KRUGLIAK, WILKINS, GRIFFITHS & DOUGHERTY CO., LPA 158 North Broadway New Philadelphia, Ohio 44663
{¶1} Appellant Miles S. Pillar appeals his conviction, in the New Philadelphia Municipal Court, Tuscarawas County, on three counts of misdemeanor telecommunications harassment. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} Appellant is the owner of Red Hill Crane and Equipment Rental Company, located in Dover, Ohio. At some point in the fall of 2008, Ryan Weaver, owner of Affordable Tree Service, rented some heavy equipment from Red Hill to use in his business. A heated dispute thereafter arose between the two entities as to payment for the use of the equipment.
{¶3} Appellant and some of Red Hill‘s employees sent repeated invoices to Weaver‘s business address, but Weaver did not respond. Appellant thereupon called Weaver via telephone once on August 7, 2009 and two times on August 10, 2009. Weaver refused to speak to appellant or any of the employees when the telephone calls were made. In fact, Weaver later testified that he told appellant during the first phone call not to call back. Tr. at 7.
{¶4} Appellant again called Weaver on the morning of August 11, 2009. At that point, Weaver went to the Dover Police Department to make a complaint about appellant regarding the attempted debt collection. A Dover police officer contacted appellant and advised him to cease making the calls. Appellant nonetheless made at least three more calls to Weaver.
{¶5} Appellant was thereafter charged with three counts of telecommunications harassment, in violation of
{¶6} On December 29, 2011, the trial court issued a judgment entry adopting the magistrate‘s decision finding appellant guilty on three counts of telecommunications harassment in violation of
{¶7} On January 27, 2012, appellant filed a notice of appeal. He herein raises the following sole Assignment of Error:
{¶8} “I. THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE‘S DECISION AND ORDER REGARDING THE DEFENDANT-APPELLANT‘S ALLEGED VIOLATION OF OHIO‘S TELECOMMUNICATIONS HARASSMENT STATUTE, ORC § 2917.21, AS THE APPLICATION OF SAID STATUTE IS UNCONSTITUTIONALLY OVERBROAD, AND CONFLICTS WITH THE FEDERAL FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692.
I.
{¶9} In his sole Assignment of Error, appellant argues the trial court erred in finding him guilty of telecommunications harassment under
{¶10} The statute in question provides in pertinent part as follows:
{¶11} “(A) No person shall knowingly make or cause to be made a telecommunication, or knowingly permit a telecommunication to be made from a telecommunications device under the person‘s control, to another, if the caller does any of the following:
{¶12} “***
{¶13} “(5) Knowingly makes the telecommunication to the recipient of the telecommunication, to another person at the premises to which the telecommunication is made, or to those premises, and the recipient or another person at those premises previously has told the caller not to make a telecommunication to those premises or to any persons at those premises.”
Exemption Under the Fair Debt Collection Practices Act
{¶14} As an initial matter, we recognize that
{¶15} “Nothing in this section prohibits a person from making a telecommunication to a debtor that is in compliance with the ‘Fair Debt Collection Practices Act,’ 91 Stat. 874 (1977),
15 U.S.C. 1692 . ***”
{¶16} Although appellant in the case sub judice has not specifically presented his claims on a “sufficiency of the evidence” basis, we note in the interest of justice that the evidence at trial would not have warranted an application of the protection provided by
Constitutionality of R.C. 2917.21
{¶17} We therefore turn our attention to appellant‘s constitutional argument. An analysis of such a challenge to a duly-enacted statute generally begins with the basic premise that acts of the Ohio General Assembly enjoy a strong presumption of constitutionality. See State v. Eichorn, Morrow App. No. 02CA953, 2003–Ohio–3415, ¶ 23, citing State v. Gill (1992), 63 Ohio St.3d 53, 55, 584 N.E.2d 1200. Laws which regulate constitutionally protected conduct, including freedom of speech, must be precisely constructed to target or address the exact source of the legislative concern at issue. See State v. Woodbridge, 153 Ohio App. 3d 121, 125-26, 791 N.E.2d 1035, 2003-Ohio-2931, citing Painesville Bldg. Dept. v. Dworken & Bernstein Co., L.P.A., 89 Ohio St. 3d 564, 568, 733 N.E.2d 1152, 2000-Ohio-488. However, commercial speech is afforded less constitutional protection than other constitutionally guaranteed expression. Bench Signs Unlimited, Inc. v. Lake Twp. Bd. of Zoning Appeals, 149 Ohio App.3d 462, 777 N.E.2d 912, 2002-Ohio-5436, ¶ 19, citing United States v. Edge Broadcasting Co. (1993), 509 U.S. 418, 426, 113 S.Ct. 2696, 125 L.Ed.2d 345. The United States Supreme Court, in the case of Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm. of New York (1980), 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341, promulgated a four-part test for assessing governmental restrictions on commercial speech as distinguished from more fully protected speech. First, only commercial speech that is truthful and not misleading receives First Amendment protection. Second, a restriction on truthful, not misleading commercial speech must seek to implement a substantial governmental interest. Third, the restriction must directly advance the governmental interest involved. Fourth, the restriction must not be more extensive than necessary to serve that interest. See Central Hudson at 564, 100 S.Ct. 2343, 65 L.Ed.2d 341.
{¶18} The legislative intent behind
{¶19} We are not herein persuaded that
{¶20} For the foregoing reasons, the decision of the New Philadelphia Municipal Court, Tuscarawas County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
JUDGES
JWW/d 0724
STATE OF OHIO, Plaintiff-Appellee -vs- MILES S. PILLAR, Defendant-Appellant
Case No. 2012 AP 01 0007
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the New Philadelphia Municipal Court, Tuscarawas County, Ohio, is affirmed.
Costs assessed to appellant.
JUDGES