[Cite as Youngstown v. Traylor, 123 Ohio St.3d 132, 2009-Ohio-4184.]




          CITY OF YOUNGSTOWN, APPELLANT, v. TRAYLOR, APPELLEE.
     [Cite as Youngstown v. Traylor, 123 Ohio St.3d 132, 2009-Ohio-4184.]
Criminal liability — Vicious dogs — Youngstown Codified Ordinances 505.19 is
        rationally related to the city’s legitimate interest in protecting citizens
        from vicious dogs and therefore is constitutional — Conviction reinstated.
   (No. 2008-1460 — Submitted May 19, 2009 — Decided August 26, 2009.)
    APPEAL from the Court of Appeals for Mahoning County, No. 07 MA 102,
                                   2008-Ohio- 2971.
                                 __________________
                               SYLLABUS OF THE COURT
Youngstown Codified Ordinances 505.19 is rationally related to the city’s
        legitimate interest in protecting citizens from vicious dogs and therefore is
        constitutional.
                                 __________________
        LUNDBERG STRATTON, J.
        {¶ 1} Today we must decide whether a Youngstown ordinance that
requires vicious dogs to be confined and requires the state to prove at trial that the
dog is vicious or dangerous as an element of the offense violates procedural due
process. Because we hold that the ordinance does not violate due process, we
reverse the judgment of the court of appeals and reinstate the conviction.
                                          Facts
        {¶ 2} On April 18, 2007, at 8:00 a.m., David Roch was walking his 16-
pound wire fox terrier in Mill Creek Park in Youngstown, Ohio, when he was
approached by two unaccompanied Italian mastiff/Cane Corso dogs, one male and
one female. The Mahoning County dog warden estimated the male dog to be
about 170 to 180 pounds, and the female was slightly smaller.
                              SUPREME COURT OF OHIO




       {¶ 3} Roch restrained his dog and attempted to calm the larger dogs,
which were becoming increasingly agitated. One of the dogs attacked Roch’s
dog, and when Roch attempted to rescue his dog from the skirmish, Roch was
attacked, sustaining an injury to his hand. Roch’s dog required surgery and
stitches for injuries to her ear and head.
       {¶ 4} After the attack, Roch’s dog, which had been taken off her leash,
fled, and Roch sought shelter in the garage of Maureen Cronin, a neighbor who
witnessed the attack.     Cronin called Mill Creek Park Police Officer Carolyn
Grimaldi, who arrived to find two dogs standing in Cronin’s driveway. Officer
Grimaldi shot and killed one of the dogs as it ran toward her. The other dog fled,
and a few minutes later, Youngstown Police Officer Matthew Willis spotted it.
Officer Willis testified that when the dog saw him, it looked agitated and
aggressive. When the dog fast approached him, Officer Willis shot and killed it.
       {¶ 5} After a joint investigation involving the Mill Creek Park Police
Department, the Youngstown Police Department, and the Mahoning County dog
warden’s office, investigators learned that the owner of the dogs was Jammie
Traylor, defendant-appellee. Traylor confirmed that he had two dogs that were
missing, but when shown the remains of the dogs, he admitted owning only the
female. Witnesses testified that they had seen Traylor with both dogs several
weeks before the attack. Traylor admitted at his sentencing hearing that he owned
the female and that the male had been present at his home for breeding purposes.
       {¶ 6} Traylor was charged with two first-degree misdemeanors,
violations under Youngstown Codified Ordinances (“YCO”) 505.19(b), entitled
“Vicious Dogs.” Traylor filed a motion to dismiss, arguing that YCO 505.19 is
unconstitutional. The trial court denied Traylor’s motion. A jury ultimately
convicted Traylor on the lesser included offense to count one and of the offense as
charged in count two. The trial court sentenced Traylor to 90 days in jail and
ordered him to pay restitution to Roch, complete two years of intensive




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supervised probation upon his release, pay fines and costs, and own “nothing
bigger than a Chihuahua” as a condition of his probation.
       {¶ 7} The Mahoning County Court of Appeals vacated Traylor’s
convictions and discharged him, holding that YCO 505.19 was unconstitutional.
Youngstown v. Traylor, Mahoning App. No. 07MA102, 2008-Ohio-2971, 2008
WL 2441368.        The city appealed, and this court accepted jurisdiction.
Youngstown v. Traylor, 120 Ohio St.3d 1415, 2008-Ohio-6166, 897 N.E.2d 651.
                                      Analysis
       {¶ 8} The issue before this court is whether YCO 505.19 violates
procedural due process by failing to give notice to a dog owner that his dog will
be considered vicious for purposes of criminal prosecution and/or by failing to
allow the owner a meaningful opportunity to be heard on his dog’s classification
as vicious.   The right to procedural due process is found in the Fourteenth
Amendment to the United States Constitution and Section 16, Article I of the
Ohio Constitution. State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773
N.E.2d 502, ¶ 6. “Although the concept is flexible, at its core, procedural due
process under both the Ohio and United States Constitutions requires, at a
minimum, an opportunity to be heard when the state seeks to infringe a protected
liberty or property right.” State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777,
814 N.E.2d 846, ¶ 8, citing Boddie v. Connecticut (1971), 401 U.S. 371, 377, 91
S.Ct. 780, 28 L.Ed.2d 113.
       {¶ 9} Although dogs are “private property to a qualified extent, they are
subject to the state police power, and ‘might be destroyed or otherwise dealt with,
as in the judgment of the legislature is necessary for the protection of its citizens.
* * * [L]egislatures have broad police power to regulate all dogs so as to protect
the public against the nuisance posed by a vicious dog.’ ” State v. Anderson
(1991), 57 Ohio St.3d 168, 170, 566 N.E.2d 1224, quoting Sentell v. New Orleans
& Carrollton RR. Co. (1897), 166 U.S. 698, 701-704, 17 S.Ct. 693, 41 L.Ed.



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1169. Thus, in this case, as in other animal-control cases, we are balancing the
state’s interest in protecting its citizens from vicious animals with the dog owner’s
due process rights.
        {¶ 10} The text of the ordinance at issue is as follows:
        {¶ 11} “YCO 505.19 Vicious Dogs.
        {¶ 12} “(a)     No person owning or harboring or having the care of a
vicious dog shall suffer or permit such animal to go unconfined on the premises of
such person.
        {¶ 13} “(b) No person owning or harboring or having the care of a vicious
dog shall suffer or permit such dog to go beyond the premises of such person
unless such dog is securely leashed or otherwise securely restrained.
        {¶ 14} “(c) Definitions.
        {¶ 15} “(1) A vicious dog is ‘unconfined’ as the term is used in this
section, if such dog is not restrained by a secure fence, other secure enclosure or
any other security device which effectively prevents such dog from going beyond
the premises of the person described in subsection (a) hereof.
        {¶ 16} “(2) ‘Vicious dog’ as used in this section means:
        {¶ 17} “A.      Any dog with a propensity, tendency or disposition to
attack, to cause injury to or to otherwise endanger the safety of human beings or
other domestic animals; and
        {¶ 18} “B.      Any dog which attacks a human being or another domestic
animal without provocation.
        {¶ 19} “(d)     Subsections (a) and (b) hereof are necessary controls on the
unrestrained activity of vicious animals which threaten the safety and pleasantness
of streets, parks, sidewalks, yards and all areas of the City and lack of knowledge
or lack of intent is not a defense to a violation thereof.”
        {¶ 20} In examining the constitutionality of this ordinance, we look to two
recent vicious-dog cases. In Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814




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N.E.2d 846, this court examined whether R.C. 955.22, a state statute requiring
confinement of dangerous or vicious dogs, violated procedural due process. We
held that the statute was unconstitutional because it failed to provide the dog
owner with a meaningful opportunity to be heard on the dog’s classification and
labeled dogs dangerous or vicious because of their breed only. Id. at ¶ 13. Once
the dog warden had made the unilateral decision to classify Cowan’s dogs as
vicious, R.C. 955.22 placed restrictions and requirements on Cowan and her dogs,
such as purchasing liability insurance, without the right to an appeal or an
administrative hearing. Id.
       {¶ 21} Traylor relied on Cowan to support his position that YCO 505.19
is unconstitutional. However, as the trial court held, Traylor was charged under
the vicious-dog ordinance not because of the breed of his dogs, but rather,
because his dogs had allegedly attacked a human and/or another domestic animal
without provocation, as prohibited by YCO 505.19(c)(2)B. Here, the trial court
concluded that there was no presumption that the dogs were vicious; rather, their
viciousness was an element of the crime that the state had the burden of proving
— i.e., that the dogs had attacked a human being or another domestic animal
without provocation.    Thus, the trial court found that the facts in this case
separated it from the analysis in Cowan.
       {¶ 22} Between the trial court’s ruling and the court of appeals’ decision
in this case, we decided Toledo v. Tellings, 114 Ohio St.3d 278, 2007-Ohio-3724,
871 N.E.2d 1152, in which we considered a Toledo Municipal Code section as
well as two state statutes, R.C. 955.11 and 955.22. The municipal code section
limited ownership of vicious dogs, as defined in R.C. 955.11, or dogs commonly
known as pit bulls or pit bull mixed breeds, to one in each household, and the
Revised Code required an owner of a pit bull to obtain liability insurance for
damages, injuries, or death that might be caused by the dog. Id. at ¶ 2.




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        {¶ 23} In upholding the three provisions, this court concluded that the
state and the city of Toledo possess the constitutional authority to exercise police
powers that are rationally related to a legitimate interest in public health, safety,
morals, or general welfare. We determined that the evidence proved that pit bulls
cause more damage than other dogs when they attack, cause more fatalities in
Ohio than other dogs, and cause Toledo police officers to fire their weapons more
often than do other breeds. Thus, we held that the state of Ohio and the city of
Toledo had a legitimate interest in protecting citizens from the dangers associated
with pit bulls and that R.C. 955.11(A)(4)(a)(iii) and 955.22 and Toledo Municipal
Code 505.14 are rationally related to that interest. Therefore, these provisions are
constitutional. Id. at ¶ 35.
        {¶ 24} The court of appeals held that Tellings was inapplicable to this
case because the case at bar does not involve pit bulls and because YCO 505.19
does not contain a classification of this breed as a definition of “vicious.”
Youngstown v. Traylor, 2008-Ohio-2971, ¶ 27. Rather, the court of appeals found
the facts of Cowan to be “virtually identical” to those in this case. Id. at ¶ 14.
Thus, the court of appeals held that YCO 505.19 violated procedural due process
because of the “imposition of additional legal duties and restrictions on the dog
owner.” Id. at ¶ 23. We disagree.
        {¶ 25} In holding that R.C. 955.22 was not unconstitutional as applied to
owners of pit bulls in Tellings, we clarified that in Cowan, it was the unilateral
classification of the dogs as vicious by a state actor that trampled the defendant’s
due process rights by failing to give him notice and opportunity to be heard.
Tellings, 114 Ohio St.3d 278, 2007-Ohio-3724, 871 N.E.2d 1152, ¶ 32. YCO
505.19 simply shifts the risk of dog ownership to the dog owner in order to
protect the public. 1

1. Between 4.5 and 4.7 million people are bitten by dogs in the United States each year.
American  Veterinary Medical      Association    (“AVMA”),     Dog    Bite   Prevention,




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                                  January Term, 2009




        {¶ 26} As for the opportunity to be heard, YCO 505.19 does not permit
any unilateral, unreviewable, precharge determination by a state actor, unlike the
statute involved in Cowan. Moreover, YCO 505.19 does not create prehearing
burdens on dog owners, such as requiring liability insurance for particular breeds.
In Cowan, we rejected the statute’s failure to provide the owner an opportunity to
challenge the vicious label before trial. However, YCO 505.19 does not classify
or label dogs as vicious. Dogs are rendered vicious under the ordinance by their
propensity to attack or by their attack, and dog owners are merely required to
keep such dogs confined.
        {¶ 27} Traylor’s dogs were alleged to be vicious in his criminal
complaint, and Traylor was given an opportunity for meaningful review in front
of the trial court. Notably, Traylor did not present any evidence regarding the
temperament or disposition of his unlicensed dogs at the hearing on the motion to
dismiss. YCO 505.19 does not place any responsibilities on the dog owner until
the state proves its case beyond a reasonable doubt. Rather, YCO 505.19 simply
requires dog owners to keep their dogs on their property.
        {¶ 28} The Tenth District Court of Appeals considered a similar case in
which a German shepherd had attacked a dog on a leash, and the owner was
charged under a local ordinance. State v. Conte (Nov. 6, 2007), 10th Dist. No.
07AP-33, 2007-Ohio-5924. The court made two observations that are applicable
in this case: first, the city ordinance in Conte did not involve an “unreviewable,
unilateral determination that the animal was ‘vicious or dangerous.’ Rather, [the
state] must prove at trial that appellee’s dog is vicious or dangerous as an element
of the offense. [The owner] has the opportunity to contest that allegation.” Id. at


http://www.avma.org/public_health/dogbite/; Centers for Disease Control and Prevention, Dog
Bite     Prevention, www.cdc.gov/HomeandRecreationalSafety/Dog-Bites/biteprevention.html.
According to the AVMA, almost 900,000 people require medical attention for dog-bite-related
injuries each year.




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¶ 15. Second, the city ordinance “does not impose any additional obligations on a
dog owner.” Id. at ¶ 17.
                                      Conclusion
       {¶ 29} Traylor’s dogs, unprovoked, attacked Roch and his dog while the
dogs were off their property. Traylor argues that an owner cannot know that his
dog is vicious until he is convicted under the ordinance. To hold otherwise,
however, would be to permit each dog “one free bite,” a result that would clearly
leave society at risk. A responsibility of dog ownership is to maintain and control
the animal. This ordinance requires no more and no less, and, therefore, it does
not violate procedural due process.
       {¶ 30} We hold that Youngstown Codified Ordinances 505.19 is
rationally related to the city’s legitimate interest in protecting citizens from
vicious dogs and therefore is constitutional.       Accordingly, we reverse the
judgment of the court of appeals and reinstate the convictions.
                                                                  Judgment reversed.
       MOYER, C.J., and O’CONNOR, O’DONNELL, and CUPP, JJ., concur.
       PFEIFER and LANZINGER, JJ., dissent.
                              __________________
       PFEIFER, J., dissenting.
       {¶ 31} In State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814
N.E.2d 846, at syllabus, we stated that R.C. 955.22, the statute addressing
“vicious” dogs, “violates the constitutional right to procedural due process insofar
as it fails to provide dog owners a meaningful opportunity to be heard on the issue
of whether a dog is ‘vicious.’ ” This conclusion answers the issue before us.
Traylor was charged with not restraining a “vicious” dog, but he had no notice
that his dog was “vicious.” In Cowan, the dog owner was aware that her dogs had
been labeled vicious; she had merely not been given an opportunity to challenge
that determination. Id. at ¶ 15. This case is even more egregious because Traylor




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not only doesn’t have an opportunity to challenge the “vicious” label, he had no
way to know that his dog is “vicious.”
       {¶ 32} The outcome of this case is morally repugnant. The owner of a
dog is being sent to jail for 90 days based on his failure to do something he could
not know he was supposed to do.              “Vicious” dogs must be restrained.
Youngstown Codified Ordinances (“YCO”) 505.19. But Traylor’s dog was not
“vicious” until the moment it bit a human, at which point it was too late for
Traylor to restrain his dog. YCO 505.19 imposes obligations on dog owners that
they do not know they need to comply with until they have no opportunity to
comply. The most troubling part of this case isn’t that a municipality would pass
such an ordinance; it’s that this court is sanctioning it. See State v. Price, 118
Ohio St.3d 144, 2008-Ohio-1974, 886 N.E.2d 852, at ¶ 38 (“[defendant] is owed
what every criminal defendant is owed: notice that his conduct is illegal”).
       {¶ 33} This court is turning a blind eye to basic tenets of fundamental
fairness. See R.C. 2901.21(A)(1) (a “person’s [criminal] 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”). Traylor was not capable of
restraining his “vicious” dog until he knew it was vicious. Allowing Youngstown
to impose criminal liability based on a contemporaneous labeling of a dog as
“vicious” is not different from imposing criminal liability on an “accident-prone”
driver and defining “accident-prone” as anyone who gets in a car accident. It just
doesn’t make sense. And it’s unconstitutional. See Papachristou v. Jacksonville
(1972), 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110, quoting United States v.
Harriss (1954), 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (an ordinance
violates due process when it “ ‘fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden by statute’ ”).
       {¶ 34} Furthermore, Youngstown should not be able to define what
constitutes a “vicious” dog because the General Assembly has already done so.



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R.C. 955.11(A)(4)(a). The parties did not address this issue, and the record is not
fully developed, so it is difficult to determine whether YCO 505.19 would survive
a home-rule analysis. See Ohioans for Concealed Carry, Inc. v. Clyde, 120 Ohio
St.3d 96, 2008-Ohio-4605, 896 N.E.2d 967, ¶ 24. Based on what the record does
reveal, it seems likely that YCO 505.19 would not survive. YCO 505.19 is an
exercise of local self-government. Id. at ¶ 23. But, R.C. Chapter 955 appears to
be a general law, and R.C. 955.11(A)(4)(a) and YCO 505.19(c)(2) are clearly in
conflict. See Clyde at ¶ 25. Pursuant to this, admittedly cursory, analysis, R.C.
955.11(A)(4)(a) would prevail over YCO 505.19(c)(2).
       {¶ 35} This court did not engage in a home-rule analysis, in large part
because the parties did not argue the issue. By avoiding that issue, however, this
court is sanctioning the imposition of criminal liability for something that the
General Assembly has determined is not a crime. According to R.C. 955.22, the
owner of a dog cannot be criminally liable for acts of that dog unless the dog has
already been determined to be “vicious.” Unlike YCO 505.19, R.C. 955.22 and
related statutes do not allow a dog to be labeled vicious and its owner to be
criminally liable based on the same act.
       {¶ 36} YCO 505.19 violates the Constitution by not providing
fundamental due process protections. I would affirm the judgment of the court of
appeals. I dissent.
       LANZINGER, J., concurs in the foregoing opinion.
                              __________________
       LANZINGER, J., dissenting.
       {¶ 37} I join Justice Pfeifer’s dissent.   With respect to the majority’s
concern over “one free bite,” a dog owner cannot totally evade responsibility for
the consequences of failure to restrain a dog—there is always the potential for
civil liability. We held in State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777,
814 N.E.2d 846, syllabus, that a statute requiring the confinement of vicious dogs




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violates the constitutional right to procedural due process if it fails to provide dog
owners a meaningful opportunity to be heard on the issue of whether a dog is
vicious. I would affirm the judgment of the court of appeals that the reasoning in
Cowan controls the outcome of this case.
                               __________________
       Joseph R. Macejko, Youngstown Prosecuting Attorney, for appellant.
       James E. Lanzo, for appellee.
                            ______________________




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