[Cite as Blue Ash v. Price, 2018-Ohio-1062.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



CITY OF BLUE ASH, OHIO,                        :   APPEAL NO. C-170347
                                                   TRIAL NO. 17TRD-2386
         Plaintiff-Appellant,                  :

   vs.                                         :      O P I N I O N.

MATTHEW PRICE,                                 :

         Defendant-Appellee.                   :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From: Stands

Date of Judgment Entry on Appeal: March 23, 2018



Dinsmore & Shohl LLP, Bryan E. Pacheco, Mark G. Arnzen, Jr., and Kelly E.
Pitcher, for Plaintiff-Appellant,

Cohen Todd Kite & Stanford LLC and Richard R. Campbell, for Defendant-Appellee.
                    OHIO FIRST DISTRICT COURT OF APPEALS


DETERS, Judge.

       {¶1}    In this discretionary appeal, plaintiff-appellant the City of Blue Ash,

Ohio, challenges the trial court’s decision made in a criminal proceeding brought

against defendant-appellee Matthew Price in which the trial court held Blue Ash’s

toy-vehicle ordinance unconstitutional. The judgment of the trial court finding Price

not guilty is not appealed. However, we determine that the trial court erred as a

matter of law in declaring Blue Ash’s ordinance unconstitutional.

                           Facts and Procedural History

       {¶2}    In October 2016, Price was riding on a motorized skateboard in a

crosswalk on Kenwood Road in the city of Blue Ash when the driver of a vehicle hit

him. Blue Ash police cited Price for violating Blue Ash Code of Ordinances 311.03(a)

(the “toy-vehicle ordinance”). The toy-vehicle ordinance provides: “No person on

roller skates or riding in or by any means of any sled, toy vehicle, skateboard or

similar device shall be permitted on any street, highway or public lot unless the same

is designated and marked as a ‘play street’ or ‘play lot.’ ”        Blue Ash Code of

Ordinances 311.03(a). A citizen’s initial violation of the toy-vehicle ordinance is a

minor misdemeanor. See Blue Ash Code of Ordinances 311.03(c).

       {¶3}    Price was found guilty of violating the toy-vehicle ordinance in the

Blue Ash Mayor’s Court, and he appealed to the Hamilton County Municipal Court.

The trial court held a bench trial. The trial court determined that the toy-vehicle

ordinance was “void for vagueness” and violated “a constitutional right of movement

and personal enjoyment by confining skateboards to play zones.” As a result, the

trial court found Price not guilty.




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       {¶4}   Blue Ash appeals from the trial court’s decision holding the toy-vehicle

ordinance unconstitutional.

                                      Jurisdiction

       {¶5}   Blue Ash filed this appeal under R.C. 2945.67(A). R.C. 2945.67(A)

provides in relevant part: “A prosecuting attorney, village solicitor, city director of

law, or the attorney general * * * may appeal by leave of the court to which the appeal

is taken any other decision, except the final verdict, of the trial court in a criminal

case * * *.” Although the government cannot appeal a trial court’s judgment of

acquittal against a defendant, because double-jeopardy principles forbid retrial of a

defendant who has been acquitted, R.C. 2945.67(A) allows the government to appeal

from substantive legal rulings made in a criminal case, “so long as the verdict itself is

not appealed.” R.C. 2945.67(A); see State ex rel. Yates v. Court of Appeals for

Montgomery Cty., 32 Ohio St.3d 30, 512 N.E.2d 343 (1987), syllabus; State v.

Bistricky, 51 Ohio St.3d 157, 160, 555 N.E.2d 644 (1990). Thus, R.C. 2945.67(A)

gives a court of appeals discretionary authority to review substantive legal rulings.

Bistricky at 160.

       {¶6}   In addition to R.C. 2945.67(A), the government must comply with

App.R. 5(C). Bistricky at 159. App.R. 5(C) requires the government to file a motion

for leave to appeal, and “[t]he motion shall be accompanied by affidavits, or by the

parts of the record upon which the movant relies, to show the probability that the

errors claimed did in fact occur, and by a brief or memorandum of law in support of

the movant’s claims.”

       {¶7}   Here, Blue Ash filed a motion for leave to appeal under R.C.

2945.67(A) and App.R. 5(C). Blue Ash admitted it could not appeal the trial court’s


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finding that Price was not guilty of the ordinance violation, but requested that this

court review the trial court’s legal conclusion that the toy-vehicle ordinance is

unconstitutional. This court granted the motion, which leads to the instant appeal.

                              Constitutional Right to Travel

       {¶8}   Blue Ash’s first assignment of error challenges the trial court’s

conclusion that the toy-vehicle ordinance violates a “constitutional right of

movement and personal enjoyment.”

       {¶9}   Although Ohio has not recognized a right of movement and personal

enjoyment, Ohio has recognized a right of intrastate travel on public roads as a

fundamental right in State v. Burnett, 93 Ohio St.3d 419, 428, 755 N.E.2d 857

(2001). In Burnett, the defendant was charged with violating a Cincinnati ordinance

prohibiting a person from entering certain portions of the city after that person had

been arrested for or convicted of a drug-related offense.         The defendant later

challenged his conviction, arguing that the ordinance unconstitutionally infringed on

his right to travel. The Ohio Supreme Court recognized that a fundamental right to

travel exists under the Due Process Clause of the United States Constitution. The

court stated: “Every citizen of this state, much like the citizens of this Nation, enjoys

the freedom of mobility not only to cross our borders into our sister states, but also

to roam about innocently in the wide-open spaces of our state parks or through the

streets and sidewalks of our most populous cities.” Id. at 428. The court determined

that the ordinance at issue was not narrowly tailored because it restricted a

substantial amount of innocent conduct. The Sixth Circuit confronted the same

ordinance and likewise held that a right of intrastate travel existed under the United

States Constitution. See Johnson v. City of Cincinnati, 310 F.3d 484, 496-98 (6th


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Cir.2002) (recognizing under the federal constitution a fundamental right “to travel

locally through public spaces and roadways”).

       {¶10} Although the Ohio Supreme Court and the United States Court of

Appeals for the Sixth Circuit have recognized citizens’ fundamental right to intrastate

travel, the right is not implicated merely because a legislative enactment burdens a

mode of citizens’ travel. For instance, in State v. Varsel, 2014-Ohio-1899, 11 N.E.3d

327 (6th Dist.), the court determined that a law prohibiting a driver of a motor

vehicle from wearing earplugs did not restrict the right to intrastate travel. In

reaching this conclusion, the court relied on another case, State v. Stuber, 3d Dist.

Allen No. 1-02-13, 2002-Ohio-3394, which had held that a state law prohibiting a

driver from driving without a valid license did not implicate the citizen’s right to

intrastate travel, because driving on a public roadway “is only one form of travel” and

that the citizen could use another form of travel. See also State v. Gunnell, 10th Dist.

Franklin No. 13AP-90, 2013-Ohio-3928, ¶ 13 (statute penalizing a failure to register a

motor vehicle does not implicate the fundamental right to travel); Duncan v. Cone,

6th Cir. No. 00-5705, 2000 WL 1828089 (Dec. 7, 2000), citing Miller v. Reed, 176

F.3d 1202, 1205 (9th Cir.1999) (holding “[w]hile a fundamental right to travel exists,

there is no fundamental right to drive a motor vehicle. * * * A burden on a single

mode of transportation simply does not implicate the right to interstate travel.”).

       {¶11} Unlike the ordinance at issue in Burnett, which completely prohibited

a class of citizens from entering areas of the city by foot, vehicle, or any mode of

transportation, the toy-vehicle ordinance prohibits citizens from using toy vehicles or

similar devices on roadways, highways, or public lots, unless designated a play street

or play lot. A burden on a mode of transportation, here toy vehicles, does not


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implicate the right to travel. The toy-vehicle ordinance does not unconstitutionally

infringe on citizens’ right to travel, and the trial court erred in so holding.

       {¶12} Therefore, we sustain Blue Ash’s first assignment of error and

determine that the trial court erred in holding that the toy-vehicle ordinance violates

a constitutional right of movement and personal enjoyment.

       {¶13} Blue Ash’s second assignment of error asserts that even if a

constitutional right of movement and personal enjoyment to operate a motorized

skateboard exists, the trial court erred by not balancing the respective interests prior

to holding the toy-vehicle ordinance unconstitutional. Because of our resolution of

Blue Ash’s first assignment of error, Blue Ash’s second assignment of error is moot

and need not be addressed. See App.R. 12(A)(1)(c).

                                     Void for Vagueness

       {¶14} In its third assignment of error, Blue Ash argues that the trial court

erred in holding the toy-vehicle ordinance void for vagueness.

       {¶15} It is unclear whether the trial court held the toy-vehicle ordinance

unconstitutional as applied to Price or on its face. According to the judgment entry,

it appears that the trial court held the toy-vehicle ordinance void for vagueness,

because “motorized skateboard is yet to be properly defined.” When a party makes a

void-for-vagueness challenge to a legislative enactment as applied to the

circumstances of a particular case, then the challenge is an as-applied challenge.

State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17. Because

the toy-vehicle ordinance does not contain the phrase “motorized skateboard,” and

the underlying facts involve a motorized skateboard, then the trial court likely




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undertook an as-applied analysis. Therefore, we assume that the trial court held the

toy-vehicle ordinance unconstitutional as applied to Price’s conduct.

       {¶16} When a statute is alleged to be void for vagueness, all doubts are to be

resolved in favor of the constitutionality of the statute. State v. Harrington, 159

Ohio App.3d 451, 2004-Ohio-7140, 824 N.E.2d 153, ¶ 20 (12th Dist.). In order to

survive a void-for-vagueness challenge, a legislative enactment “must be written so

that a person of common intelligence is able to determine what conduct is

prohibited,” and the legislative enactment “must provide sufficient standards to

prevent arbitrary and discriminatory enforcement.” State v. Williams, 88 Ohio St.3d

513, 532, 728 N.E.2d 342 (2000). A legislative enactment is not void for vagueness

because it could have been worded more precisely, nor does every word in the

enactment need a definition, because an undefined term can be given its common,

everyday meaning. State v. Dorso, 4 Ohio St.3d 60, 446 N.E.2d 449 (1983).

       {¶17} The toy-vehicle ordinance prohibits a person from riding on “roller

skates,” or “any sled, toy vehicle, skateboard, or similar device” on any street,

highway, or public lot unless designated a play street or play lot. See Blue Ash Code

of Ordinances 311.03(c). In this case, Price had been riding a motorized skateboard.

Although the toy-vehicle ordinance does not specifically mention motorized

skateboards among the prohibited modes of transportation on streets, nothing in the

ordinance suggests that the prohibition is limited to human-powered modes of

transportation.   Thus, a motorized device could fall within the confines of the

ordinance.

       {¶18} Moreover,     the   toy-vehicle   ordinance    specifically   includes   a

“skateboard” as a prohibited mode of travel in streets. A “skateboard” is defined as


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                    OHIO FIRST DISTRICT COURT OF APPEALS


“a short board mounted on small wheels that is used for coasting and for performing

athletic stunts.”   Merriam-Webster Online, available at https://www.merriam-

webster.com/dictionary/skateboard (accessed February 27, 2018).            A motorized

skateboard could fall within the category of a “skateboard,” or at least a “similar

device.” Therefore, a person of common intelligence would not have to guess as to

whether the toy-vehicle ordinance applies to the conduct of riding a motorized

skateboard on a street, and the ordinance provides sufficient standards to law

enforcement to prevent arbitrary and discriminatory enforcement.

       {¶19} We determine that the trial court erred in holding the toy-vehicle

ordinance void for vagueness because “motorized skateboard is yet to be properly

defined.” We sustain the third assignment of error.

                        Confining Skateboards to “Play Zones”

       {¶20} In its fourth assignment of error, Blue Ash asserts that the trial court

erred in holding that the toy-vehicle ordinance unlawfully confines “skateboards” to

“play zones.”

       {¶21} According to Blue Ash, the plain language of the toy-vehicle ordinance

does not limit the use of toy vehicles or similar devices to play zones; therefore, those

items could be used in other areas, such as on a sidewalk. We agree. The toy-vehicle

ordinance prohibits a person from riding a toy vehicle or the like on streets,

highways, or public lots—where motor vehicles travel.          See Blue Ash Code of

Ordinances 301.42(a) (“ ‘[s]treet’ or ‘highway’ are synonymous and mean the entire

width between the boundary lines of every way open to the use of the public as a

thoroughfare for purposes of vehicular travel.”). Nothing in the plain language of the

ordinance prohibits the use of toy vehicles on sidewalks or in other areas. Therefore,


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we hold that the trial court erred in interpreting the ordinance as confining

skateboards to play zones. See State ex rel. Ohio Presbyterian Retirement Servs. v.

Indus. Commn. of Ohio, 151 Ohio St.3d 92, 2017-Ohio-7577, 86 N.E.3d 294, ¶ 19

(unambiguous statutes are applied as written).

       {¶22} We sustain Blue Ash’s fourth assignment of error.

                                         Conclusion

       {¶23} In conclusion, the trial court erred in holding that Blue Ash Code of

Ordinances 311.03(a) is unconstitutional and in holding that the ordinance

unlawfully confines skateboards to play zones. The trial court’s judgment finding

Price not guilty of a violation of the ordinance stands.


                                                                  Judgment accordingly.


ZAYAS, P.J., and MILLER, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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