[Cite as Mullins v. St Marys, 2017-Ohio-8934.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              AUGLAIZE COUNTY




SHAWN MULLINS, ET AL.,

        PLAINTIFFS-APPELLEES,                             CASE NO. 2-17-17

        v.

CITY OF ST. MARYS,                                        OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Auglaize County Municipal Court
                         Trial Court No. 2017 CVH 00424

                                      Judgment Affirmed

                          Date of Decision: December 11, 2017




APPEARANCES:

        Zach G. Ferrall for Appellant

        William E. Huber for Appellees
Case No. 2-17-17


SHAW, J.

         {¶1} Defendant-appellant, City of St. Marys (“the City”), appeals the July 7,

2017 judgment of the Auglaize County Municipal Court finding in favor of

plaintiffs-appellees, Shawn and Veronica Mullins (“the Mullins”), on their appeal

of the City’s designation of their dog as a “Dangerous Dog” under the local

ordinance. The trial court determined that the local ordinance was in conflict with

the state statutes governing control of dogs and found that the state law

constitutionally preempted the local ordinance.

                                   Facts and Procedural History

         {¶2} On May 4, 2017, the Mullins initiated this case by filing an appeal and

requesting a hearing on the City’s designation of their dog, Titan, as a “Dangerous

Dog” under St. Marys City Ordinance (“SMCO”) 505.15(a)(2). The Mullins

attached the “Official Notice” informing them of the “Dangerous Dog” designation,

which indicated two incidents occurred one on April 1, 2017 and the other on April

15, 2017.1       The Mullins raised a constitutional challenge to the local ordinance

defining a “Dangerous Dog” on the grounds that it was in conflict with the

corresponding Ohio Revised Code provisions and that the ordinance fails to provide


1
  We note that the City attached to its brief the incident reports from the above specified dates detailing the
conduct of the Mullins’ dog alleged to satisfy the City’s “Dangerous Dog” designation. The City did not file
these documents with the trial court and they were not made a part of the record. Accordingly, we cannot
consider these documents in our review. Moreover, the City failed to provide a transcript of the hearing
before the trial court on appeal. Thus, we do not have any other evidence of the dog’s conduct before us.
However, because the issues on appeal focus upon the legal question of constitutionality, we do not need to
consider the specific facts of this case to render our decision.

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proper notice to a dog owner by leaving certain key terms undefined. The City

maintained that the local ordinance was a permissible exercise of its local police

power under the Home Rule Amendment to the Ohio Constitution and did not

conflict with state law.

       {¶3} On July 7, 2017, the trial court issued a judgment entry finding the state

law to take precedence over the local ordinance. The trial court granted the Mullins

relief on their appeal of the “Dangerous Dog” designation by the City and found the

local ordinance to be invalid.

       {¶4} The City filed an appeal, raising the following assignments of error.

                           ASSIGNMENT OF ERROR NO. 1

       MUNICIPAL COURT ERRED BY RULING THAT ST. MARYS
       LOCAL DOG ORDINANCE IS IN CONFLICT WITH OHIO
       REVISED CODE STATUTES WHICH DEFINE A
       VICIOUS/DANGEROUS/NUISANCE DOG.

                           ASSIGNMENT OF ERROR NO. 2

       MUNICIPAL COURT ERRED BY RULING THAT ST. MARYS
       LOCAL DOG ORDINANCE IS OVERBROAD OR
       OVERREACHED IN ITS SCOPE.

       {¶5} We elect to address the assignments of error together due to the fact that

both assignments of error challenge the trial court’s determination invalidating the

St. Marys City Ordinance on constitutional grounds.




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                      First and Second Assignments of Error

       {¶6} In their first and second assignments of error, the City maintains that

the trial court erred in determining SMCO 505.15 was constitutionally infirm on the

basis of it being in conflict with the state-wide comprehensive statutory provisions

forth in Revised Code Chapter 955 titled “Dogs”—in particular, R.C. 955.11, which

defines a “Dangerous Dog.” On appeal, the City argues that SMCO 505.15 is

permissible under the Home Rule Amendment to the Ohio Constitution and is a

valid exercise of its local police power.

                                 Standard of Review

       {¶7} The constitutionality of a statute or ordinance presents a question of law

and is therefore reviewed under a de novo standard. Andreyko v. Cincinnati, 153

Ohio App.3d 108, 2003-Ohio-2759, ¶ 11(1st Dist.).               In determining the

constitutionality of an ordinance, we are mindful of the fundamental principle

requiring courts to presume the constitutionality of lawfully enacted legislation.

Akron v. Molyneaux, 144 Ohio App.3d 421, 426 (9th Dist. 2001), citing Univ. Hts.

v. O’Leary, 68 Ohio St.2d 130, 135 (1981). We grant such deference to legislative

enactments because “the local legislative body is familiar with local conditions and

is therefore better able than the courts to determine the character and degree of

regulation required.” Lima v. Stepleton, 3d Dist. Allen No. 1-13-28, 2013-Ohio-

5655, ¶ 11, citing Village of Hudson v. Albrecht, Inc., 9 Ohio St.3d 69, 71.


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       {¶8} Due to this presumption, the party challenging an ordinance has the

burden of demonstrating, beyond a reasonable doubt, that the law is

unconstitutional.   Hilton v. City of Toledo, 62 Ohio St.2d 394, 396, (1980).

Moreover, when considering the constitutionality of a legislative enactment, we are

called to “liberally construe [it] to save it from constitutional infirmities.” State v.

Robinson, 44 Ohio App.3d 128, 130 (12th Dist.1989). However, in applying our

liberal construction, we are not permitted to “simply rewrite laws in order to render

them constitutional.” Id.

                               Home Rule Amendment

       {¶9} 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 such local police,

sanitary and other similar regulations, as are not in conflict with general laws.” As

a result, the general laws of the State and the challenged ordinance should be

harmonized as much as the language allows. N. Ohio Patrolmen’s Benevolent Assn.

v. City of Parma, 61 Ohio St.2d 375, 377 (1980). Nevertheless, we must also

recognize that municipalities’ home rule authority “is not absolute.” City of Tiffin

v. McEwen, 130 Ohio App.3d 527, 531 (3d Dist.1998); accord Weir v. Rimmelin,

15 Ohio St.3d 55, 56 (1984) (“The Home Rule Amendment to the Ohio Constitution




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Case No. 2-17-17


confers a significantly high degree of sovereignty upon municipalities. However,

the amendment does not provide cities the absolute power of self-government.”).

         {¶10} Conflicts between local ordinances and state statutes may arise in a

variety of circumstances. In determining SMCO 505.15 to be in conflict with

corresponding Revised Code provisions governing a “Dangerous Dog,” the trial

court employed the “contrary directives” analysis, which requires a reviewing court

to consider “whether the ordinance permits or licenses that which the statute forbids

and prohibits, and vice versa.”2 Stepleton at ¶ 16, quoting, Village of Struthers v.

Sokol, 108 Ohio St. 263 (1923), paragraph two of the syllabus. “If we answer this

question in the negative, then no conflict exists.” See id., citing Sokol at 268 (“No

real conflict can exist unless the ordinance declares something to be right which the

state law declares to be wrong, or vice versa.”). When applying the contradictory

directives test, we note that the degree of state regulation on the same issue as the

local ordinance is immaterial. See City of Cincinnati v. Hoffman, 31 Ohio St.2d

163, 169 (1972) (“[I]n order for * * * 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.”).


2
  The “contrary directives” conflict analysis consists of a three-part test: “whether (1) the ordinance is an
exercise of the police power, rather than of local self-government, (2) the statute is a general law, and (3) the
ordinance is in conflict with the statute.” Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, ¶ 17.
Here, the parties appear to agree that SMCO 505.15 is an exercise of police power and that Chapter 955 is a
general law. See Russ v. City of Reynoldsburg, 5th Dist. Licking No. 16-CA-58, 2017-Ohio-1471, ¶
21(finding the provisions contained in Revised Code Chapter 955 to be general laws). Thus, the only issue
remaining is whether the local ordinance conflicts with the state statutes.

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                                   Relevant Law

       {¶11} At the outset, we note that under R.C. 955.221(B)(3) “[a] municipal

corporation may adopt and enforce ordinances to control dogs within the municipal

corporation that are not otherwise in conflict with any other provision of the Revised

Code.” In the case sub judice, the City designated the Mullins’ dog, Titan, a

“Dangerous Dog” under SMCO 505.15(a)(2).            The local ordinance defines a

“Dangerous Dog” in the following manner:

       (a) The following definitions shall apply to this section:

       (1) “Dangerous dog” is defined as a dog that, without
       provocation, has chased or approached in either a menacing
       fashion or an apparent attitude of attack, or has attempted to
       bite or otherwise endanger any person, while that dog is off the
       premises of its owner, keeper or harborer and not under the
       reasonable control of its owner, keeper, harborer or some other
       responsible person, or not physically restrained or confined in
       a locked pen which has a top or other locked enclosure which
       has a top.

       (2) “Dangerous dog” is further defined as a dog which has,
       whether or not the dog is on or off the premises of its owner,
       keeper or harborer and not under the reasonable control of its
       owner, keeper, harborer or some other responsible person or not
       physically restrained, killed or caused serious injury to any
       person or to another animal.

       (3) The definition of a “dangerous dog” for the purposes of
       this section does not include a “police dog” that has been
       trained or may be used to assist one or more law enforcement
       officers in the performance of their official duties.

(Emphasis added).

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           {¶12} Section 955.11 of the Revised Code defines “Dangerous Dog,” as

follows:

           (A)      As used in this section:

           (1)(a) “Dangerous dog” means a dog that, without provocation,
           and subject to division (A)(1)(b) of this section, has done any of
           the following:

                    (i) Caused injury, other than killing or serious injury, to
                        any person;

                    (ii) Killed another dog;

                    (iii) Been the subject of a third or subsequent violation
                    of division (C) of section 955.22 of the Revised Code.3

           (b) “Dangerous dog” does not include a police dog that has
           caused injury, other than killing or serious injury, to any
           person or has killed another dog while the police dog is being
           used to assist one or more law enforcement officers in the
           performance of their official duties.

           {¶13} Section 955.11 of the Revised Code further defines key terms used

in the statute.

           (5) “Serious injury” means any of the following:


3
    Section R.C. 955.22(C) of the Revised Code states:

           (C) Except when a dog is lawfully engaged in hunting and accompanied by the owner,
           keeper, harborer, or handler of the dog, no owner, keeper, or harborer of any dog
           shall fail at any time to do either of the following:

               (1) Keep the dog physically confined or restrained upon the premises of the
               owner, keeper, or harborer by a leash, tether, adequate fence, supervision, or
               secure enclosure to prevent escape;

               (2) Keep the dog under the reasonable control of some person.

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             (a) Any physical harm that carries a substantial risk of
             death;

             (b) Any physical harm that involves a permanent
             incapacity, whether partial or total, or a temporary,
             substantial incapacity;

             (c) Any physical harm that involves a permanent
             disfigurement or a temporary, serious disfigurement;

             (d) Any physical harm that involves acute pain of a
             duration that results in substantial suffering or any
             degree of prolonged or intractable pain.

      (7) “Without provocation” means that a dog was not teased,
      tormented, or abused by a person, or that the dog was not coming
      to the aid or the defense of a person who was not engaged in illegal
      or criminal activity and who was not using the dog as a means of
      carrying out such activity.

                                 Analysis

      {¶14} In its decision invalidating SMCO 505.15(a)(2) on constitutional

grounds the trial court found that:

      An examination of the ordinance finds it to be stricter in
      application as to the determination of what is a dangerous dog
      than what qualifies under the state statute. Thus, the ordinance
      is in conflict with state statute and must fail. The evidence
      presented shows that the county dog warden indicated that he
      could not give a dangerous dog notification unless Titan had
      killed the other dog. Since the dog was not killed the issue was
      then brought under the City ordinances.

      Further the petitioners raise the issue that the ordinance is
      overbroad and would exceed the police powers of the City. The
      ordinance by its plain language declares a dog a dangerous dog
      if it has caused serious injury to any person or animal. It

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        excludes provocation as a defense and would include injuries to
        persons when that injury was in legitimate defense of a person
        and would further include killing animals or seriously injuring
        them while engaging in legitimate activities such as hunting.

        The Court finds that the ordinance thus fails on both aspects
        due to the conflict with the state statutes and due to its
        overreach.

(Doc. No. 34).

        {¶15} In comparing the two provisions, it becomes apparent, as the trial

court noted, that SMCO 505.15(a) defines a “Dangerous Dog” more broadly than

R.C. 955.11(A). For instance, the local ordinance attempts to incorporate

elements of the Revised Code definitions of a “Nuisance Dog” in SMCO

505.15(a)(1), and the Revised Code definition of a “Vicious Dog” in SMCO

505.15(a)(2) under one inclusive definition of a “Dangerous Dog.” 4 It is notable,

that each of these three definitions in the Revised Code correspond to categorical

prohibitions of specific conduct, exempt certain factual scenarios—i.e.,

provocation or an on duty police dog—and provide for distinct penalties.

Whereas the local ordinance only provides for one such category. Furthermore,



4
 Pursuant to R.C. 955.11(A)(2)(b) a “nuisance dog” means a dog that without provocation and while off the
premises of its owner, keeper, or harborer has chased or approached a person in either a menacing fashion or
an apparent attitude of attack or has attempted to bite or otherwise endanger any person.” R.C.
955.119(A)(6)(a) defines a “Vicious dog” as “a dog that, without provocation * * *, has killed or caused
serious injury to any person.” R.C. 955.11(A)(6)(b) exempts an on duty police dog and a dog that has killed
or caused serious injury to any person while a person was committing or attempting to commit a trespass or
other criminal offense on the property of the owner, keeper, or harborer of the dog from being designated a
“Vicious Dog.”

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the local ordinance expands the designation of a “Dangerous Dog” to include

one that has killed or caused serious injury to any person or to another animal,

whereas the Revised Code only specifies within that context that a “Dangerous

Dog” is one that has killed another dog. See R.C. 955.11(A)(1)(a)(ii).

      {¶16} While we do not specifically find the decision of the City to employ

a single and more expansive category of a “Dangerous Dog” to run afoul of the

Home Rule Amendment and R.C. 955.221(B)(3), we are nevertheless struck by

the lack of provision for key definitional terms and exemptions of legitimate

scenarios in the local ordinance that are clearly provided for in the Revised Code.

Unlike its counterpart, SMCO 505.15 fails to define “without provocation” as

used in SMCO 505.15(a)(1), or “serious injury” as used in SMCO 505.15(a)(2).

For reasons unknown, the City chose not to incorporate these important

definitions into the local ordinance despite including the specific Revised Code

terms in the definition of a “Dangerous Dog.”

      {¶17} Moreover, in reviewing the section of the local ordinance at issue

in this case, SMCO 505.15(a)(2), we are troubled by the far reaching, and

perhaps unintended, implications of the language contained in the ordinance. For

instance, unlike SMCO 505.15(a)(1), SMCO 505.15(a)(2) does not provide for

an exemption for provocation. In addition, SMCO 505.15(a)(2) states a dog may

be designated a “Dangerous Dog” if it killed or caused serious injury to any person
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or to another animal whether or not the dog is on or off the premises of its owner,

keeper or harborer and not under the reasonable control of its owner, keeper,

harborer or some other responsible person or not physically restrained.

       {¶18} Consequently, justifiable scenarios, which are specifically granted

impunity under the state law, fall under the umbrage of the local ordinance. For

example, under SMCO 505.15(a)(2) a dog, other than a police dog performing

official duties, may be deemed a “Dangerous Dog” if it comes to the aid or defense

of a person who is being attacked by another person or animal, and causes death or

serious injury to that person or animal. This is the case even if the altercation

happens on the property where the dog is owned and the dog is protecting its owner.

Further, under SMCO 505.15(a)(2) a dog may be deemed a “Dangerous Dog” if it

seriously injures or kills another animal, regardless of whether or not the dog is on

the property of its owner. Thus, a dog that is used for hunting or one that is attacked

by another dog that wanders onto the property where the dog is lawfully in its own

backyard may be deemed a “Dangerous Dog” if it kills or seriously injures the

hunted prey or the aggressor dog—not to mention an occasional squirrel or rabbit

that may stray onto the property.

       {¶19} We question the wisdom of drafting a local ordinance that lacks

sufficient context and specificity in its definitional provisions, especially when the

Revised Code provides a comprehensive template for the regulation of dogs. We


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acknowledge that under the “home rule authority” municipalities have some

sovereignty to exercise their police powers to meet the needs of their local

community.     However, the record in this instance is devoid of any rationale

substantiating such a sweepingly vague local ordinance governing dangerous dogs.

The record further indicates that a hearing was held before the trial court where such

evidence may have been presented, but a transcript of those proceedings was not

provided on appeal. As the appellant in this case, it was incumbent upon the City

to provide this Court with a complete record for review.

       {¶20} For these reasons, we conclude that the lack of precision and key

definitional terms, the overall unartful drafting of SMCO 505.15, and the seemingly

arbitrary expansion of the “Dangerous Dog” definition all support the trial court’s

determination that the City exceeded its powers under the Home Rule Amendment,

and by virtue of these facts place the ordinance in conflict with the corresponding

provisions of Chapter 955 of the Revised Code, which regulates dogs to a more

explicit degree. Accordingly, we do not find that the trial court erred in finding the

state law to take precedence over the local ordinance.         The first and second

assignments of error are overruled and the judgment is affirmed.

                                                                 Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr


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