[Cite as Bedford v. Deal, 2013-Ohio-3240.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99071


                                   CITY OF BEDFORD
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      JAMES L. DEAL
                                                       DEFENDANT-APPELLANT



                                             JUDGMENT:
                                              AFFIRMED



                                       Criminal Appeal from the
                                       Bedford Municipal Court
                                       Case No. 12-CRB-01020

        BEFORE: E.T. Gallagher, J., Jones, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: July 25, 2013
FOR APPELLANT

James L. Deal, pro se
787 Archer Road
Bedford, OH 44146


ATTORNEYS FOR APPELLEE

Kenneth Schuman
Prosecutor
City of Bedford
165 Center Road
Bedford, OH 44146


Charles A. Bakula
30285 Bruce Industrial Parkway
Suite C - 2nd Floor
Solon, OH 44139
EILEEN T. GALLAGHER, J.:

       {¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1.

       {¶2} Defendant-appellant James Deal (“Deal”) appeals a judgment from the

Bedford Municipal Court finding him guilty of violating Bedford Codified Ordinances

(“BCO”) 505.03, which prohibits the possession of certain animals. We find no merit to

the appeal and affirm.

       {¶3} On June 22, 2012, Deal was charged with violating BCO 505.03 because he

possessed animals prohibited by the ordinance. Officer Laura Hovanetz (“Hovanetz”)

responded to Deal’s home and removed one pygmy goat and four chickens. The court

found Deal guilty of the violation at trial. Deal now appeals pro se.

       {¶4} In his sole assignment of error, Deal argues the trial court erred in finding

him guilty of violating BCO 505.03 because the ordinance is unconstitutional. BCO

505.03 provides, in relevant part:

       (a) No person shall harbor, maintain or keep a rabbit hutch, goat pen or
       chicken coop with such animals therein, or any horse, cow, duck, turkey,
       geese or other fowl within the City limits. (Ord. 7185-99. Passed
       12-20-99).

       *    *     *
       (c) Whoever violates this section is guilty of a minor misdemeanor.1

       1The city enacted BCO 505.03 pursuant to R.C. 715.23, which governs the
impounding of animals and states:

       Except as otherwise provided in section 955.221 of the Revised Code
       {¶5} Deal argues BCO 505.03 is unconstitutional because it violates both the

United States and Ohio Constitutions. Deal quotes Article I, Section 1, of the Ohio

Constitution, which states:

       All men are, by nature, free and independent, and have certain inalienable
       rights, among which are those of enjoying and defending life and liberty,
       acquiring, possessing, and protecting property, and seeking and obtaining
       happiness and safety. Section 1, Article I, Ohio Constitution.

       {¶6} The Due Process Clause of the Ohio Constitution provides that “every

person, for an injury done him in his land, goods, person, or reputation, shall have remedy

by due course of law.” The Due Process Clause of the Fourteenth Amendment to the

United States Constitution prohibits any state from depriving “any person of life, liberty,

or property, without due process of law * * * .” The touchstone of due process is

protection of the individual against arbitrary governmental action.    Cty. of Sacramento

v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

       {¶7} However, the Ohio Constitution also provides for the exercise of state and

local police power in derogation of the right to hold private property. Article I, Section

19 of the Ohio Constitution states: “Private property shall ever be held inviolate, but


       regarding dogs, a municipal corporation may regulate, restrain, or
       prohibit the running at large, within the municipal corporation, of
       cattle, horses, swine, sheep, goats, geese, chickens, or other fowl or
       animals, impound and hold the fowl or animals, and, on notice to the
       owners, authorize the sale of the fowl or animals for the penalty
       imposed by any ordinance, and the cost and expenses of the
       proceedings.
subservient to the public welfare.” Thus, under certain circumstances, legislation may be

upheld even though it interferes with the enjoyment of liberty or the possession of private

property. State v. Anderson, 57 Ohio St.3d 168, 170, 566 N.E.2d 1224 (1991).2

       {¶8} In determining whether legislation violates due process, courts employ one of

two tests: strict scrutiny or rational-basis review. When legislation infringes fundamental

rights, courts review the law under a strict scrutiny test and uphold the law only when it is

“narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292,

302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).            Where the law does not impact a

fundamental right, courts employ rational-basis review. Washington v. Glucksberg, 521

U.S. 702, 720, 117 S.Ct. 2302, 138 L.Ed.2d 772 (1997). The right to due process under

the Ohio Constitution is functionally equivalent to the Due Process Clause of the

Fourteenth Amendment to the United States Constitution and requires the same analysis.

Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540, 544, 38 N.E.2d 70 (1941).

       {¶9} Fundamental rights requiring strict scrutiny, include: “the rights to marry, to

have children, to direct the education and upbringing of one’s children, to marital privacy,

to use contraception, to bodily integrity, and to abortion.”   Glucksberg, 521 U.S. at 720.

 The maintenance of animals is not a fundamental right. Akron v. Ross, 9th Dist. No.


       2 See also Ohio Constitution, Article XVIII, Section 3 ( “Municipalities shall
have authority 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.”
20338, 2001 Ohio App. LEXIS 3083 *17 (July 11, 2001); Cuyahoga Falls v. Vogel, 9th

Dist. No. 18826, 1998 Ohio App. LEXIS 4322, *7 (Sept. 16, 1998). Therefore, we apply

the rational basis test to BCO 505.03.

       {¶10} Under the rational-basis test, a statute will be upheld if it is rationally related

to a legitimate governmental interest. Am. Assn. of Univ. Professors, Cent. State Univ.

Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 58, 1999-Ohio-248, 717 N.E.2d 286

(1999). Legislation is rationally related to a legitimate governmental interest if: (1) it

bears a real and substantial relation to the public health, safety, morals, or general welfare

of the public, and (2) it is not unreasonable or arbitrary. Desenco, Inc. v. Akron, 84 Ohio

St.3d 535, 706 N.E.2d 323 (1999), citing Benjamin v. Columbus, 167 Ohio St. 103, 110,

146 N.E.2d 854 (1957).       Therefore, “the statute must be upheld if there exists any

conceivable set of facts under which the classification rationally furthered a legitimate

legislative objective.” Morris v. Savoy, 61 Ohio St.3d 684, 576 N.E.2d 765 (1991),

quoting Schwan v. Riverside Methodist Hosp., 6 Ohio St.3d 300, 452 N.E.2d 1337 (1983).

       {¶11} In this case, BCO 505.03 prohibits residents from harboring, maintaining, or

keeping certain animals including goats and chickens. The ordinance is intended to

protect the public from unsanitary conditions and/or noxious odors, which are legitimate

government concerns. We are aware that raising goats and chickens on so called “urban

farms” is increasing in popularity. Citizens wishing to keep such animals may petition

their local governments to amend the ordinances to allow such animals as pets. In this
way, the city may allow its residents to keep certain farm animals while creating

restrictions, such as limitations on the number of animals and/or building requirements,

that protect the public’s safety and welfare.       Nevertheless, because BCO 505.03’s

prohibition on certain animals is rationally related to a legitimate governmental interest, it

is constitutional.

       {¶12} Deal also argues the city violated his right to be free from unreasonable

searches and seizures under Fourth Amendment to the United States Constitution when it

confiscated his animals. However, even if the animals were removed illegally, Deal

admits the animals were on his property in violation of the ordinance. Therefore, the

court would have convicted him even if the seizure of his animals was illegal. The

seizure has no bearing on his conviction.

       {¶13} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Bedford

Municipal Court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. Case remanded to the trial

court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
