[Cite as In re E.D., 194 Ohio App.3d 534, 2011-Ohio-4067.]




STATE OF OHIO                    )                           IN THE COURT OF APPEALS
                                 )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

In re E.D.                                                   C.A. No.   25594


                                                             APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
                                                             COURT OF COMMON PLEAS
                                                             COUNTY OF SUMMIT, OHIO
                                                             CASE No.     DL 10 05 1275
                                                             DL 10 05 1277


APPEARANCES:

        Sherri Bevan Walsh, Summit County Prosecuting Attorney,
        and Richard S. Kasay, Assistant Prosecuting Attorney, for appellant.

        J. Dean Carro, Appellate Review Office, School of Law, University of Akron,
        and, Joseph Kodish, for appellee.


                                DECISION AND JOURNAL ENTRY

Dated: August 17, 2011



        MOORE, Judge.

        {¶ 1} Appellant, the state of Ohio, appeals from the judgment of the Summit

County Court of Common Pleas, Juvenile Division. This court affirms.

                                                     I

        {¶ 2} E.D. was arrested for loitering for the purpose of engaging in drug-related

activity on May 3 and May 7, 2010, in violation of Akron Codified Ordinance (“A.C.O.”)

138.26, a misdemeanor of the fourth degree if committed by an adult. On July 21, 2010,
                                               2


E.D. filed a motion asking the juvenile court to find A.C.O. 138.26 unconstitutional and

to dismiss all charges. The trial court entered an order on August 24, 2010, dismissing

E.D.’s charges and finding the ordinance unconstitutionally void for vagueness and

overbroad.

      {¶ 3} The state timely filed a notice of appeal and raises one assignment of error

for our review.

                                              II

                                 ASSIGNMENT OF ERROR

             The trial court erred in finding Akron Codified Ordinance 138.26
      unconstitutional[.]

      {¶ 4} The state argues that the trial court erred in finding A.C.O. 138.26

unconstitutional. We do not agree.

      {¶ 5} A former version of A.C.O. 138.26 was found unconstitutional by the

Supreme Court of Ohio in Akron v. Rowland (1993), 67 Ohio St.3d 374, because it was

overbroad, void for vagueness, and being enforced arbitrarily against minorities. It read

as follows:

                      (A) No person shall loiter in or near any thoroughfare, place open
              to the public, or near any public or private place in a manner and under
              circumstances manifesting the purpose to engage in drug-related activity
              contrary to any of the provisions of R.C. Chapter 2925.

                     (B) Among the circumstances which may be considered in
              determining whether such purpose is manifested are:

                      (1) Such person is a known unlawful drug user, possessor, or
              seller. For purposes of this chapter, a “KNOWN UNLAWFUL DRUG
              USER, POSSESSOR, OR SELLER” is a person who has, within the
              knowledge of the arresting officer, been convicted in any court within this
              state of any violation involving the use, possession, or sale of any
              controlled substance as defined in R.C. Chapter 2925, or such person has
                                  3


been convicted of any violation of any of the provisions of R.C. Chapter
2925 or substantially similar laws of any political subdivision of this state
or of any other state; or a person who displays physical characteristics of
drug intoxication or usage, such as needle tracks, burned or calloused
thumb and index fingers, underweight, or nervous and excited behavior;

       (2) Such person is currently subject to a court order prohibiting his
presence in a high drug activity geographic area;

        (3) Such person behaves in such a manner as to raise a reasonable
suspicion that he is about to engage in or is then engaged in an unlawful
drug-related activity, including, by way of example only, such person
acting as a lookout or hailing or stopping cars;

        (4) Such person is physically identified by the officer as a member
of a gang or association which has as its purpose illegal drug activity;

       (5) Such person transfers small objects or packages in a furtive
fashion;

       (6) Such person takes flight or manifestly endeavors to conceal
himself upon the appearance of a police officer;

       (7) Such person manifestly endeavors to conceal any object which
reasonably could be involved in an unlawful drug-related activity;

        (8) Such person possesses any instrument, article, or thing whose
customary or primary purpose is for the sale, administration, or use of
controlled subjects [sic, substances] such as, but not limited to, crack
pipes, push wires, chore boys, hand scales, hypodermic needles, razor
blades, or other cutting tools;

      (9) The area involved is by public repute known to be an area of
unlawful drug use and trafficking;

       (10) The premises involved are known to the defendant to have
been reported to law enforcement as a place of drug activity pursuant to
R.C. Chapter 2925;

       (11) Any vehicle involved is registered to a known unlawful drug
user, possessor, or seller, or a person for whom there is an outstanding
warrant for a crime involving drug-related activity.

        (C) If any provision of this section is held invalid, such invalidity
shall not affect any other provision, or the application thereof, which can
be given effect without the invalid provision or application, and to this end
the provisions of this section are declared to be severable.
                                               4


                      (D) Whoever violates this section is guilty of loitering for the
              purpose of engaging in drug-related activity, a misdemeanor of the fourth
              degree.

      {¶ 6} In response to Rowland, the Akron City Council made numerous

modifications and enacted a revised ordinance, A.C.O. 138.26. The revised version reads

as follows:

             A. Prohibition. No person shall loiter or remain in or near any public
      thoroughfare or place open to the public, and engage in conduct which reasonably
      manifests his or her specific intent and purpose to engage in drug-related activity
      contrary to any of the provisions of Chapter 2925 of the Ohio Revised Code or
      Chapter 138 of this code.

             B. Circumstances. The circumstances which shall be considered in
      determining whether such intent or purpose has been manifested, and three or
      more of which must be found under circumstances in which the activity of the
      person reasonably manifests his or her specific intent and purpose to engage in
      drug-related activity contrary to any of the provisions of Chapter 2925 of the Ohio
      Revised Code or Chapter 138 of this code are:

              1. The person is a known unlawful drug user, possessor, or seller. For
      purposes of this section, a "known unlawful drug user, possessor, or seller" is a
      person who, within the knowledge of the arresting officer, has been convicted in
      any court in the state of Ohio of any violation involving the use, possession, or
      sale of any controlled substance as defined in Chapter 2925 of the Ohio Revised
      Code, or the person has been convicted of any violation of any of the provisions
      of the Ohio Revised Code or substantially similar laws of any political
      subdivision of the state of Ohio, or of any other state;

              2. The person displays the physical characteristics of drug intoxication;

              3. The person is currently subject to a court order prohibiting his or her
      presence in a high drug activity geographic area, and that fact is known to the
      arresting officer;

             4. The person is physically identified by an officer as a member of a gang,
      or association which has as its purpose illegal drug activity;

             5. The person repeatedly passes to or receives from passers-by or
      bystanders money and/or objects, the characteristics of which are consistent with
      drug material the possession, sale, and distribution of which is proscribed or
      limited by Chapter 2925 of the Ohio Revised Code or Chapter 138 of this code,
      whether the passers-by or bystanders are on foot or in motor vehicles;
                                          5


        6. The person takes flight, or manifestly endeavors to conceal himself or
herself upon the appearance of the police;

        7.    The person manifestly endeavors to conceal any object, the
characteristics of which are consistent with drug material the possession, sale, and
distribution of which is proscribed or limited by Chapter 2925 of the Ohio
Revised Code or Chapter 138 of this code, and reasonably appears to have been
involved in unlawful drug-related activity;

         8. The person to the observation of officers possesses any instrument,
article, or thing, the customary or primary use of which is the sale, administration,
or use of controlled substances, including, but not limited to, crack pipes, push
wires, chore boys, hand scales, or hypodermic needles, and which is uniquely
designed, constituted or modified for use with controlled substances;

        9. The area involved is by public repute and to the knowledge of the
arresting officer an area in which unlawful drug use and trafficking occurs on a
frequent and regular basis. Probable cause shall not be established, and an arrest
pursuant to this section shall not be justified solely on the basis that the person is
present in a reputed drug use or trafficking area absent the existence of other
circumstances which justify the arrest; and

       10. The premises involved are known to the person to have been reported
to law enforcement authorities as a place of drug activity under Chapter 2925 of
the Ohio Revised Code or Chapter 138 of this code, and the existence of that
knowledge is known by the arresting officer.

       C. Background of Person or Neighborhood. The race or ethnic
background of a person and/or the racial or ethnic makeup of the area or
neighborhood within which he or she is located shall not be considered in
determining a person's specific intent under this section.

        D. Explanation Opportunity. No person shall be arrested under this
section until he or she has been afforded the opportunity by the law enforcement
officers to explain his or her activity, and to indicate to officers why his or her
activity should not be construed to manifest specific purpose and intent of illegal
drug activity. This opportunity shall be exercised by the person at his or her
option, and nothing in this subsection shall be interpreted so as to require the
person to make any statement to officers. The failure of a person to avail himself
or herself of the opportunity to explain his or her activity shall not be construed or
utilized as a factor in the determination of his or her specific intent and purpose to
engage in illegal drug activity.

        E. Review Committee Membership Rules. Within a period not to exceed
thirty days after the effective date of the ordinance codified in this section, an
Anti-drug Loitering Ordinance Review Committee shall be appointed by the City
Council. This committee shall be composed of two qualified electors of the city
                                          6


who shall not be officers or employees of the city and the city of Akron Director
of Public Safety, a member of the Akron Police Department and the chairman of
the Akron City Council Public Safety Committee. The initial terms of the
members of the committee who are qualified electors shall be one and two years.
Thereafter, the members of the committee shall be appointed to two year terms.
Vacancies on the committee shall be filled in the manner of initial appointments,
and any member so appointed shall serve the balance of the term of the vacancy.
The committee may adopt any rules for its procedure as it deems appropriate, and
which are not in conflict with the Charter and ordinances of the city.

        Committee Functions. The Anti-drug Loitering Ordinance Review
Committee shall compile and maintain records and statistics on the number of
arrests made under this section, and convictions and other dispositions which
result from those arrests, and the manner of enforcement of this section, with
particular reference to any way in which this section may be disparately utilized
and enforced on the basis of the racial or ethnic background of individuals, or the
racial or ethnic makeup of areas of neighborhoods. Such statistics shall include
the names of the arresting officers, location of arrests and circumstances utilized
to find probable cause. The committee, at the conclusion of each calendar quarter,
and at any other times as it deems appropriate, shall make reports to the Council
as to the implementation and enforcement of this section, its use, its effectiveness,
and any way in which this section has been disparately utilized or enforced on the
basis of the racial or ethnic background of individuals or the racial or ethnic
makeup of areas or neighborhoods.

        Limit on Committee Functions. The committee shall have no authority to
hear and/or mediate complaints lodged in relation to the enforcement or use of
this section, but shall refer all such complaints lodged in relation to this section to
the Human Relations Commission of the city for further review, mediation, and
report.

        Relationship with Human Relations Committee. Members of the
committee shall be ex-officio members of the Human Relations Commission of
the city and membership in either body shall not affect his or her concurrent
membership in the other body.

        F. Invalidity. If any provision of this section is held to be invalid, that
invalidity shall not effect any other provision of this section, or the application of
this section, which can be given effect without the invalid provision or
application, and to this end the provisions of this section are declared to be
severable.

       G. Penalty. Whoever violates this section is guilty of loitering for the
purpose of engaging in drug-related activity, a misdemeanor of the fourth degree.
                                            7


       {¶ 7} The changes included adding a specific intent requirement, removing

unnamed circumstances as grounds for arrest and conviction, and requiring the presence

of at least three of the listed circumstances to support arrest and conviction. The state

contends that these revisions correct the deficiencies of overbreadth and vagueness, and

that the ordinance is now constitutional.

       {¶ 8} This court reviews constitutional challenges de novo. State v. Honey, 9th

Dist. No. 08CA0018-M, 2008-Ohio-4943, at ¶ 4. We recognize a strong presumption

that legislative enactments are constitutional, and before we will declare a statute

unconstitutional, “it must appear beyond a reasonable doubt that the legislation and

constitutional provision are clearly incapable of coexisting.” State v. Gill (1992), 63

Ohio St.3d 53, 55, citing State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142,

paragraph one of the syllabus. See also State v. Cook (1998), 83 Ohio St.3d 404, 409.

Vagueness

       {¶ 9} In considering a challenge to an ordinance as void for vagueness, a court is

required to determine whether the statute “(1) provides sufficient notice of its

proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is

specific enough to prevent official arbitrariness or discrimination in its enforcement”

Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, at ¶ 84. A statute does not

need to avoid all vagueness, and is not void for vagueness simply because it could have

been worded more precisely or with additional certainty.       State ex rel. Rear Door

Bookstore v. Tenth Dist. Court of Appeals (1992), 63 Ohio St.3d 354, citing Roth v.

United States (1957), 354 U.S. 476. See Grayned v. Rockford (1972), 408 U.S. 104, 108.
                                              8


Rather, the “critical question in all cases is whether the law affords a reasonable

individual of ordinary intelligence fair notice and sufficient definition and guidance to

enable him to conform his conduct to the law.” Norwood at ¶ 86. See also Broadrick v.

Oklahoma (1973), 413 U.S. 601, 607; Coates v. Cincinnati (1971), 402 U.S. 611, 614;

Colten v. Kentucky (1972), 407 U.S. 104, 110.

       {¶ 10} In Rowland, the Ohio Supreme Court held the former version of A.C.O.

138.26 to be unconstitutionally vague because it failed to give “reasonable notice to

citizens of what is prohibited” and failed to provide “reasonable standards for those

charged with its enforcement.” Rowland, 67 Ohio St.3d at 382, 618 N.E.2d 138. The

prior enactment prohibited public loitering “in a manner and under circumstances

manifesting the purpose to engage in drug-related activity.” A.C.O. 138.26. The court

took issue with the fact that an ordinary person reading the act “could not be sure what

specific acts ‘manifest’ illegal activity.” Rowland, 67 Ohio St.3d at 383. The former

version of subsection (B) provided examples of behaviors that manifest drug activity.

The use of the word “among” indicated that there were “other circumstances, not

specified in the ordinance, which may be used to form the basis of an arrest and

conviction.” Id. The Ohio Supreme Court held this “lack of specificity to be fatal to the

ordinance.” Id. Thus, the former version of A.C.O. 138.26 failed, in part, because it

failed to provide citizens adequate notice of what conduct is illegal.

       {¶ 11} In addition, the Ohio Supreme Court held the provision to be impermissibly

vague because “the police and the courts [were] given unfettered discretion to determine

whether a person’s conduct ‘manifests’ drug activity.” Rowland, 67 Ohio St.3d at 384.
                                            9


Specifically, the court held that “most of the eleven enumerated ‘circumstances’ ” that

manifest drug activity were “extremely indefinite (e.g., ‘a person * * * displays physical

characteristics of drug intoxication or usage, such as * * * [being] underweight, or

[exhibiting] nervous and excited behavior,’ a ‘person behaves in such a manner as to

raise a reasonable suspicion that he is about to engage * * * in an unlawful drug-related

activity,’ and the ‘area involved is by public repute known to be an area of unlawful drug

use and trafficking’)” and that the police and courts were permitted to consider other

unidentified circumstances. Id. The Ohio Supreme Court noted, “[I]t is important to

remember that a person does not have to commit a drug-related offense to violate the

ordinance. The ordinance is prophylactic: it permits police to make an arrest before any

crime has occurred.” Id. at 386.

      {¶ 12} In response to Rowland, the Akron City Council made numerous

modifications to the statute. First, there is now the inclusion of a “specific intent”

element. A.C.O. 138.26(A). Specifically, a person shall not “engage in conduct which

reasonably manifests his or her specific intent and purpose to engage in drug-related

activity.” Id. In addition, the ordinance no longer allows an arrest or conviction for

unnamed circumstances.      The phrase “[a]mong the circumstances which may be

considered” has been replaced with “[t]he circumstances which shall be considered.”

The ordinance requires that three of the ten enumerated circumstances be present to

support arrest and conviction. A.C.O. 138.26(B). Finally, the ordinance no longer

contains the language that was expressly criticized by the Ohio Supreme Court,

specifically, reference to a person’s appearing underweight or nervous and excited, a
                                             10


person behaving in a manner that raises reasonable suspicion that he is engaging in

unlawful drug-related activity – such as acting as a lookout or hailing cars – and the

ordinance now requires personal knowledge by the officer that the area is known by the

public to be an area of unlawful drug use and trafficking. The state argues that these

revisions save the ordinance from being found unconstitutionally void for vagueness.

       {¶ 13} The state emphasizes the addition of a “specific intent” element. However,

the “specific intent” addition does not clearly specify what conduct an individual has the

specific intent to engage in. Instead, the ordinance prohibits conduct that “reasonably

manifests” the “specific intent * * * to engage in drug-related activity.”            A.C.O.

138.26(A). The ordinance goes on to state the circumstances that will determine whether

such “specific intent * * * has been manifested.” Id. Acting under circumstances

manifesting a “specific intent” is not equivalent to specifically intending to engage in an

act. See Rowland, 67 Ohio St.3d at 380.

       {¶ 14} Next, the state stresses the revisions to the listed “circumstances” that are to

be considered in determining whether the offender has reasonably manifested the

“specific intent and purpose to engage in drug-related activity” and contends that the

ordinance no longer suffers from the former lack of specificity. The former ordinance

allowed for consideration of 11 enumerated circumstances, as well as other unnamed

circumstances.   The new ordinance limits consideration to only the ten enumerated

circumstances and requires a finding of three or more to be present to support arrest and

conviction. Although the revision addresses, in part, the “notice to citizens” concerns

that the Ohio Supreme Court had, the enumerated circumstances still lack the necessary
                                            11


specificity to ensure that the police and courts are not “given unfettered discretion to

determine whether a person’s conduct ‘manifests’ drug activity.” Rowland, 67 Ohio

St.3d at 384.

       {¶ 15} A law may be found impermissibly vague if it lacks reasonably clear

guidelines to prevent official arbitrariness or discrimination in its enforcement. Smith v.

Goguen (1974), 415 U.S. 566, 573. In Rowland, the Supreme Court took issue with the

fact that the officers and courts were allowed to consider unnamed circumstances, as well

as with the fact that “most of the eleven enumerated ‘circumstances’ [were] extremely

indefinite.” Id., 67 Ohio St.3d at 384. The revisions to the ordinance fail to correct the

indefiniteness.

       {¶ 16} Revised A.C.O. 138.26(B)(2) provides for the arrest of a person

“display[ing] the physical characteristics of drug intoxication.” In Rowland, the Ohio

Supreme Court expressly criticized similar language and found it to be extremely

indefinite. Rowland, 67 Ohio St.3d at 384, 618 N.E.2d 138. The prior version of A.C.O.

138.26(B) provided for the arrest of “a person who displays physical characteristics of

drug intoxication or usage, such as needle tracks, burned or calloused thumb and index

fingers, underweight, or nervous and excited behavior.” The Ohio Supreme Court found

the prior version to be extremely indefinite, and the current version fails to provide

constitutionally cognizable guidance as to the “physical characteristics of drug

intoxication.” Rowland, 67 Ohio St.3d at 384. The revised subsection fails to correct the

indefiniteness and remains unclear.
                                             12


       {¶ 17} The statute as revised at A.C.O. 138.26(B)(3) provides for arrest if the

person is “currently subject to a court order prohibiting his or her presence in a high drug

activity geographic area, and that fact is known to the officer.” The ordinance, however,

fails to provide guidance as to how a citizen is to determine whether the area is known to

the officer as a “high drug activity geographic area.” In addition, the Ohio Supreme

Court expressly stated that the prior version (the “area involved is by public repute

known to be an area of unlawful drug use and trafficking”) was extremely indefinite.

Rowland, 67 Ohio St.3d at 384. Without guidance, citizens, officers, judges and juries

are forced to speculate as to what is included.

       {¶ 18} A.C.O. 138.26(B)(4) as revised, provides for the arrest of person who is

“physically identified by an officer as a member of a gang.” As the trial court found,

there is no guidance as to what characteristics would inform an officer that an individual

is a member of a gang, and citizens are not provided with notice. The subsection is

nearly identical to the prior version and remains unclear.

       {¶ 19} A.C.O. 138.26(B)(7) as revised, provides for the arrest of a person who

attempts to conceal a drug-related object that “reasonably appears to have been involved

in unlawful drug-related activity.”       The trial court found this subsection to be

impermissibly vague because there is no guidance for officers to determine that a person

“reasonably appears to have been involved in unlawful drug-related activity.” We agree

that this section remains unclear and does not provide citizens with the required notice.

       {¶ 20} A.C.O. 138.26(B)(9) as revised provides for the arrest of a person found in

“an area in which unlawful drug use and trafficking occurs on a frequent and regular
                                            13


basis.” The trial court correctly found this subsection to be impermissibly vague because

it fails to provide guidance as to how one might reasonably determine whether an “area

involved is by public repute and to the knowledge of the arresting officer an area in

which unlawful drug use and trafficking occurs on a frequent and regular basis.” In

addition, revised A.C.O. 138.26(B)(10) provides for the arrest of a person who has

knowledge that the premises involved has “been reported to law enforcement authorities

as a place of drug activity.” Again, there is no notice as to the manner in which a citizen

or officer determines whether the area involved is a place of prior drug activity. In

addition, the provision does not provide guidance as to the manner in which the officer is

to determine whether the person has knowledge of such. Because the above subsections

remain unclear, citizens are not provided with adequate notice of which conduct is illegal.

       {¶ 21} A law may also be void for vagueness “when it ‘delegates basic policy

matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis,

with the attendant dangers of arbitrary and discriminatory application.’ ” Rowland, 67

Ohio St.3d at 383-384, 618 N.E.2d 138. The state argues that subsection (C) of the

revised ordinance “expressly forbids racial or ethnic considerations in determining

specific intent.” In addition, it contends that subsection (E) now requires the formation of

a review committee to monitor enforcement to determine “if any disparate enforcement is

occurring.” The state also argues that the revised ordinance does not have the same

potential for arbitrary or selective enforcement because unnamed circumstances can no

longer be used for enforcement. However, revised A.C.O. 138.26 still allows officers to

subjectively determine whether a citizen exhibits the above “characteristics” and thus
                                             14


“are given unfettered discretion to determine whether a person’s conduct ‘manifests’ drug

activity.” Rowland, 67 Ohio St.3d at 384. This invites arbitrary and discriminatory

enforcement and renders the ordinance unconstitutionally void for vagueness.

Overbreadth

       {¶ 22} As the Ohio Supreme Court stated in Rowland, “ ‘[a] clear and precise

enactment may * * * be “overbroad” if in its reach it prohibits constitutionally protected

conduct.’ * * * In considering an overbreadth challenge, the court must decide ‘whether

the ordinance sweeps within its prohibitions what may not be punished under the First

and Fourteenth Amendments.’ ” Id. at 387, quoting Grayned, 408 U.S. at 114-115. The

challenged statute must be substantially overbroad to be invalidated on its face. Rowland

at 387, quoting Houston v. Hill (1987), 482 U.S. 451, 458. In addition, “the party

challenging the enactment must show that its potential application reaches a significant

amount of protected activity. Nevertheless, criminal statutes ‘that make unlawful a

substantial amount of constitutionally protected conduct may be held facially invalid

even if they also have legitimate application.’ ” Rowland at 387, quoting Houston at 459.

       {¶ 23} In Rowland, the Ohio Supreme Court refused to read into the ordinance a

“specific intent” element because it was not found in the language of the ordinance and

because it was irreconcilable with the language of the ordinance. Rowland at 380. The

revised version of the statute added a “specific intent” element. However, this addition

does not sufficiently limit the statute to prevent it from being overbroad.

       {¶ 24} In Rowland, the Ohio Supreme Court held, “Each of the eleven

circumstances, with the possible exception of subsections (B)(2) and (B)(8), describe
                                             15


status or conduct which can be innocent and may be protected under the Constitution.”

Rowland, 67 Ohio St.3d at 387. The court expressed concern with the circumstances that

could be considered — whether the suspect looks like a drug user, the suspect behaves

suspiciously, including hailing or stopping cars, the suspect is a gang member, the

suspect transfers small packages or objects, the suspect attempts to hide from police, the

suspect is in an area that is known to be an unlawful drug use area, or a vehicle involved

is registered to a known drug user. Id. The court concluded, “These circumstances, and

others in the ordinance, can easily implicate a person’s status, associates, mere presence,

or otherwise innocent behavior. We feel that they encroach on a ‘substantial amount of

constitutionally protected conduct.’ ” Id., quoting Hill, 482 U.S. at 459.

       {¶ 25} Revised A.C.O. 138.26 still allows, and in fact requires, officers to take into

consideration enumerated circumstances “which can be innocent and may be protected

under the Constitution.” Rowland, 67 Ohio St.3d at 387, 618 N.E.2d 138. As discussed

above, many of the “circumstances” remain unchanged from the prior version. As in the

prior version, officers are able to take into consideration the fact that a person has a prior

drug conviction, is located in a high drug-activity geographic area, displays physical

characteristics of drug intoxication, is physically identified as a member of a gang, takes

flight, or repeatedly passes objects to passers-by or bystanders. The Ohio Supreme Court

took issue with the consideration of these potentially innocent and constitutionally

protected circumstances. Even though the ordinance now requires that at least three of

these circumstances be present, the fact remains that three innocent and constitutionally

protected circumstances could “manifest” the intent to engage in drug-related activities
                                            16


even where no such intent actually exists. The trial court noted that the revised ordinance

“is very likely to encompass constitutionally protected conduct. In application, if a

person previously convicted of a drug-related crime who lives in ‘high drug activity

geographic area’ while walking home attempts to avoid a police officer because of

previous negative interactions, then he or she may be arrested and convicted of violating

A.C.O. §138.26 even if at the time of the incident the person was not involved in any

drug-related activity.”    The fact also remains that “ ‘[e]ven if the [offender] were

acquitted due to lack of evidence of intent, an arrest would be justified under the statute,

and the arrest itself chills first amendment rights.’ ” Rowland at 388, quoting Coleman v.

Richmond (1988), 5 Va.App.459, 465.

          {¶ 26} The Supreme Court has recognized an individual’s freedom of association

in two ways: (1) the freedom “to enter into and maintain certain intimate human

relationships” and (2) the “right to associate for the purpose of engaging in those

activities protected by the First Amendment.” Roberts v. U.S. Jaycees (1984), 468 U.S.

609, 617-618; Dallas v. Stanglin (1989), 490 U.S. 19, 24. The Ohio Supreme Court

analyzed an individual’s freedom of association in State v. Burnett (2001), 93 Ohio St.3d

419. In Burnett, Cincinnati passed an ordinance that created drug-exclusion zones, and if

a person was convicted of committing a drug offense in these areas, he was automatically

banned from traveling within the zone for one year. Id. at 420. The court found that the

ordinance did not implicate the First Amendment’s freedom of association, but was

unconstitutional because it unlawfully restricted a person’s right to freedom of travel. Id.

at 425.
                                             17


       {¶ 27} The ordinance in Burnett allowed a person to obtain a variance “for reasons

relating to [his] health, welfare, or well-being, * * * or for drug counseling services,” and

a variance must be granted if he lived or worked within the exclusion zone. Id. at 421.

A.C.O. 138.26 does not permit a variance for any reason, even if a person lives, works, or

receives social services in the contested area.         This interferes with a person’s

constitutional right of association and/or freedom of travel.

       {¶ 28} Allowing officers, judges, and juries to consider the enumerated

circumstances in A.C.O. 138.26(B) “sweeps within the prohibitions of the ordinance

many things that may not be constitutionally punished under the First and Fourteenth

Amendments.” Rowland, 67 Ohio St.3d at 388. Accordingly, the revised ordinance is

impermissibly overbroad. The state’s assignment of error is overruled.

                                              III

       {¶ 29} Appellant’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas, Juvenile Division, is affirmed.



                                                                          Judgment affirmed.




BELFANCE, P.J., and WHITMORE, J., concur.
