Kanab City v. Popowich

2008 UT App 337, 194 P.3d 198, 613 Utah Adv. Rep. 23, 2008 Utah App. LEXIS 329, 2008 WL 4260702
CourtCourt of Appeals of Utah
DecidedSeptember 18, 2008
DocketNo. 20070768-CA
StatusPublished
Cited by1 cases

This text of 2008 UT App 337 (Kanab City v. Popowich) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kanab City v. Popowich, 2008 UT App 337, 194 P.3d 198, 613 Utah Adv. Rep. 23, 2008 Utah App. LEXIS 329, 2008 WL 4260702 (Utah Ct. App. 2008).

Opinion

BENCH, Judge:

{1 Defendant Jeff Popowich appeals the decision of the district court finding him guilty on four counts of failing to maintain a city dog license and one count of running an illegal kennel, all violations of the Kanab City [200]*200Code. We affirm because Defendant's sufficiency of the evidence claim is not properly before us and the kennel permit ordinance is not unconstitutionally vague as applied to Defendant.

BACKGROUND

T2 In December 2005, a Kanab City animal control officer (the Officer) responded to numerous complaints of barking dogs at Defendant's residence. The Officer observed four dogs over the age of three months on the premises during two separate visits to Defendant's home that month. Subsequently, the Officer observed the same four dogs during random follow-up visits in January, February, March, and April of 2006. At no time during these observational visits was the Officer able to meet or speak with Defendant. The Officer observed the dogs from outside the home.

13 In both January and February of 2006, the Officer sent notices to every resident in Kanab reminding animal owners of their licensing responsibilities. The Officer subsequently placed a written warning on Defendant's door. This warning notified Defendant that he was facing violations for keeping too many dogs, thereby running an illegal kennel, and failing to license his dogs. Defendant was also given a specific time period within which he needed to comply with the city code. On April 13, 2006, the Officer issued Defendant a citation.

14 Defendant was convicted of failing to properly license his dogs (four counts) and running an illegal kennel (one count) in the Kanab City Justice Court. Defendant appealed to the district court, where he was given a trial de novo, and was again conviect-ed. Defendant now appeals the decision of the district court.

ISSUES AND STANDARD OF REVIEW

15 Defendant first claims that the district court erred by not granting his "motion to dismiss" at the close of the evidence offered by Kanab City (the City). The City counters by arguing that Defendant cannot challenge the court's findings in view of Defendant's failure to marshal the evidence. However, because this case began in justice court, our jurisdiction is limited by Utah Code section T78A-~T-118. See Utah Code Ann. § 78A-T-118(7) (Supp.2008). We will therefore first examine the question of whether Defendant's sufficiency of the evidence claim is even properly before us.

16 Defendant also argues that the city ordinance on which his conviction for operating an illegal kennel is based is unconstitutionally vague. Constitutional challenges to statutes and ordinances present questions of law, which we review for correctness. See Ross v. Schackel, 920 P.2d 1159, 1162 (Utah 1996); Salt Lake City v. Lopez, 935 P.2d 1259, 1262 (Utah Ct.App.1997).

ANALYSIS

I. Sufficiency of the Evidence Claim

T7 Defendant appeals the district court's decision to deny his motion for a directed verdict at the close of the City's case. Specifically, Defendant claims that the City failed to establish each element of the charged violations. Because Defendant was first convicted in justice court, our appellate jurisdiction is limited. In criminal cases originating in justice court, defendants may appeal to the district court, where they are "entitled to a trial de novo." Utah Code Ann. § 78A-7-118(1). "The decision of the district court is final and may not be appealed unless the district court rules on the constitutionality of a statute or ordinance." Id. § T8A-T-118(7).

18 Utah courts have interpreted this statute such that only issues challenging the constitutionality of statutes or ordinances may be appealed beyond the district court's trial de novo. See City of Monticello v. Christensen, 788 P.2d 513, 517 (Utah 1990) ("[TIhis [clJourt [has] repeatedly held that a person dissatisfied with a justice court decision could appeal that decision to a district court and that the district court decision was final unless the validity or constitutionality of a statute was at issue...."); State v. Hinson, 966 P.2d 273, 277 (Utah Ct.App.1998) (stating that "'conventional' appellate jurisdiction [over cases originating in the justice [201]*201courts] is limited to only those issues attacking the validity or constitutionality of an ordinance or statute")1 This court recently ruled that when both constitutional and non-constitutional issues are raised in an appeal from the district court's trial de novo, we have limited jurisdiction to hear only the constitutional claim. See Pleasant Grove City v. Orvis, 2007 UT App 74, ¶ 5, 157 P.3d 355.

{9 Here, Defendant's first argument on appeal attacks the district court's decision to deny his motion for a directed verdict because, as Defendant alleges, the evidence was insufficient. This argument does not challenge the constitutionality of the Kanab City ordinances under which Defendant was con-viected. We therefore lack jurisdiction to consider the merits of Defendant's sufficiency of the evidence claim.

II. Constitutionality of Kennel Permit Ordinance

110 Defendant claims that Kanab City Ordinance 13-200.04 (the Ordinance), specifically section 18-200.04.050 (the Inspection Clause), is unconstitutionally vague as applied to him. See Kanab City, Utah, Ordinance § 13-200.04 (2006). "In order to establish that the complained-of provisions are impermissibly vague, a defendant must demonstrate either (1) that the statutes do not provide 'the kind of notice that enables ordinary people to understand what conduct [is prohibited], or (2) that the statutes 'encourage arbitrary and discriminatory enforcement.'" State v. MacGuire, 2004 UT 4, ¶ 13, 84 P.3d 1171 (alteration in original) (quoting State v. Honie, 2002 UT 4, ¶ 31, 57 P.3d 977); see also State v. Ross, 2007 UT 89, ¶ 27, 174 P.3d 628. "If a statute 'is sufficiently explicit to inform the ordinary reader what conduct is prohibited, it is not unconstitutionally vague." MacGuire, 2004 UT 4, ¶ 14, 84 P.3d 1171 (quoting State v. Frampton, 737 P.2d 183, 192 (Utah 1987)).

T11 The Ordinance states that "[nlo person shall operate or maintain a kennel without first obtaining a permit from Kanab City," Kanab City, Utah, Ordinance § 183-200.04.020(1), and that persons who violate the Ordinance are guilty of class C misdemeanors, see id. § 13-200.04.070. Under the Ordinance, a kennel is defined as "any residential premises where more than two dogs . are raised, kept, [or] housed." Id. § 13-200.01.010. The Ordinance also outlines minimum sanitation and safety standards that must be met in order to obtain and keep a kennel permit. See id. § 13-200.04.020(8)-(4).

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Bluebook (online)
2008 UT App 337, 194 P.3d 198, 613 Utah Adv. Rep. 23, 2008 Utah App. LEXIS 329, 2008 WL 4260702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kanab-city-v-popowich-utahctapp-2008.