Roth v. City of Canton

347 F. Supp. 3d 346
CourtDistrict Court, N.D. Ohio
DecidedSeptember 28, 2018
DocketCase No. 5:17CV234
StatusPublished

This text of 347 F. Supp. 3d 346 (Roth v. City of Canton) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roth v. City of Canton, 347 F. Supp. 3d 346 (N.D. Ohio 2018).

Opinion

PEARSON, United States District Judge

Pending before the Court is Plaintiffs' Motion for Preliminary and Permanent Injunction (ECF No. 40), filed in October 2017. The Court has been advised, having reviewed the record, the parties' briefs, and the applicable law. For the reasons set forth below, the motion is granted.

I. Background

On June 5, 2017, Plaintiffs Michael T. Roth, Julie Roth, Kaylyn Mazeall, and Joy Wagner filed a Third Amended Class Action Complaint against Defendants City of Canton, Ohio, Canton Police Department, Shirley Moore, John Doe Canton Police Officers, John Doe Canton Employees, and John Doe Canton Police Supervisors.1 ECF No. 26. Thereafter, Plaintiffs filed the within motion for equitable relief. ECF No. 40.

A. Prior to May 3, 2017

The City of Canton enacted ordinances limiting the number of cats and dogs in a residence. Prior to May 3, 2017, Canton Codified Ordinance 505.14: Keeping More Than Five Dogs or Cats read, in relevant part:

*351(a) Except as provided for in Section 505.15, no person residing within the City shall own, possess, harbor or keep more than five dogs or cats, or any combination thereof, on the premises of his residence or business at any one time, except that where litters have been borne to a residing animal, after they have been weaned, a four-month grace period shall be granted to permit the distribution of such young animals.
(b) This section shall not prohibit the City, through the Department of Health or other authority, from enforcing any laws or ordinances concerning the creation of nuisances through the maintenance of dogs or cats or other animals in numerous quantities.

ECF. No. 42-1 at PageID: # 729, Stip. 1. In addition, Canton Codified Ordinance 505.15 read in relevant part:

(a) No person shall be permitted to own, possess, harbor or keep more than five dogs or cats or any combination thereof in an area zoned residential except that where litters have been born to a residing animal, after they have been weaned, a four-month grace period shall be granted to permit the distribution of such young animals. Any person desiring to own, possess or keep more than five dogs or cats or any combination thereof at any one time, in an area zoned as business or industrial, with the exception of a litter or a portion of a litter of pups or kittens less than four months old, shall first obtain a permit from the City as provided in this section and shall additionally obtain such other licenses as may be required by the Ohio Revised Code.

ECF No. 42-1 at PageID: # 729, Stip. 2.

According to Defendants, a prosecution under either ordinance is a multi-phase process which generally involves: (1) a party making a complaint to a License Technician, typically Defendant Shirley Moore; (2) the License Technician sending a letter to the person residing at the home warning her that she is violating an ordinance; and (3) a follow-up visit to the property at least 30 days after the letter is sent to determine if the resident is still in violation of the ordinance. If the resident is still in violation, the License Technician and a police officer take the information to a prosecutor. ECF. No. 44 at PageID: # 740-41.

Plaintiff Julie Roth was sent a letter on March 11, 2015, which informed her that she violated Canton Codified Ordinance 505.15. ECF. No. 44 at PageID: # 741. Plaintiff Julie Roth owns five dogs. See ECF. No. 66 at PageID: # 2526, ¶ 29. Plaintiff Michael T. Roth, who lives with Plaintiff Julie Roth, owns two dogs and two cats. During a follow-up visit in September 2016, Defendant Shirley Moore saw seven dogs and two cats in Plaintiff Julie Roth's backyard. ECF No. 44 at PageID # : 741. On September 25, 2016, Defendants filed a criminal complaint against Plaintiff Julie Roth in the Canton, Ohio Municipal Court, No. 2016 CRB 04547, charging her with a violation of Canton Codified Ordinance 505.15. ECF. No. 40-2 at PageID: # 694. After a jury trial, Plaintiff Julie Roth was found guilty of violating Canton Codified Ordinance 505.15. ECF. No. 44 at PageID: # 740-41.

B. Since May 3, 2017

On April 3, 2017, the Canton City Council amended Ordinance 505.14, which became effective on May 3, 2017. ECF. No.

*35242-1 at PageID: # 729, Stip. 3; ECF. No. 66 at PageID: # 2538, ¶ 57. The amended Ordinance 505.14 now states:

(a) Except as provided in Section 505.15, a person may not possess, keep, harbor, or permit to be possessed, kept, or harbored in or about any dwelling unit or structure under their control a total of more than five dogs or cats, in any combination, over four months of age. "Harbor" means to give shelter or refuge to. "Dwelling unit" and "structure" are defined in Chapter 1123.
(b) Any person who violates any provision of this section is guilty of a misdemeanor of the third degree."

ECF. No. 42-1 at PageID: # 729, Stip. 4; ECF. No. 66 at PageID: # 2538, ¶ 58.

Plaintiffs seek (1) to enjoin enforcement of Canton Codified Ordinance 505.14 and (2) a declaration that the law is unconstitutional under the First, Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution. ECF. No. 66 at PageID: # 2522, ¶ 1.

II. Legal Standard

In determining whether a preliminary injunction is appropriate, a court must consider the following: (1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury without the injunction, (3) whether issuance of the injunction would cause substantial harm to others, and (4) whether the public interest would be served by issuance of the injunction. Leary v. Daeschner , 228 F.3d 729, 736 (6th Cir. 2000). These factors are not prerequisites to be met, but must be balanced against each other. Id. "Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal." Gonzales v. Nat'l Bd. of Med. Examiners , 225 F.3d 620, 625 (6th Cir. 2000). In addition, while the absence of one factor may weigh heavily in the balance, it does not dictate the balance. Nat'l Credit Union Admin. Bd. v. Jurcevic , 867 F.3d 616, 622 (6th Cir. 2017).

The Sixth Circuit does not require a heightened evidentiary burden when the moving party seeks a mandatory injunction, one that alters the status quo by ordering the performance of an act, as opposed to a prohibitory injunction that maintains the status quo.

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347 F. Supp. 3d 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roth-v-city-of-canton-ohnd-2018.