[Cite as State v. Burns, 2016-Ohio-4885.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
CITY OF CANTON : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Patricia A. Delaney, J. -vs- : : Case Nos. 2015CA00163 : 2015CA00164 ROLAND K. BURNS III : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2015 CRB 2558 & 2015 CRB 2625
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 5, 2016
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
TYRONE HAURTIZ STEPHEN J. KANDEL CANTON CITY PROSECUTOR 101 Central Plaza South, Suite 103 Canton, OH 44702 JENNIFER L. FITZSIMMONS 218 Cleveland Ave. SW Canton, OH 44702 Stark County, Case Nos. 2015CA00163 & 2015CA00164 2
Delaney, J.
{¶1} In Case Numbers 2015CA00163 and 2015CA00164, Defendant-Appellant
Roland K. Burns III appeals his convictions and sentences by the Canton Municipal Court
on four counts of Failure to Comply with an Order to Correct in violation of Canton Codified
Ordinance 1351.03(l). Burns raises the same arguments in both appeals. The appeals
are not consolidated, but for ease of discussion, we consider both appeals in one opinion.
Plaintiff-Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
Canton Codified Ordinance 1351.03
{¶2} In 2011, the City of Canton adopted the 2006 edition of the International
Property Maintenance Code. Canton Codified Ord. 1351.01(a). The owner of any non-
owner occupied or vacant residential structure in Canton is subject to the interior and
exterior requirements of the Code. Canton Codified Ord. 1351.01(b).
{¶3} The City of Canton amended and supplemented the International Property
Maintenance Code in Canton Codified Ord. 1351.03. Pertinent to this appeal, Canton
Codified Ord. 1351.03(l) states as follows:
Section 106.4, Violation penalties, is amended to read: Any person failing
to comply with a notice of violation or order served in accordance with
Section 107 of this code shall be deemed guilty of a misdemeanor or civil
infraction as follows:
(1) If a notice or order is not complied with, a one hundred dollar ($100.00)
fine will be assessed. Stark County, Case Nos. 2015CA00163 & 2015CA00164 3
(2) If a second notice or order for the same violation within a one (1) year
period is not complied with, a two hundred fifty dollar ($250.00) fine will be
assessed.
(3) If a third notice or order for the same violation within a one (1) year period
is not complied with, a five hundred dollar ($500.00) fine will be assessed.
(4) The time restraints may be tolled by the Chief Building Official (or
designee) due to inclement weather or type of violation.
(5) If a notice or order is not complied with, the violator will be charged with
a first degree misdemeanor.
(6) Fines assessed pursuant to subparagraphs (1), (2) and (3) above, may
be appealed to the Board of Building Appeals upon the payment of a one
hundred dollar ($100.00) deposit for each building requested for appeal to
the Canton Building Department. * * *
(7) Any appeal received after 20 days from post date of violation will not be
accepted.
The violation shall be deemed a strict liability offense. If the notice of
violation is not complied with, the Chief Building Official in conjunction with
the Law Director shall institute the appropriate proceeding at law or in equity
to restrain, correct or abate such violation, or to require the removal or
termination of the unlawful occupancy of the structure in violation of the
provisions of this code or of the order or direction made pursuant thereto.
Any action taken by the authority having jurisdiction on such premises shall
be charged against the real estate upon which the structure is located and Stark County, Case Nos. 2015CA00163 & 2015CA00164 4
shall be charged against the real estate upon which the structure is located
and shall be a lien upon such real estate.
Appellant’s Violations of Canton Codified Ordinance 1351.03
{¶4} Defendant-Appellant Roland K. Burns III owns four rental properties located
in Canton, Ohio. On June 26, 2014, the Code Enforcement Division of the City of Canton
notified Burns by letter that it documented violations at 1233 Oxford Avenue NW following
a visual field inspection. The City of Canton ordered Burns to abate the violations by July
3, 2014. The letter instructed as follows:
If the owner fails to correct the attached listed violations within the
prescribed period of time permitted, the Chief Building Official will take the
necessary actions. A $100.00 fine shall be imposed upon the property
owner. Additional fines may be imposed if violations are not corrected.
Whoever knowingly fails to comply with an order issued pursuant to Section
1351 shall be guilty of a minor misdemeanor on the first offense, on each
subsequent offense such person shall be guilty of a misdemeanor of the
fourth degree.
{¶5} The letter notified Burns that he had the right to appeal the order pursuant
to Canton Building Code 1351. The letter further stated that if the fines were not paid by
Burns within 30 days after the date of the written notice, the City of Canton could recover
the fines by an action at law or by assessment.
{¶6} On July 3, 2014, the Code Enforcement Division of the City of Canton
notified Burns by letter that it documented violations at his property located at 1003 Third
Street NW. Burns was ordered to abate the violations by July 29, 2014. The letter further Stark County, Case Nos. 2015CA00163 & 2015CA00164 5
notified Burns that if the violations were not abated by July 29, 2014, Burns would be
subject to a $100.00 fine and possibly additional fines. The letter informed Burns that,
“Whoever knowingly fails to comply with an order issued pursuant to Section 1351 shall
be guilty of a minor misdemeanor on the first offense, on each subsequent offense such
person shall be guilty of a misdemeanor of the fourth degree.” Finally, the letter stated
that if the fines were not paid within 30 days of the written notice, the fines could be
recovered in an action at law or by assessment.
{¶7} On November 18, 2014, the Code Enforcement Division notified Burns by
letter there was an open complaint on his property located at 1338 Logan Avenue NW.
The letter stated Burns failed to correct exterior violations and the property was referred
to the Canton Law Department. Due to failed inspections, the property was assessed the
following fines: 09/09/2013, $100.00; 04/22/2014, $250.00; 05/08/2014, $250.00;
11/17/2014, $500.00. Burns was ordered to pay the fines by December 18, 2014. The
letter instructed Burns he had the right to appeal the fines pursuant to Canton Codified
Ord. 1351. If the fines were not paid within 30 days of written notice, the fines could be
recovered in an action at law.
{¶8} On February 12, 2015, the Code Enforcement Division notified Burns by
letter that it documented violations at his property located at Market Avenue North. Burns
was ordered to abate the violations by February 17, 2015. The letter further notified Burns
that if the violations were not abated by February 17, 2015, Burns would be subject to a
$100.00 fine and possibly additional fines. The letter included the same language
regarding the possible criminal penalties. Stark County, Case Nos. 2015CA00163 & 2015CA00164 6
{¶9} On June 15, 2015, the City of Canton charged Burns with four counts of
Failure to Comply with an Order to Correct, a first-degree misdemeanor in violation of
Canton Codified Ord. 1351.03(l). In Case No. 2015CRB2625, Burns was charged for his
failure to correct code violations at 1003 Third Street NW and 1338 Logan Avenue NW
(Appellate Case No. 2015CA00164). In Case No. 2015CRB2558, Burns was charged for
his failure to correct code violations at 1233 Oxford Avenue NW and Market Avenue North
(Appellate Case No. 2015CA00163). Burns pleaded not guilty to the charges and
demanded a jury trial.
{¶10} Burns filed a motion to declare Canton Codified Ord. 1351.03(l)(5) void for
vagueness, or in the alternative, to sever the vague portion. He argued the language of
the ordinance was vague because it gave the City of Canton discretion to assess a fine
based on a tiered schedule if a violator failed to comply with a notice to correct, or the
City of Canton could charge the violator with a first-degree misdemeanor if a violator failed
to comply with a notice to correct. The City of Canton could charge a first-time violator
with a first-degree misdemeanor without first assessing a fine. The trial court overruled
the motion.
{¶11} On August 17, 2015, Burns appeared in court and changed his plea to no
contest. The trial court found Burns guilty on the four counts of Failure to Comply with an
Order to Correct. The trial court sentenced Burns to the Stark County Jail for 59 days and
ordered him to pay $961.00 in fines and costs. He was also ordered to correct all code
violations.
{¶12} It is from this judgment Burns now appeals. Stark County, Case Nos. 2015CA00163 & 2015CA00164 7
ASSIGNMENTS OF ERROR
{¶13} Burns raises three Assignments of Error:
{¶14} “I. CANTON CITY ORDINANCE 1351.03 IS UNCONSTITUTIONALLY
VAGUE.
{¶15} “II. A PROSECUTION FOR A VIOLATION PURSUANT TO CANTON CITY
ORDINANCE 1351.03(L)(5) IS BARRED BY THE DOUBLE JEOPARDY CLAUSES OF
THE OHIO AND UNITED STATES CONSTITUTIONS.
{¶16} “III. CANTON CITY ORDINANCE 1351.03 VIOLATES THE
CONSTITUTIONAL GUARANTEES OF EQUAL PROTECTION AND DUE PROCESS.”
ANALYSIS
I. VOID FOR VAGUENESS
{¶17} In his first Assignment of Error, Burns claims he was denied due process of
law because the ordinance he was charged with violating is void for vagueness. He
contends the provisions in Canton Codified Ord. 1351.03(l) allowing the City of Canton to
assess a progressive fine schedule or charge the violator with a first-degree misdemeanor
is vague and overreaching.
{¶18} The void-for-vagueness doctrine ensures that individuals can ascertain
what the law requires of them. State v. Rober, 6th Dist. Lucas No. L-14-1168, 2015-Ohio-
5501, ¶ 18 citing State v. Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991). In
determining whether a statute or ordinance is void for vagueness, the court must consider
whether the enactment “(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 Stark County, Case Nos. 2015CA00163 & 2015CA00164 8
St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 84. A statute is not void for vagueness
simply because it could have been worded more precisely or with additional certainty.
Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). “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.
{¶19} In the present case, Burns does not raise the argument that Canton
Codified Ord. 1351.03(l) failed to provide him with fair notice as to what conduct was
prohibited. Burns argues the penalty section of Canton Codified Ord. 1351.03(l) is vague,
allowing discriminatory enforcement by the City of Canton.
{¶20} The penalty section of Canton Codified Ord. 1351.03(l) states:
Section 106.4, Violation penalties, is amended to read: Any person failing
to comply with a notice of violation or order served in accordance with
Section 107 of this code shall be deemed guilty of a misdemeanor or civil
(1) If a notice or order is not complied with, a one hundred dollar ($100.00)
fine will be assessed.
(2) If a second notice or order for the same violation within a one (1) year
period is not complied with, a two hundred fifty dollar ($250.00) fine will be
(3) If a third notice or order for the same violation within a one (1) year period
is not complied with, a five hundred dollar ($500.00) fine will be assessed. Stark County, Case Nos. 2015CA00163 & 2015CA00164 9
(4) The time restraints may be tolled by the Chief Building Official (or
(5) If a notice or order is not complied with, the violator will be charged with
a first degree misdemeanor,
(6) Fines assessed pursuant to subparagraphs (1), (2) and (3) above, may
be appealed to the Board of Building Appeals upon the payment of a one
hundred dollar ($100.00) deposit for each building requested for appeal to
(7) Any appeal received after 20 days from post date of violation will not be
The violation shall be deemed a strict liability offense. If the notice of
violation is not complied with, the Chief Building Official in conjunction with
the Law Director shall institute the appropriate proceeding at law or in equity
to restrain, correct or abate such violation, or to require the removal or
termination of the unlawful occupancy of the structure in violation of the
provisions of this code or of the order or direction made pursuant thereto.
Any action taken by the authority having jurisdiction on such premises shall
be charged against the real estate upon which the structure is located and
shall be charged against the real estate upon which the structure is located
{¶21} Burns contends there is a conflict in the language of the ordinance between
the imposition of civil penalties or a criminal penalty for the failure to comply with a notice
of violation. Burns states the ordinance allows the City of Canton to choose between a Stark County, Case Nos. 2015CA00163 & 2015CA00164 10
civil or criminal penalty for the failure to comply with a notice, but also states in the same
section that a violator will be charged with a criminal penalty. He contends the conflicting
language in the ordinance fails to provide an explicit standard for enforcement and allows
discriminatory enforcement.
{¶22} The United States Supreme Court stated:
It is a fundamental tenet of due process that “[n]o one may be required at
peril of life, liberty or property to speculate as to the meaning of penal
statutes.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83
L.Ed. 888 (1939). A criminal statute is therefore invalid if it “fails to give a
person of ordinary intelligence fair notice that his contemplated conduct is
forbidden.” * * * So too, vague sentencing provisions may pose
constitutional questions if they do not state with sufficient clarity the
consequences of violating a given criminal statute.
(Citations omitted.) United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 2204,
60 L.Ed.2d 755 (1979); See also State v. Mushrush, 135 Ohio App.3d 99, 109, 733 N.E.2d
252, 259, (1st Dist.1999).
{¶23} There is a strong presumption that all legislative enactments are
constitutional. State v. Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991). When it
is alleged that a statute or ordinance is void for vagueness, all doubts must, if possible,
be resolved in favor of its constitutionality. Oregon v. Lemons, 17 Ohio App.3d 195, 196,
478 N.E.2d 1007 (6th Dist.1984). We analyze the ordinance to determine whether it
affords a reasonable individual of ordinary intelligence fair notice and sufficient definition
and guidance to enable him to conform his conduct to the law. “All legislative provisions Stark County, Case Nos. 2015CA00163 & 2015CA00164 11
that relate to the same general subject matter must be read in pari materia, and in
construing these provisions together, courts must harmonize and give full application to
all provisions ‘unless they are irreconcilable and in hopeless conflict.’” Columbiana v.
Frost, 7th Dist. Columbiana No. 14-CO-38, 2016-Ohio-1057, ¶ 43 quoting State v. Cook,
128 Ohio St.3d 120, 2010-Ohio-6305, 942 N.E.2d 357, ¶ 45.
{¶24} The plain language of Canton Codified Ord. 1351.03(l) states the City of
Canton has the discretion to impose a civil or criminal penalty for the failure to comply
with a notice to correct violations. Canton Codified Ord. 1351.03(l)(7) reads, “* * * If notice
of violation is not complied with, the Chief Building Official in conjunction with the Law
Director shall institute the appropriate proceeding at law or in equity to restrain, correct or
abate such violation, * * *.” “Whether to prosecute and what charge to file * * * are
decisions that generally rest in the prosecutor's discretion.” United States v. Batchelder,
442 U.S. 114, 124, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979). In Columbiana v. Frost,
the Seventh District Court of Appeals determined that a city income tax code permitted
the City of Columbiana to impose a civil and criminal penalty for the failure to pay city
income taxes:
The tax code states that the taxpayer's failure to make any deferred
payment when due shall cause the total unpaid amount, including penalty
and interest, to become payable on demand and the civil penalties of §
880.11 and the criminal penalties of § 880.12 shall apply. (Emphasis
added.) We interpret the conjunctive language of § 880.08(b) to mean that
the taxpayer's failure to make a deferred payment allows the City of
Columbiana to take three actions: (1) the total unpaid amount including Stark County, Case Nos. 2015CA00163 & 2015CA00164 12
penalty and interest is payable on demand, (2) the City of Columbiana can
pursue civil action under § 880.11, and (3) the City of Columbiana can
pursue criminal action for violations of § 880.12. § 880.99(a) states the
criminal penalties for a violation of the tax code, which are outlined in §
880.12. The language of § 880.08(b) and § 880.99 are not in conflict.
Columbiana v. Frost, 7th Dist. Columbiana No. 14-CO-38, 2016-Ohio-1057, ¶ 37
{¶25} The ordinance outlines the civil penalties for the failure to comply with a
notice as a progressive fine schedule. Canton Codified Ord. 1351.03(l)(1)-(3). Fines
assessed pursuant to the schedule may be appealed to the Board of Building Appeals.
Canton Codified Ord. 1351.03(l)(6). In the alternative, the City of Canton may pursue a
criminal action for the failure to comply with a notice. Canton Codified Ord. 1351.03(l)(5).
{¶26} Burns did not submit a transcript of his sentencing hearing. There is no
information in the record of whether Burns appealed the fines assessed for the 1338
Logan Avenue NW property or if the City of Canton assessed fines for Burns’s failure to
comply with the notices for his three other properties.
{¶27} We find the language of the enforcement section of Canton Codified Ord.
1351.03(l) is clear and unambiguous to give a person of ordinary intelligence fair notice
that if he or she fails to comply with a notice of violation, the violator will be deemed guilty
of a misdemeanor or a civil infraction. The civil penalties are outlined in a progressive fine
schedule and can be appealed. The possible criminal penalty is a first degree
misdemeanor. The ordinance states the Chief Building Officer and the Law Director will
institute the appropriate proceeding at law or in equity. The enforcement section of the
ordinance is not unconstitutionally vague. Stark County, Case Nos. 2015CA00163 & 2015CA00164 13
{¶28} The first Assignment of Error is overruled.
II. DOUBLE JEOPARDY
{¶29} Burns argues in his second Assignment of Error that prosecution under the
Canton Codified Ord. 1351.03(l) is barred by the Double Jeopardy Cause of the United
States and Ohio Constitutions. We disagree.
{¶30} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and Section 10, Article I of the Ohio Constitution protect criminal defendants
against multiple prosecutions for the same offense. The Ohio Supreme Court has
recognized that “[t]he protections afforded by the two Double Jeopardy Clauses are
coextensive.” State v. Carozza, 2015-Ohio-1783, 33 N.E.3d 556, ¶ 16 (5th Dist.) quoting
State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7, citing State
v. Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d 435 (1996).
{¶31} The principle behind the Double Jeopardy Clause “‘is that the State with all
its resources and power should not be allowed to make repeated attempts to convict an
individual for the alleged offense, thereby subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well
as enhancing the possibility that even though innocent he may be found guilty.’” State v.
Roberts, 119 Ohio St.3d 294, 2008-Ohio-3835, 893 N.E.2d 818, ¶ 11, quoting Green v.
United States, 355 U.S. 184, 187–188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The federal
and state constitutions' double jeopardy protection further guards citizens against
cumulative punishments for the “same offense.” State v. Moss, 69 Ohio St.2d 515, 518,
433 N.E.2d 181 (1982). “[T]he Double Jeopardy Clause does no more than prevent the Stark County, Case Nos. 2015CA00163 & 2015CA00164 14
sentencing court from prescribing greater punishment than the legislature intended.”
Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535, 542 (1983).
{¶32} The ordinance in the present case subjects the violator to criminal or civil
penalties. Burns argues the progressive fine schedule is truly a criminal penalty. Both
parties direct this Court to the United States Supreme Court’s decision in Hudson v.
United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), which established a
two-part test for determining whether a penalty is a criminal penalty for double jeopardy
purposes:
In Hudson, 522 U.S. at 96, 118 S.Ct. 488, 139 L.Ed.2d 450, the United
States Supreme Court reaffirmed the two-part test for determining whether
a particular penalty is a “criminal punishment” for double jeopardy purposes
that was set forth in United States v. Ward (1980), 448 U.S. 242, 248–249,
100 S.Ct. 2636, 65 L.Ed.2d 742. Under this test, the first question to be
answered is “whether the legislature, ‘in establishing the penalizing
mechanism, indicated either expressly or impliedly a preference for one
label or the other.’ ” Hudson, 522 U.S. at 99, 118 S.Ct. 488, 139 L.Ed.2d
450, quoting Ward, 448 U.S. at 248, 100 S.Ct. 2636, 65 L.Ed.2d 742.
Second, even in those cases where the legislature has indicated an
intention to establish a civil penalty, the United States Supreme Court has
inquired further whether the statutory scheme was so punitive in purpose or
effect as to transform what was clearly intended to be a civil remedy into a
criminal penalty. Hudson, 522 U.S. at 99, 118 S.Ct. 488, 139 L.Ed.2d 450;
State v. Uskert (1999), 85 Ohio St.3d 593, 597, 709 N.E.2d 1200. Stark County, Case Nos. 2015CA00163 & 2015CA00164 15
State v. Martello, 97 Ohio St.3d 398, 402-03, 2002-Ohio-6661, 780 N.E.2d 250, 255, ¶
18.
{¶33} Canton Codified Ord. 1351.03(l) indicates that any person failing to comply
with a notice of violation shall be deemed guilty of a misdemeanor or civil infraction. The
ordinance next outlines the progressive fine schedule. The ordinance states in
1351.03(l)(6) that fines assessed pursuant to the progressive fine schedule may be
appealed to the Board of Building Appeals. Therefore, for the purposes of the Hudson
analysis, the progressive fine schedule must be classified as civil in nature.
{¶34} Next, the second prong of the Hudson test asks whether the ordinance is
so punitive in purpose or effect that it amounts to a criminal penalty. Burns argues the
criminal and civil penalty have the same effect of deterrence and punishment. “ ‘[O]nly
the clearest proof’ will suffice to override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty.” Martello, 97 Ohio St.3d 398, 403,
quoting Hudson, 522 U.S. at 100, 118 S.Ct. 488, 139 L.Ed.2d 450, quoting Ward, 448
U.S. at 249, 100 S.Ct. 2636, 65 L.Ed.2d 742. In order to analyze this prong of the test,
the United States Supreme Court referred to the guidelines outlined in Kennedy v.
Mendoza–Martinez, 372 U.S. 144, 168–169, 83 S.Ct. 554, 567–568, 9 L.Ed.2d 644, 661
(1963):
(1) “[w]hether the sanction involves an affirmative disability or restraint,” (2)
“whether it has historically been regarded as punishment,” (3) “whether it
comes into play only on a finding of scienter,” (4) “whether its operation will
promote the traditional aims of punishment-retribution and deterrence,” (5)
“whether the behavior to which it applies is already a crime,” (6) “whether Stark County, Case Nos. 2015CA00163 & 2015CA00164 16
an alternative purpose to which it may rationally be connected is assignable
for it,” and (7) “whether it appears excessive in relation to the alternative
purpose assigned.”
(Citations omitted.) Hudson, 522 U.S. at 493, 118 S.Ct. at 493, 139 L.Ed.2d at 459, citing
Ward, 448 U.S. at 249, 100 S.Ct. at 2641–2642, 65 L.Ed.2d at 749.
{¶35} In Hudson, the United States Supreme Court found criminal prosecutions
after the imposition of civil penalties did not violate the Double Jeopardy Clause. First, the
Court found that money penalties were not historically viewed as punishment: “the
payment of fixed or variable sums of money [is a] sanction which ha[s] been recognized
as enforcible by civil proceedings since the original revenue law of 1789.” Hudson v.
United States, 522 U.S. 93, 104. Second, the Court held the sanctions imposed did not
involve an “affirmative disability or restraint” to the equivalent of imprisonment. Id. Third,
the Court examined the language of the penalty and determined the sanction did not
involve a finding of “scienter.” The money penalty was assessed against any person who
violated the statute, without regard to the violator’s state of mind. Id. Fourth, the Court
held that while monetary sanctions could be imposed for the same conduct for which
criminal penalties applied, it was insufficient to render the monetary penalties criminally
punitive. Id. Finally, the Court recognized that while the imposition of monetary penalties
would deter others from emulating the bad conduct, which is the traditional goal of criminal
punishment, this was insufficient to render a sanction as criminal. Id. The United States
Supreme Court recognized that all civil penalties have some deterrent effect. Hudson,
522 U.S. 93, 102. Stark County, Case Nos. 2015CA00163 & 2015CA00164 17
{¶36} Based on Hudson, we find the progressive fine schedule in Canton Codified
Ord. 1351.03(l) is a civil penalty and it is not so punitive in purpose or effect that it amounts
to a criminal penalty. The progressive fine schedule does not involve an “affirmative
disability or restraint” equivalent to imprisonment. The imposition of a fine can be
appealed to the Board of Building Appeals. The imposition of a fine does not involve the
determination of scienter. The ordinance states that a fine is imposed on any person
failing to comply with a notice or order. Accordingly, we find the civil and criminal penalties
in the ordinance do not violate the Double Jeopardy Clause.
{¶37} The second Assignment of Error is overruled.
III. EQUAL PROTECTION CLAUSE AND DUE PROCESS
{¶38} Burns argues in his third Assignment of Error that Canton Codified Ord.
1351.03(l) violates the constitutional guarantees of equal protection and due process
because a violator can be subject to a civil or criminal penalty. We disagree.
{¶39} The Ohio Supreme Court recently addressed the Equal Protection Clauses
of both the United States and the Ohio Constitution in State v. Klembus, 2016-Ohio-1092,
-- N.E.3d -- , ¶ 8. It stated the Equal Protection Clause guarantees that no one will be
denied the same protection of the laws enjoyed by others in like circumstances. Id. citing
McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 6
(quoting Fourteenth Amendment to the United States Constitution and Article I, Section
2 of the Ohio Constitution). Equal protection does not forbid the legislature from making
classifications but simply prohibits “treating differently persons who are in all relevant
respects alike.” Id. quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 Stark County, Case Nos. 2015CA00163 & 2015CA00164 18
L.Ed.2d 1 (1992). The standards for assessing equal-protection claims are essentially the
same under the state and federal constitutions. Id. citing McCrone at ¶ 7.
{¶40} Burns argues that Canton Codified Ord. 1351.03(l) is unconstitutional on its
face because it allows for differential treatment. He states the City of Canton can arbitrarily
subject violators to either a criminal penalty or a civil penalty. Burns does not argue the
the ordinance burdens a fundamental right or involves a suspect classification, so we
apply the rational basis standard of review. State v. Klembus, 2016-Ohio-1092, -- N.E.3d
-- , ¶ 9. Under the rational basis review, “legislative distinctions are invalid only if they
bear no relation to the state's goals and no ground can be conceived to justify them.”
State v. Thompkins, 75 Ohio St.3d 558, 561, 664 N.E.2d 926 (1996).
{¶41} Burns argues the ordinance allows for prosecutorial discretion. The
ordinance states that if the notice of violation is not complied with, the Chief Building
Official in conjunction with the Law Director shall institute the appropriate proceeding at
law or in equity to restrain, correct or abate such violation. Canton Codified Ord.
1351.03(l)(7). A violator will be found guilty of a misdemeanor or civil infraction. Canton
Codified Ord. 1351.03(l).
{¶42} “The use of prosecutorial discretion, in and of itself, does not violate equal
protection.” State v. Wilson, 58 Ohio St.2d 52, 55, 388 N.E.2d 745, 748 (1979). In United
States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), the Court
explained, “[t]here is no appreciable difference between the discretion a prosecutor
exercises when deciding whether to charge under one of two statutes with different
elements and the discretion he exercises when choosing one of two statutes with identical
elements.” Id. at 125. “Just as a defendant has no constitutional right to elect which of two Stark County, Case Nos. 2015CA00163 & 2015CA00164 19
applicable federal statutes shall be the basis of his indictment and prosecution, neither is
he entitled to choose the penalty scheme under which he will be sentenced.” Id.; State v.
Ballard, 1st Dist. Hamilton No. C-140690, 2016-Ohio-364, ¶ 13.
{¶43} The purpose of the Property Maintenance Code is to ensure the health,
safety, and welfare of the residents of the City of Canton is maintained in existing
structures. Canton Codified Ord. 1351.02. Canton Codified Ord. 1351.03(l) allows the City
of Canton to use its prosecutorial discretion, in collaboration with the Chief Building
Official, to determine the appropriate proceeding at law or in equity to restrain, correct, or
abate a violation to serve the purpose of ensuring the health, safety, and welfare of the
residents of the City of Canton. We find Canton Codified Ord. 1351.03(l) on its face does
not violate the Equal Protection Clauses or the Due Process Clause of the United States
and Ohio Constitutions.
{¶44} The third Assignment of Error is overruled. Stark County, Case Nos. 2015CA00163 & 2015CA00164 20
CONCLUSION
{¶45} The judgments of the Canton Municipal Court are affirmed.
By: Delaney, J., and
Baldwin, J. concur;
Hoffman, P.J., dissents Stark County, Case Nos. 2015CA00163 & 2015CA00164 21
Hoffman, P.J., concurring in part and dissenting in part
{¶46} I concur in the majority’s analysis and disposition of Appellant’s second
assignment of error. I respectfully dissent from the majority’s disposition of Appellant’s
first assignment of error.1
{¶47} I agree with the majority Canton Codified Ord. 1351.03(1) gives a person of
ordinary intelligence fair notice failure to comply with a notice of violation will result in a
misdemeanor or a civil infraction. Therein lies the rub.
{¶48} The ordinance is facially internally inconsistent. While one section states
failure to comply with a notice of violation will result in a misdemeanor or civil infraction,
a separate section states failure to comply will result in the violator being charged with a
first degree misdemeanor.2
{¶49} The majority notes the civil penalties of the ordinance are outlined in a
progressive fine schedule and can be appealed and the “possible” criminal penalty is a
first degree misdemeanor. The majority adds the procedure whereby a decision will be
made to institute the “appropriate” proceeding at law or in equity. The majority then
concludes the enforcement section of the ordinance is not constitutionally vague.
(Majority Opinion at ¶27).
{¶50} While the penalties may be clearly set forth, the majority itself recognizes
the ordinance alerts a violator to the imposition of a fine and a “possible” criminal penalty.
1 Because I would sustain Appellant’s first assignment of error, I would find Appellant’s third assignment of error moot. 2 The City of Canton’s notice to Appellant warned him failure to comply would result in a fine(s) and render him guilty of only a minor misdemeanor for a first offense or a fourth degree misdemeanor for each subsequent offense – which is contrary to the language of the ordinance. Stark County, Case Nos. 2015CA00163 & 2015CA00164 22
It is then left to the discretion of the city officials to institute the “appropriate” proceeding
against the violator. This discretion is recognized by the majority when it states the
ordinance outlines the civil penalties yet allows “[I]n the alternative,” the City of Canton
may pursue a criminal action. (Majority Opinion at ¶25).
{¶51} I find the ordinance is not specific enough to prevent official arbitrariness or
discrimination in its enforcement. It does not state with sufficient clarity the consequences
of failing to comply with the notice of violation.3
{¶52} I would sustain Appellant’s first assignment of error.
________________________________ HON. WILLIAM B. HOFFMAN
3 In this regard the City of Canton’s ordinance is different from the City of Columbiana’s ordinance providing for civil penalties and criminal penalties. Therefore, I find reliance on Columbiana v. Frost, 7th Dist. Columbiana No. 14-CO-38, 2016-Ohio-1057, misplaced.