[Cite as Russ v. Reynoldsburg, 2017-Ohio-1471.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DARLENE RUSS : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellant : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
CITY OF REYNOLDSBURG : Case No. 16-CA-58
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Municipal Court, Case No. 2015 CVF
2039
JUDGMENT: Reversed, Judgment Entered
DATE OF JUDGMENT: April 19, 2017
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
J. PHILIP CALABRESE JOSEPH R. DURHAM
Porter, Wright Morris & Arthur LLP Eastman & Smith LTD.
950 Main Avenue, Suite 500 100 E. Broad Street, Suite 2100
Cleveland, Ohio 44113 Columbus, Ohio 43215
And
JAMES E. HOOD
MATTHEW R. ROTH
Reynoldsburg City Attorney
7232 East Main Street
Reynoldsburg, Ohio 43068
Licking County, Case No. 16-CA-58 2
Baldwin, J.
{¶1} Plaintiff-appellant Darlene Russ appeals from the July 18, 2015 Judgment
Entry of the Licking County Municipal Court denying her complaint for declaratory
judgment and entering judgment in favor of defendant-appellee City of Reynoldsburg.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Darlene Russ moved from upstate New York to the City of
Reynoldsburg in Licking County, Ohio during Memorial Day weekend in 2014. At the time,
she had a dog that she described as “a mixed Pit, some Terrier.” Transcript at 11.
Appellant conceded that veterinary records classify the dog as a pit bull. Appellant
testified that she obtained a license for the dog after registering it with the Licking County
Auditor and that on the day she moved into her apartment, she was cited for keeping,
harboring, or owning a vicious dog in violation of Reynoldsburg Codified Ordinance
Section 505.35 (a), which prohibits owning, harboring or keeping a vicious dog. Section
505.01(m) defines a vicious dog, in part, as a pit bull. Ultimately, the case against
appellant was dismissed.
{¶3} Appellant, on September 24, 2015, filed a verified complaint for declaratory
judgment in Licking County Municipal Court, challenging the constitutionality of
Reynoldsburg’s Ordinances prohibiting the ownership of dogs that the City considers pit
bulls. Appellant specifically sought a declaration that appellee could not enforce its
prohibitions against owning, keeping, or harboring a pit bull and that Section 505.01(m)(5)
of the Codified Ordinances “impermissibly conflicts with State law in violation of the Home
Rule Amendment to the Ohio Constitution, R.C. 955.221, or both…” After Appellee City
of Reynoldsburg filed an answer, appellant filed a Motion for Judgment on the Pleadings.
Licking County, Case No. 16-CA-58 3
The American Society for the Prevention of Cruelty to Animals filed an amicus curiae brief
on November 23, 2015. Appellee filed a memorandum in opposition to the Motion for
Judgment on the Pleadings and a Motion for Summary Judgment on December 15, 2015.
As memorialized in a Judgment Entry filed on March 21, 2016, both the Motion for
Judgment on the Pleadings and the Motion for Summary Judgment were denied.
{¶4} A bench trial was held on March 21, 2016. Both parties filed post trial briefs.
The trial court, as memorialized in a Judgment Entry filed on July 18, 2016, denied
appellant’s complaint for declaratory judgment and entered judgment in favor of appellee.
The trial court specifically found that R.C. 955.11(A)(6)(a) and 955.221(B)(3) were not
general laws and that the City of Reynoldsburg did not exceed its authority under the
Home Rule Amendment to the Ohio Constitution.
{¶5} Appellant now raises the following assignments of error on appeal:
{¶6} THE MUNICIPAL COURT ERRED WHEN IT BECAME THE FIRST COURT
IN OHIO TO HOLD THAT CHAPTER 955 OF THE OHIO REVISED CODE, WHICH
REGULATES DOG OWNERSHIP IN THE STATE, IS NOT A GENERAL LAW.
{¶7} THE CITY OF REYNOLDSBURG’S ORDINANCES PROHIBITING THE
OWNERSHIP OF DOGS IT CONSIDERS PIT BULLS EXCEED THE CITY’S
AUTHORITY UNDER THE HOME RULE AMENDMENT TO THE OHIO CONSTITUTION
BECAUSE THEY PROHIBIT THAT WHICH STATE LAW PERMITS AND
SPECIFICALLY LICENSES.
STANDARD OF REVIEW
{¶8} The constitutionality of a statute or ordinance presents a question of law
and is therefore reviewed under a de novo standard. Andreyko v. Cincinnati, 153 Ohio
App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025 (1st Dist). In determining the
Licking County, Case No. 16-CA-58 4
constitutionality of an ordinance, we are mindful of the fundamental principle requiring
courts to presume the constitutionality of lawfully enacted legislation. Akron v. Molyneaux,
144 Ohio App.3d 421, 426, 760 N.E.2d 461 (9th Dist. 2001), citing Univ. Hts. v. O'Leary,
68 Ohio St.2d 130, 135, 429 N.E.2d 148 (1981). The legislation being challenged will not
be invalidated unless the challenger establishes that it is unconstitutional beyond a
reasonable doubt. Molyneaux, 144 Ohio App.3d at 426, 760 N.E.2d 461.
I, II
{¶9} Appellant, in her first assignment of error, argues that the trial court erred in
holding that the provisions of Chapter 955, as amended by House Bill 14 in 2012, are not
general laws. In her second assignment of error, appellant contends that the City of
Reynoldsburg’s pit bull Ordinances conflict with state law and exceed its authority under
the Home Rule Amendment to the Ohio Constitution.
{¶10} Article XVIII, Section 3 of the Ohio Constitution gives municipalities their
powers of home rule. Article XVIII, Section 3 provides as follows: “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.” The Ohio Supreme Court has established the following three-
part test to determine whether a municipal ordinance must yield to the provisions of a
state statute: “A state statute takes precedence over a local ordinance when (1) the
ordinance is in conflict with the statute, (2) the ordinance is an exercise of the police
power, rather than of local self-government, and (3) the statute is a general law.” Canton
v. State of Ohio, 95 Ohio St.3d 149, 151, 2002-Ohio-2005, 766 N.E.2d 963, citing Ohio
Assn. of Private Detective Agencies, Inc. v. N. Olmsted, 65 Ohio St.3d 242, 244-245, 602
N.E.2d 1147 (1992), and Auxter v. Toledo, 173 Ohio St. 444, 183 N.E.2d 920 (1962).
Licking County, Case No. 16-CA-58 5
{¶11} At issue in the case sub judice is whether or not R.C. Chapter 955 is a
general law. The trial court, in its July 18, 2016 Judgment Entry, found that it was not.
{¶12} The Ohio Supreme Court has set forth a four-part test for evaluating
whether a statute is a general law in Canton, supra: “To constitute a general law for
purposes of home-rule analysis, a statute must (1) be part of a statewide and
comprehensive legislative enactment, (2) apply to all parts of the state alike and operate
uniformly throughout the state, (3) set forth police, sanitary, or similar regulations, rather
than purport only to grant or limit legislative power of a municipal corporation to set forth
police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens
generally.” Id. at syllabus. We note that, in Lima v. Stepleton, 3rd Dist. Allen No. 1-13-
28, 2013-Ohio-5655, 5 N.E.3d 721, the City of Lima conceded that R.C. Chapter 955 was
a general law.
{¶13} The trial court, in this matter, found that “the language in R.C.
955.11(A)(6)(a) and 955.221(B)(3) must be construed as being part of a statewide and
comprehensive legislative enactment” and that the first and second prongs of the Canton
test were met. We concur.
{¶14} Ohio Revised Code Chapter 955 is titled “Dogs” and contains state-wide
comprehensive provisions relating to dog and kennel licenses, impounding, assistance
dogs and other dog-related matters. R.C. 955.11(A)(6)(a), cited by the trial court, defines
a “vicious dog” as follows:
(6)(a) “Vicious dog” means a dog that, without provocation and subject to
division (A)(6)(b) of this section, has killed or caused serious injury to any
person.
(b) “Vicious dog” does not include either of the following:
Licking County, Case No. 16-CA-58 6
(i) A police dog that has killed or caused serious injury to any person
while the police dog is being used to assist one or more law enforcement
officers in the performance of their official duties;
(ii) A dog that has killed or caused serious injury to any person while a
person was committing or attempting to commit a trespass or other criminal
offense on the property of the owner, keeper, or harborer of the dog.
{¶15} In turn, R.C. 955.221(B)(3) states that a “municipal corporation may adopt
and enforce ordinances to control dogs within the municipal corporation that are not
otherwise in conflict with any other provision of the Revised Code.”
{¶16} As noted by the trial court, Chapter 955, as amended by House Bill 14, is
part of state-wide comprehensive legislation for regulating ownership of dogs and applies
to all parts of the state alike and “does not differentiate between regions of the state or
contrast townships versus counties versus towns or cities.” R.C. Chapter 955 applies
uniformly to the whole state without exception.
{¶17} However, the trial court found that the third prong of the Canton test was
not met. As is stated above, under such prong, the statute must “set forth police, sanitary,
or similar regulations, rather than purport only to grant or limit legislative power of a
municipal corporation to set forth police, sanitary, or similar regulation.” The trial court
specifically found that the provisions of R.C. 955.221(B)(3) “does not set forth ‘police,
sanitary, or similar regulations’ so much as it establishes a definition” and that R.C.
955.221(B)(3) both grants and limits the legislative authority of municipalities.
{¶18} However, as noted by the Court in Mendenhall v. City of Akron, 117 Ohio
St. 3d 33, 2008-Ohio-270, 881 N.E.2d 255 at paragraph 27, “[S]ections within a chapter
will not be considered in isolation when determining whether a general law exists. See
Licking County, Case No. 16-CA-58 7
Clermont Environmental Reclamation Co. v. Wiederhold (1982), 2 Ohio St.3d 44, 2 OBR
587, 442 N.E.2d 1278. All sections of a chapter must be read in pari materia to determine
whether the statute in question is part of a statewide regulation and whether the chapter
as a whole prescribes a rule of conduct upon citizens generally. Canton, 95 Ohio St.3d
149, 2002-Ohio-2005, 766 N.E.2d 963, ¶ 38.”
{¶19} As noted by the Ohio Supreme Court in State v. Anderson, 57 Ohio St.3d
168, 170, 566 N.E.2d 1224, [a]mong the regulations which have been upheld as
legitimate exercises of police power are those regulations addressing the ownership and
control of dogs.“ See also Youngstown v. Traylor, 123 Ohio St. 3d 312, 2009-Ohio-
4184,914 N.E.2d 1026 at paragraph 9 in which the Ohio Supreme Court held as follows:
Although dogs are “private property to a qualified extent, they are
subject to the state police power, and ‘might be destroyed or
otherwise dealt with, as in the judgment of the legislature is necessary
for the protection of its citizens. * * * [L]egislatures have broad police
power to regulate all dogs so as to protect the public against the
nuisance posed by a vicious dog.’ ” *135 State v. Anderson (1991),
57 Ohio St.3d 168, 170, 566 N.E.2d 1224, quoting Sentell v. New
Orleans & Carrollton RR. Co. (1897), 166 U.S. 698, 701–704, 17 S.Ct.
693, 41 L.Ed. 1169.
{¶20} Moreover, as noted by appellant, “no provision of Chapter 955 at issue in
this case relating to the designation of dogs as vicious, dangerous, or a nuisance, or to
the ownership, keeping, or harboring of dogs, grants local governments any degree of
authority.” R.C. 955.22 contains no language specifically granting or limiting municipal
Licking County, Case No. 16-CA-58 8
action. We find, based on the foregoing, that Chapter 955 sets forth police regulations and
does not purport to grant or limit the legislative power of a municipality.
{¶21} The last prong of the Canton test, which was not addressed by the trial
court, requires that Chapter 955, as amended by House Bill 14, prescribe a rule of conduct
on citizens generally. We find that it does because it establishes rules that govern all Ohio
residents who own dogs.
{¶22} Having found that Ohio Revised Code Chapter 955 is a general law, we
must next consider whether or not the Reynoldsburg Ordinances are in conflict with
Chapter 955, as amended by House Bill 14. The trial court never reached such issue. “[I]n
order for such a conflict [between state laws and local ordinances] to arise, the state
statute must positively permit what the ordinance prohibits, or vice versa, regardless of
the extent of state regulation concerning the same object.” Cincinnati v. Hoffman, 31 Ohio
St.2d 163, 169, 285 N.E.2d 714 (1972).
{¶23} Reynoldsburg Codified Ordinance Section 501.01(m)(5) states that a dog
that “[b]elongs to a breed that is commonly known as pit bull dog” is a ”vicious dog.”
Reynoldsburg Codified Ordinance Section 505.35(a) provides that “[n]o person shall
keep, or harbor any vicious dog… as defined in section 505.01(m) within the municipality.”
Thus, all pit bull dogs are labeled as “vicious” without regard to conduct and keeping or
harboring them is prohibited.
{¶24} Prior to House Bill 14, R.C. 955.11(A)(6)(a)(iii) provided, in part, that a
“vicious dog” meant “a dog that, without provocation….: (iii) Belongs to a breed that is
commonly known as a pit bull dog…” R.C. 955.221(B)(3), which was not amended, states
that a “municipal corporation may adopt and enforce ordinances to control dogs within
Licking County, Case No. 16-CA-58 9
the municipal corporation that are not otherwise in conflict with any other provision of the
Revised Code.”
{¶25} House Bill 14, which became effective May 22, 2012, repealed the
automatic inclusion of a pit bull as a vicious dog. As is stated above, House Bill 14
amended Section 955.11(A)(6) to define a “vicious dog” as follows:
(6)(a) “Vicious dog” means a dog that, without provocation and subject to
division (A)(6)(b) of this section, has killed or caused serious injury to any
person.
(b) “Vicious dog” does not include either of the following:
(i) A police dog that has killed or caused serious injury to any person
while the police dog is being used to assist one or more law enforcement
officers in the performance of their official duties;
(ii) A dog that has killed or caused serious injury to any person while a
person was committing or attempting to commit a trespass or other criminal
offense on the property of the owner, keeper, or harborer of the dog.
{¶26} While Reynoldsburg’s Ordinances prohibit the ownership of pit bulls
outright, Ohio Revised Code Chapter 955 has abolished breed-specific determinations of
whether or not a dog is vicious or dangerous and focuses instead on the conduct of the
individual dog. Under Ohio law, Ohio residents may keep or own any dog they choose,
provided that if the dog is determined to be “dangerous” as defined in R.C.
955.11(A)(1)(a), the owner must comply with R.C. 955.22. Thus, while a pit bull is
automatically considered “vicious” under the Reynoldsburg Ordinances and ownership of
the same is prohibited, a pit bull may or may not be considered “vicious” under Ohio
Revised Code Chapter 955 based on its conduct. We find, on such basis, that there is a
Licking County, Case No. 16-CA-58 10
conflict between Reynoldsburg’s pit bull Ordinances and Chapter 955, as amended by
House Bill 14. The Ordinances prohibit that what is permitted by Ohio statutes (ownership
of dogs identified as pit bulls). See Lima v. Stepleton, 3rd Dist Allen. No. 1–13–28, 2013
-Ohio- 5655, 5 N.E.3d 721.
{¶27} Based on the foregoing, we find that Revised Code Chapter 955 is a general
law and that the Ordinances at issue in this case conflict with state law and exceed
appellee’s authority under the Home Rule Amendment.
{¶28} Appellant’s two assignments of error are, therefore, sustained.
{¶29} Accordingly, the judgment of the Licking County Municipal Court is reversed
and, pursuant to App.R. 12(B), final judgment is entered in favor of appellant.
By: Baldwin, J.
Gwin, P.J. and
Hoffman, J. concur.