White v. Cincinnati

[Cite as White v. Cincinnati, 2021-Ohio-4003.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

ANDREW WHITE, : APPEAL NO. C-210133
TRIAL NO. A-1804206
VENA JONES-COX, :

CINCINNATUS PROPERTY : O P I N I O N.
MANAGEMENT, LTD.,
:
TASHAZ, LLC,
:
and
:
PROFFITT REAL ESTATE SERVICES,
INC., :

Plaintiffs-Appellants, :

vs. :

CITY OF CINCINNATI, OHIO, :

and :

SONYA WALKER, in her official :
capacity as Alarm Administrator
of the City of Cincinnati, Ohio, :
and in her personal capacity,

Defendants-Appellees. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: November 10, 2021
 OHIO FIRST DISTRICT COURT OF APPEALS

1851 Center for Constitutional Law, Maurice A. Thompson, Finney Law Firm and
Christopher Finney, for Plaintiffs-Appellants,

Andrew W. Garth, City Solicitor, Shuva J. Paul and Scott M. Heenan, Assistant City
Solicitors, for Defendants-Appellees.

2
 OHIO FIRST DISTRICT COURT OF APPEALS

WINKLER, Judge.

{¶1} Plaintiffs-appellants Andrew White, Vena Jones-Cox, Cincinnati

Property Management, Ltd., Tashaz, LLC, and Proffitt Real Estate Services, Inc., filed

a complaint in the Hamilton County Court of Common Pleas against defendants-

appellees the city of Cincinnati and Sonya Walker, in her official capacity as Alarm

Administrator for the city and in her personal capacity, (collectively “the city”)

challenging the constitutionality of the city’s ordinances regulating alarm systems.

The trial court denied appellants’ motion for partial summary judgment and granted

summary judgment in favor of the city. Appellants present three assignments of

error for review. We find merit in their assignments of error, and we reverse the trial

court’s judgment.

I. Facts and Procedure

{¶2} The record shows that in 1986, the city enacted Ordinance 448-1986

to regulate security alarm systems because of the high cost of responding to false

alarms. That ordinance was codified in Cincinnati Municipal Code Chapter 807

(“Chapter 807”), which sets forth registration fees for “alarm businesses” and “alarm

users.”

{¶3} Cincinnati Municipal Code 807-1-A states that “alarm business” means

“the business * * * of selling, installing, leasing, maintaining, servicing, repairing,

altering, replacing, moving, or monitoring any alarm system or causing to be sold,

installed, leased, maintained, serviced, repaired, replaced, moved, or monitored any

alarm system in or on any building, structure or facility.” Cincinnati Municipal Code

807-1-A3 defines an “alarm user” as “any person, firm, partnership, association,

3
 OHIO FIRST DISTRICT COURT OF APPEALS

corporation, company, or organization of any kind in control of premises wherein an

alarm system is maintained.”

{¶4} Cincinnati Municipal Code 807-1-A4 requires alarm businesses to

register with the False Alarm Reduction Unit (“FARU”) of the Cincinnati Police

Department and provides penalties for failure to register. Alarm businesses must

pay a registration fee of $250 annually. If an alarm business fails to register, the city

imposes a $1000 civil penalty for each request for a police response related to an

alarm system by an unregistered alarm business or for each request by an alarm user

for registration of an alarm system installed by an unregistered alarm business.

{¶5} Alarm users must also register with FARU before an alarm system is

activated. Residential alarm users must pay $50 every two years and nonresidential

alarm users must pay $100 every two years. The city imposes a $100 civil penalty on

an alarm user for using an unregistered alarm system, but the penalties may be

waived if the alarm user completes registration within 21 days of the first notice of a

violation. All fees imposed on both alarm businesses and alarm users are non-

refundable, nontransferable, and location-specific.

{¶6} Cincinnati Municipal Code 807-11 sets forth penalties for repeated

false alarms. After the first and second false alarm, FARU will issue a warning but

not a penalty. After the third false alarm, it imposes a $50 fee which may be waived

if the violator takes an educational class offered by the police. The fees continue to

escalate for further false alarms to a maximum of $800 for each false alarm after the

tenth.

{¶7} Appellants are alarm businesses and alarm users in the city. They

alleged that Cincinnati Municipal Code 807-1-A4 violates their rights to free speech,

to petition the government for redress, and to defend themselves and their property.

4
 OHIO FIRST DISTRICT COURT OF APPEALS

They also alleged that the regulatory scheme was an unconstitutional tax. They

asked the trial court to declare that Cincinnati Municipal Code 807-1-A4 is

unconstitutional on its face and as applied to them. They also asked for a

preliminary and a permanent injunction prohibiting the city from enforcing it.

Finally, they sought damages, including the return of fees they had already paid.

{¶8} The city filed a notice of removal of the case to federal court, and

appellants filed a motion to remand to state court. A federal district court found that

the regulatory assessments were a tax for purposes of the Tax Injunction Act, 28

U.S.C. 1341. The court stated that the act is jurisdictional and prevents federal courts

from awarding declaratory or injunctive relief to plaintiffs who challenge state tax

laws. Consequently, it granted appellants’ motion to remand.

{¶9} Subsequently, appellants filed a motion for partial summary judgment

on their claims for injunctive and declaratory relief. Among the documents they

submitted in support of their motion was the affidavit of Kathleen Frye who, along

with her husband, has operated a security alarm installation company for several

years in numerous political subdivisions. Her business is classified as an “alarm

business” under Chapter 807.

{¶10} Frye stated that her company adheres to industry standards. Those

standards include: (1) notifying their clients’ local police dispatcher to determine

which phone number the police would like their agents to use for reporting

notifications; (2) testing the security system and training the client on proper

operation of his or her alarm system; (3) immediately calling the homeowner’s

primary phone number followed by a second number when it receives an alert; (4)

calling the police only if the homeowner cannot be reached, or is reached and

5
 OHIO FIRST DISTRICT COURT OF APPEALS

indicates danger; and (5) notifying the police that an alarm has been triggered, that

the homeowner cannot be reached, and any relevant surrounding circumstances.

{¶11} She stated that alarm-monitoring agents in the city are “live people,”

who place a phone call to the police. They do not call 911, but instead use the

number the police have asked them to use. The agents cannot force the police to

respond. They simply pass the information to the police, who decide how to respond.

{¶12} Frye further indicated that to her knowledge, only three other

municipalities in southwest Ohio besides Cincinnati maintain any security-alarm-

system regulations. The regulations of the other three municipalities are not as

extensive or expensive as the city’s, and only the city requires a registration fee.

Further, the other municipalities penalize false alarms directly by imposing fines

beginning with the third or fourth false alarm. They impose no fees for the first

several false alarms.

{¶13} She said that her company must pay the annual registration fee to

operate and that if all jurisdictions imposed an annual registration fee, “it would

make it impossible for small local alarm businesses * * * to operate profitably and

stay in business.” Finally, she stated that based on her experience and expertise, “the

alarm user registration fees do nothing to reduce the number of false alarms within a

city, except for the possibility that those fees may cause fewer homeowners to install

security alarms in the first place.”

{¶14} The city filed a motion for summary judgment on all of appellants’

claims. In support of its motion it submitted three affidavits. One was the affidavit

of Chris Bingham who, at the time, was the city’s budget director. He stated that the

Cincinnati Police Department estimated that the city’s response to alarm calls

requires a minimum of eight full-time police officers annually, as well as an

6
 OHIO FIRST DISTRICT COURT OF APPEALS

estimated 20 percent in supervisory costs and other related costs. The estimated

costs for 2015 through 2019 far exceeded the revenue from registration fees and

penalties in those years.

{¶15} Bingham explained that although Chapter 807 sets the maximum

dollar amounts that FARU may charge for registration fees and fines for false alarms,

the actual dollar amounts are not determined by Cincinnati City Council, but by

FARU staff on a case-by-case basis. Funds collected by FARU are deposited into the

city’s general fund. FARU staff uses appropriate account codes that are specific to

FARU. He further stated that police and the Emergency Communications Center

(“ECC”) expenditures are funded for the most part by the general fund, and Chapter

807 revenue is deposited in the general fund to defray a portion of the costs

associated with responding to and regulating alarm systems.

{¶16} The city also submitted the affidavit of Alice M. Hoctor, who is the

Finance Division Manager for the Cincinnati Police Department. She also described

the amount of costs the city incurs related to alarm systems and false alarms, which

far exceed revenue. She indicated that FARU’s collection efforts involved repeated

notices and efforts to resolve outstanding amounts owed to the city by alarm users.

{¶17} Finally, the city presented the affidavit of Rachel L. Baldwin, who had

been employed as a police officer by the Cincinnati Police Department for

approximately 23 years. She described the impact of what the police refer to as

“alarm drops,” which are requests from ECC for an immediate police, fire or medical

dispatch to premises where an alarm system on site has been activated. She stated

that alarm drops are typically prompted by either an alarm company that monitors

the alarm system, or by neighbors or passersby impacted by the sound produced by

an activated alarm system. Regardless of who initiates the call, all alarm drops have

7
 OHIO FIRST DISTRICT COURT OF APPEALS

one thing in common, which is that the person or persons in control of the premises

at the time of the alarm are not the ones requesting the dispatch, and they cannot be

reached at the time the request for dispatch is made.

{¶18} She stated that alarm drops require a different police response than a

911 call from someone with personal knowledge of an emergency because the

dispatcher is talking to an actual person who has actually witnessed the events that

caused the 911 call. The dispatcher is able to elicit preliminary information before

police officers arrive on the scene. The factual details can be conveyed to the

responding officers so that they know the actual risk that awaits them at the scene.

{¶19} In the case of alarm drops, dispatchers can only convey limited

information to the officers, and they must “go in blind.” Consequently, they must

take special precautions. Dispatchers must send two officers to respond to an alarm

drop under Cincinnati police policy due to the great risk. Additionally, the amount of

time it takes to respond to an alarm drop varies. If all windows and entry doors are

locked, then the responding officers may be able to close out the incident in as little

as five minutes. But if any entry doors or windows are compromised, then the

response may take up to an hour or more, and additional officers may be requested

to help secure the premises and provide additional safety. At nonresidential

premises, the response can be complicated by employees on the scene.

{¶20} Officer Baldwin further stated that most alarms drops tend to be false

alarms. Though the reasons for false alarms are many, the factor that unites all of

them is that no one was present on the premises to speak with the dispatcher to alert

the dispatcher that it was a false alarm. She described the burden placed on police

by alarm drops as “great.” Not only must two officers respond to what is likely to be

a false alarm, those calls for services are typically given a high priority. Finally, she

8
 OHIO FIRST DISTRICT COURT OF APPEALS

indicated that the number of false alarms is under counted for a number of reasons,

but often because the city works with property owners to try and minimize false

alarms and the amount of fees whenever possible.

II. Standard of Review

{¶21} An appellate court reviews a trial court's ruling on a motion for

summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996); Chateau Estate Homes, LLC v. Fifth Third Bank, 2017-Ohio-

6985, 95 N.E.3d 693, ¶ 10 (1st Dist.). Summary judgment is appropriate if (1) no

genuine issue of material fact exists for trial, (2) the moving party is entitled to

judgment as a matter of law, and (3) reasonable minds can come to but one

conclusion and that conclusion is adverse to the nonmoving party, who is entitled to

have the evidence construed most strongly in his or her favor. Temple v. Wean

United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977); Chateau Estate Homes

at ¶ 10.

{¶22} The moving party bears the initial burden of informing the court of the

basis for its motion and demonstrating the absence of any genuine issues of material

fact. Dresher v. Burt, 75 Ohio St.3d 280, 282-293, 662 N.E.2d 264 (1996); Maas v.

Maas, 1st Dist. Hamilton No. C-190536, 2020-Ohio-5160, ¶ 14. Once the moving

party has met its burden, the nonmoving party has a reciprocal burden to set forth

specific evidentiary facts showing the existence of a genuine issue for trial. Dresher

at 293; Maas at ¶ 14. The nonmoving party cannot rest on conclusory allegations or

self-serving interpretations of the evidence presented. Dresher at 293; Maas at ¶ 14.

9
 OHIO FIRST DISTRICT COURT OF APPEALS

III. Fees v. Taxes

{¶23} Appellants present three assignments of error for review. In their first

assignment of error, appellants contend that the trial court erred in denying their

motion for partial summary judgment. In their second assignment of error,

appellants contend that the trial court erred in granting the city’s motion for

summary judgment. They argue that the court should have declared that the city’s

“prohibition on security alarm usage without prior payment of an arbitrary

assessment is unconstitutional.” These assignments of error are well taken.

{¶24} Appellants argue that the assessments set forth in Cincinnati

Municipal Code 807-1-A4 are unconstitutional taxes and not fees. See Ohio

Constitution, Article XII. The Supreme Court of Ohio has acknowledged that there is

no bright-line rule that distinguishes a tax from a fee. State ex rel. Petroleum

Underground Storage Tank Release Comp. Bd. v. Withrow, 62 Ohio St.3d 111, 117,

579 N.E.2d 705 (1991). “It is not possible to come up with a single test that will

correctly distinguish a tax from a fee in all situations * * *.” Id. Therefore,

“[d]etermining whether an assessment is a fee or a tax must be done on a case-by-

case basis dependent upon the facts and circumstances surrounding each

assessment.” Id. at 115.

{¶25} Although no single test exists for making the determination whether a

given assessment is a permissible fee versus an illegal tax, the Ohio Supreme Court

has provided guidance on this issue. In Drees Co. v. Hamilton Twp., 132 Ohio St.3d

186, 2012-Ohio-2370, 970 N.E.2d 916, the court expanded upon its earlier decision

in Withrow and set forth four factors that tend to indicate that an assessment is a

fee: (1) the assessment is “imposed in furtherance of regulatory measures to address

a specified issue”; (2) the assessment is not placed in the general fund, but is used

10
 OHIO FIRST DISTRICT COURT OF APPEALS

only to fund the specified purpose; (3) the assessment is “imposed by a government

in return for a service it provides”; and (4) the assessment involves “a specific charge

in return for a service * * *.” Steeplechase Village, Ltd. v. Columbus, 10th Dist.

Franklin No. 19AP-736, 2020-Ohio-7012, ¶ 40, citing Drees at ¶ 16-20.

{¶26} The Drees court also applied the three-factor analysis employed by the

Sixth Circuit Court of Appeals in Am. Landfill, Inc. v. Stark/Tuscarawas/Wayne

Joint Solid Waste Mgt. Dist., 166 F.3d 835 (6th Cir.1999). This analysis is similar to

that used in Withrow. Drees at ¶ 26. Under this analysis, in determining whether an

assessment is a tax or a fee, a court should consider: “(1) the entity that imposes the

assessment; (2) the parties upon whom the assessment is imposed; and (3) whether

the assessment is expended for general public purposes, or used for the regulation or

benefit of the parties upon whom the assessment is imposed.” Id. at ¶ 27, quoting

Bidart Bros. v. California Apple Comm., 73 F.3d 925, 931 (9th Cir.1996).

{¶27} In Drees, the court explained the classic distinction between a tax and

a fee,

The classic “tax” is imposed by a legislature upon many, or all, citizens.

It raises money, contributed to a general fund, and spent for the

benefit of the entire community. * * * The classic “regulatory fee” is

imposed by an agency upon those subject to its regulation. * * * It may

serve regulatory purposes directly by, for example, deliberately

discouraging particular conduct by making it more expensive. * * *

Or, it may serve such purposes indirectly by, for example, raising

money placed in a special fund to help defray the agency's regulation-

related expenses.

11
 OHIO FIRST DISTRICT COURT OF APPEALS

Drees at ¶ 28, quoting San Juan Cellular Tel. Co. v. Pub. Serv. Comm. of Puerto

Rico, 967 F.2d 683, 685 (1st Cir.1992). The Drees court further explained that with

regard to the first two factors of the Am. Landfill analysis, “[a]n assessment imposed

directly by the legislature is more likely to be a tax than an assessment imposed by an

administrative agency” and “[a]n assessment imposed upon a broad class of parties

is more likely to be a tax than an assessment imposed upon a narrow class.” Drees at

¶ 29, quoting Bidart Bros. at 931.

{¶28} In Drees, the court acknowledged that “[m]ost assessments fall

somewhere near the middle of the spectrum between a fee and a tax,” and in those

cases, the use of the funds is the predominant factor in making the ultimate

determination. Drees, 132 Ohio St.3d 186, 2012-Ohio-2370, 970 N.E.2d 916, at ¶ 30.

“When the ultimate use is to provide a general public benefit, the assessment is likely

a tax, while an assessment that provides a more narrow benefit to the regulated

[parties] is likely a fee.” Id., quoting Am. Landfill at 837-838.

A. Withrow Factors

{¶29} We begin our analysis by looking at the Withrow factors. The first

factor is whether the assessment was imposed to further regulatory measures to

address a specified issue. The preamble to Ordinance 448-1986 states that “the

generation of false alarms in the city of Cincinnati exceeds 95% of alarm responses

by police,” that “there is a significant cost to the city in responding to false alarms,”

and that “there is a need to conserve the emergency response capability of the

Cincinnati Police Division * * *.” The fees imposed on alarm owners are to

discourage issues that result in false alarms by making it more expensive. Because

the ordinance was enacted to address the costs of false alarms, this factor weighs in

12
 OHIO FIRST DISTRICT COURT OF APPEALS

favor of a fee. See Steeplechase Village, 10th Dist. Franklin No. 19AP-736, 2020-

Ohio-7012, at ¶ 44; Hiznay v. Boardman Twp., 7th Dist. Mahoning No. 15 MA 0122,

2017-Ohio-1212, ¶ 34.

{¶30} The second factor is whether the assessment was used for only the

narrow and specified purpose and not placed in the general fund. The funds from

the alarm-system assessments are placed in the general fund, not in a fund

specifically dedicated to paying for false alarms. But this fact is not dispositive. “We

must examine the substance of the assessments and not merely their form.” Drees,

132 Ohio St.3d 186, 2012-Ohio-2370, 970 N.E.2d 916, at ¶ 22.

{¶31} The city argues that police and ECC expenditures are funded for the

most part by the general fund. It says that revenue from the assessments “is

deposited in the General Fund not to support all General Fund expenditures but

rather, to defray a portion of the Police and Emergency Communications Center

costs associated with and responding to and regulating alarm systems * * *.” The

revenue is placed in the general fund because that is “where the city’s related costs

come from.” It further contends that the costs associated with responding to and

regulating alarm systems exceeds the revenue received from the assessments.

{¶32} Nevertheless, nothing in Chapter 807 states that revenue from the

assessments must be spent on costs related to alarm systems and false alarms. Thus,

the funds can be spent in a general way on normal expenditures of government.

Therefore, we find that this factor weighs in favor of a tax. See Drees at ¶ 22; AE

Owner, LLC v. Cleveland, 8th Dist. Cuyahoga No. 107475, 2019-Ohio-2220, ¶ 9.

{¶33} The third factor is whether the assessment was imposed by a

government in return for a service it provides. There are no services provided

directly to the payers of the assessments that are not provided to all city residents.

13
 OHIO FIRST DISTRICT COURT OF APPEALS

The city discusses the costs and the problems associated with dispatching officers to

the scene of an alarm, where the police have little knowledge of what was actually

occurring at the scene. But, Chapter 807 does not obligate the city to respond to

alarms in any specific way, it does not entitle alarm businesses and alarm users to

any particular response from the city, or empower alarm businesses or users to

enforce a right to any specific response from the city. There are no separate or

additional services provided to those paying the fees. All taxpayers in the city are

entitled to police protection. See Drees, 132 Ohio St.3d 186, 2012-Ohio-2370, 970

N.E.2d 916, at ¶ 23; AE Owner at ¶ 9. Consequently, this factor weighs in favor of a

tax.

{¶34} The fourth Withrow factor is whether the assessment was calculated

and adjusted so that the funds generated were in an amount sufficient to cover the

expenses. Here the city acknowledges that revenue from the assessments is

insufficient to cover the expenses generated by false alarms, but it contends that they

are an attempt to recoup some of those costs. Unless the fees charged are

“unreasonable or designed to bring in revenue more than sufficient” to cover the

costs of providing police service to alarm users, “it cannot be said that such fees in

effect amount to taxes.” State ex rel. Gordon v. Rhodes, 158 Ohio St. 129, 134, 107

N.E.2d 206 (1952). Nevertheless, there is no provision in Chapter 807 providing that

if the revenue from the amount of fees exceeds the costs, the excess must be used for

purposes related to false alarms. See Drees at ¶ 24 and 29; Gordan at 134; Hiznay,

7th Dist. Mahoning No. 15 MA 0122, 2017-Ohio-1212, at ¶ 39.

{¶35} Chapter 807 is a hybrid of sorts. The annual assessments are not tied

to a specific act that the city seeks to discourage, which weighs in favor of a tax. But

14
 OHIO FIRST DISTRICT COURT OF APPEALS

the ordinances also impose fines for false alarms, which weighs in favor of a fee.

Consequently, we find that the fourth factor is neutral.

B. Am. Landfill Factors

{¶36} The Am. Landfill factors overlap the Withrow factors to some extent.

Hiznay at ¶ 40. Under the first factor, a court should consider the entity that

imposes the assessment. The city argues that while the ordinance sets forth the

maximum dollar amounts that may be charged, FARU actually determines the fees

on a case-by-case basis. FARU works with property owners to minimize the owner’s

exposure to fines for false alarms. But FARU is an arm of the city, and the fees are

ultimately imposed by city council, which is a legislative body. Therefore, this factor

weighs in favor of a tax. See Drees, 132 Ohio St.3d 186, 2012-Ohio-2370, 970 N.E.2d

916, at ¶ 31; Steeplechase Village, 10th Dist. Franklin No. 19AP-736, 2020-Ohio-

7012, at ¶ 48; Hiznay at ¶ 40.

{¶37} The second factor a court should consider is the parties on whom the

assessment is imposed. The assessment is imposed on “alarm businesses” and

“alarm users” as defined in Chapter 807. Thus, the assessment is imposed on a

narrow class rather than taxpayers in general, and this factor weighs in favor of a fee.

See Steeplechase Village at ¶ 48; Hiznay, 7th Dist. Mahoning No. 15 MA 0122, 2017-

Ohio-1212 at ¶ 41.

{¶38} Finally, the third factor a court should consider is whether the

assessment is expended for general public purposes, or used for the regulation or

benefit of the parties upon whom the assessment is imposed. Although the city

contends that the revenue from the assessments is to defray some of the costs from

false alarms, the fact that it is put in the general fund and could be used for any

15
 OHIO FIRST DISTRICT COURT OF APPEALS

expenditure cannot be ignored. See AE Owner, 8th Dist. Cuyahoga No. 107475,

2019-Ohio-2220, at ¶ 9.

{¶39} The community generally will benefit from the increased police

protection through the reduction of costs due to false alarms. Further, appellants,

like other taxpayers, pay for police protection through their tax dollars. Imposing a

separate fee or penalty constitutes a form of double taxation. See Kubicki v. N.

Royalton, 139 Ohio App.3d 127, 132, 743 N.E.2d 411 (8th Dist.). Thus, the third

factor places the assessments “solidly in the realm of taxation.” Drees, 132 Ohio

St.3d 186, 2012-Ohio-2370, 970 N.E.2d 916, at ¶ 32. See Gordon, 158 Ohio St. at

134, 107 N.E.2d 206 (revenues from on-street parking were used for furnishing

necessary parking facilities); Steeplechase Village, 10th Dist. Franklin No. 19AP-736,

2020-Ohio-7012, at ¶ 46 (storm water service charges used only for the maintenance,

repair and operation of the storm water system); Hiznay at ¶ 42 (assessments from a

rental-property registration program placed in a special fund to help defray the

regulation-related expenses).

{¶40} Although the federal district court’s decision remanding the case to the

state court is not binding on this court, it is persuasive. In regard to the third factor,

it stated, “[R]esidents or non-residents are not receiving a service for the payment of

the registration fee. The City does not respond any differently to a call from an alarm

system than it does to a call made directly to the fire or police department.

Therefore, * * * the City’s alarm registration fee is based solely on status instead of

the use of any city service.” White v. Cincinnati, S.D.Ohio No. 1:18cv533 (Mar. 22,

2019).

{¶41} Applying the Withrow and Am. Landfill factors, we find that four

factors weigh in favor of a tax, two in favor of a fee, and one is neutral. Given that the

16
 OHIO FIRST DISTRICT COURT OF APPEALS

use of the funds is the predominant factor to consider, we hold that the assessments,

which are currently posted in the general fund, fall into the category of a tax.

IV. Constitutionality of the Tax

{¶42} Because we have determined that the assessments imposed by

Cincinnati Municipal Code 807-1-A4 are taxes rather than fees, we must now

determine the constitutionality of those taxes. Article XVIII, Section 3 of the Ohio

Constitution, known as the Home Rule Amendment, grants municipalities the

authority to “exercise all powers of local self-government.” Put-in-Bay v. Mathys,

163 Ohio St.3d 1, 2020-Ohio-4421, 167 N.E.3d 922, ¶ 12; Time Warner Cable, Inc. v.

Cincinnati, 2020-Ohio-4207, 157 N.E.3d 941, ¶ 7 (1st Dist.). Included in this broad

grant of authority is the power to levy taxes. Put-in-Bay at ¶ 12; Time Warner Cable

at ¶ 7. But that power is not absolute.

{¶43} The Due Process Clauses of the Ohio and the United States

Constitutions impose limitations on a municipality’s power of taxation. Willacy v.

Cleveland Bd. of Income Tax Rev., 159 Ohio St.3d 383, 2020-Ohio-314, 151 N.E.3d

561, ¶ 21. Whether a tax law violates due process depends on whether it bears some

fiscal relation to the protections, opportunities, and benefits given by the entity

imposing the tax. Am. Refrigerator Transit Co. v. Glander, 153 Ohio St. 191, 200, 91

N.E.2d 24 (1950); Angell v. Toledo, 153 Ohio St. 179, 185, 91 N.E.2d 250 (1950);

Vonkaenel v. Philadelphia, 5th Dist. Tuscarawas No. 2000AP 04 0041, 2000 WL

81700, *3 (Jan. 23, 2001), all citing Wisconsin v. J.C. Penny Co., 311 U.S. 435, 444,

61 S.Ct. 246, 85 L.Ed. 267 (1940). In other words, has that entity “given anything for

which it can ask return?” See Granzow v. Bur. of Support of Montgomery Cty., 54

Ohio St.3d 35, 39, 560 N.E.2d 1307 (1990), quoting J.C. Penny at 444.

17
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶44} As we have previously stated, the city does not provide the alarm

businesses or the alarm users with any services over and above what it already

provides for taxpayers in general. Chapter 807 does not entitle alarm business and

alarm users to any particular response from the city or give them the right to any

particular response. The city has not given anything to them for which it can ask for

the assessments in return. The assessments, particularly the registration fees, do not

bear a reasonable relationship to protections, benefits or opportunities provided by

the city to those paying the assessments. See Granzow at 39; AE Owner, 8th Dist.

Cuyahoga No. 107475, 2019-Ohio-2220, at ¶ 8; Richmond Hts. v. LoConti, 19 Ohio

App.2d 100, 108-109, 250 N.E.2d 84 (8th Dist.1969).

{¶45} Based on this analysis, we hold that the assessments imposed by

Cincinnati Municipal Code 807-1-A4 violate the Due Process Clauses of the Ohio and

United States Constitutions. We do not hold that the city is prohibited from

amending the current ordinance or passing another ordinance regulating alarm

systems and false alarms. If it is so inclined, the city must do so in a manner that

assures that the assessments constitute a fee rather than a tax.

{¶46} We find no issues of material fact. Construing the evidence most

strongly in the city’s favor, we find that reasonable minds can come to but one

conclusion−that the assessments are a tax and the imposition of that tax is

unconstitutional. Therefore, appellants are entitled to judgment as a matter of law.

Because the tax issue is dispositive, we decline to address appellants’ other

constitutional issues. See State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814

N.E.2d 1201, ¶ 9; State v. Stumph, 1st Dist. Hamilton No. C-190318, 2021-Ohio-723,

¶ 39.

18
 OHIO FIRST DISTRICT COURT OF APPEALS

V. Summary

{¶47} We sustain appellants’ first two assignments of error. We reverse the

trial court’s judgment granting summary judgment in favor of the city. We remand

the matter to the trial court for the court to grant an injunction enjoining the city

from imposing the alarm assessments under Cincinnati Municipal Code 807-1-A4

and to determine damages, if any.

{¶48} In their third assignment of error, appellants contend that the trial

court erred in finding that their motion for class certification is moot. Based on our

disposition of the first two assignments of error, we find this assignment of error to

be well taken. Consequently, we sustain appellants’ third assignment of error and

remand the cause to the trial court to determine the merits of appellants’ motion for

class certification.

Judgment reversed and cause remanded.

BOCK, J., concurs.
ZAYAS, P.J., concurs separately.

ZAYAS, P.J., concurring separately.

{¶49} I concur with the majority’s opinion. I write separately only to add to

the majority’s note that our holding does not prohibit the city from amending the

current ordinance or passing another ordinance regulating alarm systems and false

alarms if they do so in a manner where the assessments would constitute a fee rather

than a tax. I caution that, if the city does choose to do so, the ordinance must also

not interfere with private rights beyond the necessities of the situation and must not

be unreasonable or arbitrary.

19
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶50} To be a valid exercise of a city’s police powers, an ordinance “ ‘must

directly promote the general health, safety, welfare or morals and must be

reasonable, the means adopted to accomplish the legislative purpose must be

suitable to the end in view, must be impartial in operation, must have a real and

substantial relation to such purpose and must not interfere with private rights

beyond the necessities of the situation.’ ” Hausman v. Dayton, 73 Ohio St.3d 671,

678, 653 N.E.2d 1190 (1995), citing Teegardin v. Foley, 166 Ohio St. 449, 143 N.E.2d

824 (1957), paragraph one of the syllabus. “Essentially, to avoid violating due

process, legislative action must bear a real and substantial relation to public health

and welfare, and not be unreasonable or arbitrary.” Id., citing Mominee v.

Scherbarth, 28 Ohio St.3d 270, 503 N.E.2d 717 (1986). Private rights must not be

arbitrarily or unreasonably infringed. See Dragelevich v. City of Youngstown, 176

Ohio St. 23, 30, 197 N.E.2d 334 (1964).

{¶51} Among the most blaring of problems with the assessments set forth in

Cincinnati Municipal Code 807-1-A4 is that users of “local alarm systems”—that do

not contact the police or any government organization—are required to register and

follow the provisions of Cincinnati Municipal Code 807-1-A4 in the same manner as

other alarm users whose alarm systems do contact the police. Interestingly, when

Ordinance 448-1986—codified in Cincinnati Municipal Code Chapter 807—was

enacted in 1986, it did not require registration, nor the biennial “fee,” and the

definition of an “alarm system” did not include local alarm systems. It solely

imposed fees on an individual user “based on the number of false alarms sent by one

alarm system within any calendar year.” What was the reason for these new

requirements? What are the true benefits that come from these new requirements?

Do the new requirements have a real and substantial relation to the original purpose

20
 OHIO FIRST DISTRICT COURT OF APPEALS

of the ordinance? Instead of promoting the public health and welfare, the

assessments, as currently written, may have a chilling effect in that it deters citizens

from utilizing alarm systems to protect themselves, their homes, and their property.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

21