[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