concurring.
{¶ 12} Pursuant to our constitutional authority, this court accepted the certified conflict between appellate jurisdictions on the following question: “Whether an ordinance that prohibits a person from keeping or harboring an animal which ‘howls, barks, or emits audible sounds that are unreasonably loud or disturbing which are of such character, intensity, and duration as to disturb the peace and quiet of the neighborhood or to be detrimental to the life and health of any individual’ is unconstitutionally vague on its face and as applied.”
{¶ 13} The Tenth District Court of Appeals rejected the argument endorsed by Kim that Columbus City Code 2327.14(A) is unconstitutionally vague. It held that the ordinance withstood constitutional scrutiny because it gives “a person of ordinary intelligence fair notice that contemplated conduct is forbidden by the ordinance.” Columbus v. Kim, Franklin App. No. 05AP-1334, 2006-Ohio-6985, 2006 WL 3825260, ¶ 10. Relying on precedent, it upheld the ordinance after determining that it contains “identifiable standards defining the geographical application of the ordinance (the neighborhood where the noise occurs), an objective standard of prohibited conduct (unreasonably loud or disturbing noises), and * * * factors to measure the level of disturbance.” Id. at ¶ 12.
{¶ 14} The Tenth District, on motion by Kim, certified its decision as being in conflict with the Eleventh District Court of Appeals’ decision in State v. Ferraiolo (2000), 140 Ohio App.3d 585, 748 N.E.2d 584. In Ferraiolo, the court struck down a nearly identical Howland Township resolution after holding that it was unconstitutionally vague.
{¶ 15} We accepted the certified conflict to resolve these diverging opinions. 113 Ohio St.3d 1464, 2007-Ohio-1722, 864 N.E.2d 651.
{¶ 16} The issue in this case is whether Columbus City Code 2327.14(A) sufficiently defines the prohibited conduct so as to withstand a vagueness challenge. Kim argues that the term “unreasonable” “does not provide enough explanation to allow the average person to know what behavior is permissible.” She also contends that the ordinance contains an improper subjective standard, which also renders it vague. The city of Columbus maintains that the ordinance incorporates an objective standard and is therefore not arbitrary or vague.
{¶ 17} Columbus City Code 2327.14(A) provides, “No person shall keep or harbor any animal which howls, barks, or emits audible sounds that are unreasonably loud or disturbing and which are of such character, intensity and duration as to disturb the peace and quiet of the neighborhood or to be detrimental to life and health of any individual.”
{¶ 18} First, this enactment, like all others, enjoys a presumption of constitutionality. N. Ohio Patrolmen’s Benevolent Assn. v. Parma (1980), 61 Ohio St.2d *97375, 377, 15 O.O.3d 450, 402 N.E.2d 519. Moreover, this court must apply all rules of statutory construction in favor of constitutionality if possible. State v. Sinito (1975), 43 Ohio St.2d 98, 101, 72 O.O.2d 54, 330 N.E.2d 896.
{¶ 19} The court faced a similar question in State v. Dorso (1983), 4 Ohio St.3d 60, 4 OBR 150, 446 N.E.2d 449, a ease involving a Cincinnati noise ordinance. Cincinnati Municipal Code 910-9 prohibits any person from engaging “in the playing or rendition of music * * * in such manner as to disturb the peace and quiet of the neighborhood, having due regard for the proximity of places of residence, hospitals or other residential institutions and to any other conditions affected by such noises.” The city charged Michael Dorso, manager of a local roller rink, with violating the ordinance. Dorso moved to dismiss the indictment, arguing that the ordinance was impermissibly vague, but the trial court denied his motion and convicted him. The appellate court reversed, holding the ordinance unconstitutional.
{¶ 20} On discretionary review, this court reversed the court of appeals’ decision and held the ordinance constitutional. We construed the ordinance to prohibit those noises “which could be anticipated to offend the reasonable person, i.e., the individual of common sensibilities.” (Emphasis added.) Id. at 64, 4 OBR 150, 446 N.E.2d 449. The ordinance, therefore, did not regulate conduct that “disturbs only the hypersensitive.” Id.
{¶ 21} The same reasoning applies in this instance with respect to Columbus City Code 2327.14(A). The allegedly vague terms “unreasonably loud or disturbing,” “disturb the peace and quiet of the neighborhood,” and “detrimental to life and health of any individual” are cured of any ambiguity if the court applies a “reasonable person” standard, as in Dorso. The phrases are imprecise, to be sure, but the Constitution “does not mandate a burdensome specificity,” and noise regulation “by necessity involves the reasonable circumscription of the rights of individuals for the greater benefit of the commonwealth.” Id. at 62 and 64, 4 OBR 150, 446 N.E.2d 449.
{¶ 22} The Eleventh District, faced with an identical ordinance, reached the opposite conclusion in Ferraiolo. Its reasoning began with a rhetorical question: ‘Who is to say what constitutes an ‘unreasonably loud’ sound?” Ferraiolo, 140 Ohio App.3d at 587, 748 N.E.2d 584. In its analysis, the court stated, “Everyone has different sensitivities. Reasonableness is a subjective term that offers virtually no guidance to the dog owner who must comply with this legislation.” Id. The final sentence in this quote illustrates that decision’s shortcomings.
{¶ 23} Despite the Eleventh District’s assertion, reasonableness is an objective standard. Be it tort law or criminal law, the reasonable-person standard is considered an objective standard. 2 Restatement of the Law 2d, Torts (1965) 13, Section 283, Comment c; Baldwin’s Ohio Practice Criminal Law (2007), Section *9819.2. Thus, this ordinance should be read so as to prohibit barking and other animal noises that would offend the person of normal sensibilities.
Richard C. Pfeiffer Jr., Columbus City Attorney, Lara N. Baker, City Prosecutor, and Matthew A. Kanai, Deputy Legal Counsel, for appellee. Mark J. Miller, for appellant.{¶ 24} I concur in the affirmance of the Tenth District’s decision. The court employed a correct standard in upholding the constitutionality of the ordinance. The Eleventh District’s decision is simply wrong; reasonableness is an objective standard.