City of South Euclid v. Richardson

Per Curiam. On October 14, 1986, the Council of the city of South Euclid passed Ordinance No. 36-86. The ordinance makes it a first degree misdemeanor for any person to own, operate, maintain or manage a brothel and defines “brothel,” in relevant part, as follows: «* * * any place, house or dwelling maintained and/or operated by any person, organization, club or association, for the purposes of engaging in group sex, sexual conduct and sexual acts, as herein defined, lewdness or acts of gross and wanton indecency in sexual relations or other sexual activity which corrupts or tends to corrupt the morals of persons in the community.” On December 30,1986, each of the defendants was charged with violating Ordinance No. 36-86, as set forth in the Codified Ordinances of the city of South Euclid. Upon motions to dismiss in the South Euclid Municipal Court, the court dismissed the charges against both defendants, holding that the term “brothel” as defined in the ordinance makes the ordinance void for vagueness and overbroad. The court of appeals affirmed. We adopt the August 29, 1988 decision of the court of appeals, which decision is attached as an Appendix to this entry, and affirm the decision of the court of appeals for the reasons stated therein. Judgment affirmed. Moyer, C.J., Sweeney, Holmes and H. Brown, JJ., concur. Douglas, Wright and Re snick, JJ., dissent. APPENDIX David T. Matia, P.J. In case No. 54247, plaintiff-appellant, the city of South Euclid, appeals from the South Euclid Municipal Court’s dismissal of plaintiff-appellant’s criminal complaint against defendant-appellee Daiva Richardson. In case No. 54248, plaintiff-appellant, the city of South Euclid, appeals from the South Euclid Municipal Court’s dismissal of plaintiff-appellant’s criminal complaint against defendantappellee Ronnie Richardson. Pursuant to this court’s order of August 28, 1987, in response to South Euclid’s motion to consolidate appeals, and in accordance with App. R. 3(B) and Eighth District Court of Appeals Local Rule 3(B)(3), case No. 54247, South Euclid v. Daiva Richardson, and case No. 54248, South Euclid v. Ronnie Richardson, were consolidated for appeal and are therefore discussed and decided together. On October 14, 1986, the South Euclid City Council, by a vote of 6-0, passed South Euclid City Ordinance No. 36-86, designating it an emergency ordinance: “Section 1. That Section 666.01 Definitions, as contained in Chapter 666, Sex Related Offenses, of Part Six-General Offenses Code of the Codified Ordinances of the City of South Euclid, Ohio be and the same is hereby amended by adding, thereto, new subsections ‘1’ and ‘m’ to read as follows: “ ‘666.01 DEFINITIONS “[‘](1) “Brothel” means any [149] place, house or dwelling maintained and/or operated by any person, organization, club or association, for the purposes of engaging in group sex, sexual conduct and sexual acts, as herein defined, lewdness or acts of gross and wanton indecency in sexual relations or other sexual activity which corrupts or tends to corrupt the morals of persons in the community. “[‘m] “Lewdness” means sexual conduct or relations of such gross indecency and so notorious as to corrupt community morals.’ “Section 2. That Section 666.07, Procuring, as contained in Chapter 666, Sex Related Offenses, of Part Six-General Offenses Code of the Codified Ordinances of the City of South Euclid, Ohio be and the same is hereby amended to read as follows: “‘666.07 BROTHEL; PATRONIZING; PROCURING; PROSTITUTION. “[‘](c) NO PERSON, ORGANIZATION, CLUB OR ASSOCIATION SHALL OWN, OPERATE, MAINTAIN OR MANAGE A BROTHEL OR SOLICIT, INVITE OR ENTICE ANOTHER TO PATRONIZE A BROTHEL OR TO ENGAGE IN ACTS OF LEWDNESS OR SEXUAL CONDUCT AS HEREIN DEFINED. “[‘](d) WHOEVER VIOLATES THIS SECTION IS GUILTY OF A MISDEMEANOR OF THE FIRST DEGREE AND SHALL BE PUNISHED AS PROVIDED IN SECTION 698.02.[’] * * “Section 4. That this Ordinance is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, safety and welfare of the City, and for the further reason that same is necessary in the current operation of the Police Department. Wherefore, this Ordinance shall take effect upon passage and approval.” Ordinance No. 36-86 amended two then-existing sections, 666.01 and 666.07, of the Codified Ordinances of the city of South Euclid. Section 666.01 was amended by adding definitions of “brothel” and “lewdness” to the codified ordinances. Section 666.07 was amended by adding paragraphs (c) and (d). At some point subsequent to the passage of Ordinance No. 36-86, although the exact date is not clear from the record, Codified Ordinance No. 666.01 was renumbered to 533.01, and Codified Ordinance No. 666.07 was renumbered to 533.08. On December 30, 1986, defendants-appellees, Daiva Richardson and Ronnie Richardson, were each charged in separate complaints with operating a brothel in violation of South Euclid Codified Ordinance Section 533.08(C), a first degree misdemeanor. Both defendants-appellees entered pleas of not guilty to the charges. On March 13, 1987, the appellees filed identical motions to dismiss the complaints filed against them, with identical memoranda in support of the motions. On that same date, the American Civil Liberties Union of Cleveland (“ACLU”) filed a motion for leave to file a brief as amicus curiae. The appellees’ motions to dismiss the complaints alleged that Ordinance No. 36-86 was “unconstitutional on its face and as applied,” citing the following reasons: vagueness, overbreadth, abridgement of freedom of association, abridgement of a right to privacy, and a denial of equal protection. On April 27,1988, the ACLU filed a brief which argued that the statute was “unconstitutionally vague and facially invalid.” On April 27, 1987, an oral hearing on appellees’ motions to dismiss was [150] held in the South Euclid Municipal Court. No transcript of this hearing is included in the record on appeal. On May 12, 1987, South Euclid filed a brief in opposition to appellees’ motions to dismiss, claiming, inter aim,that Ordinance No. 36-86 is “neither vague [nor] overbroad.” On June 26,1987, the South Euclid Municipal Court issued a twenty-one-page opinion, dismissing the charges against both appellees. The court found that: “* * * [Legislation must satisfy the requirements of the law and meet the standards of, and not be in conflict with, the Constitutions of the United States and [the] State of Ohio. It is these requirements and standards that Ordinance [No.] 36-86 does not meet.” (Trial opinion at 5.) Specifically, the court held that the statute was vague in its definition of the word “brothel” (Section 533.01 [L]). The court examined exhaustively each term used by the city in its attempt to define “brothel” and noted the following at page 19 of its opinion: “* * * The problem here, as previously explained, is that the definition of ‘brothel’ in Section 533.01(L) is completely different from the well-accepted, long-standing meaning in the law of ‘brothelf.]’ In this Court’s opinion[,] no one of ordinary or even superior intelligence would define ‘brothel’ in the manner set forth in Section 533.01(L); therefore, the Prosecutor’s argument that Section 533.01(L) is not vague and overbroad because any citizen of ordinary intelligence knows what a ‘brothel’ is cannot withstand analysis. Simply stated, it is true that ordinary citizens know what a ‘brothel’ is, but this fact cannot save 533.01(L). This is so because no one could anticipate that ‘brothel’ had the meaning attributed to it by Section 533.01(L), and Section 533.01(L) is written in a manner that cannot withstand constitutional analysis.” The charges against the appellees were dismissed. From this dismissal, South Euclid appeals. South Euclid submits the following assignment of error: “The trial court erred in granting each defendant’s motion to dismiss [the] complaint and in discharging each such defendant.” The trial court set forth three reasons behind its decision that the South Euclid ordinance under which the appellees were charged is unconstitutional: “* * * [T]he manner in which ‘brothel’ is defined in Section 533.01(L) is void for vagueness, over-breadth and is unconstitutional on its face.” (Trial opinion at 5-6.) A statute is void for vagueness if it “ ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.’ ” Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 162. The Ohio Supreme Court has stated that “* * * ‘the proper standard for determining if a statute is vague is found in Connally v. General Construction Co. (1926), 269 U.S. 385 * * *.’ ” State v. Young (1980), 62 Ohio St. 2d 370, 372, 16 O.O. 3d 416, 417, 406 N.E. 2d 499, 501. “ ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential [151] of due process of law. * * *’ (Citations omitted.)” State v. Young, supra. See, also, Cleveland v. Arcano (1983), Cuyahoga App. Nos. 45076 and 45077, unreported. A statute is overbroad “* * * when the scope of the statute is so broad that it includes activity which would otherwise be legal. * * *” State v. Forbes (Aug. 9, 1979), Cuyahoga App. No. 40879, unreported, at 3, affirmed sub nom. State v. Young, supra. As noted in NAACP v. Alabama (1964), 377 U.S. 288, 307: “This Court has repeatedly held that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. * * *” See, also, Grayned v. City of Rockford (1972), 408 U.S. 104, 114, where the United States Supreme Court stated: “A clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” (Footnote omitted.) The definition of “brothel” set forth in South Euclid Ordinance No. 36-86 is: “ ‘Brothel’ means any place, house or dwelling maintained and/or operated by any person, organization, dub or association, for the purposes of engaging in group sex, sexual conduct and sexual acts, as herein defined, lewdness or acts of gross and wanton indecency in sexual relations or other sexual activity which corrupts or tends to corrupt the morals of persons in the community.” We note that the definition requires the “place, house or dwelling” which is allegedly a brothel be “maintained and/or operated * * * for the purposes of engaging in group sex, sexual conduct and sexual acts, as herein defined * * (Emphasis added.) But, as pointed out by the trial court: “* * * This Court has searched the South Euclid Ordinances and it cannot find such definitions. If an ordinance makes certain activities a crime and then states that a definition of such activities will be set forth therein so that a citizen will understand what is illegal and what is not and can govern his conduct accordingly, that citizen is entitled to be apprised of the definition which the ordinance promises will be afforded to him. * * *” (Footnote omitted.) (Trial opinion at 11.) The clear result of the failure by the city of South Euclid to set forth the definitions of the prohibited conduct means that persons who may be subject to the ordinance are not given “a reasonable opportunity to know what is prohibited so that he may act accordingly.” Grayned v. City of Rockford, supra, at 108. See, also, State v. Young, supra, at 372-373, 16 O.O. 3d at 417, 406 N.E. 2d at 501. Although men of “reasonable intelligence” may understand the meaning of “group sex,” absent a definition of sexual conduct or sexual acts, it is impossible to know what kinds of sexual relations are prohibited by Ordinance No. 36-86. A review of the Ohio Revised Code makes clear another fundamental problem with Ordinance No. 36-86 — overbreadth. “Sexual acts” and “group sex” are not defined, but “sexual conduct” is defined in R.C. 2907.01(A): “ ‘Sexual conduct’ means vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.” [152] Under appellant’s ordinance, then, if the above definition were incorporated into Ordinance No. 36-86 and any of the activities listed in the above definition occurred between a married, heterosexual couple within the South Euclid city boundaries, the activities would be unlawful under the ordinance as it reads, yet these activities are clearly constitutionally protected. Griswold v. Connecticut (1965), 381 U.S. 479. Furthermore, if the city of South Euclid did not intend to regulate sexual activities between married heterosexual couples, which we assume it did not, then a reading of the entire definition of “brothel” in Ordinance No. 36-86 makes it virtually impossible to determine what activities appellant did intend to regulate. Reliance on the final phrase of the “brothel” definition, “* * * which corrupts or tends to corrupt the morals of persons in the community,” is of no assistance. To attempt to regulate sexual activities by the use of that standard is constitutionally prohibited, as it allows for “harsh and discriminatory enforcement by local prosecuting officials against particular groups deemed to merit their displeasure * * *.” Thornhill v. Alabama (1940), 310 U.S. 88, 97-98. See, also, Papachristou v. City of Jacksonville, supra, and NAACP v. Alabama, supra. In light of the foregoing, we find it unnecessary to discuss the other alleged infirmities of the ordinance. We hold that Ordinance No. 36-86 is unconstitutionally vague and overbroad on its face and, as a result, as applied against these appellees. The judgment of the trial court is affirmed. We further hold, in response to appellees’ request for costs and attorney fees in accordance with App. R. 23, and after a thorough and enlightening review of the entire record, that the city of South Euclid’s appeal is not frivolous and, accordingly, appellees’ request for damages under App. R. 23 is denied. The judgment of the trial court is affirmed. Judgment affirmed. Markus and Jackson, JJ., concur. James J. Jackson, J., of the Court of Common Pleas of Lake County, sitting by assignment.