City of Columbus v. Kim
118 Ohio St. 3d 93 (2008)
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Rule of Law:
A municipal ordinance prohibiting animal noises that are 'unreasonably loud or disturbing' and 'of such character, intensity, and duration as to disturb the peace' is not unconstitutionally vague because it provides an objective standard of conduct that a person of ordinary intelligence can sufficiently understand and comply with.
Facts:
- On May 13, 2004, Rebecca Kim's dog barked constantly from approximately 4:30 p.m. until 6:00 p.m.
- Kim's neighbor, Joseph Berardi, testified that the barking was so loud it could be heard over the sound of his lawn mower.
- Berardi also stated he could hear the dog from inside his house with the windows closed and the air conditioning running.
- A veterinarian, Dr. George H. Urham Jr., who was visiting the Berardi residence between 5:00 p.m. and 6:00 p.m., testified that the dog in Kim's yard had barked incessantly during his entire visit.
Procedural Posture:
- Rebecca Kim was charged in trial court with violating Columbus City Code 2327.14.
- The trial court found Kim guilty and imposed a fine of $100 plus costs.
- Kim appealed her conviction to the Tenth District Court of Appeals, arguing the ordinance was unconstitutionally vague.
- The court of appeals affirmed the trial court's judgment, finding the ordinance provided sufficient notice of prohibited conduct.
- The court of appeals then certified that its judgment was in conflict with a decision from another appellate district, State v. Ferraiolo.
- The Supreme Court of Ohio determined that a conflict existed and accepted the case for review and final determination.
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Issue:
Is a city ordinance that prohibits keeping an animal which makes sounds that are 'unreasonably loud or disturbing' and of 'such character, intensity, and duration as to disturb the peace and quiet of the neighborhood' unconstitutionally vague on its face and as applied?
Opinions:
Majority - Pfeifer, J.
No, the ordinance is not unconstitutionally vague. A law is only unconstitutionally vague if it specifies no standard of conduct at all. The Columbus ordinance provides sufficient standards by incorporating an objective test, prohibiting only those noises that are 'unreasonably loud or disturbing.' It further clarifies this standard by providing specific factors for evaluation: the noise's 'character, intensity and duration.' A person of ordinary intelligence would understand that allowing a dog to bark nonstop for over an hour at a level audible over a lawnmower is prohibited conduct. Therefore, the ordinance provides comprehensible normative standards and is not unconstitutional on its face or as applied to Kim.
Concurring - O'Donnell, J.
No, the ordinance is not unconstitutionally vague. The use of terms like 'unreasonably loud or disturbing' does not render the ordinance subjective or ambiguous. Citing State v. Dorso, the court should apply a 'reasonable person' standard, which is an objective standard in both tort and criminal law. This means the ordinance prohibits noises that would offend a person of normal sensibilities, not a hypersensitive individual. The Eleventh District's decision in Ferraiolo was incorrect in asserting that reasonableness is a subjective standard. Because the ordinance can be interpreted through this objective lens, it withstands the vagueness challenge.
Analysis:
This decision solidifies the principle that noise ordinances using a 'reasonableness' standard are constitutionally permissible, provided they include criteria to guide enforcement and inform citizens. By upholding the Columbus ordinance, the court provides a blueprint for municipalities to draft enforceable quality-of-life laws that can withstand vagueness challenges. The ruling reinforces the high bar for such challenges, requiring a defendant to prove that the statute provides 'no standard of conduct at all.' It distinguishes between imprecise but understandable standards and those that are completely arbitrary, signaling to lower courts that not all ambiguity in statutory language is constitutionally fatal.
