Opinion
Nos. 90 CRB 39635, 90 CRB 39636.
Decided March 25, 1991.
Ernest F. McAdams, Assistant City Prosecutor, for plaintiff.
Charles F. Geidner, for defendants.
On November 2, 1990, Cincinnati Fire Division Captain Kenneth Kombrinck executed affidavits charging defendants Terrance A. Gardner and Lenore E. Varney with violating Cincinnati Municipal Code Section CFPC 1201-47. Service was had on the defendants on November 26, 1990. Pleas of not guilty were entered on December 12, 1990, followed by the filing of separate motions on behalf of the defendants to dismiss the complaints alleging constitutional infirmities.
On March 8, 1991, the motions were consolidated for hearing, argued to the court and the matters taken under submission for decision.
Both complaints filed herein are identical and state in pertinent part, "* * * being the co-owner of Ridgewood Hills apartments did fail to comply with orders. Orders were issued on Fire Code violations on all seven buildings. Contrary to and in violation of Section CFPC 1201-47 of the Cincinnati Municipal Code."
Defendants argue that the Sixth Amendment to the United States Constitution and Section 10, Article I, Ohio Constitution require that an individual charged with an offense be informed of the nature and cause of the offense with which he is charged and that the complaints filed herein do not do so. For the reasons set forth below, the court agrees with defendants' argument.
Statutes or ordinances defining offenses are strictly construed against the sovereign and liberally construed in favor of the accused. Crim.R. 1 sets forth that the Rules of Criminal Procedure are to be followed in all courts of this state in the exercise of criminal jurisdiction, with certain exceptions not applicable to these causes. Crim.R. 3 requires that a complaint set forth the essential facts constituting the offense charged. "A complaint that does not contain every element does not charge an offense and is void for subject matter jurisdiction." 1 Ohio Crim. Practice Procedure (2 Ed. 1989) 29, Section 7.101. "The primary purpose of an indictment or other accusation of crime is to inform the defendant of the offense with which he is charged, so that he may prepare for trial, and this, broadly speaking, is the standard for determining the sufficiency of the charge." 26 Ohio Jurisprudence 3d (1981) 491, Criminal Law, Section 729. A complaint "must be as definite and particular in its allegations as an indictment." 26 Ohio Jurisprudence 3d (1981) 499, Criminal Law, Section 732.
Although a complaint is generally deemed sufficient if it charges an offense in the words of a statute or ordinance upon which it is based, the complaints filed in these causes fail to meet even this minimal test.
Defendants are charged with violating Cincinnati Municipal Code Section CFPC 1201.47. This ordinance, in pertinent part, reads as follows: "If, after service of any lawful order from the fire chief, the owner, agent, contractor or other person responsible for the work or violation refuses to comply with such order or does not comply within the period stated in the order or notice * * *." The complaints filed herein do not set forth that there was service upon the defendants of a lawful order from the fire chief and that they did refuse or fail to comply with such order within the time period set forth in the order. "* * * While all of the specific facts relied upon to sustain the charge need not be recited, the material elements of the crime must be stated." State v. Burgun (1976), 49 Ohio App.2d 112, 3 O.O.3d 177, 359 N.E.2d 1018, paragraph one of the syllabus.
The complaints filed herein failing to contain the necessary elements of the offense sought to be charged, they do not meet constitutional muster or the requirements of Crim.R. 3 and, therefore, must be dismissed.
Defendants' motions to dismiss are granted and these cases are dismissed.
Motions granted.