Opinion
No. 92 CRB 01094.
Decided March 11, 1993.
Dennis F. Butler, for plaintiff.
Kennedy, Cicconetti Rickett Co., L.P.A., and William G. Rickett; William Anfang III, for defendant.
This matter is before the court on defendant James A. Fladda's motion to dismiss the complaint alleging a violation of Cleveland Metropolitan Park District Rule 4.2. The rule is challenged on the basis that the penalty involved for a violation of this rule is in contravention of the statutes of Ohio authorizing a park district, and that the rule is both vague and overbroad.
A vague statute is one which "either forbids or requires the doing of an act in terms so vague that men [or women] of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. Gen. Constr. Co. (1926), 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328.
The Supreme Court has made a distinction between vagueness and overbreadth. The basic principles of due process require that a statute be declared void for vagueness if the prohibitions of the statute are not clearly defined, whereas "a clear and precise enactment may nevertheless be `overbroad' if in its reach it prohibits constitutionally protected conduct." Grayned v. Rockford (1972), 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222, 231.
Cleveland Metropolitan Park District Rule 4.2 states:
"No person shall solicit an unnatural sex act or solicit or ask anyone to commit, perform, or engage in any lewd, lascivious, obscene or indecent act or behavior."
For purposes of this motion, the court assumes that the allegations in the complaint are true. The complaint alleges that the defendant confronted an individual in the Hinckley Reservation and asked, "want to get naked?" and "want to jack me off?"
The rule in question is enacted pursuant to R.C. 1545.09, which provides:
"The board of park commissioners shall adopt such bylaws and rules as the board deems advisable for the preservation of good order within and adjacent to parks and reservations of land * * *.
"No person shall violate any of such bylaws or rules. All fines collected for any violation of this section shall be paid into the treasury of such park board."
There is a statutory penalty provided for violations of park rules and bylaws. R.C. 1545.99(A) states:
"Whoever violates section 1545.09 of the Revised Code shall be fined not more than one hundred dollars for a first offense; for each subsequent offense such person shall be fined not more than five hundred dollars."
Pursuant to the statutes which control its existence, the Cleveland Metropolitan Park District cannot enact rules and regulations for which it provides penalties in excess of those stated in R.C. 1545.99. Specifically, the Cleveland Metropolitan Park District cannot provide for any period of incarceration for a violation of any park rule or regulation.
Rule 4.2 as published by the Cleveland Metropolitan Park District indicates that a first offense is a third-degree misdemeanor punishable by up to sixty days in jail and a $500 fine. A second offense is a second-degree misdemeanor punishable by up to ninety days in jail and a $750 fine.
This court holds that any penalty sought to be assessed by the Cleveland Metropolitan Park District which provides for incarceration for a violation of any park rule is a violation of the statutes of Ohio. This does not mean that the rules and regulations themselves are unenforceable, only that no jail time may be assessed for any violation and that the penalties involved can be no more than $100 for a first offense and no more than $500 for a second or subsequent offense.
With regard to the vagueness and overbreadth challenges to this rule, the standard in Ohio is that one may not be punished for words, even if the words are spoken with intent to annoy other individuals, "unless the words by their very utterance inflict injury or are likely to provoke the average person to an immediate retaliatory breach of the peace." Cincinnati v. Karlan (1974), 39 Ohio St.2d 107, 110, 68 O.O.2d 62, 64, 314 N.E.2d 162, 164; State v. Phipps (1979), 58 Ohio St.2d 271, 12 O.O.3d 273, 389 N.E.2d 1128.
The phrase "unnatural sex act," as used in the park rule, specifically has been found one Ohio court of appeals to be so vague and uncertain as to be unconstitutional. State v. Sharpe (1965), 1 Ohio App.2d 425, 30 O.O.2d 432, 205 N.E.2d 113.
The essential holding of the Karlan and Phipps cases is that unless the statute is narrowly construed or enforced to proscribe only "fighting words," then the statute cannot withstand attack as overbroad.
The court holds that the park rule at issue is so vague that it cannot properly advise a person in advance of the nature of a violation and is overbroad in that it attempts to prohibit conduct which does not rise to the level of "fighting words." Accordingly, the court holds that Cleveland Metropolitan Park District Rule 4.2 is unconstitutional as applied in this case.
The court further notes that the complaint in this matter alleges that the defendant "did solicit said Complainant to engage in sexual conduct with him: to wit: did ask her `want to get naked' `want to jack me off'." This language does not charge a violation of Cleveland Metropolitan Park District Rule 4.2. The phrase "sexual conduct" used in the complaint is not contained anywhere in the language of this rule. The complaint is phrased so that the language allegedly used by the defendant is meant to demonstrate the manner in which he solicited sexual conduct. Accordingly, the court finds that the complaint fails to state a violation of the park rule.
For the above reasons, the court holds that no rule of the Cleveland Metropolitan Park District may be enforced in such a manner as to require the imposition of any jail sentence for a violation, that Park Rule 4.2 is vague and overbroad as applied in this case, and that the complaint in this matter does not allege a violation of Rule 4.2.
The complaint with regard to Rule 4.2 is dismissed.
So ordered.