COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68127 & 68128 CITY OF ROCKY RIVER : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JEFF COLAH : : : DEFENDANT-APPELLANT : : and : : JEAN THORRAT : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Rocky River Municipal Court, Case Nos. 94-CRB-29 and 94-CRB-30. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: David J. Matty, Director of Law, 55 Public Square, Suite 1775, Cleveland, Ohio, 44113; and Gary A. Hotz, Assistant Director of Law, 24650 Center Ridge Road, Suite 210, Westlake, Ohio, 44145. For Defendants-Appellants: Howard H. Baxter, Esq., Kasdan and Baxter Co., L.P.A., 1920 Superior Building, 815 Superior Avenue, N.E., Cleveland, Ohio, 44114-2701. - 3 - SWEENEY, JAMES D., P.J.: Defendants-appellants Jean Thorrat and Jeff Colah were convicted in the Rocky River Municipal Court for a violation of Rocky River Codified Ordinance 1141.04(a)(1). The appellants were each fined $100.00 and ordered to pay costs. The sentence was stayed on appeal. Jean Thorrat is the owner of property located at 50 Buckingham Road, Rocky River, Ohio. On December 3, 1993, she and her son, Jeff Colah, were cited for failing to "properly store a commercially licensed vehicle at a residential property." The court heard testimony and accepted briefs. Findings of fact and conclusions of law were issued by the court on October 12, 1994. Both Mrs. Thorrat's husband and her son own motor vehicles which bear commercial license plates. Mr. Thorrat owns a van used in his business of transporting medical supplies, and Mr. Colah owns a van used in his business as a general contractor. The appellee does not contest the appellants' assertions that these vans, if used solely for personal uses, would be classified as passenger vehicles. The appellants set forth two assignments of error. The appellants' first assignment of error: I THE ROCKY RIVER MUNICIPAL COURT ERRED IN FAILING TO DISMISS THE ACTION AGAINST THE DEFENDANT/APPELLANTS ON THE GROUNDS THAT THE RETROSPECTIVE APPLICATION OF SECTION 1141.04(a)(1), THE CODIFIED ORDINANCE OF THE CITY OF ROCKY RIVER UNDER WHICH - 4 - DEFENDANT/APPELLANTS ARE CHARGED, ENACTED IN 1980, IS INAPPROPRIATE TO THIS PROPERTY, CONSTRUCTED SOME 60 YEARS PRIOR THERETO, AND AS TO WHICH SUCH RETROSPECTIVE APPLICATION SEEKS CRIMINAL SANCTIONS RESULTING IN AN EX-POST FACTO APPLICATION. The ordinance in question in the case sub judice is Rocky River Codified Ordinance 1141.04(a)(1), which states in pertinent part: "...In residential districts, temporary off-street parking may be permitted only on private driveways and turn-arounds; provided, however, a vehicle carrying a license, other than a license provided for passenger vehicles, shall be stored in a private garage,...". The appellants argue that to apply the ordinance to their home would be a retroactive application which would deprive them of vested rights, and deprive them of the use of their property without due process. The appellants' residence was built in the 1920's, and Mrs. Thorrat purchased the home thirteen years before the 1980 enactment of the ordinance. The appellants assert that the residence should be "grandfathered," and that they should be permitted to use the property as though the ordinance had not been 1 passed. The appellee states that the power to enact local legislation as to police, sanitary and other similar regulations is commonly referred to as the police power of the municipality; that the constitutionality of ordinances is presumed; and that the ordinance 1 Although the appellants argue that they have requested and been denied a variance to build a garage on their irregular lot, such evidence was not presented to the trial court. - 5 - in question is a valid exercise of the appellee's police power. The appellants, in their reply, argue that this ordinance is an exercise of the municipality's regulation of zoning, which may not be applied retrospectively, and not one of the exercise of its police powers. In both University Hts. v. Milton (1988), 55 Ohio App.3d 145 and in Richmond Heights v. Corsaro (March 25, 1993), Cuyahoga App. No. 61993, unreported, this court reviewed similar issues. In Milton, supra, this court held that an ordinance governing the parking of commercial vehicles in residential areas is an exercise of its police power; and that the municipality has a legitimate interest in maintaining the aesthetics of the community. The appellants' argument that this is an exercise of the municipality's regulation of zoning is not well taken. In Richmond Hts., supra, this court began its analysis by holding that there is a presumption of constitutionality: It is a well-established principle that courts are required to presume the constitutionality of legislative enactments. State v. Dorso (1983), 4 Ohio St.3d 60, 446 N.E.2d 449; Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St.3d 1, 539 N.E.2d 103; State v. Laukert (1989), 63 Ohio App.3d 64, 577 N.E.2d 1148. In construing legislation, courts are bound to avoid an unconstitutional construction if reasonably possible to do so. United States v. Harriss (1954), 347 U.S. 612; State v. Slatter (1981), 66 Ohio St.3d 452; United Air Lines v. Porterfield (1971), 28 Ohio St.2d 97, 276 N.E.2d 629. This presumption can only be overcome by proof, beyond a reasonable doubt, that the legislation and the constitution are clearly incompatible. Rocky River, supra; State, ex rel. Dickman v. - 6 - Defenbacher (1955), 164 Ohio St. 142, 128 N.E.2d 59, paragraph one of the syllabus. The person challenging a legislative enactment as unconstitutional may not rely on mere allegations or conclusions of law that the enactment is unconstitutional, but must introduce clear and convincing evidence to support his or her position. Singer v. City of Cincinnati (1990), 57 Ohio App.3d 1, 566 N.E.2d 190; State v. Longhorn World Championship Rodeo, Inc. (1985), 19 Ohio App.3d 115, 483 N.E.2d 196. The court went on to note that the grant of police power to a municipality is found in Section 3, Article XVIII of the Ohio Constitution, and that an exercise of the police power is valid if it bears a real and substantial relationship to the public health, safety or general welfare, and is not unreasonable or arbitrary. The court stated: Courts have consistently recognized that ordinances passed by virtue of the police power generally are limitations upon or abrogations of constitutionally guaranteed rights. Benjamin v. Columbus (1957), 167 Ohio St. 103, 146 N.E.2d 854; Cincinnati v. Correll (1943), 141 Ohio St. 535, 49 N.E.2d 412. Nevertheless, it (sic) well settled that an exercise of the police power having such an effect will be valid if it bears a real and substantial relationship to the public health, safety or general welfare and is not unreasonable or arbitrary. Cleveland v. Shaker Heights (1987), 30 Ohio St.3d 49, 507 N.E.2d 323; Hudson v. Albrecht, supra; Cincinnati v. Correll, supra; East Cleveland v. Palmer (1974), 40 Ohio App.2d 10, 317 N.E.2d 246. As long as the validity of the ordinance is "fairly debatable," a court will not substitute its judgment for the legislative judgment. Hudson v. Albrecht, supra; Brown v. Cleveland, supra. n2 Local authorities, charged with the enactment of municipal ordinances, are presumed to be familiar with local conditions and to know the needs of the community. Hudson v. Albrecht, - 7 - supra; Downing v. Cook (1982), 69 Ohio St.2d 149, 431 N.E.2d 995; Allion v. Toledo (1919), 99 Ohio St. 416, 124 N.E.237, paragraph one of the syllabus. (Note omitted.) The appellants herein presented no evidence to the trial court that which would overcome the presumptive validity of the ordinance. There has not been clear and convincing proof submitted which would show that the ordinance and the constitution are clearly incompatible. The Rocky River ordinance is a constitutionally valid exercise of police power, and the appellants' first assignment of error is not well taken. The appellants' second assignment of error: II THE ROCKY RIVER MUNICIPAL COURT ERRED IN FAILING TO FIND THE DEFENDANT/APPELLANTS NOT GUILTY ON THE GROUNDS THAT SECTION 1141.04(a)(1) OF THE CODIFIED ORDINANCES OF ROCKY RIVER IS VAGUE IN ITS LANGUAGE; THAT THE SAID LANGUAGE MUST BE CONSTRUED MOST LIBERALLY IN FAVOR OF THE DEFENDANT/APPELLANTS, AND ACCORDING TO THE ORDINARY USAGES OF THE TERMS AND IN THE CONTEXT OF THE OTHER WORDS OF THE ORDINANCE, COMPELS A FINDING THAT THE VEHICLES COMPLAINED OF WERE "PARKED" IN COMPLIANCE WITH THE ORDINANCE AND NOT "STORED" AS CHARGED. The appellants argue that the City legislature did not make a clear differentiation between the terms "stored" and "parking" in the City ordinance. Appellants cite the proposition that laws defining offenses or setting penalties on criminal offenses must be liberally construed in favor of the accused, and urge this court to give the words their plain and ordinary meaning. - 8 - The City argues that a legislative enactment is presumptively valid, and that the court may not substitute its opinion for the judgment of the legislature. The appellees state that the semicolon in the ordinance separates coordinating clauses; the first clause sets forth what is permitted on private driveways, and the second sets forth what is not permitted. The rules of construction for interpreting criminal statutes and ordinances are set forth in R.C. 2901.04(A), which states: (A) Sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused. This statutory rule of construction has been applied to interpretation of municipal ordinances. Cleveland v. Farkas (April 29, 1993), Cuyahoga App.No. 64589, unreported, citing to Vermilion v. Stevenson (1982), 7 Ohio App.3d 170. However, it is also true that when statutory meaning is plain, there is no basis for any other construction of a statute. Middleburg Heights v. Pfeiffer (December 13, 1990), Cuyahoga App.No. 57858, unreported. In Pfeiffer, this court was called upon to review the words "store" and "park." It was determined that in the Middleburg Heights ordinance these terms were used interchangeably. Giving the words "park" and "store" their plain and ordinary meaning as used in the ordinance before this court, it is clear that in residential districts the City council intended to prohibit - 9 - the parking or storage of commercial vehicles outside of a private garage. The appellants' second assignment of error is not well taken. Judgment affirmed. - 10 - It is ordered that appellee recover of appellants its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Rocky River Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, J., and TERRENCE O'DONNELL, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .