COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68556 : ACCELERATED DOCKET CITY OF CLEVELAND : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION LYDIA FEKETE : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 7, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court Case No. 94-CRB-8421 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: SHARON SOBOL JORDAN, ESQ. GEORGE L. NYERGES, ESQ. Director of Law 2012 West 25th Street, #803 THOMAS A. HAMILTON, ESQ. Cleveland, Ohio 44113-4189 Assistant Director of Law Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 - 2 - PER CURIAM: This accelerated appeal arises out of a guilty plea conviction and subsequent probation violations for maintaining a nuisance by feeding a flock of pigeons. Defendant-appellant Lydia Fekete was charged in the Cleveland Municipal Court, Housing Division on April 12, 1994, with the following two health code violations, viz.: (1) creating a nuisance by keeping or harboring animals or fowl, and (2) permitting her residential property to become infested with vermin or rodents in violation of Cleveland Codified Ordinance ("C.C.O.") Sections 205.02 and 211.01(a), respectively. The charges arose out of defendant's failure to comply with a December 8, 1993, Cleveland Health Department order to correct health code violations arising out of her bird feeding. C.C.O. Section 205.02 specifically provides as follows: No person shall keep or harbor any animal or fowl in the City so as to create noxious or offensive odors or unsanitary conditions which are a menace to the health, comfort or safety of the public. The record indicates that defendant entered a guilty plea and was sentenced to thirty days imprisonment. The housing court suspended execution of defendant's sentence and placed her on one-year inactive probation. The housing court subsequently conducted two separate probation violation hearings. The housing court found defendant violated the terms of her probation on the first occasion and again placed defendant on one-year inactive probation. The housing court - 3 - also sentenced defendant to one hundred hours of community service, but suspended execution of the community service obligation. The housing court specifically ordered her to remove all bird feeders and birdseed from the property in an order dated November 16, 1994. The housing court subsequently conducted a second probation violation hearing on January 18, 1995. Inspector Mark Robinson testified that defendant did not remove the birdseed or abate the nuisance. Photographs of the premises revealed pieces of bread and birdseed on the ground in defendant's yard, bird excrement, and a large flock of pigeons roosting on the roof of the residence and in the yard. The housing court again found that defendant violated the terms of her probation and ordered her to perform the one hundred hours of community service. Defendant filed this accelerated appeal raising four "issues." Defendant's first issue follows: WHETHER ORDINANCE 205.02, COMPARED TO ORDINANCE 205.03, IS IN CONFLICT MAKING ORDINANCE 205.02 VAGUE, AMBIGUOUS, UNCLEAR AND TOO GENERAL AND THEREFORE UNCONSTITUTIONAL. BOTH ORDINANCES ARE ATTACHED HERETO AS EXHIBITS A AND B. Defendant's first issue lacks merit. Defendant argues for the first time on appeal that Cleveland Municipal Ordinance 205.02 is unconstitutional. However, the Ohio Supreme Court has held that the failure to raise any issue in the trial court regarding the constitutionality of a statute or its application waives any claim of error. State v. Awan (1986), 22 Ohio St.3d 120. Moreover, even if defendant had properly raised and preserved her due process vagueness challenge to the ordinance, her claim is not well taken under the standard - 4 - set forth in State v. Collier (1991), 62 Ohio St.3d 267. As noted above, Section 205.02 provides as follows: No person shall keep or harbor any animal or fowl in the City so as to create noxious or offensive odors or unsanitary conditions which are a menace to the health, comfort or safety of the public. This ordinance provides fair warning to ordinary citizens of the proscribed conduct. Ordinary citizens would know that the term "fowl" is not ambiguous and includes pigeons. Pigeons, moreover, are also included under the broader term of "animal." Thus the statute gives two signals that it prohibits keeping or harboring pigeons when doing so creates a nuisance. Accordingly, defendant's first issue is overruled. Defendant's second issue follows: WHETHER THE TRIAL COURT ERRED IN INTERPRETING THE WORDS 'ANIMAL OR FOWL' IN CLEVELAND MUNICIPAL ORDINANCE NO. 205.02 IN THAT THE REASONABLE CLASSIFICATION OF PIGEONS UNDER THE WORD 'FOWL' EXEMPTS CARRIER PIGEONS, INCLUDING HOMING AND RACING PIGEONS, HOWEVER FAILS TO EXEMPT WILD PIGEONS UNDER CLEVELAND MUNICIPAL ORDINANCE 205.03, PARAGRAPHS B, D AND E. Defendant's second issue lacks merit. Defendant argues the housing court improperly found that C.C.O. Section 205.02 applies to this case because another ordinance regulates the keeping of pigeons. As noted above, Section 205.02 prohibits keeping or harboring animals or fowl when doing so creates a nuisance. C.C.O. Section 205.03(d), in turn, exempts "carrier pigeons," defined to include homing and racing pigeons, which are kept pursuant to a City permit. The ordinance authorizing persons to keep carrier pigeons - 5 - under a permit does not apply by its own terms in this case because untrained "wild" pigeons do not constitute "racing" or "homing" pigeons and because defendant did not have a permit. To the extent defendant's argument under this second issue purports to raise constitutional arguments, these claims lack merit for the reasons set forth above under the first issue. Accordingly, defendant's second issue is overruled. Defendant's third issue follows: WHETHER THE TRIAL COURT ERRED IN FINDING THE APPELLANT, LYDIA FEKETE, A PROBATION VIOLATOR UNDER THE EVIDENCE SUBMITTED BY THE PROSECUTOR'S OFFICE UNDER MUNICIPAL ORDINANCES NO. 205.02 AND 205.03, AT TWO SEPARATE VIOLATION HEARINGS. Defendant's third issue lacks merit. Defendant contends the prosecution failed to show that she twice violated the terms of her probation. For the first time on appeal defendant argues that there was no evidence the pigeons she continued to feed, following her guilty plea conviction, were not exempt "carrier pigeons" under C.C.O. Section 205.03. The record contains sufficient evidence, when viewed in the light most favorable to the prosecution, to support the housing court's finding that she violated her probation on both occasions. See State v. Hutchinson (1989), 63 Ohio App.3d 721, 727-728. Even if all the countless pigeons observed by the Health Department Inspector and depicted in the photographs were "homing" or "racing" pigeons rather than "wild" pigeons as defendant contends, defendant's activity was not exempted because she never obtained a permit to keep the pigeons as required by Section 205.03. - 6 - Moreover, defendant indisputably committed the second probation violation by failing to remove the birdseed in accordance with the housing court's November 11, 1994, order. Accordingly, defendant's third issue is overruled. Defendant's fourth issue follows: WHETHER TRIAL [SIC] COURT ERRED IN FINDING THAT APPELLANT, LYDIA FEKETE, WHO ORIGINALLY APPEARED WITHOUT AN ATTORNEY, WAS 'GUILTY' OF KEEPING OR HARBORING PIGEONS WITHIN THE CITY LIMITS OF CLEVELAND UNDER ORDINANCE 205.05, WHEN IN REALITY THE APPELLANT DID NOT OWN ANY PIGEONS, DID NOT PROVIDE ANY SHELTER FOR PIGEONS, NOR PROVIDE FOOD SPECIFICALLY FOR PIGEONS. Defendant's fourth issue lacks merit. Defendant contends the housing court improperly found her guilty of violating Section 205.02. Defendant does not challenge the knowing, voluntary, or intelligent character of her guilty plea, but argues merely that she did not "keep" or "harbor" the pigeons. The record sub judice does not support defendant's claims. It is well established that without a transcript of proceedings, a reviewing court must generally presume regularity of the proceedings and affirm the judgment of the trial court. Columbus v. Hodge (1987), 37 Ohio App.3d 68. Defendant has failed to submit a transcript of the guilty plea hearing to support her claims. We specifically note that the terms "keep" or "harbor" in Section 205.02 do not require that a party "own," "provide shelter" or "provide food specifically for" the animal of fowl. The term "keep" is defined by Webster's New Collegiate Dictionary, inter alia, to mean any of the following: to preserve, to maintain, to - 7 - take care of, to support, or to cause to remain in a given place. "Harbor" is defined, inter alia, to have an animal in one's keeping. At a minimum, by repeatedly placing birdseed and pieces of bread in her yard, defendant caused the pigeons to remain there and the resulting waste of the flock in the area created a nuisance in violation of Section 205.02. Accordingly, defendant's fourth issue is overruled. The judgment of the housing court is hereby affirmed. - 8 - It is ordered that appellee recover of appellant 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 Cleveland 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. JOHN T. PATTON, CHIEF JUSTICE ANN DYKE, JUDGE DIANE KARPINSKI, 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 .