Youngstown V. Traylor, The Supreme Court Of Ohio Upholds Vicious Dog Ordinance

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Court Upholds Youngstown ‘Vicious Dog’ Ordinance 2008-1460. Youngstown v. Traylor, Slip Opinion No. 2009-Ohio4184. Mahoning App. No. 07 MA 102, 2008-Ohio-2971. Judgment reversed, and judgment of the trial court reinstated. Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur. Pfeifer and Lanzinger, JJ., dissent. Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009Ohio-4184.pdf Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

(Aug. 26, 2009) The Supreme Court of Ohio today upheld as constitutional a Youngstown city ordinance that requires vicious dogs to be confined and requires the state to prove at trial that a defendant’s dog is vicious or dangerous. The Court’s 5-2 majority opinion, authored by Justice Evelyn Lundberg Stratton, reversed a decision of the 7 th District Court of Appeals holding that the ordinance violated a dog owner’s right to due process of law and was therefore unenforceable. The case arose from an April 2007 incident in which David Roch of Youngstown and his small dog were attacked while walking in a city park by two unleashed and unaccompanied Italian Mastiff/Cane Corso dogs, a male weighing approximately 170-180 pounds and a slightly smaller female. Roch was bitten on the hand and wrist, and his dog suffered several bites before they were able to retreat to a residential garage bordering the park. Police officers summoned to the scene subsequently shot and killed both of the attacking dogs when they advanced toward the officers in what was perceived to be an aggressive manner. A follow-up investigation determined that one of the attacking dogs was owned by a nearby resident, Jammie Traylor, and the other was temporarily present at Traylor’s home for breeding purposes at the time of the attack. Traylor was charged in Youngstown Municipal Court with two violations of a city ordinance, YCO 505.19(b), which prohibits the owner or person having care of a “vicious” dog from permitting the dog “to go beyond the premises of such person unless such dog is securely leashed or otherwise securely restrained.” The ordinance defines a “vicious” dog as a) one “with a propensity, tendency or disposition to attack, to cause injury to or otherwise endanger the safety of human beings or other domestic animals;” or b) “(a)ny dog which attacks a human being or another domestic animal without provocation.” Traylor entered a pretrial motion to dismiss the charges on the basis that the Youngstown ordinance was unconstitutional under the Supreme Court of Ohio’s 2004 ruling in State v. Cowan. In Cowan, the Court held that provisions of the state’s vicious dog statute, R.C. 955.22, violated a dog http://www.sconet.state.oh.us/PIO/summaries/2009/0826/081460.asp

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owner’s right to due process by allowing a dog warden to unilaterally and without a hearing classify a dog as “vicious,” and thereby impose on the dog’s owner several statutory duties, including a duty to confine the dog in a specified manner on the owner’s property and to purchase liability insurance to protect others who may be attacked by the dog. The trial court denied Traylor’s motion to dismiss. A jury subsequently found Traylor guilty on one count and convicted him of a lesser included offense on the other count. Traylor was fined, sentenced to 90 days in jail followed by a two-year term of probation, ordered to pay restitution to Roch, and ordered to own “nothing bigger than a Chihuahua” as a condition of probation. Traylor appealed. The 7 th District Court of Appeals vacated his convictions and sentence, holding that the Youngstown ordinance under which Traylor was charged is unconstitutional pursuant to the Supreme Court’s decision in Cowan. The Youngstown city prosecutor’s office sought and was granted Supreme Court review of the 7 th District’s ruling. Writing for the majority in today’s decision, Justice Stratton pointed to Toledo v. Tellings (2007), a Supreme Court case decided since Cowan, in which this Court upheld a Toledo city ordinance and two sections of state law that limited ownership of pit bulls to one in each household, and required the owner of a pit bull or pit bull mixed breed dog to obtain liability insurance. “In upholding the three provisions, this court concluded that the state and the city of Toledo possess the constitutional authority to exercise police powers that are rationally related to a legitimate interest in public health, safety, morals, or general welfare,” wrote Justice Stratton. “We determined that the evidence proved that pit bulls cause more damage than other dogs when they attack, cause more fatalities in Ohio than other dogs, and cause Toledo police officers to fire their weapons more often than do other breeds. Thus, we held that the state of Ohio and the city of Toledo had a legitimate interest in protecting citizens from the dangers associated with pit bulls and that R.C. 955.11(A)(4)(a)(iii) and 955.22 and Toledo Municipal Code 505.14 are rationally related to that interest. Therefore, these provisions are constitutional.” “The court of appeals held that Tellings was inapplicable to this case because the case at bar does not involve pit bulls and because YCO 505.19 does not contain a classification of this breed as a definition of ‘vicious,’” wrote Justice Stratton. “Rather, the court of appeals found the facts of Cowan to be ‘virtually identical’ to those in this case. ... Thus, the court of appeals held that YCO 505.19 violated procedural due process because of the ‘imposition of additional legal duties and restrictions on the dog owner.’ ... We disagree. In holding that R.C. 955.22 was not unconstitutional as applied to owners of pit bulls in Tellings, we clarified that in Cowan, it was the unilateral classification of the dogs as vicious by a state actor that trampled the defendant’s due process rights by failing to give him notice and opportunity to be heard. YCO 505.19 simply shifts the risk of dog ownership to the dog owner in order to protect the public.” “YCO 505.19 does not permit any unilateral, unreviewable, precharge determination by a state actor, unlike the statute involved in Cowan. Moreover, YCO 505.19 does not create prehearing burdens on dog owners, such as requiring liability insurance for particular breeds. In Cowan, we rejected the owner’s inability to challenge the vicious label until trial. However, YCO 505.19 does not classify or label dogs as vicious. Dogs are rendered vicious under the ordinance by their propensity to attack or by http://www.sconet.state.oh.us/PIO/summaries/2009/0826/081460.asp

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their attack, and dog owners are merely required to keep such dogs confined. Traylor’s dogs were alleged to be vicious in his criminal complaint, and Traylor was given an opportunity for meaningful review in front of the trial court. Notably, Traylor did not present any evidence regarding the temperament or disposition of his unlicensed dogs at the hearing on the motion to dismiss. YCO 505.19 does not place any responsibilities on the dog owner until the state proves its case beyond a reasonable doubt. Rather, YCO 505.19 simply requires dog owners to keep their dogs on their property.” Justice Stratton concluded: “Traylor’s dogs, unprovoked, attacked Roch and his dog while the dogs were off their property. Traylor argues that an owner cannot know that his dog is vicious until he is convicted under the ordinance. To hold otherwise, however, is to permit each dog ‘one free bite,’ a result that would clearly leave society at risk. A responsibility of dog ownership is to maintain and control the animal. This ordinance requires no more and no less, and, therefore, it does not violate procedural due process. We hold that Youngstown Codified Ordinances 505.19 is rationally related to the city’s legitimate interest in protecting citizens from vicious dogs and therefore is constitutional. Accordingly, we reverse the judgment of the court of appeals and reinstate the convictions.” The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp. Justice Paul E. Pfeifer entered a dissent, joined by Justice Judith Ann Lanzinger, in which he wrote: “The outcome of this case is morally repugnant. The owner of a dog is being sent to jail for 90 days based on his failure to do something he could not know he was supposed to do. ‘Vicious’ dogs must be restrained. ... But Traylor’s dog was not ‘vicious’ until the moment it bit a human, at which point it was too late for Traylor to restrain his dog. YCO 505.19 imposes obligations on dog owners that they do not know they need to comply with until they have no opportunity to comply. The most troubling part of this case isn’t that a municipality would pass such an ordinance; it’s that this court is sanctioning it. This court is turning a blind eye to basic tenets of fundamental fairness. ... Traylor was not capable of restraining his ‘vicious’ dog until he knew it was vicious. Allowing Youngstown to impose criminal liability based on a contemporaneous labeling of a dog as ‘vicious’ is not different from imposing criminal liability on an ‘accident-prone’ driver and defining ‘accident-prone’ as anyone who gets in a car accident. It just doesn’t make sense. And it’s unconstitutional.” In a separate opinion agreeing with Justice Pfeifer’s analysis, Justice Lanzinger wrote: “With respect to the majority’s concern over ‘one free bite,’ a dog owner cannot totally evade responsibility for the consequences of failure to restrain a dog—there is always the potential for civil liability. We held in State v. Cowan ... that a statute requiring the confinement of vicious dogs violates the constitutional right to procedural due process if it fails to provide dog owners a meaningful opportunity to be heard on the issue of whether a dog is vicious. I would affirm the judgment of the court of appeals that the reasoning in Cowan controls the outcome of this case.” Contacts James E. Lanzo, 330.782.8283, for Jammie Traylor. Joseph R. Macejko, 330.742.8791, for the Youngstown city prosecutor’s office.

http://www.sconet.state.oh.us/PIO/summaries/2009/0826/081460.asp

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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Youngstown v. Traylor, Slip Opinion No. 2009-Ohio-4184.]

NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2009-OHIO-4184 CITY OF YOUNGSTOWN, APPELLANT, v. TRAYLOR , APPELLEE. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Youngstown v. Traylor, Slip Opinion No. 2009-Ohio-4184.] Criminal liability — Vicious dogs — Youngstown Codified Ordinances 505.19 is rationally related to the city’s legitimate interest in protecting citizens from vicious dogs and therefore is constitutional — Conviction reinstated. (No. 2008-1460 — Submitted May 19, 2009 — Decided August 26, 2009.) APPEAL from the Court of Appeals for Mahoning County, No. 07 MA 102, 2008-Ohio- 2971. __________________ SYLLABUS OF THE COURT Youngstown Codified Ordinances 505.19 is rationally related to the city’s legitimate interest in protecting citizens from vicious dogs and therefore is constitutional. __________________ LUNDBERG STRATTON, J. {¶ 1} Today we must decide whether a Youngstown ordinance that requires vicious dogs to be confined and requires the state to prove at trial that the

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dog is vicious or dangerous as an element of the offense violates procedural due process. Because we hold that the ordinance does not violate due process, we reverse the judgment of the court of appeals and reinstate the conviction. Facts {¶ 2} On April 18, 2007, at 8:00 a.m., David Roch was walking his 16pound wire fox terrier in Mill Creek Park in Youngstown, Ohio, when he was approached by two unaccompanied Italian Mastiff/Cane Corso dogs, one male and one female. The Mahoning County dog warden estimated the male dog to be about 170 to 180 pounds, and the female was slightly smaller. {¶ 3} Roch restrained his dog and attempted to calm the larger dogs, which were becoming increasingly agitated. One of the dogs attacked Roch’s dog, and when Roch attempted to rescue his dog from the skirmish, Roch was attacked, sustaining an injury to his hand. Roch’s dog required surgery and stitches for injuries to her ear and head. {¶ 4} After the attack, Roch’s dog, who had been taken off her leash, fled, and Roch sought shelter in the garage of Maureen Cronin, a neighbor who witnessed the attack.

Cronin called Mill Creek Park Police Officer Carolyn

Grimaldi, who arrived to find two dogs standing in Cronin’s driveway. Officer Grimaldi shot and killed one of the dogs as it ran toward her. The other dog fled, and a few minutes later, Youngstown Police Officer Matthew Willis spotted it. Officer Willis testified that when the dog saw him, it looked agitated and aggressive. When the dog fast approached him, Officer Willis shot and killed it. {¶ 5} After a joint investigation involving the Mill Creek Park Police Department, the Youngstown Police Department, and the Mahoning County dog warden’s office, investigators learned that the owner of the dogs was Jammie Traylor, defendant-appellee. Traylor confirmed that he had two dogs that were missing, but when shown the remains of the dogs, he admitted owning only the female. Witnesses testified that they had seen Traylor with both dogs several

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weeks before the attack. Traylor admitted at his sentencing hearing that he owned the female and that the male had been present at his home for breeding purposes. {¶ 6} Traylor was charged with two first-degree misdemeanors, violations under Youngstown Codified Ordinances (“YCO”) 505.19(b), entitled “Vicious Dogs.” Traylor filed a motion to dismiss, arguing that YCO 505.19 is unconstitutional. The trial court denied Traylor’s motion. A jury ultimately convicted Traylor on the lesser included offense to count one and of the offense as charged in count two. The trial court sentenced Traylor to 90 days in jail and ordered him to pay restitution to Roch, complete two years of intensive supervised probation upon his release, pay fines and costs, and own “nothing bigger than a Chihuahua” as a condition of his probation. {¶ 7} The Mahoning County Court of Appeals vacated Traylor’s convictions and discharged him, holding that YCO 505.19 was unconstitutional. Youngstown v. Traylor, Mahoning App. No. 07MA102, 2008-Ohio-2971, 2008 WL 2441368.

The city appealed, and this court accepted jurisdiction.

Youngstown v. Traylor, 120 Ohio St.3d 1415, 2008-Ohio-6166, 897 N.E.2d 651. Analysis {¶ 8} The issue before this court is whether YCO 505.19 violates procedural due process by failing to give notice to a dog owner that his dog will be considered vicious for purposes of criminal prosecution and/or by failing to allow the owner a meaningful opportunity to be heard on his dog’s classification as vicious.

The right to procedural due process is found in the Fourteenth

Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution. State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶ 6. “Although the concept is flexible, at its core, procedural due process under both the Ohio and United States Constitutions requires, at a minimum, an opportunity to be heard when the state seeks to infringe a protected liberty or property right.” State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777,

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814 N.E.2d 846, ¶ 8, citing Boddie v. Connecticut (1971), 401 U.S. 371, 377, 91 S.Ct. 780, 28 L.Ed.2d 113. {¶ 9} Although dogs are “private property to a qualified extent, they are subject to the state police power, and ‘might be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens. * * * [L]egislatures have broad police power to regulate all dogs so as to protect the public against the nuisance posed by a vicious dog.’ ” State v. Anderson (1991), 57 Ohio St.3d 168, 170, 566 N.E.2d 1224, quoting Sentell v. New Orleans & Carrollton RR. Co. (1897), 166 U.S. 698, 701-704, 17 S.Ct. 693, 41 L.Ed. 1169. Thus, in this case, as in other animal control cases, we are balancing the state’s interest in protecting its citizens from vicious animals with the dog owner’s due process rights. {¶ 10} The text of the ordinance at issue is as follows: {¶ 11} “YCO 505.19 Vicious Dogs. {¶ 12} “(a)

No person owning or harboring or having the care of a

vicious dog shall suffer or permit such animal to go unconfined on the premises of such person. {¶ 13} “(b) No person owning or harboring or having the care of a vicious dog shall suffer or permit such dog to go beyond the premises of such person unless such dog is securely leashed or otherwise securely restrained. {¶ 14} “(c) Definitions. {¶ 15} “(1) A vicious dog is ‘unconfined’ as the term is used in this section, if such dog is not restrained by a secure fence, other secure enclosure or any other security device which effectively prevents such dog from going beyond the premises of the person described in subsection (a) hereof. {¶ 16} “(2) ‘Vicious dog’ as used in this section means:

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{¶ 17} “A.

Any dog with a propensity, tendency or disposition to

attack, to cause injury to or to otherwise endanger the safety of human beings or other domestic animals; and {¶ 18} “B.

Any dog which attacks a human being or another domestic

animal without provocation. {¶ 19} “(d)

Subsections (a) and (b) hereof are necessary controls on the

unrestrained activity of vicious animals which threaten the safety and pleasantness of streets, parks, sidewalks, yards and all areas of the City and lack of knowledge or lack of intent is not a defense to a violation thereof.” {¶ 20} In examining the constitutionality of an ordinance, we look to two recent vicious dog cases. In Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846, this court examined whether R.C. 955.22, a state statute requiring confinement of dangerous or vicious dogs, violated procedural due process. We held that the statute was unconstitutional because it failed to provide the dog owner with a meaningful opportunity to be heard on the dog’s classification and labeled dogs dangerous or vicious because of their breed only. Id. at ¶ 13. Once the dog warden had made the unilateral decision to classify Cowan’s dogs as vicious, R.C. 955.22 placed restrictions and requirements on Cowan and her dogs, such as purchasing liability insurance, without the right to an appeal or an administrative hearing. Id. {¶ 21} Traylor relied on Cowan to support his position that YCO 505.19 is unconstitutional. However, as the trial court held, Traylor was charged under the vicious dog ordinance not because of the breed of his dogs, but rather, because his dogs had allegedly attacked a human and/or another domestic animal without provocation, as prohibited by YCO 505.19(c)(2)B. Here, the trial court concluded that there was no presumption that the dogs were vicious; rather, their viciousness was an element of the crime that the state had the burden of proving — i.e., that the dogs had attacked a human being or another domestic animal without

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provocation. Thus, the trial court found that the facts in this case separated it from the analysis in Cowan. {¶ 22} Between the trial court’s ruling and the court of appeals’ decision in this case, we decided Toledo v. Tellings, 114 Ohio St.3d 278, 2007-Ohio-3724, 871 N.E.2d 1152, in which we considered a Toledo Municipal Code section as well as two state statutes, R.C. 955.11 and 955.22. The code section limited ownership of vicious dogs, as defined in R.C. 955.11, or dogs commonly known as pit bulls or pit bull mixed breeds, to one in each household, and the Revised Code required an owner of a pit bull to obtain liability insurance for damages, injuries, or death that might be caused by the dog. Id. at ¶ 2. {¶ 23} In upholding the three provisions, this court concluded that the state and the city of Toledo possess the constitutional authority to exercise police powers that are rationally related to a legitimate interest in public health, safety, morals, or general welfare. We determined that the evidence proved that pit bulls cause more damage than other dogs when they attack, cause more fatalities in Ohio than other dogs, and cause Toledo police officers to fire their weapons more often than do other breeds. Thus, we held that the state of Ohio and the city of Toledo had a legitimate interest in protecting citizens from the dangers associated with pit bulls and that R.C. 955.11(A)(4)(a)(iii) and 955.22 and Toledo Municipal Code 505.14 are rationally related to that interest. Therefore, these provisions are constitutional. Id. at ¶ 35. {¶ 24} The court of appeals held that Tellings was inapplicable to this case because the case at bar does not involve pit bulls and because YCO 505.19 does not contain a classification of this breed as a definition of “vicious.” Youngstown v. Traylor, 2008-Ohio-2971, ¶ 27. Rather, the court of appeals found the facts of Cowan to be “virtually identical” to those in this case. Id. at ¶ 14. Thus, the court of appeals held that YCO 505.19 violated procedural due process

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because of the “imposition of additional legal duties and restrictions on the dog owner.” Id. at ¶ 23. We disagree. {¶ 25} In holding that R.C. 955.22 was not unconstitutional as applied to owners of pit bulls in Tellings, we clarified that in Cowan, it was the unilateral classification of the dogs as vicious by a state actor that trampled the defendant’s due process rights by failing to give him notice and opportunity to be heard. Tellings, 114 Ohio St.3d 278, 2007-Ohio-3724, 871 N.E.2d 1152, ¶ 32. YCO 505.19 simply shifts the risk of dog ownership to the dog owner in order to protect the public. 1 {¶ 26} As for the opportunity to be heard, YCO 505.19 does not permit any unilateral, unreviewable, precharge determination by a state actor, unlike the statute involved in Cowan. Moreover, YCO 505.19 does not create prehearing burdens on dog owners, such as requiring liability insurance for particular breeds. In Cowan, we rejected the owner’s inability to challenge the vicious label until trial. However, YCO 505.19 does not classify or label dogs as vicious. Dogs are rendered vicious under the ordinance by their propensity to attack or by their attack, and dog owners are merely required to keep such dogs confined. {¶ 27} Traylor’s dogs were alleged to be vicious in his criminal complaint, and Traylor was given an opportunity for meaningful review in front of the trial court. Notably, Traylor did not present any evidence regarding the temperament or disposition of his unlicensed dogs at the hearing on the motion to dismiss. YCO 505.19 does not place any responsibilities on the dog owner until

1. Between 4.5 and 4.7 million people are bitten by dogs in the United States each year. American Veterinary Medical Association (“AVMA”), Dog Bite Prevention, http://www.avma.org/public_health/dogbite/; Centers for Disease Control and Prevention, Dog Bite Prevention, www.cdc.gov/HomeandRecreationalSafety/Dog-Bites/biteprevention.html. According to the AVMA, almost 900,000 people require medical attention for dog-bite-related injuries each year.

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the state proves its case beyond a reasonable doubt. Rather, YCO 505.19 simply requires dog owners to keep their dogs on their property. {¶ 28} The Tenth District Court of Appeals considered a similar case in which a German Shepherd had attacked a dog on a leash, and the owner was charged under a local ordinance. State v. Conte (Nov. 6, 2007), 10th Dist. No. 07AP-33, 2007-Ohio-5924. The court made two observations that are applicable in this case: first, the city ordinance in Conte did not involve an “unreviewable, unilateral determination that the animal was ‘vicious or dangerous.’ Rather, [the state] must prove at trial that appellee’s dog is vicious or dangerous as an element of the offense. [The owner] has the opportunity to contest that allegation.” Id. at ¶ 15. Second, the city ordinance “does not impose any additional obligations on a dog owner.” Id. at ¶ 17. Conclusion {¶ 29} Traylor’s dogs, unprovoked, attacked Roch and his dog while the dogs were off their property. Traylor argues that an owner cannot know that his dog is vicious until he is convicted under the ordinance. To hold otherwise, however, is to permit each dog “one free bite,” a result that would clearly leave society at risk. A responsibility of dog ownership is to maintain and control the animal. This ordinance requires no more and no less, and, therefore, it does not violate procedural due process. {¶ 30} We hold that Youngstown Codified Ordinances 505.19 is rationally related to the city’s legitimate interest in protecting citizens from vicious dogs and therefore is constitutional.

Accordingly, we reverse the

judgment of the court of appeals and reinstate the convictions. Judgment reversed. MOYER, C.J., and O’CONNOR, O’DONNELL, and CUPP, JJ., concur. PFEIFER and LANZINGER, JJ., dissent. __________________

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PFEIFER, J., dissenting. {¶ 31} In State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846, at syllabus, we stated that R.C. 955.22, the statute addressing “vicious” dogs, “violates the constitutional right to procedural due process insofar as it fails to provide dog owners a meaningful opportunity to be heard on the issue of whether a dog is ‘vicious.’ ” This conclusion answers the issue before us. Traylor was charged with not restraining a “vicious” dog, but he had no notice that his dog was “vicious.” In Cowan, the dog owner was aware that her dogs had been labeled vicious; she had merely not been given an opportunity to challenge that determination. Id. at ¶ 15. This case is even more egregious because Traylor not only doesn’t have an opportunity to challenge the “vicious” label, he had no way to know that his dog is “vicious.” {¶ 32} The outcome of this case is morally repugnant. The owner of a dog is being sent to jail for 90 days based on his failure to do something he could not know he was supposed to do.

“Vicious” dogs must be restrained.

Youngstown Codified Ordinances (“YCO”) 505.19. But Traylor’s dog was not “vicious” until the moment it bit a human, at which point it was too late for Traylor to restrain his dog. YCO 505.19 imposes obligations on dog owners that they do not know they need to comply with until they have no opportunity to comply. The most troubling part of this case isn’t that a municipality would pass such an ordinance; it’s that this court is sanctioning it. See State v. Price, 118 Ohio St.3d 144, 2008-Ohio-1974, 886 N.E.2d 852, at ¶ 38 (“[defendant] is owed what every criminal defendant is owed: notice that his conduct is illegal”). {¶ 33} This court is turning a blind eye to basic tenets of fundamental fairness. See R.C. 2901.21(A)(1) (a “person’s [criminal] liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing”). Traylor was not capable of restraining his “vicious” dog until he knew it was vicious. Allowing Youngstown

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to impose criminal liability based on a contemporaneous labeling of a dog as “vicious” is not different from imposing criminal liability on an “accident-prone” driver and defining “accident-prone” as anyone who gets in a car accident. It just doesn’t make sense. And it’s unconstitutional. See Papachristou v. Jacksonville (1972), 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110, quoting United States v. Harriss (1954), 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (an ordinance violates due process when it “ ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute’ ”). {¶ 34} Furthermore, Youngstown should not be able to define what constitutes a “vicious” dog because the General Assembly has already done so. R.C. 955.11(A)(4)(a). The parties did not address this issue, and the record is not fully developed, so it is difficult to determine whether YCO 505.19 would survive a home-rule analysis. See Ohioans for Concealed Carry, Inc. v. Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, 896 N.E.2d 967, ¶ 24. Based on what the record does reveal, it seems likely that YCO 505.19 would not survive. YCO 505.19 is an exercise of local self government. Id. at. ¶ 23. But Chapter 955 of the Revised Code appears to be a general law, and R.C. 955.11(A)(4)(a) and YCO 505.19(c)(2) are clearly in conflict.

See Clyde at ¶ 25.

Pursuant to this,

admittedly cursory, analysis, R.C. 955.11(A)(4)(a) would prevail over YCO 505.19(c)(2). {¶ 35} This court did not engage in a home-rule analysis, in large part because the parties did not argue the issue. By avoiding that issue, however, this court is sanctioning the imposition of criminal liability for something that the General Assembly has determined is not a crime. According to R.C. 955.22, the owner of a dog cannot be criminally liable for acts of that dog unless the dog has already been determined to be “vicious.” Unlike YCO 505.19, R.C. 955.22 and related statutes do not allow a dog to be labeled vicious and its owner to be criminally liable based on the same act.

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{¶ 36} YCO 505.19 violates the constitution by not providing fundamental due process protections. I would affirm the judgment of the court of appeals. I dissent. LANZINGER, J., concurs in the foregoing opinion. __________________ LANZINGER, J., dissenting. {¶ 37} I join Justice Pfeifer’s dissent.

With respect to the majority’s

concern over “one free bite,” a dog owner cannot totally evade responsibility for the consequences of failure to restrain a dog—there is always the potential for civil liability. We held in State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846, syllabus, that a statute requiring the confinement of vicious dogs violates the constitutional right to procedural due process if it fails to provide dog owners a meaningful opportunity to be heard on the issue of whether a dog is vicious. I would affirm the judgment of the court of appeals that the reasoning in Cowan controls the outcome of this case. __________________ Joseph R. Macejko, Youngstown Prosecuting Attorney, for appellant. James E. Lanzo, for appellee. ______________________

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