Brook Park v. Short , 61 Ohio App. 3d 519 ( 1989 )

I dissent from the court's disposition of the first assignment of error holding that the sign posted in this case was insufficient to advise appellant that the city prohibits all overweight vehicles (other than enumerated exceptions) on residential streets.

The court's analysis of whether the sign in question conformed to Ohio Department of Transportation size requirements was not raised below. At no point in these proceedings has appellant denied that he actually observed the sign posted on the route where he was stopped. Indeed, appellant argues that the Ordinance was unconstitutionally vague as applied and that he observed the sign but did not comprehend its meaning.

Appellant's vagueness arguments are not novel. We rejected an identical argument in Brook Park v. Pavlik (June 18, 1987), Cuyahoga App. No. 52290, unreported, 1987 WL 13023. InPavlik, it was argued that an identical road sign prohibited only through vehicles and not local traffic. We disagreed, stating, "the `through vehicles' designation prohibits the use of the street for those overweight vehicles which are not making a delivery to or pickup from local premises. Other than a genuine emergency, this sign effectively prohibits any other use by overweight vehicles." Id. at 5-6. Appellant conceded that he had no legitimate business purpose for driving his commercial tractor in a residential area. According to Sergeant Miles, the police officer who stopped appellant (appellant did not take the witness stand), "his [appellant's] words were that he was stopping home to visit his very young * * * son, a couple months old, and that he was going on after that * * *" Here, appellant was to see his son for a very brief period of time and then continue on. That is exactly what the ordinance was designed to prevent — the use of trucks having a gross weight 3.5 tons or more on sidestreets that are not built to handle that heavy load and hence cause the deterioration of Brook Park's local roads as well as create traffic risks for children and other pedestrians in residential areas.

The majority position will have the ultimate effect of invalidating hundreds of road signs on which the legends "thru" or "through" appear. By declaring the sign vague, the court has necessarily concluded that persons "of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co. (1926),269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328; Papachristou v.City of Jacksonville (1972), 405 U.S. 156, 162, 92 S. Ct. 839,843, 31 L. Ed. 2d 110, 115.

The constitutional requirement of definiteness does not invalidate every statute which could have been drafted with greater clarity. Rose v. Locke (1975), 423 U.S. 48, 50,96 S. Ct. 243, 244, 46 L. Ed. 2d 185, 188; State v. Earlenbaugh (1985),18 Ohio St. 3d 19, 21, 18 OBR 16, 17, 479 N.E.2d 846, 847-848. Since many statutes contain some inherent vagueness, all due process requires is that the law give sufficient warning that persons conduct themselves so as to avoid the prohibited conduct.State v. Earlenbaugh, supra. In construing the Ordinance, we must look to the legislative intent as expressed by the words employed and the purpose to be accomplished. State, ex rel.Francis, v. Sours (1944), 143 Ohio St. 120, 28 Ohio Op. 53,53 N.E.2d 1021; Featzka v. Millcraft Paper Co. (1980), 62 Ohio St. 2d 245, 16 O.O.3d 280, 405 N.E.2d 264. Statutory provisions must be given a fair and reasonable construction in conformity with their general object in order to effectuate such object.Mutual Bldg. Inv. Co. v. Efros (1950), 152 Ohio St. 369, 40 Ohio Op. 389, 89 N.E.2d 648.

The "thru" designation should properly be read as a word of limitation that incorporates the Ordinance's exception for vehicles engaged in business deliveries, pick-ups or some emergency purpose. Hence, vehicles not engaged in a purpose excepted by the Ordinance would therefore be "thru" vehicles as indicated on the road sign, as opposed to vehicles stopping within the city for a legitimate business purpose. In my view, the sign affords persons of ordinary intelligence fair notice that the tractor portion of a tractor-trailer rig is prohibited in residential areas.

I would affirm.