This is an audio case brief of Columbus v. Kim, 886 N.E. 2d 217 (Ohio 2008). The audio brief provides a full case analysis. However a written summary of the case is provided below.
Rebecca Kim had a dog. And it was a very loud dog. The dog barked so loud that the city of Columbus charged Kim for harboring an unreasonably loud or disturbing animal. Joseph Berardi, Kim’s neighbor testified that on May 13, 2004, Kim’s dog barked constantly from approximate 4:30 in the evening until approximately 6:00 that evening. According to Berardi, the dog barked so loudly that it could be heard over the sound of his lawn mower and from inside his house with the windows closed and the air conditioning running. Berardi was not the only one who found Kim’s dog’s barking to be unreasonably loud. Dr. George H. Urham Jr, a veterinarian testified that on May 13th 2004, he made a house call at the Berardi residence to vaccinate Berardi’s dogs and that from just before 5:00 p.m when he arrived, until 6:00 pm when he departed the dog in Kim’s yard had barked incessantly.
For the charge of harboring an unreasonably loud or disturbing animal, Kim was imposed a $100 fine plus costs.
Kim appealed the conviction. She argued that the ordinance, Columbus City code 2327 was unconstitutionally vague.
Columbus City Code 2327
Columbus City Code 2327.14(A) states that “[n]o person shall keep or harbor any animal which howls, barks, or emits audible sounds that are unreasonably loud or disturbing and which are of such character, intensity and duration as to disturb the peace and quiet of the neighborhood or to be detrimental to life and health of any individual.”
The issue is whether an ordinance that prohibits a person from keeping or harboring an animal which ‘howls, barks, or emits audible sounds that are unreasonably loud or disturbing which are of such character, intensity, and duration as to disturb the peace and quiet of the neighborhood or to be detrimental to the life and health of any individual’ is unconstitutionally vague on its face and as applied.
To succeed in proving that the ordinance is vague on its surface, the defendant must show that upon examining the statute, an individual of ordinary intelligence would not understand what he is required to do” and “must prove, beyond a reasonable doubt, that the statute was so unclear that he could not reasonably understand that it prohibited the acts in which he engaged.”
The court found that Columbus city ordinance was not constitutionally vague because it sets forth sufficient standards to place a person of ordinary intelligence on notice of what conduct the ordinance prohibits. The ordinance incorporates an objective standard by prohibiting only those noises that are “unreasonably loud or disturbing.” The ordinance provides specific factors to be considered to gauge the level of the disturbance, namely, the “character, intensity and duration” of the disturbance. Further, the court recognized that “there are limitations in the English language with respect to being both specific and manageably brief, and it seems that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with.
The court stated that it was convinced that a person of ordinary intelligence would be able to understand that Columbus city ordinance 2327.14 prohibits her from allowing her dog to bark nonstop for over an hour at a level that can be heard while using a lawnmower. And Kim could not prove beyond a reasonable doubt that the statute is so unclear that she could not reasonably understand that it prohibited the acts in which she engaged in.
Kim’s conviction was affirmed because she was not able to prove that the city ordinance was constitutionally vague.