[Cite as Mullins v. St Marys, 2017-Ohio-8934.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

AUGLAIZE COUNTY 

 

SHAWN MULLINS, ET AL., 

 PLAINTIFFS-APPELLEES, CASE NO. 2-17-17 

 v. 

CITY OF ST. MARYS, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Auglaize County Municipal Court 

Trial Court No. 2017 CVH 00424 

Judgment Affirmed 

Date of Decision: December 11, 2017 

 

APPEARANCES: 

 

Zach G. Ferrall for Appellant 

 William E. Huber for Appellees 
Case No. 2-17-17 

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SHAW, J. 

{¶1} Defendant-appellant, City of St. Marys (“the City”), appeals the July 7, 

2017 judgment of the Auglaize County Municipal Court finding in favor of 

plaintiffs-appellees, Shawn and Veronica Mullins (“the Mullins”), on their appeal 

of the City’s designation of their dog as a “Dangerous Dog” under the local 

ordinance. The trial court determined that the local ordinance was in conflict with 

the state statutes governing control of dogs and found that the state law 

constitutionally preempted the local ordinance. 

Facts and Procedural History 

{¶2} On May 4, 2017, the Mullins initiated this case by filing an appeal and 

requesting a hearing on the City’s designation of their dog, Titan, as a “Dangerous 

Dog” under St. Marys City Ordinance (“SMCO”) 505.15(a)(2). The Mullins 

attached the “Official Notice” informing them of the “Dangerous Dog” designation, 

which indicated two incidents occurred one on April 1, 2017 and the other on April 

15, 2017.1

 The Mullins raised a constitutional challenge to the local ordinance 

defining a “Dangerous Dog” on the grounds that it was in conflict with the 

corresponding Ohio Revised Code provisions and that the ordinance fails to provide 

 

1

 We note that the City attached to its brief the incident reports from the above specified dates detailing the 

conduct of the Mullins’ dog alleged to satisfy the City’s “Dangerous Dog” designation. The City did not file 

these documents with the trial court and they were not made a part of the record. Accordingly, we cannot 

consider these documents in our review. Moreover, the City failed to provide a transcript of the hearing 

before the trial court on appeal. Thus, we do not have any other evidence of the dog’s conduct before us. 

However, because the issues on appeal focus upon the legal question of constitutionality, we do not need to 

consider the specific facts of this case to render our decision. 
Case No. 2-17-17 

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proper notice to a dog owner by leaving certain key terms undefined. The City 

maintained that the local ordinance was a permissible exercise of its local police 

power under the Home Rule Amendment to the Ohio Constitution and did not 

conflict with state law. 

{¶3} On July 7, 2017, the trial court issued a judgment entry finding the state 

law to take precedence over the local ordinance. The trial court granted the Mullins 

relief on their appeal of the “Dangerous Dog” designation by the City and found the 

local ordinance to be invalid. 

{¶4} The City filed an appeal, raising the following assignments of error. 

ASSIGNMENT OF ERROR NO. 1 

MUNICIPAL COURT ERRED BY RULING THAT ST. MARYS 

LOCAL DOG ORDINANCE IS IN CONFLICT WITH OHIO 

REVISED CODE STATUTES WHICH DEFINE A 

VICIOUS/DANGEROUS/NUISANCE DOG. 

ASSIGNMENT OF ERROR NO. 2 

MUNICIPAL COURT ERRED BY RULING THAT ST. MARYS 

LOCAL DOG ORDINANCE IS OVERBROAD OR 

OVERREACHED IN ITS SCOPE. 

{¶5} We elect to address the assignments of error together due to the fact that 

both assignments of error challenge the trial court’s determination invalidating the 

St. Marys City Ordinance on constitutional grounds. 
Case No. 2-17-17 

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First and Second Assignments of Error 

{¶6} In their first and second assignments of error, the City maintains that 

the trial court erred in determining SMCO 505.15 was constitutionally infirm on the 

basis of it being in conflict with the state-wide comprehensive statutory provisions 

forth in Revised Code Chapter 955 titled “Dogs”—in particular, R.C. 955.11, which 

defines a “Dangerous Dog.” On appeal, the City argues that SMCO 505.15 is 

permissible under the Home Rule Amendment to the Ohio Constitution and is a 

valid exercise of its local police power. 

Standard of Review 

{¶7} The constitutionality of a statute or ordinance presents a question of law 

and is therefore reviewed under a de novo standard. Andreyko v. Cincinnati, 153 

Ohio App.3d 108, 2003-Ohio-2759, ¶ 11(1st Dist.). In determining the 

constitutionality of an ordinance, we are mindful of the fundamental principle 

requiring courts to presume the constitutionality of lawfully enacted legislation. 

Akron v. Molyneaux, 144 Ohio App.3d 421, 426 (9th Dist. 2001), citing Univ. Hts. 

v. O’Leary, 68 Ohio St.2d 130, 135 (1981). We grant such deference to legislative 

enactments because “the local legislative body is familiar with local conditions and 

is therefore better able than the courts to determine the character and degree of 

regulation required.” Lima v. Stepleton, 3d Dist. Allen No. 1-13-28, 2013-Ohio5655, ¶ 11, citing Village of Hudson v. Albrecht, Inc., 9 Ohio St.3d 69, 71. 
Case No. 2-17-17 

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{¶8} Due to this presumption, the party challenging an ordinance has the 

burden of demonstrating, beyond a reasonable doubt, that the law is 

unconstitutional. Hilton v. City of Toledo, 62 Ohio St.2d 394, 396, (1980). 

Moreover, when considering the constitutionality of a legislative enactment, we are 

called to “liberally construe [it] to save it from constitutional infirmities.” State v. 

Robinson, 44 Ohio App.3d 128, 130 (12th Dist.1989). However, in applying our 

liberal construction, we are not permitted to “simply rewrite laws in order to render 

them constitutional.” Id. 

Home Rule Amendment 

{¶9} Section 3, Article XVIII of the Ohio Constitution (the “Home Rule 

Amendment”) states that municipalities are authorized “to exercise all powers of 

local self-government and to adopt and enforce within their limits such local police, 

sanitary and other similar regulations, as are not in conflict with general laws.” As 

a result, the general laws of the State and the challenged ordinance should be 

harmonized as much as the language allows. N. Ohio Patrolmen’s Benevolent Assn. 

v. City of Parma, 61 Ohio St.2d 375, 377 (1980). Nevertheless, we must also 

recognize that municipalities’ home rule authority “is not absolute.” City of Tiffin 

v. McEwen, 130 Ohio App.3d 527, 531 (3d Dist.1998); accord Weir v. Rimmelin, 

15 Ohio St.3d 55, 56 (1984) (“The Home Rule Amendment to the Ohio Constitution 
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confers a significantly high degree of sovereignty upon municipalities. However, 

the amendment does not provide cities the absolute power of self-government.”). 

{¶10} Conflicts between local ordinances and state statutes may arise in a 

variety of circumstances. In determining SMCO 505.15 to be in conflict with 

corresponding Revised Code provisions governing a “Dangerous Dog,” the trial 

court employed the “contrary directives” analysis, which requires a reviewing court 

to consider “whether the ordinance permits or licenses that which the statute forbids 

and prohibits, and vice versa.”2

 Stepleton at ¶ 16, quoting, Village of Struthers v. 

Sokol, 108 Ohio St. 263 (1923), paragraph two of the syllabus. “If we answer this 

question in the negative, then no conflict exists.” See id., citing Sokol at 268 (“No 

real conflict can exist unless the ordinance declares something to be right which the 

state law declares to be wrong, or vice versa.”). When applying the contradictory 

directives test, we note that the degree of state regulation on the same issue as the 

local ordinance is immaterial. See City of Cincinnati v. Hoffman, 31 Ohio St.2d 

163, 169 (1972) (“[I]n order for * * * a conflict to arise, the state statute must 

positively permit what the ordinance prohibits, or vice versa, regardless of the extent 

of state regulation concerning the same object.”). 

 

2

 The “contrary directives” conflict analysis consists of a three-part test: “whether (1) the ordinance is an 

exercise of the police power, rather than of local self-government, (2) the statute is a general law, and (3) the 

ordinance is in conflict with the statute.” Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, ¶ 17. 

Here, the parties appear to agree that SMCO 505.15 is an exercise of police power and that Chapter 955 is a 

general law. See Russ v. City of Reynoldsburg, 5th Dist. Licking No. 16-CA-58, 2017-Ohio-1471, ¶ 

21(finding the provisions contained in Revised Code Chapter 955 to be general laws). Thus, the only issue 

remaining is whether the local ordinance conflicts with the state statutes. 
Case No. 2-17-17 

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Relevant Law 

{¶11} At the outset, we note that under R.C. 955.221(B)(3) “[a] municipal 

corporation may adopt and enforce ordinances to control dogs within the municipal 

corporation that are not otherwise in conflict with any other provision of the Revised 

Code.” In the case sub judice, the City designated the Mullins’ dog, Titan, a 

“Dangerous Dog” under SMCO 505.15(a)(2). The local ordinance defines a 

“Dangerous Dog” in the following manner: 

(a) The following definitions shall apply to this section: 

(1) “Dangerous dog” is defined as a dog that, without 

provocation, has chased or approached in either a menacing 

fashion or an apparent attitude of attack, or has attempted to 

bite or otherwise endanger any person, while that dog is off the 

premises of its owner, keeper or harborer and not under the 

reasonable control of its owner, keeper, harborer or some other 

responsible person, or not physically restrained or confined in 

a locked pen which has a top or other locked enclosure which 

has a top. 

(2) “Dangerous dog” is further defined as a dog which has, 

whether or not the dog is on or off the premises of its owner, 

keeper or harborer and not under the reasonable control of its 

owner, keeper, harborer or some other responsible person or not 

physically restrained, killed or caused serious injury to any 

person or to another animal. 

(3) The definition of a “dangerous dog” for the purposes of 

this section does not include a “police dog” that has been 

trained or may be used to assist one or more law enforcement 

officers in the performance of their official duties. 

(Emphasis added). 
Case No. 2-17-17 

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{¶12} Section 955.11 of the Revised Code defines “Dangerous Dog,” as 

follows: 

(A) As used in this section: 

(1)(a) “Dangerous dog” means a dog that, without provocation, 

and subject to division (A)(1)(b) of this section, has done any of 

the following: 

(i) Caused injury, other than killing or serious injury, to 

any person; 

(ii) Killed another dog; 

(iii) Been the subject of a third or subsequent violation 

of division (C) of section 955.22 of the Revised Code.3

(b) “Dangerous dog” does not include a police dog that has 

caused injury, other than killing or serious injury, to any 

person or has killed another dog while the police dog is being 

used to assist one or more law enforcement officers in the 

performance of their official duties. 

{¶13} Section 955.11 of the Revised Code further defines key terms used 

in the statute. 

(5) “Serious injury” means any of the following: 

 

3

 Section R.C. 955.22(C) of the Revised Code states: 

(C) Except when a dog is lawfully engaged in hunting and accompanied by the owner, 

keeper, harborer, or handler of the dog, no owner, keeper, or harborer of any dog 

shall fail at any time to do either of the following: 

(1) Keep the dog physically confined or restrained upon the premises of the 

owner, keeper, or harborer by a leash, tether, adequate fence, supervision, or 

secure enclosure to prevent escape; 

(2) Keep the dog under the reasonable control of some person. 
Case No. 2-17-17 

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(a) Any physical harm that carries a substantial risk of 

death; 

(b) Any physical harm that involves a permanent 

incapacity, whether partial or total, or a temporary, 

substantial incapacity; 

(c) Any physical harm that involves a permanent 

disfigurement or a temporary, serious disfigurement; 

(d) Any physical harm that involves acute pain of a 

duration that results in substantial suffering or any 

degree of prolonged or intractable pain. 

(7) “Without provocation” means that a dog was not teased, 

tormented, or abused by a person, or that the dog was not coming 

to the aid or the defense of a person who was not engaged in illegal 

or criminal activity and who was not using the dog as a means of 

carrying out such activity. 

Analysis 

{¶14} In its decision invalidating SMCO 505.15(a)(2) on constitutional 

grounds the trial court found that: 

An examination of the ordinance finds it to be stricter in 

application as to the determination of what is a dangerous dog 

than what qualifies under the state statute. Thus, the ordinance 

is in conflict with state statute and must fail. The evidence 

presented shows that the county dog warden indicated that he 

could not give a dangerous dog notification unless Titan had 

killed the other dog. Since the dog was not killed the issue was 

then brought under the City ordinances. 

Further the petitioners raise the issue that the ordinance is 

overbroad and would exceed the police powers of the City. The 

ordinance by its plain language declares a dog a dangerous dog 

if it has caused serious injury to any person or animal. It 
Case No. 2-17-17 

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excludes provocation as a defense and would include injuries to 

persons when that injury was in legitimate defense of a person 

and would further include killing animals or seriously injuring 

them while engaging in legitimate activities such as hunting. 

The Court finds that the ordinance thus fails on both aspects 

due to the conflict with the state statutes and due to its 

overreach. 

(Doc. No. 34). 

{¶15} In comparing the two provisions, it becomes apparent, as the trial 

court noted, that SMCO 505.15(a) defines a “Dangerous Dog” more broadly than 

R.C. 955.11(A). For instance, the local ordinance attempts to incorporate 

elements of the Revised Code definitions of a “Nuisance Dog” in SMCO 

505.15(a)(1), and the Revised Code definition of a “Vicious Dog” in SMCO 

505.15(a)(2) under one inclusive definition of a “Dangerous Dog.” 4 It is notable, 

that each of these three definitions in the Revised Code correspond to categorical 

prohibitions of specific conduct, exempt certain factual scenarios—i.e., 

provocation or an on duty police dog—and provide for distinct penalties. 

Whereas the local ordinance only provides for one such category. Furthermore, 

 

4

 Pursuant to R.C. 955.11(A)(2)(b) a “nuisance dog” means a dog that without provocation and while off the 

premises of its owner, keeper, or harborer has chased or approached a person in either a menacing fashion or 

an apparent attitude of attack or has attempted to bite or otherwise endanger any person.” R.C. 

955.119(A)(6)(a) defines a “Vicious dog” as “a dog that, without provocation * * *, has killed or caused 

serious injury to any person.” R.C. 955.11(A)(6)(b) exempts an on duty police dog and a dog that has killed 

or caused serious injury to any person while a person was committing or attempting to commit a trespass or 

other criminal offense on the property of the owner, keeper, or harborer of the dog from being designated a 

“Vicious Dog.” 
Case No. 2-17-17 

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the local ordinance expands the designation of a “Dangerous Dog” to include 

one that has killed or caused serious injury to any person or to another animal, 

whereas the Revised Code only specifies within that context that a “Dangerous 

Dog” is one that has killed another dog. See R.C. 955.11(A)(1)(a)(ii). 

{¶16} While we do not specifically find the decision of the City to employ 

a single and more expansive category of a “Dangerous Dog” to run afoul of the 

Home Rule Amendment and R.C. 955.221(B)(3), we are nevertheless struck by 

the lack of provision for key definitional terms and exemptions of legitimate 

scenarios in the local ordinance that are clearly provided for in the Revised Code. 

Unlike its counterpart, SMCO 505.15 fails to define “without provocation” as 

used in SMCO 505.15(a)(1), or “serious injury” as used in SMCO 505.15(a)(2). 

For reasons unknown, the City chose not to incorporate these important 

definitions into the local ordinance despite including the specific Revised Code 

terms in the definition of a “Dangerous Dog.” 

{¶17} Moreover, in reviewing the section of the local ordinance at issue 

in this case, SMCO 505.15(a)(2), we are troubled by the far reaching, and 

perhaps unintended, implications of the language contained in the ordinance. For 

instance, unlike SMCO 505.15(a)(1), SMCO 505.15(a)(2) does not provide for 

an exemption for provocation. In addition, SMCO 505.15(a)(2) states a dog may 

be designated a “Dangerous Dog” if it killed or caused serious injury to any person 
Case No. 2-17-17 

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or to another animal whether or not the dog is on or off the premises of its owner, 

keeper or harborer and not under the reasonable control of its owner, keeper, 

harborer or some other responsible person or not physically restrained. 

{¶18} Consequently, justifiable scenarios, which are specifically granted 

impunity under the state law, fall under the umbrage of the local ordinance. For 

example, under SMCO 505.15(a)(2) a dog, other than a police dog performing 

official duties, may be deemed a “Dangerous Dog” if it comes to the aid or defense 

of a person who is being attacked by another person or animal, and causes death or 

serious injury to that person or animal. This is the case even if the altercation 

happens on the property where the dog is owned and the dog is protecting its owner. 

Further, under SMCO 505.15(a)(2) a dog may be deemed a “Dangerous Dog” if it 

seriously injures or kills another animal, regardless of whether or not the dog is on 

the property of its owner. Thus, a dog that is used for hunting or one that is attacked 

by another dog that wanders onto the property where the dog is lawfully in its own 

backyard may be deemed a “Dangerous Dog” if it kills or seriously injures the 

hunted prey or the aggressor dog—not to mention an occasional squirrel or rabbit 

that may stray onto the property. 

{¶19} We question the wisdom of drafting a local ordinance that lacks 

sufficient context and specificity in its definitional provisions, especially when the 

Revised Code provides a comprehensive template for the regulation of dogs. We 
Case No. 2-17-17 

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acknowledge that under the “home rule authority” municipalities have some 

sovereignty to exercise their police powers to meet the needs of their local 

community. However, the record in this instance is devoid of any rationale 

substantiating such a sweepingly vague local ordinance governing dangerous dogs. 

The record further indicates that a hearing was held before the trial court where such 

evidence may have been presented, but a transcript of those proceedings was not 

provided on appeal. As the appellant in this case, it was incumbent upon the City 

to provide this Court with a complete record for review. 

{¶20} For these reasons, we conclude that the lack of precision and key 

definitional terms, the overall unartful drafting of SMCO 505.15, and the seemingly 

arbitrary expansion of the “Dangerous Dog” definition all support the trial court’s 

determination that the City exceeded its powers under the Home Rule Amendment, 

and by virtue of these facts place the ordinance in conflict with the corresponding 

provisions of Chapter 955 of the Revised Code, which regulates dogs to a more 

explicit degree. Accordingly, we do not find that the trial court erred in finding the 

state law to take precedence over the local ordinance. The first and second 

assignments of error are overruled and the judgment is affirmed. 

 Judgment Affirmed 

WILLAMOWSKI and ZIMMERMAN, J.J., concur. 

/jlr
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