Code Remedy

Who says you can't fight city hall — and win? Sometimes — yes, it hurts to say this — you can even do it without a lawyer. Just ask Joseph Vince of Garfield Heights, Ohio, who single-handedly outmaneuvered city prosecutors at the Ohio Court of Appeals.

The city of Cleveland cited two provisions of its code in bringing criminal charges against Mr. Vince: operating a vehicle containing solid waste without a permit and operating a vehicle containing solid waste without securing the load with a tarpaulin. He appeared without legal counsel in Cleveland Municipal Court, where the judge found him guilty on both offenses.

Mr. Vince filed a “pro se” appeal (meaning he again defended himself without the help of a lawyer), challenging his conviction for operating a solid waste vehicle without a permit. He apparently conceded that the judge had good reason to convict him for the unsecured load.

The Codified Ordinances of the City of Cleveland (CO) state that “[n]o person shall engage in the business of collecting, transporting, carrying or hauling solid waste in the City unless [a] vehicle so engaged is licensed and displays the appropriate sign plate issued by the City.” [CO 551.19(a)]

The term “solid waste” is defined by the code as “ … unwanted residual solid or semisolid material as results from industrial, commercial, agricultural, household, community and private operations, excluding earth material from construction … demolition operations … includ[ing], but not limited to, garbage, rubbish (both combustible and noncombustible … debris, ashes, any discarded material to be removed from public and private properties and other like substances which may be harmful or inimical to public health, as well as other items determined to be solid waste by the Director of Public Service.” [CO 551.01(c)] Notably, the term “business” is not defined.

After reviewing the record in the lower court, the three-judge appellate panel found that the city offered no evidence that Mr. Vince was engaged in the “business” of hauling solid waste.

The officer who issued the two citations testified merely that he observed Mr. Vince driving a small pickup truck in the city. According to the officer, “the back of the truck was loaded down with … scrap metal items,” and he did not see the required hauler's sign plate.

“This omission is important because [CO 551.19(a)] applies only to those persons who engage in the business of hauling scrap,” the opinion stated.

“The law plainly applies only to those engaged in the business of hauling solid waste, not to persons who merely transport waste in a non-business setting,” the appellate court added. “Hence, being in the business of hauling solid waste is an essential element of the offense.”

Having found that the city “failed to produce evidence on this essential element,” the appeals court ruled that Mr. Vince's conviction under CO 551.19(a) was unsupported by legally sufficient evidence. The case was remanded to the Municipal Court where the conviction will be formally erased.

[City of Cleveland v. Vince, 2007 Ohio 5438 (Ohio App. Dist. 8, Oct. 11, 2007)]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.