Roth v. City of Canton et al

Filing 75

Memorandum of Opinion and Order For the reasons set forth herein, Plaintiffs' Motion for Preliminary and Permanent Injunction (ECF No. 40 ) is granted. Pursuant to Fed. R. Civ. P. 65, Defendants City of Canton and Shirley Moore, and all those in active concert or participation with them who receive actual notice of this injunctive order, are enjoined from enforcing Canton Ordinance 505.14, which states: (a) Except as provided in Section 505.15, a person may not possess, keep, harbo r, or permit to be possessed, kept, or harbored in or about any dwelling unit or structure under their control a total of more than five dogs or cats, in any combination, over four months of age. "Harbor" means to give shelter or refuge to. "Dwelling unit" and "structure" are defined in Chapter 1123. (b) Any person who violates any provision of this section is guilty of a misdemeanor of the third degree. Judge Benita Y. Pearson on 9/28/2018. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MICHAEL T. ROTH, et al.,
Plaintiffs,
v.
CITY OF CANTON, et al.
Defendants.

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CASE NO. 5:17CV234
JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 40 ]

Pending before the Court is Plaintiffs’ Motion for Preliminary and Permanent Injunction
(ECF No. 40), filed in October 2017. The Court has been advised, having reviewed the record,
the parties’ briefs, and the applicable law. For the reasons set forth below, the motion is granted.
I. Background
On June 5, 2017, Plaintiffs Michael T. Roth, Julie Roth, Kaylyn Mazeall, and Joy Wagner
filed a Third Amended Class Action Complaint against Defendants City of Canton, Ohio, Canton
Police Department, Shirley Moore, John Doe Canton Police Officers, John Doe Canton
Employees, and John Doe Canton Police Supervisors.1 ECF No. 26. Thereafter, Plaintiffs filed
the within motion for equitable relief. ECF No. 40.

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Pursuant to Plaintiffs’ Fourth Amended Complaint, Plaintiff Toni Leach has
been added to the lawsuit, while Plaintiff Kaylyn Mazeall has been dropped as a party.
ECF No. 66.

(5:17CV234)
A. Prior to May 3, 2017
The City of Canton enacted ordinances limiting the number of cats and dogs in a
residence. Prior to May 3, 2017, Canton Codified Ordinance 505.14: Keeping More Than Five
Dogs or Cats read, in relevant part:
(a)

Except as provided for in Section 505.15, no person residing within the
City shall own, possess, harbor or keep more than five dogs or cats, or any
combination thereof, on the premises of his residence or business at any
one time, except that where litters have been borne to a residing animal,
after they have been weaned, a four-month grace period shall be granted to
permit the distribution of such young animals.

(b)

This section shall not prohibit the City, through the Department of Health
or other authority, from enforcing any laws or ordinances concerning the
creation of nuisances through the maintenance of dogs or cats or other
animals in numerous quantities.

ECF. No. 42-1 at PageID: # 729, Stip. 1. In addition, Canton Codified Ordinance 505.15 read in
relevant part:
(a)

No person shall be permitted to own, possess, harbor or keep more than
five dogs or cats or any combination thereof in an area zoned residential
except that where litters have been born to a residing animal, after they
have been weaned, a four-month grace period shall be granted to permit
the distribution of such young animals. Any person desiring to own,
possess or keep more than five dogs or cats or any combination thereof at
any one time, in an area zoned as business or industrial, with the exception
of a litter or a portion of a litter of pups or kittens less than four months
old, shall first obtain a permit from the City as provided in this section and
shall additionally obtain such other licenses as may be required by the
Ohio Revised Code.

ECF No. 42-1 at PageID: # 729, Stip. 2.
According to Defendants, a prosecution under either ordinance is a multi-phase process
which generally involves: (1) a party making a complaint to a License Technician, typically

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Defendant Shirley Moore; (2) the License Technician sending a letter to the person residing at the
home warning her that she is violating an ordinance; and (3) a follow-up visit to the property at
least 30 days after the letter is sent to determine if the resident is still in violation of the
ordinance. If the resident is still in violation, the License Technician and a police officer take the
information to a prosecutor. ECF. No. 44 at PageID: # 740-41.
Plaintiff Julie Roth was sent a letter on March 11, 2015, which informed her that she
violated Canton Codified Ordinance 505.15. ECF. No. 44 at PageID: # 741. Plaintiff Julie Roth
owns five dogs. See ECF. No. 66 at PageID: # 2526, ¶ 29. Plaintiff Michael T. Roth, who lives
with Plaintiff Julie Roth, owns two dogs and two cats. During a follow-up visit in September
2016, Defendant Shirley Moore saw seven dogs and two cats in Plaintiff Julie Roth’s backyard.
ECF No. 44 at PageID #: 741. On September 25, 2016, Defendants filed a criminal complaint
against Plaintiff Julie Roth in the Canton, Ohio Municipal Court, No. 2016 CRB 04547, charging
her with a violation of Canton Codified Ordinance 505.15. ECF. No. 40-2 at PageID: # 694.
After a jury trial, Plaintiff Julie Roth was found guilty of violating Canton Codified Ordinance
505.15. ECF. No. 44 at PageID: # 740-41.
B. Since May 3, 2017
On April 3, 2017, the Canton City Council amended Ordinance 505.14, which became
effective on May 3, 2017. ECF. No. 42-1 at PageID: # 729, Stip. 3; ECF. No. 66 at PageID: #
2538, ¶ 57. The amended Ordinance 505.14 now states:
(a)

Except as provided in Section 505.15, a person may not possess, keep,
harbor, or permit to be possessed, kept, or harbored in or about any
dwelling unit or structure under their control a total of more than five dogs
or cats, in any combination, over four months of age. “Harbor” means to
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give shelter or refuge to. “Dwelling unit” and “structure” are defined in
Chapter 1123.
(b)

Any person who violates any provision of this section is guilty of a
misdemeanor of the third degree.”

ECF. No. 42-1 at PageID: # 729, Stip. 4; ECF. No. 66 at PageID: # 2538, ¶ 58.
Plaintiffs seek (1) to enjoin enforcement of Canton Codified Ordinance 505.14 and (2) a
declaration that the law is unconstitutional under the First, Fourth, Fifth, and Fourteenth
Amendments to the U.S. Constitution. ECF. No. 66 at PageID: # 2522, ¶ 1.
II. Legal Standard
In determining whether a preliminary injunction is appropriate, a court must consider the
following: (1) whether the movant has a strong likelihood of success on the merits, (2) whether
the movant would suffer irreparable injury without the injunction, (3) whether issuance of the
injunction would cause substantial harm to others, and (4) whether the public interest would be
served by issuance of the injunction. Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000).
These factors are not prerequisites to be met, but must be balanced against each other. Id.
“Although no one factor is controlling, a finding that there is simply no likelihood of success on
the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th
Cir. 2000). In addition, while the absence of one factor may weigh heavily in the balance, it does
not dictate the balance. Nat’l Credit Union Admin. Bd. v. Jurcevic, 867 F.3d 616, 622 (6th Cir.
2017).
The Sixth Circuit does not require a heightened evidentiary burden when the moving
party seeks a mandatory injunction, one that alters the status quo by ordering the performance of

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an act, as opposed to a prohibitory injunction that maintains the status quo. United Food &
Comm. Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 348 (6th Cir.
1998) (holding that the balance of equities standard for granting injunctive relief applies in cases
seeking either mandatory or prohibitory injunctive relief). At the same time, however, “the proof
required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof
required to survive a summary judgment motion . . . because the preliminary injunction is an
extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied
only in [the] limited circumstances which clearly demand it.” Leary, 228 F.3d at 739 (internal
quotation marks and citations omitted; brackets in original).
III. Discussion
A. Standing
As an initial matter, the Court must consider whether Plaintiffs have standing. Plaintiffs
challenge the constitutionality of the amended Codified Ordinance 505.14 (hereinafter “the
Ordinance”) ECF. No. 66 at PageID: # 2522, ¶ 1. Plaintiffs allege the Ordinance: (1) is void for
vagueness; (2) denies Plaintiffs the Freedom of Association guaranteed under the First
Amendment of the U.S. Constitution; and (3) criminalizes status. ECF No. 66 at PageID #:
2523, ¶¶ 6-12.
Standing is the threshold question in every federal case and limits federal court
jurisdiction to actual controversies so that the judicial process is not transformed into “a vehicle
for the vindication of the value interests of concerned bystanders.” United States. v. Students
Challenging Reg. Agency Procedures (SCRAP), 412 U.S. 669, 687 (1973). At issue here is

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constitutional standing. The requirements for constitutional standing are: (1) proof of injury in
fact, (2) causation, and (3) redressability. Coyne v. Am. Tobacco Co., 183 F.3d 488 (6th Cir.
1999). Plaintiffs bear the burden of demonstrating standing and pleading each component with
specificity. Id.
Plaintiffs’ injury must be an injury-in-fact, meaning an invasion of a legally protected
interest, which is (a) concrete and particularized and (b) actual or imminent (not conjectural or
hypothetical). Crawford v. U.S. Dept. of Treas., 868 F.3d 438, 453 (6th Cir. 2017), cert. denied
sub nom., Crawford v. Dept. of Treas., 138 S. Ct. 1441 (2018). Concreteness requires the injury
to be real, and not abstract, while particularization requires that Plaintiffs personally be affected
by some actual or threatened injury, as opposed to a generalized grievance. Spokeo, Inc. v.
Robins,136 S. Ct. 1540, 1548 (2016). A plaintiff “generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”
Warth v. Seldin, 422 U.S. 490, 499 (1975).
Although most federal claims assert allegations that the plaintiff has suffered a past
injury, “[a]n allegation of future injury may suffice if the threatened injury is certainly
impending, or there is a substantial risk that the harm will occur.” Kiser v. Reitz, 765 F.3d 601,
607-608 (6th Cir. 2014) (quoting Susan B. Anthony List v. Driehaus,134 S.Ct. 2334, 2341
(2014)). A plaintiff satisfies this requirement when he alleges “[(1)] an intention to engage in a
course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and
[(2)] there exists a credible threat of prosecution thereunder.” Kiser, 765 F.3d at 608 (quoting
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).

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1. Void for Vagueness
Pursuant to the Fourth Amended Class Action Complaint, filed on April 27, 2018,
Plaintiffs allege that Plaintiff Julie Roth currently resides with Plaintiff Michael T. Roth and their
seven dogs and two cats, potentially leaving both individuals amenable to be in violation of the
Ordinance. ECF No. 66 at PageID #:5, ¶¶ 27, 28. These Plaintiffs are arguably engaging in
conduct proscribed by the Ordinance since they have more than five dogs or cats under their
control. Additionally, the record indicates that Defendants have enforced Canton Codified
Ordinance 505.15 against Plaintiff Julie Roth in the past. ECF No. 66 at PageID #: 37, ¶ 189.
Similar to Kiser, in which the court found that a plaintiff receiving an enforcement letter and
response from a board threatening to impose sanctions resulted in a credible fear of prosecution,
Plaintiff Julie Roth’s past criminal proceedings and enforcement letter create a credible fear of
prosecution under the Ordinance. 765 F.3d at 609. Accordingly, the Court finds that Plaintiffs
have met the injury-in-fact requirement because they allege an intention to engage in conduct
arguably affecting a constitutional interest, proscribed in the Ordinance, and have a credible
threat of prosecution thereunder. Since the threatened enforcement of the allegedly vague
ordinance inhibits Plaintiffs due process rights, and the injury can be redressed by enjoining
enforcement of the Ordinance, the Court finds that Plaintiffs have met all the requirements
necessary to have standing to assert the void for vagueness claim.
2. Freedom of Association
Next, Plaintiffs argue that because visitors or intimate partners, who own dogs or cats,
cannot bring their own pets to another home in the City of Canton without violating Section

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505.14, the Ordinance violates Plaintiffs’ First Amendment Right of Association. ECF No. 40-1
at PageID: # 661-62. The record indicates that Defendants have not enforced the Ordinance
against individuals who stay at each other’s home overnight and, therefore, Plaintiffs cannot
demonstrate past injury. Therefore, to meet the injury-in-fact requirement, Plaintiffs must allege
an intention to engage in conduct proscribed by the Ordinance and have a credible threat of
prosecution thereunder. Kiser, 765 F.3d at 608. Because they do not demonstrate a credible
threat of prosecution for visiting one another’s homes with pets in tow, Plaintiffs have not
alleged an injury-in-fact. Therefore, they lack standing to assert the Freedom of Association
claim.
3. Status
Lastly, Plaintiffs argue that although under Ohio law a landlord is not in control of a
premises which he rents to a tenant, Defendants punish landowners based on status when they
send enforcement letters informing them that they are responsible for violating the Ordinance.
ECF No. 40-1 at PageID: # 662. Plaintiffs allege that the Ordinance has been applied to
landlords by referring to an enforcement letter sent to Greg Swift. ECF No. 66 at PageID #:
2562, ¶¶ 221-24. None of the plaintiffs, however, allege that they are landlords (or intend to be
landlords), and it is well-established that a plaintiff “cannot rest his claim to relief on the legal
rights or interests of third parties.” Warth, 422 U.S. at 499. Thus, since Plaintiffs fail to allege
an intention to engage in conduct arguably affecting a constitutional interest, Plaintiffs have not
met the injury-in-fact requirement, and accordingly lack standing to bring this claim.

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B. Likelihood of Success on the Merits
Having found that Plaintiffs have standing to sue on their void for vagueness claim, the
Court shall assess the likelihood of success on the merits that claim.
Plaintiffs argue that the Ordinance is unconstitutionally vague, as applied to them,
because the Ordinance fails to provide adequate notice and because Defendants have no rules,
regulations, guidelines, standards or procedures set forth to govern their interpretation of the
Ordinance. See ECF No. 66 at PageID #: , ¶¶ 6-7. Specifically, Plaintiffs argue that the
Ordinance’s construction and Defendants’ failure to define terms, arbitrary and discriminatory
enforcement, and misleading application of the words in practice renders the Ordinance void for
vagueness. ECF No. 40-1.
The Due Process Clauses of the Fifth and Fourteenth Amendments provide the
constitutional foundation for the void for vagueness doctrine. Columbia Natural Resources, Inc.
v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995). Where, as here, “the first amendment is not
implicated, a ‘void for vagueness’ challenge must be unconstitutional as applied to the defendant
and ‘must be examined in light of the facts of the case at hand.’” United States v. Levy, 904
F.2d 1026, 1032 (6th Cir.1990) (quoting United States v. Barnes, 890 F.2d 545, 552 (1st Cir.
1989), cert. denied, 494 U.S. 1019 (1990)). Thus, “[o]ne to whose conduct a statute clearly
applies may not successfully challenge it for vagueness.” Cohoon v. Rees, 820 F.2d 784, 786
(6th Cir. 1987) (quoting Parker v. Levy, 417 U.S. 733, 756 (1974)). For an ordinance to be
constitutional, it must (1) define the offense with sufficient definiteness that ordinary people can
understand what is prohibited and (2) establish standards to permit police to enforce the law in a

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non-arbitrary, non-discriminatory manner. Belle Maer Harbor v. Charter Twp. Of Harrison, 170
F.3d 553, 557-59 (6th Cir. 1999) (holding that an ordinance allowing an inspecting officer to
determine what constitutes a “reasonable radius” was unconstitutionally vague).
1. Definiteness
Sixth Circuit precedent requires that the language of a criminal statute must sufficiently
convey a definite warning as to the proscribed conduct, when measured by common
understanding and practices, although impossible standards of specificity are not required. Stout
v. Dallman, 492 F.2d 992, 994 (6th Cir. 1974).
Plaintiffs argue that because “or” is used between “possess, keep, harbor, or permit to be
possessed,” the Ordinance does not authorize Defendants to accumulate the various means to
violate the Ordinance. ECF No. 40-1 at PageID #: 651. Defendants respond that when “not”
precedes a list with “or” being used, the singular negation effect turns the list from disjunctive to
conjunctive. ECF No. 44 at PageID #: 744.
Under Plaintiffs’ interpretation, a person possessing four cats, keeping four dogs, and
harboring four dogs would not violate the Ordinance. A fair reading of the Ordinance, however,
does not comport with this interpretation. Since the Ordinance states that “a person may not
possess, keep, harbor, or permit to be possessed . . . a total of more than five dogs or cats,” the
Court finds that a potential violator is put on notice that the total number of animals an
individual can keep, harbor, or possess, is limited to five. ECF No. 42-1 at PageID #: 729, Stip.
4 (emphasis added).

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Next, Plaintiffs argue that by failing to define “own,” “possess,” “keep,” or “harbor,”
ordinary people cannot fully understand what conduct is prohibited under the Ordinance. ECF
No. 40-1 at PageID #: 653. Defendants contend that since “own” is no longer in the Ordinance,
and “harbor” is defined in the Ordinance as “to give shelter or refuge to,” the only terms left to
define are “possess” and “keep.” ECF No. 44 at PageID #: 745; ECF No. 42-1 at PageID #: 729,
Stip. 4. Because “possess” and “keep” are within the grasp of ordinary people, according to
Defendants, the failure to define these words does not render the Ordinance void for vagueness.
ECF No. 44 at PageID #: 745.
Generally, “failure to define a term within a statute or ordinance does not render the
statute unconstitutionally vague, where the common meaning of the word provides both adequate
notice of the conduct prohibited and of the standards for enforcement.” Belle Maer Harbor, 170
F.3d at 558 (citing United States v.Kaylor, 877 F.2d 658, 661 (8th Cir. 1989)). Defendants do
not define “possess” and “keep” within the Ordinance, and do not provide potential violators
with the standards the License Technicians use to enforce the Ordinance. Potential violators are
left wondering what connotes “possession” or “keeping,” while License Technicians are not
expected to reference any guidelines in enforcing an ordinance that is accompanied with criminal
sanctions.2

2

Canton Ordinance 501.99 provides the penalties for misdemeanors of the third
degree: financial sanctions, including but not limited to fines of not more than $500,
reimbursement of costs of sanctions, and a jail term of not more than 60 days. See also
ECF No. 66 at PageID #: 2538, ¶ 56.
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Enforcement letters have been sent out to potential violators stating that “if you are
feeding, you are considered the owner.” ECF No. 66-4 at PageID #: 2696. An ordinary
individual would not associate the act of feeding with ownership of an animal. The record
indicates that Defendant Shirley Moore has also deemed an individual to be the owner of an
animal based off of the duration a bowl of food was left for the animal. Affidavit of Sandra
Hoover (ECF No. 40-4) at ¶ 6. These issues pertaining to what connotes ownership would not be
an issue if the Ordinance was enforced in a way that properly informed an individual of the law
they violated. Instead, the record indicates that Defendants have sent out enforcement letters
with the pre-2017 ordinance language despite the amendment that deleted the word “own.” See,
e.g., ECF No. 40-3 at PageID #: 717.3 Defendants have also used “per household” language in
the enforcement letters, although the Ordinance explicitly applies to individuals. ECF No. 66-8
at PageID #: 2750. If the goal of these letters is “compliance,” the letters should state the correct
language of the law individuals are expected to comply with. ECF No. 71-1 at PageID #: 3186.
Individuals have also been sent enforcement letters for having cats or dogs “habitually
residing” or for “feeding” on the property although neither the pre-2017 Ordinance nor the
Ordinance have that language. ECF Nos. 66-14 and 66-16. Defendants argue that those terms
are used when the License Technician lacks sufficient information to determine whether a person
“owns the animals or is harboring, keeping, or possessing strays.” Affidavit of Shirley Moore
(ECF No. 71-1) at PageID #: 3186-87, ¶ 8. In Defendants’ Memorandum in Opposition to the

3

Of the 40 enforcement letters Defendants sent out after the Ordinance was
amended, 16 used “own” in them. ECF No. 66-8 at PageID #: 2750-90.
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within motion, however, Defendants note that feeding stray animals may very well constitute
“harboring” or “keeping.” ECF No. 44 at PageID #: 748. If that is so, there would be no need
for the License Technician to use “habitually residing” or “feeding” in the enforcement letters.
These conflicting definitions and explanations give rise to the ambiguity that renders the
Ordinance vague to a resident of the City of Canton.
It is true that the Fourteenth Amendment does not require the language to be
“mathematically precise,” but it does require that individuals are put on adequate notice that their
conduct violates the law. Miller v. California, 413 U.S. 15, 28 (1973). When Defendants
misstate the law in the enforcement letters and fail to define certain terms, the Court finds that
Plaintiffs are not given adequate notice as to what conduct violates the Ordinance.
2. Arbitrary enforcement
The Ordinance must also establish standards to permit police to enforce the law in a nonarbitrary, non-discriminatory manner. Belle Maer Harbor, 170 F.3d at 556. As a practical
matter, the Supreme Court of the United States considers this the most important concern
because it “reflects the common sense understanding that the average citizen does not read, at his
leisure, every federal, state, and local statute to which he is subject.” Columbia Nat. Resources,
Inc., 58 F.3d at 1105.
First, Plaintiffs argue that Defendants are acting arbitrarily because they do not identify
which animals an individual possesses, which animals an individual keeps, and which animals an
individual harbors. ECF No. 40-1 at PageID #: 658. Second, Plaintiffs argue that Defendants are

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enforcing the Ordinance against those who have birds or stray cats on their property. ECF No.
40-1 at PageID #: 659-70.
Defendants maintain that they are not obligated to prove which cats or dogs a person
possesses, keeps, or harbors. ECF No. 44 at PageID #: 747-48. Defendants also argue that the
two letters Plaintiffs rely on to conclude that the Ordinance applies to birds is misguided and that
the Ordinance can be construed to apply to stray cats without being void for vagueness. ECF No.
44 at PageID #: 748.
Under Plaintiffs’ rationale, a License Technician would have to extend vast amounts of
time and resources to deduce which cats or dogs an individual possesses, keeps, or harbors. This
is all expected to be done without entering the home and infringing on the homeowner’s
constitutional right against unlawful search and seizure. Any confusion arising from which
animals an individual possesses, keeps, or harbors, could be solved by providing residents of the
City of Canton with clear definitions of what “keep” and “possess” mean, and which animals the
Ordinance applies to (stray or pets), so that individuals can conform their behavior to comply
with the Ordinance. These definitions would also benefit License Technicians, who may
reference these definitions to ensure that the Ordinance is uniformly enforced throughout the City
of Canton.
Plaintiffs’ contention that the Ordinance applies to birds is unavailing. Enforcement
Letter 1, ECF No. 40-2 at PageID #: 677, mentions a bird, but, the ordinance at issue in that
enforcement letter is not Ordinance 505.14. Enforcement Letter 2, ECF No. 40-2 at PageID #:
685, states that a person with seven dogs and one bird was in violation of the Ordinance. As

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noted in Defendant Shirley Moore’s deposition, the License Technician simply writes down the
complaint she receives. ECF No. 66-3 at Tr. Pg. 26. In the case of Enforcement Letter 2, a bird
was only mentioned in the letter because the person complained about the resident having seven
dogs and a bird on the property. ECF No. 40-2 at PageID #: 685. The Court finds that these
letters are inadequate to support Plaintiffs argument that the Ordinance applies to birds.
Lastly, the Court finds that Defendants’ lack of guidelines, rules, and procedures permits
License Technicians to enforce the Ordinance in an arbitrary manner. See ECF No. 66 at PageID
#: 2523, ¶ 8. Defendant Shirley Moore’s deposition regarding counting strays in the animal limit
is probative:
Depending on the situation on whether the cat is staying around or going?
The pure act of feeding them, I think you said is not a violation of the
animal limit law? If you have five animals outside, and you just feed outside, and
the cat feeds and you pull the food up, that is okay?
Q.

A.

As long as the cat doesn’t stay there on your property.

Q.

After it eats?

A.

Right.

Q.
If it like goes to the bathroom in your garden, is that considered staying
there after it eats?
A.

No. Because you can’t say where a cat is going to go to the bathroom.

Q.
I’m saying let’s say the cat goes to the bathroom, after it eats, in your
garden; is that considered staying?
A.

No.

Q.
So it is a durational period of time? If it sits for five minutes that is okay,
but not 15 or something like that?
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A.

Correct.

Q.

Is there a policy that states that?

A.

No.

ECF. No. 66-3 at Tr. Pgs. 63-64.
The Court finds that Defendants use their own discretion in deciding if an animal is
counted in the animal limit and the Ordinance does not provide an ordinary individual with
notice that an animal is included in the dog or cat limit count based off of the duration of time it
is on the property. Defendants argue that the License Technician follows a process by providing
an individual with an enforcement letter that addresses: (1) which ordinance the individual is
violating; (2) why they are in violation of the ordinance; and, (3) a phone number the violator can
call if they have any questions. ECF. No. 44 at PageID: # 740-41. This process would likely be
adequate if the enforcement letters actually used the specific language of the Ordinance and the
letters did not strain the definitions of the language in the Ordinance to include conduct an
ordinary individual would not expect it to encompass.
In sum, the Court finds there is merit to the void for vagueness claim. Moreover, when a
constitutional violation is likely, there is potential for irreparable injury and Defendants do not
have a valid interest in enforcing an unconstitutional ordinance. See Planned Parenthood Ass’n
of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (“We agree with the
district court, however, that there is potential irreparable injury in the form of a violation of
constitutional rights. . . . As we have already stated, there is a likelihood that the Ordinance will
be found unconstitutional; it is therefore questionable whether the City has any ‘valid’ interest in
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enforcing the Ordinance.”). In addition, the public interest militates in favor of injunctive relief
because “it is always in the public interest to prevent [a] violation of a party’s constitutional
rights.” Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998).
IV. Conclusion
For the reasons explained above, Plaintiffs’ Motion for Preliminary and Permanent
Injunction (ECF No. 40) is granted. Pursuant to Fed. R. Civ. P. 65, Defendants City of Canton
and Shirley Moore, and all those in active concert or participation with them who receive actual
notice of this injunctive order, are enjoined from enforcing Canton Ordinance 505.14, which
states:
(a)

Except as provided in Section 505.15, a person may not possess, keep,
harbor, or permit to be possessed, kept, or harbored in or about any
dwelling unit or structure under their control a total of more than five dogs
or cats, in any combination, over four months of age. “Harbor” means to
give shelter or refuge to. “Dwelling unit” and “structure” are defined in
Chapter 1123.

(b)

Any person who violates any provision of this section is guilty of a
misdemeanor of the third degree.

IT IS SO ORDERED.

September 28, 2018
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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