STAFF REPORT

TO: Hamilton County District Policy Committee Members

FROM: Jeffrey W. Aluotto, Manager
Hamilton County Solid Waste Management District

RE: Response to Questions on How to Proceed With the Idea of a Hamilton County Environmental Court

DATE: 10/29/01

The following memorandum details information gathered by District Staff relevant to the discussion on how to proceed in the establishment of an Environmental Court, or other possible options, for Hamilton County. Information contained in this report derives from several sources, including: extensive discussions with attorneys from the Hamilton County Prosecutor's Office, research done through the Office of the Hamilton County Clerk of Courts, and discussions with various municipal and township officials.

Background
At the July meeting of the Policy Committee, a motion was submitted requesting that the Board of County Commissioners work with the presiding Municipal Court Judge to discuss the necessity of, and means for instituting, an Environmental Court in Hamilton County. It was proposed that such a court would offer greater effectiveness in dealing with issues of litter and illegal dumping in the County. During that meeting, the Policy Committee asked Staff to contact the Prosecutor's Office to determine if there were any "administrative alternatives" capable of accomplishing similar objectives, but which would not require legislative action. District Staff entered into extensive discussions with the Prosecutor's Office in order to answer this and other questions relating to the potential establishment of legal channels for addressing environmental issues in Hamilton County.

It should be noted that, practically speaking, there is a significant difference between litter and illegal dumping when it comes to current enforcement of these violations. Open dumping cases are most often addressed by various health departments, or municipal compliance staff (this may include building departments, code enforcement officials, or individual municipal police departments). Litter, on the other hand, is typically enforced, with a few exceptions, by police departments (either individual municipal/township police departments or the Hamilton County Sheriffs Department). Therefore, in terms of addressing the necessity of an Environmental Court for dealing with these problems, it helps to look at both issues, separately, in terms of the effectiveness of enforcement and prosecution of cases.

Specific Issues

1. Are there any administrative procedures which could be put into place to deal with the issue of litter and illegal dumping which would not involve the legislative process of creating an Environmental Court?

Staff extensively discussed this issue with the Prosecutor's Office and determined that legal procedures have already been created for dealing with major illegal dumping cases in the County. Specifically, a Magistrate Referral was written (See first attachment) which refers any suit brought on behalf of the Hamilton County General Health District to a Magistrate. This same Referral system applies to Soil and Water Conservation District cases as well. The Prosecutor's Office has stated that these cases are enforced vigorously and that this system, in their view, represents the necessary requirements for effectively prosecuting illegal dumping cases in the County. Conversations with Health District personnel confirm the Prosecutor's Office opinion that this procedure has produced results since inception. Exceptions would be cases where ambiguity of property ownership makes it difficult to target a person or an organization for a dumping violation.

It was also determined that the majority of illegal dumping complaints investigated by the HCGHD are brought to conclusion through the actions of HCGHD staff or through intervention by the Prosecutor's Office before they reach the court system.

The Prosecutor's Office informed Staff that creating a similar, procedural system, for dealing with smaller litter cases throughout the County would be problematic primarily due to the number of jurisdictions involved and the fact that these litter cases are typically minor misdemeanors. Currently, many littering and smaller dumping (nuisance) cases are heard in Mayor's courts. In the township areas these may be heard by Area Courts or are addressed through other procedures. The Magistrate Referral process is applicable only to those cases brought before Hamilton County Court of Common Pleas.

In addition, the Prosecutor's Office stated that two other factors should be looked at when considering establishing separate channels for dealing with litter and dumping cases. These factors are as follows:

1. Number of Cases - The Prosecutor's Office was of the opinion that the number of litter and nuisance dumping cases, taken by themselves, might not justify the creation of a specific legal channel for addressing them.

To further examine this issue, Staff contacted the Office of the Clerk of Courts and researched the total number of violations of Ohio litter laws which were brought before Hamilton County courts from 8/1/00 to 8/31/01. The following chart reveals the results:

* Warrant Issued

The above table shows that fewer than one case per day is brought through the Hamilton County Court system concerning Ohio's litter laws. These statistics do not, however, show cases dealt with at the local level through Mayor's Courts, administrative hearings, or other procedures.

While this issue does not preclude the establishment of channels for dealing with litter and dumping cases, it demonstrates that it may be beneficial to link litter and illegal dumping with other quality of life issues which may provide a broader basis of support.

2. Resources for Enforcement - Another issue, with litter cases in particular, are the resources available for enforcement of these cases. As one township official put it "People rarely litter in front of police". This township official also stated that the Sheriff's Office enforces litter violations effectively when asked to concentrate on those violations. However, it seemed, through this conversation, that in the limited time the Sheriff was allocated to the township, other concerns were viewed as being primary by all those involved.

2. How do political subdivisions currently deal with the issue of litter and illegal dumping? Do they view the issue as a major problem?

While this question was not expressly asked by the Policy Committee, Staff felt it important to gain a general understanding, from community officials, of how the problem of litter and dumping was viewed, and handled, in Hamilton County. The results were mixed. The following summaries detail how various political subdivisions deal with the issue of litter and illegal dumping.

Municipalities - As specified in ORC, municipalities can institute Mayor's Courts for most violations of municipal code and for traffic violations. Most municipalities in Hamilton County have a Mayor's Court or some version thereof (Office for Administrative Hearings, etc.).

Examples:

The City of Cincinnati's Health Department has the ability to write tickets to bring litter/dumping violators before their Office of Administrative Hearings. This process, or the warnings leading up to this step, typically fosters successful enforcement. However, if a case bogs down in Administrative Hearings, the CHD has the ability to drop the case and re-file it in Hamilton County Municipal Court. Only rarely do cases make it this far.

The City of Norwood has a Mayor's Court for the hearing of Municipal violations. Litter and illegal dumping cases are heard in this forum. Defendants can ask to have their cases transferred to Municipal Court, but most do not.

Most municipalities contacted felt that these courts (Mayors Court, Administrative Hearings) were generally sufficient in handling their problems with regards to litter and illegal dumping. Some, however, felt that some of the larger dumping cases are too much for administrative hearings, etc. In those instances, it would be beneficial to have access to an Environmental Court. It was also felt that more impact and attention and significance could be given to these cases if an option such as an Environmental Court existed.

Townships - While townships do not have the ability to enact anything similar to a Mayor's Court, many have adopted resolutions identifying procedures for addressing nuisance litter problems. The majority of communities which have done so feel that these procedures are again, generally adequate in addressing their problems with litter and dumping. Some, however, feel adamantly that an Environmental Court would offer new, productive options in terms of effectively citing violators of litter/dumping laws.

Note: Options available to political subdivisions for addressing litter violations are detailed in the Prosecutor's Opinion included as the second attachment to this report.

Summary and Conclusions

1. The Prosecutor's Office is confident that an adequate system of prosecution is in place for major illegal dumping violations which go through the Health County General Health District. In fact, the Office is quite proud of Hamilton County's record in prosecuting environmental offenses relating to dumping and facility violations. Most of the cases the Office deals with on behalf of the HCGHD gain compliance before court action is necessary.

2. Proper and consistent enforcement of littering and other minor misdemeanor cases may face greater challenges than those faced by larger illegal dumping cases heard through Common Pleas.

3. Due primarily to the fact that so many different jurisdictions have control over the issue, and the fact that these cases are minor misdemeanors heard in Municipal Court it would not be possible to construct a system for funneling all litter and dumping cases (County-wide) through a magistrate referral procedure..

4. The number of violations of Ohio's litter laws brought through Municipal Court are, relative to many other violations, very small in number.

5. Of the municipalities which commented on the necessity of an Environmental Court, there seemed to be a split. In the opinion of the majority of cities and villages surveyed, Mayor's Courts and administrative hearings seem to provide adequate relief for municipalities in addressing litter and dumping issues. Some municipalities, however, were very supportive of the idea of an Environmental Court. Those which feel the need for such a venue are typically intensely supportive of the idea.

6. Of the townships which commented on the necessity of an Environmental Court there was, again, mixed opinion. Townships increasingly rely upon nuisance abatement resolutions, enforcement by the Hamilton County Sheriff's Department, and in some cases their own police and fire departments for enforcement of litter and dumping violations. Some townships stressed that litter is a real problem for them and welcomed the idea of searching for innovative legal means of addressing the issue. Other townships were satisfied with the results obtained through current procedures.

7. There seemed to be a loose correlation between the size of a political subdivision and its tendency to support the idea of an Environmental Court. In general, the larger subdivisions seemed to be more in favor of such an idea. (This correlation is not statistically valid, however, since only political subdivisions aware of the District's deliberations on the matter were able to make their opinion known).

8. Data gathered shows that 82% of Ohio Litter Law violations brought before Hamilton County Municipal Court end in pay-out or conviction. 7% of cases reaching the Municipal Court system end through acquittal or dismissal.

Recommendation for Proceeding
Judge Pfeiffer, of the Franklin County Environmental Court, recommends that officials looking to establish an environmental court do so as a means of addressing all quality of life issues in their community - of which litter and dumping are one part. After spending a day sitting in on arraignments with Judge Pfeiffer, it was obvious that, even there, litter and dumping violations comprise only a fraction of the cases heard (many litter cases are still heard in Mayor's Courts, etc.). Many of the arraignments dealt with dog bites, zoning issues, noise violations, property management, etc. The Franklin County Environmental Court was created in response to the fact that the population in Franklin County was migrating away from urban areas and leading to situations where the quality of life (property upkeep, nuisances, etc.) began to degenerate quickly.

Therefore, Staff would recommend that if an Environmental Court were to be pursued, it should be done so in cooperation with other organizations/County agencies/political subdivisions which would benefit from its existence.

Staff did not directly discuss the issue of an Environmental Court with community officials. However, based upon limited conversations with numerous contacts, it is felt that support for such a court could exist assuming the benefits were widespread and adequately communicated. Some of the contacts who were aware of the Policy Committee's deliberations were concerned about establishing another layer of bureaucracy where none, in their opinion, was needed. In their view, the appropriate laws already exist. When these violations get to court the offenders are punished. The problem, in their view, is lack of resources to enforce the current laws. Others, however, felt that an Environmental Court was a necessary step in improving the quality of life of residents most impacted by chronic litter and illegal dumping.

As stated above, the Prosecutor's Office informed District Staff that if the Policy Committee wishes to address this issue - the best opportunity would be through an Environmental Court. On a practical level, support for this effort may exist in the County, but it would be recommended that pursuit of such an objective be done in concert with other agencies and organizations which could benefit from its existence (i.e. City of Cincinnati's Housing Court initiative). As is the case in Franklin County, there are simply not enough litter and dumping cases, nor is the problem viewed with enough severity, by enough political subdivisions, to garner support solely on that basis alone. A cooperative effort, however, could garner the needed additional support and caseloads while accomplishing the desired objectives of the Policy Committee.