Saturday, July 11th, 2009
In Iowa it’s called the Boulevard. In Portland it’s the Verge. West Virginia refers to it as the Devil’s Strip. We call it the Treelawn. Either way, we won the skirmish, drew a line in the purslane and were congratulated for our victory. Victory? Pyrrhic perhaps. Purslane is now, by decree, a noxious weed that does not grow over 10 inches tall. I have one 11 inches. Oh dear.
The following is the unabridged written decision in City of Cincinnati vs. Patrick McCafferty, case 101751.
Present at Hearing: Mr. Patrick McCafferty, Respondant, Mr. Michaes Kearns, his attorney, Mr. Bill Gutjahr, Mr. Larry Falkin, and Officer Jerry Grimes.
Regarding the Notice of Civil Offense which was served on you charging that on 5/21/2009, you violated CMC 714-37, Owner to Maintain Premises Free of Litter.
Findings of fact and conclusions of law: This matter came on for hearing the morning of June 18, 2009. Mr. McCafferty was represented by legal counsel and a plea denying the charge was entered.
Officer Jerry Grimes testified that he was patrolling in the Northside area on May 21, 2009, when he observed what he considered a problem at 4141 Chambers. He said that he took a photograph of what he observed and issued a citation to the owner for weeds and brush, which partially covered the sidewalk. He offered a copy of the photograph he took at the time of his inspection into evidence.
When asked where the grass was that he found to be over ten inches high, Mr. Grimes indicated that it was between the sidewalk and the curb on the Knowlton Street side of the property, but said that it was farther down the street and did not really show well in his photograph.
Much of the testimony at the hearing, both from the City and the Respondant, dealt with the bundles of brush that were prominent in Officer Grimes’ photograph. I cannot see how the brush, which had apparently come from a tree or branches that had fallen, have any relevance to the question of whether there had been a failure to maintain the property free of noxious weeds.
The question for me, therefore, seems to be whether there were noxious weeds in the area between the sidewalk and the curb on Knowlton.
Mr. McCafferty was trained as a Chef in Ireland, and in addition to having several restaurants, here and abroad, worked as a farmer and grew foodstuff for use in his restaurants.
He said the plants growing between the sidewalk and the curb were purslane. He stated that he did not plant the purslane, but took advantage of its growth and harvested it for use in dishes at his restaurant. It apparently grows wild in many parts of the City.
Mr. McCafferty explained that purslane only gets to ten inches in height when it goes to seed and that when he harvests it, is maybe six inches high. He does not feel that purslane is a weed as it is edible and he considers weeds to be things that are inedible.
While Mr. McCafferty may use purslane in his cooking, that does not mean that it is not a weed. The American Heritage Dictionary, while recognizing that purslane is sometimes cooked as a vegetable or also used in salads, defines it as a trailing Asian weed.
I believe that purslane would fall within the definition of a noxious weed if it were more than ten inches high as it is apparently a wild plant if not a weed, and noxious weeds are defined to include grass, wild plants and weeds over ten inches in height.
The evidence that the purslane was over ten inches high is not all that good. The photograph does not clearly show it and Mr. McCafferty indicated that he had just harvested some and that he did that before it goes to seed.
I cannot find that the City has met its burden of proof. I feel that Officer Grimes, in an effort to be nice to Mr. McCafferty and not cite him for litter, gave up his strongest case.
Knowing that purslane will be considered by me to be a noxious weed, and that he is responsible for maintaining the area between the sidewalk and the curb free of noxious weeds, I assume that Mr. McCafferty will see that the purslane and other weeds are maintained so as not to get ten inches high.
Case dismissed.
Respectfully submitted,
Douglas E. King (Hearing Examiner)
