
    CITY OF CHILLICOTHE v. CHANEY.
    Municipal Court, Chillicothe, Ohio.
    No. 95-TRD-11,388-1-1.
    Decided July 17, 1996.
    
      
      Edward R. Bunstine II, Chillicothe, Director of Law, for plaintiff.
    
      Willis Walker, for defendant.
   John B. Street, Judge.

This matter came on for hearing upon the stipulation of facts filed on June 21, 1996. The court has considered the stipulations and the authorities cited by counsel. For the following reasons, the court finds the defendant not guilty.

Defendant Thomas D. Chaney was charged with violating Section 331.38(A) of the Codified Ordinances of the City of Chillicothe. The facts are not disputed. On September 7, 1995, the defendant passed a bus that was stopped to unload children. The bus had warning lights in operation and a stop sign that was extended. The bus was used to transport children to and from the Head Start Day Care Center.

The issue to be decided is whether or not the bus is a “school bus” as defined in Section 301.35 of the Codified Ordinances of the City of Chillicothe. If the bus was a “school bus,” then the defendant would be guilty. If the bus was not a “school bus,” then the defendant would be not guilty. Our analysis therefore begins with the definition of a “school bus”:

“ ‘School bus’ means every bus designed for carrying more than nine passengers which is owned by a public, private or governmental agency or institution of learning and operated for the transportation of children to'or from a school session or a school function, or owned by a private person and operated for compensation for the transportation of children to or from a school session or a school function; provided ‘school bus’ does not include a bus operated by a municipally owned transportation system, a mass transit company operating exclusively -within the territorial limits of the Municipality, or within such limits and the territorial limits of municipal corporations immediately contiguous to the Municipality, nor a common passenger carrier certified by the Public Utilities Commission unless such bus is devoted exclusively to the transportation of children to and from a school session or a school function, and 'school bus’ does not include a van or bus used by a licensed child day-care center or type A family day-care home to transport children from the child day-care center or type A family day-care home to a school if the van or bus does not have more than fifteen children in the van or bus at any time. * * *” (Emphasis added.) Section 301.35.

If the bus in question is used to transport less than fifteen children from a licensed day care center to a school, then it is not a “school bus.” In the present case, the bus was being used to transport children to and from their houses to Head Start instead of from a day care center to a school. Since the Head Start program qualifies as a licensed child day-care center (1970 Ohio Atty.Gen.Ops. No. 70-116), does it make any difference that the transportation was between home and Head Start and not between Head Start and a school? This court decides that it does not. A bus used to transport children to a day-care center is not a “school bus” if it does not carry more than fifteen children.

R.C. 4513.182 sets forth the markings and lighting equipment required for a vehicle used to transport children to a kindergarten, nursery school, or day-care center. If such vehicles were considered “school buses” by the legislature, then this statute would not be necessary. See, e.g., 1 Baker, Ohio School Law Guide (1995), Section 9.34. The very fact that there is a separate statute setting forth the marking and lighting requirement for a “day-care vehicle” seems to exclude these vehicles from the definition of a “school bus.”

The court therefore decides that the bus in this case was not a “school bus” as defined by city ordinance. It did not carry more than fifteen children at any time, and it was transporting children to and from a day-care center. The defendant was charged with overtaking a stopped school bus. The city has failed to prove that the bus was a “school bus.” The defendant is found not guilty, and the case is dismissed.

Case dismissed.  