Cotton v. Connor

2020 Ohio 1129

• Court: Ohio Court of Appeals
• Decided: March 23, 2020
• Docket: 19CA0088
• Status: Published

Opinion

[Cite as Cotton v. Connor, 2020-Ohio-1129.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

TOM COTTON : JUDGES: : Hon. John W. Wise, P.J. Appellant-Appellant : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : PATRICK CONNOR, FIRE CHIEF, : CITY OF NEWARK FIRE : DEPARTMENT : Case No. 19CA0088 : Appellee-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 18CV01332

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 23, 2020

APPEARANCES:

For Appellant-Appellant For Appellee-Appellee

JAMES R. COOPER CAROLINE J. CLIPPINGER 33 West Main Street 40 West Main Street P.O. Box 4190 Newark, OH 43055 Licking County, Case No. 19CA0088 2

Newark, OH 43058 Wise, Earle, J.

{¶ 1} Appellant, Tom Cotton, appeals the August 12, 2019 judgment entry of the

Court of Common Pleas of Licking County, Ohio, upholding the decision of the Ohio Board

of Building Appeals. Appellee is Patrick Connor, Fire Chief, City of Newark Fire

Department.

FACTS AND PROCEDURAL HISTORY

{¶ 2} Newark Downtown Center, Inc. owns real estate in downtown Newark

known as The Arcade. Appellant is president of the corporation. The Arcade is made up

of interconnected businesses with a glass covered walkway in the center. It covers

approximately 70,000 square feet. The Arcade is over one hundred years old and has

been deemed an historical site.

{¶ 3} On September 19, 2017, appellee issued a citation to appellant, listing forty-

two violations of the Ohio Fire Code. Appellant filed an appeal with the Ohio Board of

Building Appeals (Case No. 17-0197).

{¶ 4} On April 10, 2018, appellee issued a second citation to appellant regarding

the same property, listing thirteen additional violations of the Ohio Fire Code. Appellant

filed an appeal with the Ohio Board of Building Appeals (Case No. 18-0069).

{¶ 5} A hearing on both citations was held on October 30, 2018. The Ohio Board

of Building Appeals upheld the citations and imposed monetary penalties.

{¶ 6} Appellant filed appeals with the Court of Common Pleas. By judgment entry

filed August 12, 2019, the trial court affirmed the decisions of the Ohio Board of Building

Appeals. Licking County, Case No. 19CA0088 3

{¶ 7} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶ 8} "THE TRIAL COURT ERRED IN ITS JUDGMENT THAT THE AGENCY'S

ORDER WAS SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL

EVIDENCE AND WAS IN ACCORDANCE WITH LAW."

{¶ 9} In his sole assignment of error, appellant claims the trial court erred in

affirming the decisions of the Ohio Board of Building Appeals. We disagree.

{¶ 10} R.C. 3737.42 governs citations for violation of state fire code and states the

following in subsection (A):

If, upon inspection or investigation, the fire marshal, an assistant fire

marshal, or a certified fire safety inspector believes that the state fire code

or an associated order has been violated, the fire marshal, assistant fire

marshal, or certified fire safety inspector shall, with reasonable promptness,

issue a citation to the responsible person. Each citation shall be in writing

and shall describe with particularity the nature of the violation, including a

reference to the provision of the state fire code or associated order alleged

to have been violated. In addition, the citation shall fix a reasonable time

for the abatement of the violation. When the citation is issued by a certified

fire safety inspector or an assistant fire marshal, a copy of the citation shall

be furnished to the fire marshal. Licking County, Case No. 19CA0088 4

{¶ 11} The responsible person has the "right to appeal the citation and penalty,

under Chapter 119. of the Revised Code, to the state board of building appeals

established under section 3781.19 of the Revised Code within thirty days after receipt of

the notice." R.C. 3737.43(A). In the event of an adverse ruling by the state board of

building appeals, the responsible person "may appeal directly to the court of common

pleas pursuant to section 3781.031 of the Revised Code." R.C. 3781.19. R.C.

3781.031(D) states in pertinent part:

The court shall not be confined to the record as certified to it by the

agency but any party may produce additional evidence and the court shall

hear the matter upon the record and additional evidence any party

introduces. The court shall not affirm the agency's order unless the

preponderance of the evidence before it supports the reasonableness and

lawfulness of the order and any rule of the board of building standards upon

which the order is based in its application to the particular set of facts or

circumstances involved in the appeal.

{¶ 12} "The court may affirm the order of the agency complained of in the appeal

if it finds, upon consideration of the entire record and any additional evidence the court

has admitted, that the order is supported by reliable, probative, and substantial evidence

and is in accordance with law." R.C. 119.12(M). Licking County, Case No. 19CA0088 5

{¶ 13} As explained by our colleagues from the Eighth District in S.R. Products v.

Gerrity, 156 Ohio App.3d 150, 154, 2004-Ohio-472, 805 N.E.2d 104, ¶ 22 (8th Dist.):

An appellate court, reviewing the judgment of the court of common

pleas, considers only questions of law and does not weigh the evidence.

An appellate court will not substitute its judgment for that of the

administrative agency or the court of common pleas, unless this court finds

that there is not a preponderance of reliable evidence to support the board's

decision. Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR 26, 465

N.E.2d 848. Within the ambit of questions of law is included whether the

common pleas court abused its discretion. Henley v. Youngstown Bd. of

Zoning Appeals (2000), 90 Ohio St.3d 142, 147, 735 N.E.2d 433. To

constitute an abuse of discretion, the ruling must be more than legal error;

it must be unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140.

{¶ 14} On August 3, 2017, Newark Fire Inspector Bruce Gossett inspected the

basement area of the subject property and notified appellant of numerous violations of

the fire code. Inspector Gossett returned on August 25, 2017 for a re-inspection; the

violations remained noncompliant. As a result, on September 19, 2017, appellee issued

appellant a citation listing forty-two violations of the fire code with the attendant civil

penalties, and declared the building a distinct hazard. Appellant was given three days to Licking County, Case No. 19CA0088 6

complete the listed corrective measures. At the time of the hearing on October 30, 2018,

eleven violations were still outstanding.

{¶ 15} On March 23, and 26, 2018, Inspector Gossett conducted inspections of the

entire building and notified appellant of numerous violations of the fire code. Inspector

Gossett returned on April 9, 2018 for a re-inspection; the violations remained

noncompliant. As a result, on April 10, 2018, appellee issued appellant a citation listing

thirteen additional violations of the fire code with the attendant civil penalties. Appellant

was given seven days to complete the listed corrective measures. At the time of the

hearing on October 30, 2018, none of the thirteen violations had been corrected.

{¶ 16} During the hearing, Inspector Gossett testified to the outstanding violations.

Appellant presented the testimony of Beau Bromberg, a friend who helped correct some

of the violations, and Sergei Jackson, a retired professional engineer, to testify to the

corrective measures taken. Mr. Jackson was not an active certified engineer as required

per the building code. T. at 23-25.

{¶ 17} Mr. Bromberg agreed that at the time of the last inspections, outstanding

violations existed, but the violations had been corrected before the hearing date "on

everything except for the building maintenance." T. at 29-34, 37-47. Appellant and his

assistant, Kelly Lowe, and Mr. Jackson also testified to the correction of some of the

violations prior to the hearing date. T. at 47-54.

{¶ 18} Inspector Gossett contested some of the alleged corrections. T. at 59-62.

He did not go out for re-inspections after issuing the citations because "[w]e were due for

hearing in the meantime, and that's when we were told about the sale and continuances,

and we were just ready to come to the hearing at that point." T. at 59. Appellant was Licking County, Case No. 19CA0088 7

attempting to sell the property to someone who would come in and bring the building to

code, and in fact had a buyer, but appellant would not complete the sale. T. at 7-9.

Bottom line, the cited violations were not corrected as of the remedy date. T. at 62.

{¶ 19} The board of building appeals upheld the citations "upon the overwhelming

evidence and testimony provided," and imposed financial penalties. In its August 12,

2019 judgment entry affirming the decision, the trial court concluded the following:

Appellant has not identified any citations he believes were erroneous

or for which the Board did not have reliable, probative, and substantial

evidence. Appellant does not appear [to] identify any issues of law or fact

for this Court to review in his brief. The brief merely recounts that efforts

were made to remedy some of the violations and that appellant and the city

had been working together to make progress on the condition of the

property.

"[T]he burden of showing that the decision is erroneous rests on the

party contesting the decision." C. Miller Chevrolet, Inc. v. City of Willoughby

Hills, 38 Ohio St.2d 298, 302 (1974). Appellant has not identified or

demonstrated any error in the Board's decisions.

{¶ 20} We concur with the trial court's decision. Between the first inspection date

of August 3, 2017, and the first citation date of September 19, 2017, appellant had forty-

seven days to correct the violations. As for the second citation, appellant had fifteen days

to correct the violations from the last inspection date (March 26, 2018) to the issuance of Licking County, Case No. 19CA0088 8

the citation (April 10, 2018). According to the Timeline and Summary of the Inspections

outline, appellee worked with appellant from July 2017 through April 2018 to correct the

fire code deficiencies on the subject property. As of the October 30, 2018 hearing date,

outstanding violations existed and some of the corrective measures were in question. We

do not find testimony from a "representative from the Building Code Enforcement for the

City of Newark" was necessary. Appellant's Brief at 6.

{¶ 21} Upon review, we find a preponderance of reliable, probative, and substantial

evidence to support the trial court's decision. The trial court did not abuse its discretion

in affirming the decision of the board of building appeals.

{¶ 22} The sole assignment of error is denied.

{¶ 23} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Wise, John, P.J. and

Baldwin, J. concur.

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