[Cite as State v. Brennco, Inc., 2015-Ohio-467.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-14-24
v.
BRENNCO, INC., OPINION
DEFENDANT-APPELLANT.
Appeal from Lima Municipal Court Trial Court No. 13CRB01880
Judgment Affirmed
Date of Decision: February 9, 2015
APPEARANCES:
Michael A. Rumer and Anthony J. Miller for Appellant
Robert W. Cheugh, II and Kenneth H. Egbert, Jr. for Appellee Case No. 1-14-24
WILLAMOWSKI, J.
{¶1} Defendant-appellant, a company called Brennco, Inc. (“Brennco”)
brings this appeal from the judgment of the Lima Municipal Court in Allen
County, Ohio, denying its motion, captioned “Motion to Dismiss and Motion to
Suppress” and finding it guilty of water pollution in violation of R.C.
6111.04(A)(1), upon Brennco’s entry of a no contest plea. For the reasons that
follow, we affirm the trial court’s judgment.
Facts and Procedural History
{¶2} According to the facts presented to us, Brennco is an incorporated
farm operation engaged in raising hogs and producing grain crops. On November
11, 2011, Brennco initiated the application of hog manure onto one of its fields by
use of a traveling gun applicator. The application resulted in a prohibited amount
of manure seeping into a nearby creek, called Pigeon Run, and subsequently into
the Auglaize River. The discharge caused a fish kill in the river.
{¶3} On June 10, 2013, the State of Ohio (“the State”) filed a complaint in
the Lima Municipal Court, alleging that Brennco engaged in water pollution in
violation of R.C. 6111.04(A)(1), an unclassified misdemeanor “with a penalty up
to $25,000.00 per day of violation.” (R. at 1, Compl.) Brennco entered a plea of
not guilty and requested a jury trial. After initial discovery and a pretrial, Brennco
filed its motion to dismiss and to suppress. As the basis for the motion to dismiss,
Brennco alleged that the maximum statutory fine for violation of R.C. 6111.04 -2- Case No. 1-14-24
exceeds the jurisdictional limits of the Lima Municipal Court, thereby divesting
the municipal court of jurisdiction over the action. With respect to the suppression
issue, Brennco requested suppression of any evidence “that the defendant’s
traveling gun land application equipment constitutes ‘a point discharge of the
pollutant’ causing pollution of the waters of the State of Ohio.” (R. at 34.) In
support of its request to suppress, Brennco alleged that a provision of R.C.
6111.04(F)(3) exempts it from liability. The trial court held a hearing and
subsequently, denied both motions. Brennco then entered a no contest plea and
was found guilty.
{¶4} Brennco filed the instant appeal, alleging the following assignments of
error.
ASSIGNMENT OF ERROR NO. 1
The trial court erred when it denied defendant’s motion to dismiss this case for want of subject matter jurisdiction of a prosecution pursuant to R. C. 6111.04(A)(1).
ASSIGNMENT OF ERROR NO. 2
The trial court erred when it determined the exception to R. C. §6111.04(A)(1) set forth in R. C. §6111.04(F)(3) does not apply in this case.
ASSIGNMENT OF ERROR NO. 3
The trial court erred when it failed to apply the rule of lenity and liberally apply R. C. §6111.04(F)(3) in favor of Brennco.
-3- Case No. 1-14-24
First Assignment of Error— Jurisdiction of the Municipal Court
{¶5} In its first assignment of error Brennco challenges jurisdiction of the
Lima Municipal Court asserting that the monetary limitations set forth in R.C.
1901.17 precluded the court from hearing this case. R.C. 1901.17 limits
jurisdiction of municipal courts to cases where the amount in controversy does not
exceed $15,000.00. This Revised Code section states, in relevant part:
A municipal court shall have original jurisdiction only in those cases in which the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed fifteen thousand dollars, except that this limit does not apply to the housing division or environmental division of a municipal court.
R.C. 1901.17. Because the maximum fine for a violation of R.C. 6111.04 is
$25,000.00, Brennco argues that it exceeds the jurisdiction of the Lima Municipal
Court.
{¶6} We must determine whether the monetary limits of R.C. 1901.17
apply to the case before us. Because this issue involves the interpretation of a
statute, which is a question of law, we review the trial court’s judgment de novo.
State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, ¶ 9 (2014); State v. Pariag,
137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9 (2013). When
interpreting a statute, we must “determine and give effect to the legislative intent.”
Straley at ¶ 9. To determine the legislative intent, we first look at the language of
-4- Case No. 1-14-24
the statute itself and if the language is clear and unambiguous, we apply it as
written and no further construction is required. Id.; Pariag at ¶ 11.
{¶7} Looking at the clear language of R.C. 1901.17, it does not appear that
the monetary limitation stated therein precluded the Lima Municipal Court from
hearing this case. R.C. 1901.17 limits a municipal court’s jurisdiction to “those
cases in which the amount claimed by any party, or the appraised value of the
personal property sought to be recovered, does not exceed fifteen thousand
dollars.” (Emphasis added.) In this case, no party claimed any monetary amounts
or sought to recover any property. The criminal complaint filed by the State
alleges the violation of R.C. 6111.04(A)(1) and states that the violation constitutes
“a charge of water pollution.” (R. at 1, Compl.) Although the complaint further
recites the maximum penalty that could be imposed for the violation, the State
does not “claim” this amount as its damages.
{¶8} The State submits that the monetary limitation of R.C. 1901.17 applies
to civil actions only, as those are the actions in which a party will “claim”
monetary damages. We agree.
{¶9} The Ohio Supreme Court has acknowledged that municipal courts are
creatures of statute and that while R.C. 1901.18 is the statute that creates
municipal courts as it relates to “civil matters,” R.C. 1901.20 provides for their
creation as it relates to “criminal and traffic matters.” State v. Cowan, 101 Ohio
St.3d 372, 2004-Ohio-1583, 805 N.E.2d 1085, ¶ 11 (2004). R.C. 1901.20 states -5- Case No. 1-14-24
that “[t]he municipal court has jurisdiction * * * of the violation of any
misdemeanor committed within the limits of its territory.” R.C. 1901.20(A)(1).
Because the violation of R.C. 6111.04 is a misdemeanor, jurisdiction exists. See
State v. McLaughlin, 109 Ohio App.3d 868, 870, 673 N.E.2d 234 (9th Dist.1996)
(recognizing that pollution in violation of R.C. 6111.04 is a misdemeanor).
{¶10} Brennco argues that a municipal court’s jurisdiction over
misdemeanors under R.C. 1901.20 is subject to the monetary limitation of R.C.
1901.17. This assertion has no support in the language of the statute. R.C.
1901.18, which creates jurisdiction of municipal courts over civil matters, states
that the jurisdiction is “subject to the monetary jurisdiction of municipal courts as
set forth in section 1901.17 of the Revised Code.” See also R.C. 1901.19 (listing
jurisdictional powers of municipal courts, which are “[s]ubject to the monetary
jurisdiction of municipal courts as set forth in section 1901.17 of the Revised
Code”). Conversely, R.C. 1901.20 does not include similar language, stating
instead that “[t]he municipal court has jurisdiction * * * of the violation of any
misdemeanor committed within the limits of its territory.” (Emphasis added.)
R.C. 1901.20(A)(1).
{¶11} The Tenth District Court of Appeals employed the following
reasoning upon an argument that the municipal court had “no monetary/subject-
matter jurisdiction over the case”:
-6- Case No. 1-14-24
R.C.1901.18 establishes the subject-matter jurisdiction regarding civil cases and notes that said jurisdiction is subject to the monetary jurisdiction set forth in R.C.1901.17. R.C.1901.17 states that “[a] municipal court shall have original jurisdiction only in those cases in which the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed fifteen thousand dollars.”
R.C.1901.20(A)(1) establishes the municipal court’s subject-matter jurisdiction in criminal and traffic cases and states that “[t]he municipal court has jurisdiction of the violation of any ordinance of any municipal corporation within its territory * * * and of the violation of any misdemeanor committed within the limits of its territory.”
The case pending in municipal court is a traffic case involving misdemeanor offenses.
State ex rel. Johnson v. Franklin Cty. Mun. Court, 10th Dist. Franklin No. 14AP-
219, 2014-Ohio-3308, ¶ 5-8 (overruling objections to the magistrate’s decision and
denying a writ of mandamus to order dismissal of a criminal case by the Franklin
County Municipal Court).
{¶12} Brennco is dissatisfied with the statute’s language, which does not
clearly express that the monetary limits of R.C. 1901.17 apply to civil cases only.
Yet, the only reading of the statute, clearly and unambiguously dictates that the
monetary limits do not apply to criminal cases where there is no “amount claimed
by any party” to be limited. Therefore, we apply the statute as written and hold
that R.C. 1901.17 did not divest the Lima Municipal Court of jurisdiction over the
instant case. Accordingly, the trial court did not err when it denied Brennco’s
motion to dismiss this case for want of subject matter jurisdiction. -7- Case No. 1-14-24
{¶13} The first assignment of error is overruled.
Second and Third Assignments of Error— Denial of Motion to Suppress
{¶14} Before we address the substantive arguments raised here, we elect to
raise a procedural issue sua sponte. Brennco filed a motion to suppress, requesting
suppression of any evidence “that the defendant’s traveling gun land application
equipment constitutes ‘a point discharge of the pollutant’ causing pollution of the
waters of the State of Ohio.” (R. at 34.) The request to suppress evidence was
based on a possible defense to the charge, an argument that that a provision of
R.C. 6111.04(F)(3) exempts it from liability. We note that “[a] motion to suppress
is ‘[a] request that the court prohibit the introduction of illegally obtained evidence at a
criminal trial.’ ” State v. Echard, 9th Dist. Summit No. 24643, 2009-Ohio-6616, ¶ 3,
citing Black's Law Dictionary 1039 (8th ed.2004); Crim.R. 12(C)(3). Brennco did not
argue that the evidence relating to its “traveling gun land application equipment” was
illegally obtained. Its arguments, more appropriately, can be classified as defenses
to the charges. These arguments were thus not properly raised in the motion to
suppress and the trial court should have refused to consider the motion. However,
because the State raised no objections to this improper use of the motion to
suppress by Brennco, we do not remand this case to the trial court, as that would
unfairly benefit the party which committed the error. See State ex rel. Beaver v.
Konteh, 83 Ohio St.3d 519, 521, 1998-Ohio-295, 700 N.E.2d 1256 (1998) (“Under the
-8- Case No. 1-14-24
invited-error doctrine, a party will not be permitted to take advantage of an error that he
himself invited or induced the trial court to make.”) Therefore, we review the challenges
on appeal under the standard of review for a motion to suppress, but our review should
not be read as an endorsement of such use of this procedural device.
{¶15} Brennco’s argument in his motion to suppress concerned the
language of R.C. 6111.04, which prohibits pollution of any waters of the state.
See R.C. 6111.04(A). This section of the Revised Code has several exemptions.
First, the prohibition against polluting the waters of the state does not apply if the
person causing pollution “holds a valid, unexpired permit, or renewal of a permit,
governing the causing or placement as provided in sections 6111.01 to 6111.08 of
the Revised Code or if the person’s application for renewal of such a permit is
pending.” R.C. 6111.04(A). It is undisputed that Brennco did not hold such a
permit. Therefore, the first exemption does not absolve it from liability. Second,
subsection (F) of R.C. 6111.04 lists eight exceptions to liability for water
pollution. As relevant to this appeal, subsection (F)(3) states that the prohibition
against water pollution does not apply to:
Application of any materials to land for agricultural purposes or runoff of the materials from that application or pollution by animal waste1 or soil sediment, including attached substances, resulting from farming, silvicultural, or earthmoving activities regulated by Chapter 307. or 1511. of the Revised Code. Division (F)(3) of this section does not authorize, without a permit, any discharge that is
1 The language of this statute has been revised and the current wording differs slightly, using the terms, “residual farm products, manure,” instead of “animal waste.” The amendment has no effect on the current appeal.
-9- Case No. 1-14-24
prohibited by, or for which a permit is required by, the Federal Water Pollution Control Act or regulations adopted under it.
(Emphasis added.) R.C. 6111.04(F)(3).
Interpretation of the Statutory Language of R.C. 6111.04(F)(3)
{¶16} Brennco asserts that its activities constituted “runoff” of the
application of materials to land for agricultural purposes or “pollution by animal
waste” resulting from farming activities. Acknowledging the second sentence of
R.C. 6111.04(F)(3), which states that the above exception “does not authorize,
without a permit, any discharge that is prohibited by, or for which a permit is
required by, the Federal Water Pollution Control Act,” Brennco argues that the
above statutory language is ambiguous. As such, it should be construed against
the State.
{¶17} We again turn to the interpretation of the statutory language. As
stated in our discussion of the first assignment of error, we employ the de novo
standard of review and look at the statutory language to “determine and give effect
to the legislative intent.” Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, at ¶ 9. If
the legislative intent is clearly expressed, “ ‘the statute may not be restricted,
constricted, qualified, narrowed, enlarged or abridged; significance and effect
should, if possible, be accorded to every word, phrase, sentence and part of an act
* * *.’ ” State ex rel. McGraw v. Gorman, 17 Ohio St.3d 147, 149, 478 N.E.2d
- 10 - Case No. 1-14-24
770 (1985), quoting Wachendorf v. Shaver, 149 Ohio St. 231, 78 N.E.2d 370
(1948), paragraph five of the syllabus.
{¶18} Brennco sees ambiguity in the fact that the second sentence of
subsection (F)(3) could possibly be read in two ways. (See App’t Br. At 17-18.)
First, if you don’t fall under one of the exceptions for farming activities listed in
the first sentence of subsection (F)(3), you need a permit. Here, Brennco alleges
that it fell under the farming activities exception and so, no permit was required.
Second, even if you fall under one of the exceptions for farming activities, you
still need a permit. This construction would result in Brennco being required to
obtain a permit, even thought its activities fell within the exceptions listed in the
first sentence of R.C. 6111.04(F)(3). Brennco objects to this second suggested
interpretation as superfluous, and urges us to resolve the ambiguity in its favor,
applying the first interpretation outlined above.
{¶19} We do not read subsection (F)(3) as ambiguous. Although the many
exceptions and qualifications to these exceptions make the language of R.C.
6111.04 somewhat difficult to read, our understanding of the clear statutory
language can be summarized as follows. In general, one needs a permit before
they can pollute the waters of the state. R.C. 6111.04(A). One does not need a
permit, however, if they cause pollution of the type listed in the first sentence of
R.C. 6111.04(F)(3), resulting from farming activities. The second sentence of
R.C. 6111.04(F)(3) prohibits any discharge that violates the Federal Water - 11 - Case No. 1-14-24
Pollution Control Act (commonly referred to as the Clean Water Act, hereinafter
“CWA”), or regulations adopted under it. Therefore, when a person engages in
farming activities and “manure stays on fields for its beneficial purpose of
providing nutrients to crops * * * no violation of R.C. 6111.04 occurs,” as it is
excepted under the first sentence of R.C. 6111.04(F)(3). (App’e Br. at 22.) But if
a person who engages in farming activities permissible under the first sentence of
R.C. 6111.04(F)(3) causes the type of “discharge” prohibited by the CWA,
without a permit, they are liable for water pollution.
{¶20} Because there is no ambiguity in the statute, the premise of
Brennco’s argument in the third assignment of error fails. Therefore, the third
assignment of error is overruled.
b. Application of the Statutory Language of the Clean Water Act, as it is Referenced in R.C. 6111.04(F)(3), to the Case at Issue
{¶21} The issue then becomes what “discharge” is prohibited by the CWA
or regulations adopted under it and whether it occurred in the instant case. We
now turn to the federal statute. The parties agree that the relevant sections of the
CWA prohibit discharge of any pollutant without a permit issued by the
“Administrator.” 33 U.S.C. 1342; 33 U.S.C. 1311(a). Because manure is a
pollutant under 33 U.S.C. 1362(6) (see, e.g., Concerned Area Residents for The
Environment v. Southview Farm, 834 F.Supp. 1410, 1416-1417 (W.D.N.Y.1993)),
and Brennco did not have a permit, the only remaining issue is whether the
- 12 - Case No. 1-14-24
discharge of that pollutant occurred in this case, so as to make Brennco liable for
pollution in spite of the exception for farming activities in R.C. 6111.04(F)(3).
{¶22} The CWA has a separate definition for the term “discharge of a
pollutant.” It states:
The term “discharge of a pollutant” and the term “discharge of pollutants” each means (A) any addition of any pollutant to navigable waters from any point source * * *.
(Emphasis added.) 33 U.S.C. 1362(12). The dispute between the parties concerns
the definition and use of the term “point source” and whether the traveling gun
applicator used by Brennco constituted such a point source. The CWA defines
“point source” as
any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.
(Emphasis added.) 33 U.S.C. 1362(14). The State maintains that the traveling
gun applicator and the field tile, “which directly conveyed the manure into Pigeon
Run,” constitute a point source. (App’ee Br. at 14.) Brennco focuses on the last
sentence of the definition and contends that the discharge that occurred on the day
at issue was “agricultural stormwater discharge” and as such, it was exempted
from the definition of point source under the express language of the above
definition.
- 13 - Case No. 1-14-24
{¶23} The CWA does not define the term “agricultural stormwater
discharge.” Cases that concerned this exception to the CWA explain that “[t]his
occurs, for example, when rainwater comes in contact with manure and flows into
navigable waters.” Natl. Pork Producers Council v. U.S. E.P.A., 635 F.3d 738,
743 (5th Cir.2011), citing Fishermen Against Destruction of Env’t, Inc. v. Closter
Farms, Inc., 300 F.3d 1294, 1297 (11th Cir.2002), and Concerned Area Residents
for the Env’t v. Southview Farm, 34 F.3d 114, 121 (2d Cir.1994). The trial court
reviewed Brennco’s assertion of the agricultural stormwater discharge exemption
and found that
[i]n this case, there were no facts that would establish that the pollution was caused by stormwater runoff. There was no rain on the date of the event. Mr. Brenneman saw some discharge before the application of manure, but he further stated that the discharge after the manure was applied was different and distinct from the prior discharge. Therefore, the stormwater runoff exception does not apply to the case.
(R. at 41, J. Entry at 4.) The trial court further found that “[t]he source of this
pollution is discernable [sic] and it was not the result of any stormwater or natural
runoff. The court therefore finds that this runoff was from a point source.” (Id. at
5.) Upon this finding, the trial court concluded that the exception for farming
activities in R.C. 6111.04(F)(3) does not apply and overruled Brennco’s motion to
suppress.
{¶24} An appellate review of the trial court’s decision on a motion to
suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio - 14 - Case No. 1-14-24
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Norman, 136 Ohio
App.3d 46, 51, 735 N .E.2d 953 (3d Dist.1999). We will accept the trial court’s
factual findings if they are supported by competent, credible evidence because the
“evaluation of evidence and the credibility of witnesses” at the suppression
hearing are issues for the trier of fact. State v. Mills, 62 Ohio St.3d 357, 366, 582
N.E.2d 972 (1992); Burnside at ¶ 8; Norman 51. But we must independently
determine, without deference to the trial court, whether these factual findings
satisfy the legal standard as a matter of law because “the application of the law to
the trial court’s findings of fact is subject to a de novo standard of review.”
Burnside at ¶ 8; Norman at 52.
{¶25} The issue of whether a discharge occurred from a point source is a
question of fact. Williams Pipe Line Co. v. Bayer Corp., 964 F.Supp. 1300, 1318
(S.D.Iowa 1997), citing Concerned Area Residents for The Environment v.
Southview Farm, 834 F.Supp. 1410, 1417-18 (W.D.N.Y.1993); In the Matter of
Chevron U.S.A. Inc., Barbers Point Refinery, Honolulu, Hawaii, Respondent, U.S.
E.P.A. No. IX-FY88-54, 1990 WL 752777, *1, fn. 20 (May 3, 1990), citing U.S. v.
Standard Oil Co., 384 U.S. 224, 226, 86 S.Ct. 1427, 16 L.Ed. 2d 492 (1966).
Therefore, under the standard for reviewing the trial court’s decision on the
motion to suppress, we must accept the trial court’s finding that the discharge in
this case occurred from a point source, unless this finding is unsupported by the
evidence. - 15 - Case No. 1-14-24
{¶26} Our review of the record supports the trial court’s findings that there
was no evidence of rain on November 11, 2011 (see Tr. at 10, 25), and that no
evidence established that the runoff at issue was a result of rainwater coming into
contact with manure and flowing into navigable waters. Accordingly, we affirm
the trial court’s conclusion that the runoff here was from a discernible conveyance,
i.e., a traveling gun applicator, which overapplied the liquid manure onto the field.
The fact that some stormwater might have been on the field prior to the
overapplication of the manure and that the manure came into contact with that
stormwater does not create the “agricultural stormwater discharge” exception.
This exception is for the situations when rainfall, combined with proper
application of the manure, causes the runoff, rather than for the situations when
overapplication of the manure and the runoff happen to coincide with some
rainfall. See Southview Farm, 34 F.3d 114, 120 (“while the statute does include an
exception for ‘agricultural stormwater discharges,’ there can be no escape from
liability for agricultural pollution simply because it occurs on rainy days”).
We think the real issue is not whether the discharges occurred during rainfall or were mixed with rain water run-off, but rather, whether the discharges were the result of precipitation. Of course, all discharges eventually mix with precipitation run-off in ditches or streams or navigable waters so the fact that the discharge might have been mixed with run-off cannot be determinative.
Id. at 120-121.
- 16 - Case No. 1-14-24
{¶27} Based upon the foregoing, we affirm the trial court’s conclusion that
the runoff on Brennco’s farm of November 11, 2011, does not amount to
“agricultural stormwater discharge” and therefore, is not exempted from the point
source definition of the CWA. As a result, Brennco is not exempted from liability
under the exception of R.C. 6111.04(F)(3), which allows for farming activities
causing runoff or pollution by animal waste as long as they do not violate the
CWA. This being the only basis for Brennco’s suppression request, we hold that
the trial court properly denied its motion to suppress and we overrule the second
assignment of error.
Conclusion
{¶28} Having reviewed the arguments, the briefs, and the record in this
case, we find no error prejudicial to Appellant in the particulars assigned and
argued. The judgment of the Lima Municipal Court in Allen County, Ohio, is
therefore affirmed.
ROGERS, P.J. and PRESTON, J., concur.
/jlr
- 17 -