[Cite as Thorne v. Toledo, 2024-Ohio-5308.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Gary T. Thorne, Individually Court of Appeals No. L-23-1243 and as his capacity as a taxpayer Trial Court No. CI0202102980 Appellant
v.
City of Toledo, et al. DECISION AND JUDGMENT
Appellees Decided: November 1, 2024
*****
George R. Smith, Jr., for appellant.
Dale R. Emch, City of Toledo Law Director, Jeffrey B. Charles, Karlene D. Henderson, and John T. Madigan, for appellees.
DUHART, J.
{¶ 1} Appellant, Gary T. Thorne, appeals the judgment of the Lucas County Court
of Common Pleas, which granted the motion for summary judgment filed by appellees,
the city of Toledo (“City”) and City Planner Molly Maguire, and denied the motion for
summary judgment filed by appellant. For the reasons that follow, the trial court’s
judgment is affirmed. Statement of the Case
{¶ 2} On September 10, 2021, Thorne filed a taxpayer action pursuant to R.C.
733.59 for injunctive relief. He also sought declaratory judgment relief under R.C.
2721.01 et seq. against the City and the Old West End Association (OWEA), and money
damages against the City and Maguire individually, alleging that: (1) the City’s
interpretation and enforcement of Toledo Municipal Code (“TMC”) 1111.1104,
prohibiting the retroactive issuance of a Certificate of Appropriateness (“COA”), violated
the Fifth and Fourteenth Amendments to the U.S. Constitution and Ohio Constitution
Article 1, Sections 1, 16, and 19, and was unconstitutional on its face and as applied; and
(2) Maguire exacted a deprivation of Thorne’s constitutional rights by retaliating against
him for his exercise of protected speech. Appellees timely filed answers to Thorne’s
complaint, and in their amended answers added the affirmative defense of failure to
exhaust administrative remedies.
{¶ 3} On October 12, 2022, the court, on motion of the OWEA, entered an order
dismissing the OWEA from the lawsuit. No appeal is taken from this order.
{¶ 4} On March 7, 2023, the City and Maguire filed a motion for summary
judgment, and on April 7, 2023, Thorne timely filed a cross-motion for partial summary
judgment.
{¶ 5} On September 27, 2023, the court filed its opinion and judgment entry
granting appellees’ motion for summary judgment and denying Thorne’s motion for
partial summary judgment. It is from this judgment that appeal is taken.
2. Statement of the Facts
{¶ 6} Thorne has resided in the Old West End Historic District (“OWEHD”) since
1987 and owns rental property located at 2601 Parkwood, Toledo, Ohio, which also lies
within the OWEHD. It is Thorne’s efforts to replace the roof on his rental property that
gave rise to the current lawsuit.
{¶ 7} Neither Thorne nor appellees dispute that the Toledo Building Code requires
a building permit for a roof replacement in Toledo. See TMC 1305.01 (“Permits: when
required.”). In addition, provisions set forth in TMC 1103.0302, 1103.0306, and
1111.1101, require property owners to obtain a COA prior to making any “environmental
change,” i.e., “exterior alteration,” to property located within a historic district. See also,
TMC 1103.0302(G) (“‘Exterior architectural feature’ means the architectural style,
general design and arrangement of the exterior of a structure including, but not limited to,
the type, color and texture of the … roof.”) The parties are all in agreement that roof
replacements constitute “environmental changes,” which require prior authorization in
the form of a COA before a building permit will be issued. TMC 1111.1104 provides that
“[a]pplications for retroactive [COAs] shall not be accepted, and retroactive [COAs] shall
not be issued.”
{¶ 8} Thorne sought neither a COA nor a building permit before starting to replace
the roof on April 13, 2021. City building inspector Douglas Lalonde observed Thorne’s
unlicensed contractor removing the old roof without a permit, and on April 14, 2021, the
City issued a stop work order (“SWO”).
3. {¶ 9} Although Thorne subsequently attempted to get a COA and building permit
for the job, his application was rejected by the Plan Commission. According to testimony
by Chief Building Official Steven Shrake and Director of the Plan Commission Thomas
Gibbons, a COA will not issue while an SWO is in place, and an SWO will not be
removed unless the applicant for a building permit first obtains a COA. Somewhat
inconsistently, Maguire testified that she could have issued the COA in this case, as long
as Thorne discontinued the illegal work after he was served with the SWO, and as long as
he had the SWO removed within 48 hours. Maguire admitted that she never
communicated this information to Thorne during a heated telephone conversation that
occurred between them on April 14, 2021.
{¶ 10} Maguire stated that in Thorne’s case, a COA would have been considered
retroactive, because the work on Thorne’s roof had continued after the SWO issued.
According to Thorne, however, Lalonde had instructed the roofing crew that the SWO
did not prohibit them from laying felt paper to make the roof watertight. Thorne alleges
that the roofing crew complied with the SWO.
{¶ 11} Thorne made no attempt to appeal the Planning Director’s decision.
{¶ 12} As a direct result of Thorne’s failure to get a permit before commencing
work on his property, Thorne was criminally cited and found to be in violation of TMC
1301.04 (“No person shall maintain, occupy or use a building or structure or part thereof,
that has been erected or altered in violation of the provisions of this Part Thirteen-
Building Code.”)
4. {¶ 13} Appellees contend that Thorne violated both TMC 1301.04, which requires
that a permit be issued for a roof replacement, as well as TMC 1103.0306, which requires
that a COA be issued before any “contractor, owner or other person may make any
environmental changes to any landmark property or property within a designated historic
district.” According to appellees, “[t]he separately filed COA 1103.0306 historic district
violation was dismissed as it was filed after the 1301.04 violation was resolved.”
{¶ 14} While represented by counsel, Thorne initially filed a motion to dismiss the
municipal court complaint for failure to obtain a building permit. Thorne then withdrew
his motion, changed his plea to “no contest,” and was found guilty of the offense stated in
TMC 1301.04. Shortly thereafter, he was issued a building permit, which allowed him to
complete his roofing project. He subsequently filed the pending action.
Assignments of Error
{¶ 15} On appeal, appellant asserts the following assignments of error:
I. The Trial Court Erred in Ruling on Summary
Judgment as the City of Toledo’s Interpretation and
Enforcement of Toledo Municipal Code § 1111.1104
and the Administrative Scheme Implemented by the
City to Enforce its Building and Zoning Codes Exact a
Deprivation of Rights to Property and Due Process of
Law in Violation of the Fifth and Fourteenth
5. Amendments to the U.S. Constitution and the Ohio
Constitution.
II. The Trial Court Erred in Finding Administrative
Remedies Were Available to Plaintiff.
III. The Trial Court Erred in Granting Summary Judgment
to Maguire as There was Sufficient Evidence of
Record That she Retaliated Against Plaintiff for the
Exercise of his Right to Free Speech and is Thus
Entitled to Neither Qualified Immunity nor Immunity
Under State Statute.
Law and Analysis
Standard of Review
{¶ 16} Appellate courts review summary judgment de novo, employing the same
standard as the trial court. King v. Buildtech Ltd. Construction Development, 2023-Ohio-
1092, ¶ 22 (6th Dist.), citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
(Additional citation omitted.) Summary judgment is proper only when the moving party
demonstrates:
(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.
6. Id., citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978); Civ.R.
56(E).
{¶ 17} “A party seeking summary judgment must specifically delineate the basis
upon which the motion is brought and identify those portions of the record that
demonstrate the absence of a genuine issue of material fact.” Id. at ¶ 23, citing Dresher v.
Burt, 75 Ohio St.3d 280, 293 (1996); Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988),
syllabus. “When a properly supported motion for summary judgment is made, an adverse
party may not rest on mere allegations or denials in the pleadings, but must respond with
specific facts showing that there is a genuine issue of material fact.” Id., citing Civ.R. 56
(E) and Riley v. Montgomery, 11 Ohio St.3d 75, 79 (1984). “A ‘material’ fact is one that
would affect the outcome of the suit under the applicable and substantive law.” Id., citing
Russell v. Interim Personnel, Inc., 125 Ohio App.3d 301, 304 (6th Dist. 1999).
(Additional citations omitted.)
Relevant TMC Sections
{¶ 18} Before beginning our analysis, we find it helpful to set forth the relevant
statutes in this case.
{¶ 19} TMC 1103.0300 addresses the Historic Overlay Districts in Toledo,
including the Old West End, which is at issue in this case. TMC 1103.0301 provides a
purpose for the Historic Overlay Districts, stating:
The City Council has declared as a matter of public policy that the preservation, protection, and use of areas, places, buildings, structures and works of art – whether designated as local landmarks or in local historic districts or National
7. Register Historic Districts – is a public necessity and is required in the interest of the health, safety and welfare of the people. The purposes of the -HO Historic Overlay Districts are to:
A. Safeguard the heritage of the City by preserving sites and structures within National Register Historic Districts and/or within state and locally designated historic districts that reflect the City’s history and architectural past.
B. Stabilize and improve property values.
C. Strengthen the economy of the City.
D. Protect and enhance the City’s attractions to residents, tourists and visitors.
E. Enhance the visual and aesthetic character, diversity and interest of the City.
F. Foster civic pride in the beauty and notable accomplishments of the past.
G. Promote the use and preservation of historic sites and structures for the education and general welfare of the people of the City.
H. Preserve sound existing housing stock and safeguard the residential character of primarily residential neighborhoods.
{¶ 20} Under TMC 1103.0306, “No contractor, owner or other person may make
any environmental changes to any landmark property or property within a designated
historic district unless a valid written Certificate of Appropriateness has been issued by
the respective Historic District Commission.” Similarly, under TMC 1111.1101, “No
contractor, owner or other person may make any environmental changes to any property
designated as a historic landmark or within a designated Historic District unless a valid
8. written Certificate of Appropriateness has been issued by the respective Historic district
Commission in accordance with the procedures of this section.” “‘Environmental change’
means any exterior alteration … of any property, requiring or not requiring a building
permit subject to the historic overlay provisions of the Zoning Code.”
{¶ 21} TMC 1111.1103 provides that “Applications for a Certificate of
Appropriateness for environmental changes upon landmarks or within designated
Historic Districts shall be submitted directly to the Planning Director on forms provided
by the Plan Commission, together with four complete sets of all applicable plans, designs,
elevations, specifications and documents relating thereto.” Pursuant to TMC
1111.1107(G), building permit applications to the Division of Inspection for construction
or rehabilitation work within a designated historic district shall not be accepted or
approved without a Certificate of Appropriateness.
{¶ 22} As indicated above, TMC 1111.1104 provides that “[a]pplications for
retroactive Certificates of Appropriateness shall not be accepted, and retroactive
Certificates of Appropriateness shall not be issued.”
{¶ 23} Under TMC 1111.1109, “[d]ecisions by the Planning Director may be
appealed by the applicant to the Historic District Commission,” “[d]ecisions by the
Historic District Commission may be appealed to the Plan Commission,” and decisions
by the Plan Commission may be appealed to the court of common pleas as set forth in
R.C. Chapter 2506.
9. {¶ 24} TMC Part 13, the “Building Code,” provides that “[n]o person shall
maintain, occupy or use a building or structure or part thereof that has been erected or
altered in violation of the provisions of this Part Thirteen-Building Code.” TMC 1301.04.
And “[w]hoever violates any provision of Part Thirteen-Building Code for which a
penalty is not otherwise provided shall be guilty of a misdemeanor 1st degree.” TMC
1319.04(A). Finally, TMC 501.99 (a) provides that penalties for a misdemeanor of a 1st
degree can include up to six months in jail and a maximum fine of $1000.00.
First Assignment of Error
{¶ 25} In his first assignment of error, Thorne makes four basic claims: (1)
enforcement of the non-retroactivity provision in TMC 1111.1104 led to an
unconstitutional taking vis-à-vis the water damage to his property; (2) TMC 1111.1104
lacks a rational relationship to a legitimate governmental purpose and thus violates
substantive due process; (3) enforcement of the non-retroactivity provision in TMC
1111.1104 violates procedural due process because it deprived him access to
administrative review; and (4) TMC 1111.1104 is void for vagueness regarding the term
“retroactive.” We will address each of these claims in turn.
Unconstitutional Taking
{¶ 26} First, Thorne argues that the City’s interpretation and enforcement of TMC
1111.1104 constituted an unconstitutional taking. “In order to establish a taking, a
landowner must demonstrate a substantial or unreasonable interference with a property
right.” State ex rel. OTR v. Columbus, 76 Ohio St.3d 203, 206 (1996). “Such an
10. interference may involve the actual physical taking of real property, or it may include the
deprivation of an intangible interest in the premises.” Id.
{¶ 27} Here, Thorne argues that the City took his property by forcing him to go
through the criminal process after he broke the law by beginning to do roofing work
without a permit, which left his house exposed to the elements for several months
resulting in water damage. Thorne’s argument, however, relies on a faulty premise.
Contrary to his repeated assertions, the City did not damage Thorne’s property. Indeed,
Thorne himself notes that Lalonde told him that he could make the roof watertight when
he issued the SWO. Thus, the water damage that allegedly occurred to Thorne’s property
was a result of his own failure to adequately waterproof the roof; it was not a result of
any enforcement action by the City. Therefore, Thorne’s unconstitutional taking claim
must fail.
Substantive Due Process
{¶ 28} Second, Thorne argues that the City’s interpretation and enforcement of
TMC 1111.1104 violated substantive due process.
{¶ 29} “The Fourteenth Amendment to the United States Constitution and Section
16, Article I of the Ohio Constitution require that administrative proceedings comport
with due process.” Freeman v. Ohio Elections Commission, 2024-Ohio-1223, ¶ 26 (10th
Dist.) citing Richmond v. Ohio Bd. of Nursing, 2013-Ohio-110, ¶ 10 (10th Dist.), citing
Mathews v. Eldridge, 424 U.S. 319 (1976). Due process has two components: substantive
11. due process and procedural due process. State v. Pennington, 2002 WL 104937 (10th
Dist. Jan. 29, 2002).
{¶ 30} “‘The essence of substantive due process is the protection from certain
arbitrary, wrongful governmental actions irrespective of the fairness of the procedures
used to implement them.’” Freeman at ¶ 26, citing Southern Health Facilities, Inc. v.
Somani, 1995 WL 765161 (10th Dist. Dec. 29, 1995). “‘In a substantive-due-process
challenge, “[t]he first (and often last) issue … is the proper characterization of the
individual's asserted right.”’” State v. Caroline’s Kids Pet Rescue, 2023-Ohio-761, ¶ 24
(11th Dist.), quoting Stolz v. J&B Steel Erectors, Inc., 2018-Ohio-5088, ¶ 14, quoting
Blau v. Fort Thomas Pub. School Dist., 401 F.3d 381, 393 (6th Cir. 2005), citing Reno v.
Flores, 507 U.S. 292, 302 (1993). “Government actions that infringe upon a fundamental
right are subject to strict scrutiny, while those that do not need only be rationally related
to a legitimate government interest.” Stolz at ¶ 14, citing State v. Lowe, 2007-Ohio-606, ¶
18.
{¶ 31} Thorne specifically complains that the City’s strict prohibition against the
issuance of retroactive COAs unjustifiably “clos[es] the door on administrative review” --
thereby forsaking legitimate public policy concerns such as preserving the aesthetics and
historic character of the neighborhood -- and, instead, “relegate[es] the property owner to
defense of a criminal proceeding.” As applied to himself, Thorne claims that he was
excessively punished in that in addition to paying fees for removal of the SWO and
issuance of a building permit and being convicted of a misdemeanor of the first degree,
12. he suffered loss to his property “in the thousands of dollars” because he “was left with his
roof exposed for almost three months in the Northwest Ohio spring weather, his property
sustaining substantial water damage (paint damage interior of house, plaster cracking and
falling, floors buckled, one of the mantels becoming warped, undetermined electrical
issues, damage to ceiling fans and light fixtures) as a result of the delay.” While he
acknowledges that “[c]harging property owners criminally is sufficient to further
deterrence and incentivize future compliance with the approval process,” Thorne
contends that both deterrence and government oversight of “environmental changes” to
private property “can be legally furthered by allowing administrative review of
‘untimely’ applications for a COA … and initiating a separate, parallel criminal
proceeding against noncomplying property owners.”
{¶ 32} To the extent that these allegations raise a substantive due process claim,
we recognize that the Home Rule Provision, Section 3, Article XVIII of the Ohio
Constitution grants local police powers to municipalities, and that “[a]s part of these
police powers, a municipality may adopt zoning regulations governing the construction,
modification, and demolition of buildings within the municipality.” Columbus v. Bahgat,
2011-Ohio-3315, ¶ 24 (10th Dist.), citing Jaylin Investments, Inc. v. Moreland Hills,
2006-Ohio-4, ¶ 10. (Additional citation omitted.) “‘Courts should not interfere with
zoning decisions unless the municipality exercised its power in an arbitrary and
unreasonable manner and the decision has no substantial relation to the public health,
safety, morals, or general welfare.’” Kinzel v. Ebner, 2023-Ohio-164, ¶ 68, quoting Jaylin
13. at ¶ 10, citing Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). “‘The burden of proof
remains with the party challenging an ordinance’s constitutionality, and the standard of
proof remains “beyond fair debate.”’” Id. at ¶ 13, quoting Godberg Cos., Inc. v.
Richmond Hts. City Council, 81Ohio St.3d 207, 214 (1998). “[T]here is little difference
between the ‘beyond fair debate’ standard and the ‘beyond a reasonable doubt’ standard.”
Cent. Motors Corp. v. Pepper Pike, 73 Ohio St.3d 581, 584 (1995), citing Karches v.
Cincinnati, 38 Ohio St.3d 12, 19 (1988).
{¶ 33} Here, Thorne states that the prohibition against retroactive COAs has no
rational relationship to a governmental purpose, because once a property owner begins
work without a COA (and the matter is necessarily converted to a criminal matter) the
City is left without any power to oversee “environmental changes” to property located
within historic districts, and, thus, the stated purpose of the ordinance is undermined.
{¶ 34} We find, instead, that once the property owner begins work without a
building permit and/or COA, the focus of the governmental interest simply changes from
the legitimate governmental purpose of overseeing “environmental changes” to the
separate legitimate governmental purpose of deterring property owners against
noncompliance with the lawful COA requirement. As the City points out, “if citizens
were routinely permitted to seek permits after the work was done much confusion and
improper building techniques and zoning violation would result.” Thorne’s argument that
the government could have furthered both governmental purposes by allowing
administrative review of untimely COA applications in addition to the initiation of a
14. separate criminal proceeding against noncomplying property owners is simply a policy
argument; it does not satisfy his considerable burden of demonstrating that TMC
1111.1104 is not rationally related to a legitimate governmental interest. Therefore, his
substantive due process claim must fail.
Procedural Due Process
{¶ 35} Third, Thorne argues that the City’s interpretation and enforcement of
TMC 1111.1104 violated procedural due process.
{¶ 36} Procedural due process “ensures that a state will not deprive a person of
life, liberty, or property unless fair procedures are used in making that decision.” Kistler
v. Conrad, 2006-Ohio-3308, ¶ 14 (10th Dist.), quoting State v. Ward, 130 Ohio App.3d
551, 557, (8th Dist. 1999). Procedural due process rights that are guaranteed by the
United States and Ohio Constitutions apply in administrative proceedings. Biser v. Ohio
Dept. of Health, 2020-Ohio-6836, ¶ 24 (7th Dist.), citing LTV Steel Co. v. Indus. Comm.
140 Ohio App.3d 680, 688, (10th Dist.2000). “However, due process is a flexible concept
and calls for such procedural safeguards as the particular situation demands.” LTV Steel
at 688-689. “The fundamental concepts of procedural due process are notice and an
opportunity for a hearing.” Biser at ¶ 24, citing Korn v. Ohio State Med. Bd., 61 Ohio
App.3d 677, 684, (10th Dist.1998).
{¶ 37} Thorne complains that the prohibition against retroactive COAs wrongfully
denied him any opportunity to be heard on the merits of his application. The test for
analyzing due process in administrative hearings involves weighing three factors: (1) the
15. private interest at stake; (2) the risk of erroneous deprivation of that interest and the
probable value of additional procedural safeguards; and (3) the government's interest,
including the fiscal and administrative burdens that the additional or substitute procedural
requirements would entail. LTV Steel at 689, citing Mathews, 424 U.S. at 335, .
{¶ 38} Here, Thorne’s stated interest is simply the opportunity to be heard on the
merits of his application for a COA. Thorne’s claim to the contrary notwithstanding, the
ordinances did, in fact, provide for such a hearing on a timely application. It was
Thorne’s own neglect in timely applying for a COA that deprived him of his opportunity
to be heard. As for the government’s interest in the prohibition against retroactive COA
applications, we note that “Ohio and other states ‘may erect reasonable requirements for
triggering the right to an adjudication.” State v. Gumm, 2004-Ohio-4755, ¶ 7-8, quoting
Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982). Requiring the application to
be filed before work is commenced is a reasonable requirement.
{¶ 39} Additionally, Thorne argues that he was not given proper notice. Citing a
form letter sent to Old West End residents, he complains that he was never informed of
the consequences of failing to obtain a COA prior to beginning work, specifically, “that
any work would be halted mid-stream by issuance of an SWO and [he] would be frozen
out of the administrative review process pending disposition of criminal charges which
could take months to run their course leaving [his] property exposed to the elements.” To
the contrary, the ordinances themselves provide clear notice: 1) of the prohibition against
retroactive COAs; 2) that, irrespective of the COA requirement, no person shall maintain,
16. occupy, or use a building that has been altered in violation of the Toledo Building Code;
3) that violation of the building code provision is a misdemeanor of the 1st degree; and 4)
that a misdemeanor of the first degree can include penalties of up to six months in jail
and a fine of $1,000. Regardless of the adequacy of the form letter or any other notices
sent to him, “[a]ll persons are ‘conclusively presumed to know the law.’” In re Estate of
Holycross, 2007-Ohio-1, ¶ 27, quoting State v. Pinkney, 36 Ohio St.3d 190, 198 (1988).
Thus, Thorne was properly on notice that his retroactive application would not be
accepted.
{¶ 40} Therefore, because Thorne had adequate notice and opportunity to be heard
on his COA application, his procedural due process claim must fail.
Void for Vagueness
{¶ 41} Fourth, and finally, Thorne argues that the meaning of “retroactive” in the
ordinance prohibiting retroactive COAs is unconstitutionally vague.
{¶ 42} “‘It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined.’” Kinzel, 2023-Ohio-164, at ¶ 59,
citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). “To pass muster under the
void-for-vagueness doctrine, Ohio law dictates that an ordinance must survive the
tripartite analysis set forth in Grayned[:] … (1) the ordinance must provide fair warning
to the ordinary citizen of what conduct is proscribed, (2) the ordinance must preclude
arbitrary, capricious, and discriminatory enforcement, and (3) the ordinance must not
17. impinge constitutionally protected rights.” Viviano v. Sandusky, 2013-Ohio-2813, ¶ 11
(6th Dist.).
{¶ 43} In this case, he contends that the prohibition against retroactive applications
could be interpreted to apply at any time from after work commences to after the project
is completed. Because the language of the ordinances repeatedly and unambiguously
provides that a COA and building permit should be obtained before a person may make
“any environmental changes” within a designated historic district, we find that the
language conveys sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practices. See Kisil at ¶ 12 (stating that
impossible standards of specificity are not required, and that the test is whether the
language conveys sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practices). Therefore, Thorne’s claim that
TMC 1111.1104 is unconstitutionally vague must fail.
{¶ 44} For all of the foregoing reasons, because Thorne has not demonstrated that
TMC 1111.1104 is unconstitutional, his first assignment of error is not well-taken.
Second Assignment of Error
{¶ 45} In his second assignment of error, Thorne asserts that the trial court erred
when it found that he had administrative remedies. Thorne’s argument is in response to a
position taken by the City that because he did not exhaust his administrative remedies, he
was barred from raising constitutional claims before the trial court. Notably, Thorne
recognizes that “[t]he trial court did not directly rule [his] claims were barred for failure
18. to exhaust administrative remedies.” He claims, however, that “the fact that [the trial
court] mentioned he never attempted appeal suggests this was a consideration for the
court that weighed in its decision.”
{¶ 46} Thorne’s second assignment of error is moot and invites this court to issue
a purely advisory opinion on whether his constitutional claims were barred for failure to
exhaust his administrative remedies. As he notes, the trial court did not make this
determination. Further, as discussed above, his constitutional claims fail on their merits.
Therefore, whether his claims should have been barred has no effect on the outcome of
this decision.
{¶ 47} Accordingly, Thorne’s second assignment of error is not well-taken.
Third Assignment of Error
{¶ 48} Thorne argues in his third assignment of error that the trial court erred in
granting summary judgment to Maguire, as there was sufficient evidence of record that
she retaliated against Thorne for the exercise of his right to free speech and, thus, she is
entitled to neither “qualified immunity” nor “immunity under state statute.”
{¶ 49} 42 U.S.C. § 1983 creates a civil cause of action against individuals who,
while acting under color of state law, deprive a person of the “rights, privileges or
immunities secured by the Constitution or laws” of the United States. See Bennett v. City
of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005). Qualified immunity protects state
officials against liability under 42 U.S.C. § 1983 so long as ‘their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
19. would have known.’” Reilly v. Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012), quoting
Cochran v. Gilliam, 656 F.3d 300, 306 (6th Cir. 2011), quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).
{¶ 50} R.C. 2744.03 governs defenses and immunities available in civil actions
brought against a political subdivision or an employee of a political subdivision to
recover damages allegedly caused by any act or omission in connection with a
governmental or proprietary function. R.C. 2744.03(A)(6):
‘provides immunity to an employee of a political subdivision unless an exception found within R.C. 2744.03(A)(6)(a) through (c) applies.’ Thompson v. Buckeye Joint Vocational School Dist., 2016-Ohio-2804, ¶ 27 (5th Dist.). Under the provisions of R.C. 2744.03(A)(6), ‘an employee of a political subdivision is immune from liability unless: (1) the employee's acts or omissions are manifestly outside the scope of the employee's employment or official responsibilities; (2) the employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton and reckless manner; or (3) civil liability is expressly imposed on the employee by a section of the Revised Code.’ Id.
Dalrymple v. Westerville, 2022-Ohio-4094, ¶ 53 (10th Dist.).
{¶ 51} The facts relating to this assignment of error, viewed in a light most
favorable to Thorne are as follows. Maguire functioned as both a principal and associate
planner for the City. Administrative approval of COA applications was among her job
duties, and it is undisputed that she reviewed Thorne’s COA applications. She testified
that she first became aware that work was being done on Thorne’s property when
someone called her on April 13, 2022. She stated that there was a crew on site at
Thorne’s property and that no COA placard was in the window. On April 14, 2022, the
20. City sent out City building inspector Lalonde and ordered the work to stop. Lalonde
subsequently signed the affidavit which provided the probable cause for the complaint to
be filed in the Toledo Municipal Court.
{¶ 52} In conflict with testimony by Chief Building Official Shrake and Director
of the Plan Commission Gibbons, Maguire testified that she could have issued the COA
in this case, as long as Thorne discontinued illegal work after he was served with the
SWO, and as long as he had the SWO removed within 48 hours.
{¶ 53} Maguire testified that during a conversation between herself and Thorne on
April 14, 2021, Thorne was “demeaning” towards her when she was “offering to try and
help him with the situation,” and that Thorne insulted her because he was trying to deny
that he needed a COA for the roof replacement. Maguire stated that she did not recall
providing any guidance to Thorne in terms of what he needed to do to get the SWO
removed, and that she ended the conversation by hanging up on Thorne.
{¶ 54} Maguire testified that she had previous dealings with Thorne in 2016, when
after Thorne had replaced boards on the stairs of his front steps without applying for a
COA, he was served with an SWO. Maguire stated that she assisted Thorne in allowing
his work to go before the Commission, in obtaining removal of the SWO and issuance of
a building permit, and in keeping Thorne out of housing court, thereby saving him from
having to pay extra fines and fees.
{¶ 55} Maguire further testified that in 2018, Gibbons revoked Maguire’s
authority to assist residents in obtaining approval of work performed before issuance of a
21. COA, as a result of complaints received by commission members insisting “that all
constituents who did illegal work go through the system, based on the Toledo Municipal
Code.”
{¶ 56} According to Thorne, Maguire’s own testimony is sufficient to support a
finding that she “refused to assist” him in obtaining a COA and removing the SWO
“because she didn’t like the way he talked to her.” He states that “[r]etaliation by a
government official against a person for exercising their right to freedom of speech –
even if the speech is critical of the government official or government policy – is a
clearly established, well-known constitutional violation of which Maguire was on notice.
{¶ 57} To the contrary, we find that Thorne, in alleging that Maguire, in her
capacity as a government employee, did not help him obtain a legally prohibited,
retroactive COA, fails to show a violation of a statutory or constitutional right and, thus,
fails to demonstrate that Maguire is not entitled to immunity for claims arising under 42
U.S.C. § 1983. Likewise, Thorne’s allegation against Maguire does nothing to show that
her acts or omissions were manifestly outside the scope of her employment or official
responsibilities, or that they were performed with malicious purpose, in bad faith, or in a
wanton and reckless manner. Thus, Thorne fails to demonstrate any lack of immunity
under state law. Appellant’s third assignment of error is found not well-taken.
22. Conclusion
{¶ 58} Because there is no genuine issue as to any material fact, the judgment of
the Lucas County Court of Common Pleas granting summary judgment in favor of the
City and Maguire is affirmed. Thorne is to pay the costs of appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Myron C. Duhart, J. ____________________________ Charles E. Sulek, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
23.