2018 Ohio 975
Ohio Ct. App.2018Background
- Owner Walter G. Reiner was cited after inspections (Aug 27, 2014 → July 2, 2015) for grass/weeds over 12 inches and for a large pile of broken granite countertops on his property in Columbus.
- City officers served a notice of violation (Aug 28, 2014), issued a noncompliance warning (Dec 22, 2014), granted extensions, then filed criminal charges after continued noncompliance (complaint filed July 15, 2015).
- Officers testified weeds included poisonous/invasive species and the granite pile (with adhesive, sink cutouts, trash mixed in) could harbor vermin and attract illegal dumping.
- Reiner defended by claiming: (1) weeds observed in 2015 were new and not subject to the 2014 notice; (2) the granite was not "solid waste" but inventory for a nursery/landscaping nonconforming use; (3) he enjoyed prior lawful nonconforming use status; and (4) the City selectively enforced the code (pointing to an adjacent public bikeway with similar weed conditions).
- The municipal court convicted Reiner of violating CCC 709.03(B) (noxious weeds) and CCC 707.03(A) (solid waste); suspended 180-day jail sentence, costs and supervision fee were imposed. The court found granite constituted rubbish/construction or demolition debris and rejected nonconforming-use and selective-enforcement defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Were criminal charges proper without a new notice for 2015 weeds? | City: criminal complaint permissible when inspection shows reasonable grounds for a nuisance; notice not a prerequisite. | Reiner: 2015 weeds may be new growth after winter; original 2014 notice was a condition precedent. | Court: Notice is discretionary; CCC 701.19 permits criminal filing on inspection; conviction upheld. |
| 2. Were the granite piles "solid waste" under HSS Code? | City: photos and testimony show rubble, adhesive, cutouts, trash — fits definitions of rubbish, construction/demolition debris (solid waste). | Reiner: definitions ambiguous; granite was inventory for sale, not waste; rule of lenity applies. | Court: Definitions not ambiguous; competent evidence supported classification as solid waste; conviction upheld. |
| 3. Does prior nonconforming use bar enforcement of HSS Code? | City: HSS Code regulates public health and applies to all properties regardless of zoning/nonconforming use. | Reiner: property had long-standing horticultural/landscaping nonconforming use allowing the storage/use. | Court: Reiner failed to prove nonconforming use; even if proven, health code applies to preexisting nonconforming uses. |
| 4. Was prosecution selective enforcement? | City: enforcement followed complaint and inspections; not selectively enforced. | Reiner: adjacent public bikeway (City easement) had similar weeds but was not enforced against; alleged threats from city staff show bad faith. | Court: Reiner produced no evidence that similarly situated parties were treated differently or that prosecution was motivated by invidious/bad-faith reasons; claim fails. |
Key Cases Cited
- State ex rel. Niles v. Bernard, 53 Ohio St.2d 31 (statutory "may" construed as discretionary)
- C.D.S., Inc. v. Gates Mills, 26 Ohio St.3d 166 (health regulations may be enforced against preexisting nonconforming uses)
- N. Ohio Sign Contractors Assn. v. Lakewood, 32 Ohio St.3d 316 (same principle: regulatory codes may apply to nonconforming uses)
- State v. Flynt, 63 Ohio St.2d 132 (two-part test for selective/discriminatory prosecution)
- United States v. Berrios, 501 F.2d 1207 (source of Flynt/test framework for discriminatory prosecution)
- Cleveland v. Trzebuckowski, 85 Ohio St.3d 524 (selective enforcement/equal protection context)
- State v. DeHass, 10 Ohio St.2d 230 (trial-court determination of witness credibility and weight of evidence)