Osburn Towing v. Akron
2013 Ohio 5409
Ohio Ct. App.2013Background
- City Council amended Akron Codified Ordinance 70.52 to change the designated tow operator and impound lot for District Six, removing Osburn Towing and naming Miller’s Towing at a different location.
- Osburn Towing had sold the property that had been the District Six pound and had been towing vehicles to a District Three impound lot; it argued it received no notice of Council’s plan to remove it.
- Osburn appealed the ordinance amendment to the Summit County Court of Common Pleas under R.C. Chapter 2506, claiming the removal was unlawful, unreasonable, and against the weight of the evidence.
- The trial court treated Council’s amendment as an administrative action (a de facto license revocation) and vacated the ordinance amendment.
- Akron appealed to the Ninth District Court of Appeals, arguing the amendment was a legislative act outside 2506.01 jurisdiction and raising due-process and remand-related claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the common pleas court had jurisdiction under R.C. 2506.01 to review Council’s amendment | Osburn: amendment effectively revoked its tow license/authorization and thus was an administrative action reviewable under 2506.01 | City: amendment was a legislative act (enacting a change in law/designation), not an administrative adjudication | Court: amendment was legislative; common pleas court lacked jurisdiction under R.C. 2506.01 |
| Whether Council’s action required pre-deprivation procedural due process (notice/hearing) | Osburn: removal without notice/hearing violated due process protections | City: no due-process violation because Council’s action was legislative, not a license revocation triggering 2506.01 protections | Held moot (court declined to address after resolving jurisdiction); appellate court indicated no entitlement to 2506 protections because action was legislative |
| Whether the trial court properly vacated Council’s amendment if the act was administrative | Osburn: vacatur was proper because action was administrative revocation | City: vacatur was improper because Council exercised legislative authority; trial court had no jurisdiction | Moot following resolution of jurisdiction; appellate court found vacatur invalid because judgment was a nullity |
| Whether remand to Police Towing Review Board was proper | Osburn: remand appropriate if administrative review required | City: remand improper because Council retained legislative authority to designate operators/locations | Moot; appellate court did not reach merits but reversed trial court for lack of jurisdiction |
Key Cases Cited
- Buckeye Community Hope Found. v. Cuyahoga Falls, 82 Ohio St.3d 539 (State court) (look at substance over form to determine legislative vs. administrative action)
- Donnelly v. Fairview Park, 13 Ohio St.2d 1 (Ohio 1968) (test distinguishing legislative acts from administrative execution of laws)
- Berg v. Struthers, 176 Ohio St. 146 (Ohio 1964) (legislative bodies’ legislative acts are not reviewable under 2506.01)
- State ex rel. Zeigler v. Zumbar, 129 Ohio St.3d 240 (Ohio 2011) (affirming limits on common pleas jurisdiction over purely legislative acts)