Mack v. ToledoMack v. Toledo
O P I N I O N
Rendered on the 31st day of December, 2019.
ANDREW R. MAYLE, Atty. Reg. No. 0075622 and RONALD J. MAYLE, Atty. Reg. No. 0030820, P.O. Box 263, Perrysburg, Ohio 43552 Attorneys for Plaintiffs-Appellees
JEFFREY B. CHARLES, Atty. Reg. No. 0064514, City of Toledo Law Department, One Government Center, Suite 2250, Toledo, Ohio 43604 Attorney for Defendant-Appellant, City of Toledo
KEVIN A. PITUCH, Atty. Reg. No. 0040167 and EVY M. JARRETT, Atty. Reg. No. 0062485, Assistant Prosecuting Attorneys, Lucas County Prosecutor‘s Office, 711 Adams Street, Second Floor, Toledo, Ohio 43604 Attorneys for Defendants-Appellants, Toledo-Lucas County Health District
TABITHA STEARNS, Atty. Reg. No. 0095218, 1867 West Market Street, Akron, Ohio 44313 Attorney for Amicus Curiae, Board of Health of the Summit County Combined General Health District
HEATHER L. HALL, Atty. Reg. No. 0079303, 525 Jefferson Avenue, Suite 300, Toledo, Ohio 43604 Attorney for Amicus Curiae, Advocates for Basic Legal Equality, Inc., Community Legal Aid Services, Legal Aid Society of Cleveland, Legal Aid Society of Columbus, Legal Aid Society of Southwest Ohio, and Southeastern Ohio Legal Services
{¶ 1} This case involves a permanent injunction granted to prohibit enforcement of a municipal lead ordinance enacted by the City of Toledo. The Plaintiffs-Appellees are Cheryl Mack and Property Investor‘s Network, Inc. (“PIN“), and the Defendants-Appellants are the City of Toledo (“City“) and the Toledo-Lucas County Health District (“District“).1 According to Appellants, the trial court erred in granting Appellees’ partial motion for summary judgment and in overruling Appellants’ motions for judgment on the pleadings. Specifically, Appellants contend that the trial court erred in concluding that
{¶ 2} We have also received amicus curiae briefs from the Board of Health of Summit County Combined General Health District (Summit), and from Advocates of Basic Legal Equality, Inc., Community Legal Aid Services, the Legal Aid Society of Cleveland, the Legal Aid Society of Columbus, Legal Aid Society of Southwest Ohio, and Southeastern Ohio Legal Services (collectively, “Legal Aid“). The briefs from
{¶ 3} For the reasons that will be discussed, the judgment of the trial court will be reversed in part and affirmed in part, and this cause will be remanded for reconsideration of the amount of attorney fees, if any, to be awarded to Appellee, Mack, under
{¶ 4} The trial court further erred by concluding that the classifications of properties subject to the lead ordinance violate equal protection. The classifications are rationally related to the ordinance‘s goal, which is to help prevent lead poisoning in the City. However, the trial court did not err in finding that the definition of “Owner” in the ordinance violates equal protection. This definition is so broad that it renders the ordinance‘s classifications unworkable and irrational. Finally, because judgment is now being rendered only partially, rather than totally, in favor of Appellees, the trial court should reconsider what, if any reasonable compensation should be awarded for attorney fees.
I. Facts and Course of Proceedings
{¶ 5} All the facts in this case are undisputed. In April 2017, the Toledo City Council passed Ord. 167-17, which amended Toledo Municipal Code (“TMC“) Chap. 1760 (“Registration of Lead Safe Residential Rental Units“).2 Section 1760.01 stated that:
It is the policy of the City of Toledo to help prevent the poisoning of its residents by requiring that the presence of deteriorated paint, bare soil and lead dust on the interior and exterior of pre-1978 residential structures be identified and correctly addressed in accordance with federal, state, and local laws, regulations and guidelines in order to prevent potential human exposure to lead hazards. An analysis of the risk assessments conducted in Toledo by the Health Department indicates that the majority of lead poisoning of children occurs in rental properties that are either single-family homes or four (4) units or less. All fees and fines generated under this Chapter shall be transferred to the Health Department to be used for the administration, implementation, and enforcement of this Chapter.
{¶ 6} Section 1706.02 further provided that:
(a) It is a violation of this Chapter to allow the following conditions to exist in a “Residential Rental Property or a Family child Care Home“: (1) “Deteriorated Paint Condition,” (2) “Lead Dust Condition,” or a (3) “Bare Soil Condition,” as defined in section 1760.04. Every Owner of Residential Rental Property shall maintain such property free from these conditions. Once identified, the condition is to be remedied in accordance with the requirements of this Chapter. Termination of occupancy of any such Residential Rental Property
shall not constitute compliance with the requirements of this Section. (b) No Owner, Agent, real estate agent or broker, company, or any person or persons shall rent, lease, sublease, let, or otherwise allow the occupancy of any Residential Rental Property, or provide child care services in a Family Child Care Home, as defined in this Chapter, constructed prior to 1978 and which is subject to this Chapter, whether such use, or occupancy is temporary or permanent, unless a “Lead-Safe Certificate” has been issued for such Property.
{¶ 7} In order to obtain such a certificate, an owner was required to file an application and a “Lead Safe Report” issued by a local lead inspector within six months after the application was filed. The owner was also required to pay a $45 filing fee. The length of a certificate was three years, six years, or 20 years, depending on whether the property failed or passed an initial visual and dust wipe inspection, had undergone lead abatement, or had been determined not to contain lead-based paint. TMC 1760.03.
{¶ 8} A “Dwelling Unit” was defined as:
(1) any residential unit constructed as a single family home and built prior to 1978, and (2) any residential unit constructed as a duplex and built prior to 1978, (3) any residential unit, or other unit modified to be a residential unit consisting of between one and four residential units including all of the following:
(a) The interior surfaces and all common areas of the dwelling unit;
(b) Every attached or unattached structure located within the same lot line as the dwelling unit, that the owner or manager considers to be associated with the operation of the dwelling unit, including garages, play equipment, and fences; and
(c) The lot or land that the dwelling unit occupies.
TMC 1760.04(a)(6).
{¶ 9} For the definition of “Owner,” TMC 1760.04(20) incorporated the definition of “Owner” in TMC 1726.01. This definition was “any of the following“:
(1) Any person, corporation, limited liability company, partnership, limited partnership, limited liability partnership, or any shareholder, officer, trust, trustee, partner, agent or employee of any of the above who has care, custody, control or charge of a premises or part thereof, has legal title to the premises, or has done any act to maintain or operate the premises.
A. “Maintaining or operating the premises” shall include without limitation, entering into a public utility contract, obtaining a building or demolition permit or obtaining any other permit or license relating to the premises.
(2) Any operator of a premises.
TMC 1726.01(b) (Ord. 539-15, enacted on Nov. 10, 2015).
{¶ 10} An “Operator” was further defined as:
(1) Any person who has charge, care of or control of premises or a part thereof whether with or without the knowledge and consent of the owner.
(2) Any person who alone or jointly or severally with others shall have legal or equitable title to any premises with or without accompanying actual possession therefrom or shall have charge, care or control of premises as owner or agent of the owner, or as executor, executrix, administrator, administratrix, trustee, receiver or guardian of the estate or as a mortgagee in possession.
(3) Any person who as a lessee subletting or reassigning any part or all of
any premises shall be deemed to be a co-owner with the lessor and shall have joint responsibility over the portion of the premises sublet or assigned by such lessee.
TMC at 1726.01(c).
{¶ 11} TMC 1760.05(a) further provided that for purposes of Chap. 1760, “all paint on the interior or exterior of any residential building on which the original construction was completed prior to January 1, 1978, shall be presumed to be lead-based.” This presumption could only be rebutted “by obtaining a certification from a lead-based paint inspector or risk assessor that the property has been determined through a lead-based paint inspection conducted in accordance with the federal regulations at 40 CFR 745.227(b) not to contain lead-based paint.” TCM 1760.05(b).
{¶ 12} After analyzing each census tract in the city using public health data, which included all reported cases of child lead poisoning over the past five years, and census and residential parcel information, the City decided which rental properties posed the greatest danger of lead exposure. TMC 1760.15(a). The City then required dwelling units in specific census tracts to comply with the lead-safe certificate requirement by one of three dates: June 30, 2018; June 30, 2019, or June 30, 2020. After June 30, 2020, all “dwelling units” within the geographical limits of the City were required to comply. Id. Failure to comply by the deadlines subjected “any” violator to a $50 per day administrative fee per dwelling unit, up to a maximum penalty of $10,000 per year per dwelling unit. Id. at 1760.15(b).
{¶ 13} The ordinance also authorized the Commissioner of the Health Department and/or his or her designee “to enter on and into and inspect all premises, dwellings, dwelling units and accessory buildings, subject to the provisions of” Chapter 1760, “and in accordance with the right of entry defined in Toledo Municipal Code Section 1303.0900 for the purpose of determining compliance with the provisions of” Chapter 1760.” TMC 1760.08.
{¶ 14} On June 13, 2017, the City and the District executed an agreement to enforce Chapter 1760 of the Municipal Code. Joint Stipulations, No. 7 and Ex. E at p. 1. The agreement was signed by the Health Commissioner for the District and the Mayor of Toledo. Ex. E at pp. 2-3. Under the agreement, the City and District stated that they desired the District to “have all powers necessary or incidental thereto to perform the duties listed in Chapter 1760 and facilitate its enforcement.” Id. at p. 1. The parties also stated that they were entering into the agreement “pursuant to
{¶ 15} As part of the agreement, the parties stated that the District would “perform the duties listed in Chapter 1760 of the Toledo Municipal Code” and “enforce its requirements on Residential Rental Properties and Family Child Care Homes.” Id. The District was also given the right to petition any court to seek relief needed to enforce Chapter 1760, including to collect fines assessed under TMC 1760.15. Id. The agreement was to be effective from May 25, 2017 through December 31, 2022, with automatic renewal beginning on the latter date, and continuing every five years thereafter, unless either party gave written notice of withdrawal more than one year prior to the current term‘s expiration date. Id. at p. 2.
{¶ 17} On November 2, 2017, Appellees filed a complaint for permanent injunction against the City and the District. Mack alleged that she was a taxpayer, resident, and real estate investor in the City. PIN alleged that it was a “non-profit trade group consisting of substantial investors in the Toledo rental market.” Complaint at ¶ 6. PIN further alleged that its “members formed the group to protect their investments in Toledo by maintaining and attracting quality investors and property managers into the Toledo market,” and that “[a]s a consequence, Toledoans have good choices in the residential market for single-family homes, duplexes, small apartment complexes, and other small-scale housing units.” Id.
{¶ 18} PIN and Mack further contended that they were subject to the lead ordinance, that the ordinance was causing uncertainty in the Toledo rental market, and that the ordinance was unconstitutional on various grounds. Id. at ¶ 9, 11, 12, 13, and 22-34. These grounds included that the District had limited powers by statute and did not have the power to be a licensing agency for residential housing units; that the City‘s attempt to vest the District with powers violated the
{¶ 19} After filing answers to the complaint, Appellants filed motions for judgment on the pleadings in December 2017. In December 2017, Appellees then filed a motion for partial summary judgment against the District. Further memoranda concerning these motions were filed in January and February 2018.
{¶ 20} In the meantime, the Toledo Lead Poisoning Prevention Coalition (TLPPC), a community organization with a mission of reducing the number of children who were subject to lead poisoning in the community, and Latoya Jenkins, the parent of a child who had been poisoned by lead, filed a motion for intervention as of right and permissive intervention. In March 2018, the trial court denied the motion, concluding that these parties did not have an unconditional right to intervene under
{¶ 21} In late May 2018, Appellees filed a motion for preliminary injunction, and the court set the matter for a hearing on June 15, 2018. Before the hearing, the parties filed memoranda, as well as joint stipulations with attached exhibits. On June 18, 2018, the trial court filed an opinion and entry granting the motion for preliminary injunction. In its entry, the court noted that the parties had agreed that no evidentiary hearing was required and had presented oral arguments at the hearing. June 18, 2018 Opinion and Journal Entry, p. 1.3
{¶ 22} In its decision, the court found that Appellees had standing. Id. at p. 2. The court further agreed with Appellees that
{¶ 23} Subsequently, on July 20, 2018, the trial court granted Appellees’ partial motion for summary judgment, overruled Appellants’ motions for judgment on the pleadings, and permanently enjoined the District‘s enforcement of the lead ordinance. Although the court‘s decision was significantly more detailed with respect to the legal discussion, the decision was based essentially on what had been described in the preliminary injunction ruling. Shortly after the permanent injunction decision was issued, Appellees filed a motion for attorney fees pursuant to
{¶ 24} However, before the hearing could take place, Appellants filed notices of appeal with the Sixth District Court of Appeals. The court of appeals then dismissed the appeal for lack of a final appealable order, based on the further action needed on the request for statutory attorney fees. See Mack v. Toledo, 6th Dist. Lucas No. G-4801-CL-0201801164-000, pp. 2-3 (Oct. 23, 2018).
{¶ 25} After the case was remanded, the trial court awarded Mack $35,000 in attorney fees in January 2019. Appellants again appealed, and the trial court granted a
II. Alleged Error in Granting Partial Summary Judgment
{¶ 26} The sole assignment of error, asserted by both the City and the District, states that:
The Common Pleas Court Committed Prejudicial Error When It Granted Appellees’ Motion for Partial Summary Judgment and When It Overruled Appellants’ Motions for Judgment on the Pleadings.
A. R.C. 3709.281 and Unconstitutionality of the Lead Ordinance
{¶ 27} Appellants present two main arguments. The first is that the trial court erred because
{¶ 28} In concluding that Appellees were entitled to partial summary judgment on their request for a preliminary injunction, the trial court found that: (1) the District is a “creature of statute” with no powers other than those granted by statute; (2)
{¶ 29} As noted, the trial court granted a permanent injunction prohibiting the District from enforcing the lead ordinance. “An injunction is an extraordinary remedy in equity where there is no adequate remedy available at law. It is not available as a right but may be granted by a court if it is necessary to prevent a future wrong that the law cannot.” Garono v. State, 37 Ohio St.3d 171, 173, 524 N.E.2d 496 (1988). “A permanent injunction is not considered an interim remedy. It is issued after a hearing on the merits in which a party has demonstrated a right to relief under the applicable substantive law. A party seeking a permanent injunction must show that the injunction is necessary to prevent irreparable harm and that the party does not have an adequate remedy at law.” (Citations omitted.) Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267-268, 747 N.E.2d 268 (1st Dist.2000). Accord Island Express Boat Lines, Ltd. v. Put-in-Bay Boat Line Co., 6th Dist. Erie No. E-06-002, 2007-Ohio-1041, ¶ 93. The movant‘s burden of proof is clear and convincing evidence. Id.
{¶ 30} Typically, an abuse of discretion standard applies to review of permanent injunctions. However, where statutory interpretation is involved, de novo review applies. Mangano v. 1033 Water St., L.L.C., 8th Dist. Cuyahoga No. 106861, 2018-Ohio-5349, ¶ 11-12. “In such a review, an appellate court reviews the trial court‘s decision independently and without deference to the trial court‘s determination.” Union Stock Yards v. Hillsboro, 191 Ohio App.3d 564, 2010-Ohio-5975, 947 N.E.2d 183, ¶ 8 (4th Dist.).
{¶ 31}
{¶ 32} A three-part test is used to decide if “a municipality has exceeded its powers under the Home Rule Amendment. ‘A state statute takes precedence over a local ordinance when (1) the ordinance is in conflict with the statute, (2) the ordinance is an exercise of the police power, rather than of local self-government, and (3) the statute is a general law.’ ” Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255, ¶ 17, quoting Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, ¶ 9.
{¶ 33} The only Ohio statutory scheme mentioned by the parties with respect to lead is R.C. Chap. 3742, which relates to lead abatement and testing. Among other things,
{¶ 34} When Toledo‘s lead ordinance was enacted in April 2017,
(A) A property constructed before January 1, 1950 that is used as a residential unit, child care facility, or school shall be legally presumed not to contain a lead hazard and not to be the source of the lead poisoning of an individual who resides in the unit or receives child care or education at the facility or school if the owner or manager of the unit, facility, or school successfully completes both of the following preventive treatments:
(1) Follows the essential maintenance practices specified in section
3742.42 of the Revised Code for the control of lead hazards;(2) Covers all rough, pitted, or porous horizontal surfaces of the inhabited or occupied areas within the unit, facility, or school with a smooth, cleanable covering or coating, such as metal coil stock, plastic, polyurethane, carpet, or linoleum.
(B) The owner or manager of a residential unit, child care facility, or school has successfully completed the preventive treatments specified in division (A) of this section if the unit, facility, or school passes a clearance examination in
accordance with standards for passage established by rules adopted under section 3742.49 of the Revised Code .(C) The legal presumption established under this section is rebuttable in a court of law only on a showing of clear and convincing evidence to the contrary.5
{¶ 35} The statutory scheme in R.C. Chap. 3742 also provides for adoption of rules by the director of health regarding administration and enforcement, and investigation of suspected lead poisoning of children.
{¶ 36} The parties do not contend that Toledo‘s lead ordinance conflicts with R.C. Chap. 3742 as it existed when the lawsuit was filed, and the trial court did not base its decision on such a purported conflict.7 Instead, the court concluded that
only those powers created by statute, and
{¶ 37} The Supreme Court of Ohio has said that “a city health district is a state agency rather than a branch of city government.” Bd. of Health of St. Bernard v. City of St. Bernard, 19 Ohio St.2d 49, 53, 249 N.E.2d 888 (1969). “Such health-oriented agencies are administrative arms of the Ohio Department of Health.” Johnson‘s Markets, Inc. v. New Carlisle Dept. of Health, 58 Ohio St.3d 28, 33, 567 N.E.2d 1018 (1991).
{¶ 38} ” ‘A city board of health is a creature of statute and has such powers only as are expressly conferred on it together with such powers as are necessarily implied in order to effectuate such expressly granted powers.’ ” Wetterer v. Hamilton Cty. Bd. of Health, 167 Ohio St. 127, 137, 146 N.E.2d 846 (1957), quoting Brunner v. Rhodes, 95 Ohio App. 259, 119 N.E.2d 105 (10th Dist.1953). See also D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 38-41 (discussing local board‘s ability to make regulations). “Implied powers are those that are incidental or ancillary to an expressly granted power; the express grant of power must be clear, and any doubt as to the extent of the grant must be resolved against it.” In re Guardianship of Spangler, 126 Ohio St.3d 339, 2010-Ohio-2471, 933 N.E.2d 1067, ¶ 17.
{¶ 39} Under Ohio law, “[a]ny municipal corporation may: (A) Provide for the public health; [and] (B) Secure the inhabitants of the municipal corporation from the evils of contagious, malignant, and infectious diseases; * * *.”
{¶ 40} Similarly, under its municipal code, the City has the power “to define, prohibit, abate or suppress all things detrimental to the health, morals, comfort, safety, convenience, and welfare of the people, and all nuisances and causes thereof.” TMC Chap. II, Section 8(l).8 The
functions * * *.” Id. at Section 8(m).
{¶ 41} The City‘s legislative power is vested in an elected council of 12 members.
{¶ 42} Under
The powers of the legislative authority of a city shall be legislative only, it shall perform no administrative duties, and it shall neither appoint nor confirm any officer or employee in the city government except those of its own body, unless otherwise provided in Title VII of the Revised Code. All contracts requiring the authority of the legislative authority for their execution shall be entered into and conducted to performance by the board or officers having charge of the matters to which they relate. After the authority to make such contracts has been given and the necessary appropriation made, the legislative authority shall take no further action thereon.
{¶ 43} According to Toledo‘s municipal code, the mayor is the City‘s chief executive and administrative officer “in whom the executive and administrative powers and duties of the City shall be vested subject to the appropriate delegation of such powers and duties in directors of departments and other administrative officers, boards and commissions as provided for” in Chapter V of the Code.
{¶ 44} These duties are consistent with
{¶ 45} Under both the City‘s charter and the Ohio Revised Code, contracts concerning the City are prepared by the City‘s law director, who is required to endorse on the contract his or her approval of the form and correctness.
{¶ 46} As noted, the District is a state agency; it is not a department of the City of Toledo. In the agreement between the City and the District (which was signed by the Mayor), the parties stated that the agreement was being entered into pursuant to
A board of health of a city or general health district may enter into an agreement with the legislative authority of a municipality in which such health district is totally or partially located, and such legislative authority may enter into an agreement with such board of health, whereby such board of health undertakes, and is authorized by such legislative authority to exercise any power, perform any function, or render any service, in behalf of such legislative authority which such legislative authority may exercise, perform, or render.
Upon the execution of such agreement and within the limitations prescribed by it, such board of health may exercise the same powers as such legislative authority possesses with respect to the performance of any function or the rendering of any service, which, by such agreement, it undertakes to perform or render, and all powers necessary or incidental thereto, as amply as such powers are possessed and exercised by such legislative authority directly. Any agreement authorized by this section does not suspend the possession by such legislative authority of any power or function exercised or performed by such board of health in pursuance of such agreement, and no board of health, by virtue of any agreement entered into under this section, shall acquire any power to levy taxes in behalf of such legislative authority unless approved by a majority of the electors of the municipality.
Every agreement entered into under this section shall provide, either in specific terms or by prescribing a method for determining the amounts, for any payments which are to be made by the legislative authority in consideration of the performance of the agreement. Such payments shall be made to the health fund of the health district.
{¶ 47} The trial court concluded that this statute was unambiguous and did not allow the City and the District to enter into an agreement for the District to enforce, administer, or implement the lead ordinance.
{¶ 48} “When analyzing a statute, our primary goal is to apply the legislative intent manifested in the words of the statute.” Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, ¶ 12. “Statutes that are plain and unambiguous must be applied as written without further interpretation.” Id. “It is only where the words of a statute are ambiguous, are based upon an uncertain meaning, or there is an apparent conflict of some provisions, that a court has the right to interpret a statute.” Ohio Bus Sales, Inc. v. Toledo Bd. of Edn., 82 Ohio App.3d 1, 6, 610 N.E.2d 1164 (6th Dist.1992). Nonetheless, “where a statute is found to be subject to various interpretations, a court called upon to interpret its provisions may invoke rules of statutory construction in order to arrive at legislative intent.” Cline v. Ohio Bur. of Motor Vehicles, 61 Ohio St.3d 93, 96, 573 N.E.2d 77 (1991).
{¶ 50} In 1983 Ohio Atty.Gen.Ops. No. 2-274, 1983 WL 178742, the attorney general considered
{¶ 51} The attorney general also considered the first paragraph of
{¶ 52} In 1999 Ohio Atty.Gen.Ops. No. 99-048, 1999 WL 692621, the attorney general did not directly consider
{¶ 53} However, in a footnote, the attorney general commented that:
Although the board of health of a general health district does not itself have statutory authority to establish educational requirements for, or otherwise license, plumbing contractors, the board of health may, by agreement, exercise on behalf of a municipality that municipality‘s authority to license plumbing contractors who operate within the jurisdiction of the municipal corporation.
R.C. 3709.281 (the board of health of a general health district may enter into an agreement with the legislative authority of a municipality under which the board of health is authorized to exercise any power, perform any function, or render any service that the legislative authority may exercise, perform, or render); seeR.C. 715.27(B) . A board of health may similarly enter into agreements with the board of county commissioners to exercise powers, perform functions, or render services on behalf of the county, seeR.C. 307.153 , but no such agreement can grant the board of health authority to license plumbing contractors in the unincorporated areas of the county because the board of county commissioners doesnot have that authority. See R.C. 3781.102(B) ; 1999 Op. Att‘y Gen. No. 99-009, at 2-67. See generallyR.C. 307.15 (authorizing contracts between a board of county commissioners and a health district) andR.C. 3781.102(B) (county licensing rules may be enforced within a municipality pursuant to a contract underR.C. 307.15 ).
(Emphasis added.) 1999 Ohio Atty.Gen.Ops. No. 99-048, 1999 WL 692621, at *3, fn. 2. By referencing the authority of a municipality rather than simply its “legislative authority,” and by referring to “services,” the opinion implies a broader interpretation of
{¶ 54} In addition to the above opinions, there are a few other references in other attorney general opinions. In 1997 Ohio Atty.Gen.Ops. No. 97-026, 1997 WL 221394, the attorney general addressed whether an individual could simultaneously serve as a member of the board of a general health district and as president of the legislative authority of a non-charter city, if the individual abstained from various votes. Id. at *1. In considering whether a conflict would exist, the attorney general noted that in both positions, an individual may be required to discuss and vote on various matters, including “an agreement between the legislative authority of a city and the board of health, whereby the board of health undertakes, and is authorized by the legislative authority to exercise any power, perform any function, or render any service, in behalf of the legislative authority which the legislative authority may exercise, perform, or render,
{¶ 55} The attorney general concluded that even if potential conflicts existed, it was speculative whether any conflicts would occur. Furthermore, the matters in question did not regularly come before either entity and did not involve their primary functions. Id. at *4. In particular, the attorney general observed that:
The circumstances will be infrequent in which the board of health of a general health district will be required to vote on plans pertaining to the construction of a hospital, contracts or agreements with a city, rules adopted
by a legislative authority, the location of a solid waste facility, the suitability of the quarters of the board of health, or the destruction of an infected article, building, or structure. Similarly, it is unlikely that the legislative authority of a city will be called upon to vote on the provision of suitable quarters for the general health district, contracts or agreements with a general health district, plumbing and sewage rules that must be approved by the board of health, the empowerment of a board of health to employ scavengers, or the construction of a hospital for dangerous contagious diseases or a quarantine hospital.
(Emphasis added.) Id. at *4. Here, the attorney general referred to “contracts or agreements with a city,” not contracts or agreements with a legislative authority.
{¶ 56} A similar question was considered in 2012 Ohio Atty.Gen.Ops. No. 2012-017, 2012 WL 2094044, regarding whether an individual could serve simultaneously as village mayor and recycling coordinator of the health district. Id. at *1. The attorney general commented that:
The first conflict may arise insofar as the Village and Health District may enter into an agreement with each other. See, e.g.,
R.C. 3709.281 (board of health of a general health district and legislative authority of a municipality within the health district may enter into an agreement whereby the board of health is authorized to exercise powers, performfunctions, or render services on behalf of the legislative authority). As mayor, the person may be required to deliberate, discuss, negotiate, or vote upon the terms of an agreement between the Village and the Health District.
Because the mayor also is employed by the Health District, it might be difficult for her to perform her duties and exercise her discretion in an objective and disinterested manner. Similarly, if this person, as recycling coordinator for the Health District, were required to deliberate, discuss, negotiate, or vote upon an agreement with the Village, it might be difficult for her to exercise her discretion in an unbiased manner because of her position with the Village.
(Emphasis added.) Id. at *3.
{¶ 57} The attorney general noted that “[t]here is an additional conflict of interest that may arise if the Village and the Health District enter into an agreement with each other. The mayor may be required to sign an agreement on behalf of the Village.” Id. at *4. Ultimately, the attorney general decided that the conflict was speculative and remote, and could be avoided. Id. Among other things, the attorney general reasoned that:
As discussed previously, the Village and Health District are not required to enter into agreements with each other, and the signing of such agreements is not a duty that the mayor is regularly required to perform. Thus, the occasions on which the mayor will be required to sign an agreement between the Village and Health District should be infrequent. Moreover, prior Attorney General opinions have advised that in executing a village agreement, the mayor does not exercise decision-making authority. Rather, the mayor performs a ministerial duty. See 2011 Op. Att‘y Gen. No. 2011-023, at 2-191; 2007 Op. Att‘y Gen. No. 2007-023, at 2-237.
2012 Ohio Atty.Gen.Ops. No. 2012-017, 2012 WL 2094044, at *4.
{¶ 58} Again, by referencing the agreements of the “village” rather than its “legislative authority,” this opinion indicates a broader interpretation of
{¶ 59} The final attorney general opinion does not discuss
{¶ 60} Whether or not one finds these opinions “persuasive,” they do indicate that
{¶ 61} Under established principles of statutory construction, where statutes are ambiguous, courts “may consider several factors, including the object sought to be obtained, circumstances under which the statute was enacted, the legislative history, and the consequences of a particular
{¶ 62} While health districts are concededly limited to the authority given by the legislature, limiting
{¶ 63} For many years, Ohio law has held that a city council cannot delegate the exercise of its legislative functions to another authority or agency. E.g., City of Cleveland v. Piskura, 145 Ohio St. 144, 156, 60 N.E.2d 919 (1945).9 When
City‘s Amended Brief at pp. 10-11. This is also dictated by law. See
{¶ 64} Knowing of such long-standing precedent, the legislature would not have intended that a city council improperly delegate its legislative authority to the health district. Instead, a more reasonable interpretation is that the legislature intended for municipalities, through ordinances passed by city council, to be able to contract with a health district (or any agency) for functions or services that the municipality is otherwise authorized to perform or can appoint an agent to for the carrying out of the legislative will, as noted in Campbell, 97 Ohio St. at 293. There is also a difference between delegating legislative power (making laws) and delegating administrative power (executing laws). Redman v. Ohio Dept. of Indus. Relations, 75 Ohio St.3d 399, 404, 662 N.E.2d 352 (1996). As noted by Amicus Curiae Summit,
Any agreement authorized by this section does not suspend the possession by such legislative authority of any power or function exercised or performed by such board of health in pursuance of
such agreement, and no board of health, by virtue of any agreement entered into under this section, shall acquire any power to levy taxes in behalf of such legislative authority unless approved by a majority of the electors of the municipality.
{¶ 65} According to Appellees, the exemption for tax levies in this statute belies the assertion that
{¶ 66} An example of this point can be found in State ex rel. Ranz v. City of Youngstown, 140 Ohio St. 477, 45 N.E.2d 767 (1942) (Ranz II), which involved issues pertaining to taxation by a contracting county. In that case, the city of Youngstown and the Mahoning County Commissioners entered into a written contract pursuant to
{¶ 67} At the time,
{¶ 68} In that situation, ” ‘the city shall be a part of the county local relief area, anything to the contrary in section 2450-2 of the General Code notwithstanding; in which event such city shall not, for the duration of such contract, have power to levy taxes for poor relief.’ ” Id. at 487-488, quoting
{¶ 69} However,
{¶ 70}
{¶ 71} After the court of appeals reversed the trial court, further appeal was taken to the Supreme Court of Ohio, which reversed the appellate court and affirmed the trial court‘s decision. Ranz II, 140 Ohio St. at 480, 45 N.E.2d 767. According to the Supreme Court of Ohio, “poor relief is a state function.” Id. at 482. Furthermore, counties are created by the State‘s sovereign power, and their actions reflect state policy; in contrast, municipal corporations are created for the convenience and interest of local people. Id. at 483.11 As a result, there was “no inherent reason why the county, which
embraces all municipalities and townships within its limits, may not be made the unit for poor relief at the sole expense of the county and either with or without state aid.” Id. at 484.
{¶ 72} The court noted that before the enactment of
Where such an agreement existed, the city would be part of the county local relief area, notwithstanding anything in
{¶ 74} In explaining the meaning of
Section 2450-2, General Code, authorizes agreements between the county commissioners and other legislative authorities, but provides that the county commissioners should not by virtue of that act (116 Ohio Laws, p. 102) be deemed to have acquired any power to levy taxes within and in behalf of a contracting party. This feature of Section 2450-2, forbidding the levying of taxes under the contract, was specifically amended in Section 3391-1, supra.
Section 2450-3, General Code, requires that agreements made pursuant to Section 2450-2 shall provide either in specific terms or prescribe a method for determining amounts for money payments to be made by the contracting subdivision into the county treasury in consideration of the performance of the agreement. However, there is no provision even here for requiring any payment to be made.
(Emphasis sic.) Ranz II, 140 Ohio St. at 488-489, 45 N.E.2d 767.
{¶ 75} Accordingly, county commissioners, under the provisions of
{¶ 76} The tax provision in
{¶ 77} As noted,
{¶ 78} Returning to the question of statutory interpretation,
{¶ 79} Like health districts, boards of county commissioners are restricted to only the powers that are expressly conferred by statute, unless they acquire some home rule powers through constitutional procedures. State ex rel. Shriver v. Bd. of Commrs. of Belmont Cty., 148 Ohio St. 277, 280, 74 N.E.2d 248 (1947); Geauga Cty. Bd. of Commrs. v. Munn Rd. Sand & Gravel, 67 Ohio St.3d 579, 583, 621 N.E.2d 696 (1993), fn. 2.
{¶ 80} In its brief, the District also raised the similarity of
Subject to division (C) of this section [pertaining to investment services], the board of county commissioners may enter into an agreement with the legislative authority of any municipal corporation, township, port authority, water or sewer district, school district, library district, health district, park district, soil and water conservation district, water conservancy district, or other taxing district, or with the board of any other county, and such legislative authorities may enter into agreements with the board of county commissioners, whereby the board undertakes, and is authorized by the contracting subdivision, to exercise any power, perform any function, or render any service, on behalf of the contracting subdivision or its legislative authority, that such subdivision or legislative authority may exercise, perform, or render; or whereby the legislative authority of any municipal corporation undertakes, and is authorized by the board of county commissioners, to exercise any power, perform any function, or render any service, on behalf of the county or the board, that the county or the board may exercise, perform, or render.
{¶ 81} As we also mentioned,
which the contracting subdivision or its legislative authority may exercise, perform, or render.” 1985 Ohio Atty.Gen.Ops. No. 85-086, 1985 WL 204539, *2, discussing G.C. 2450-2 and 1952 Op. Atty. Gen. No. 1330.
{¶ 82} In its decision, the trial court distinguished
{¶ 83} Again, we disagree that these statutes should be read so narrowly. We note that
{¶ 84} As noted, the way in which a charter city contracts is through its legislative authority, pursuant to ordinances signed by the mayor. Without delving too deeply into county government, a board of commissioners is likewise the legislative authority for a county. Blacker v. Wiethe, 16 Ohio St.2d 65, 68, 242 N.E.2d 655 (1968) (“Section 1 of Article X [of the Ohio Constitution] authorizes the General Assembly by general law to delegate to the board of county commissioners limited legislative power relative to the government of a county * * * “);
{¶ 85} As a further matter,
{¶ 86} Again, we believe the trial court employed too restrictive a view of a statute that, frankly, is not a model of clarity. Principles of construction also stress that in enacting statutes, “[a] just and reasonable result is intended,” and “[a] result feasible of execution is intended.”
{¶ 87} As a final matter, we note that Appellants have argued both here and in the trial court that the section heading of
{¶ 88} The trial court rejected any consideration of this point, based on
{¶ 89}
{¶ 90} We agree that titles or section headings are not part of the law. However, we also agree that they may aid in construction where a statute is ambiguous. As noted,
{¶ 91} Based on the preceding discussion, the trial court erred in finding that
B. Equal Protection
{¶ 92} Appellants’ second issue involves the protection granted by the Equal Protection Clauses of the
{¶ 93} In its decision, the trial court held that applying the ordinance to rental properties involving either single family homes or rental properties with four or less units lacks a rational basis. The court also held that the current definition of “Owner” is unworkable and renders the ordinance‘s classifications irrational. We will address these points separately.
1. Classification of Rental Units
{¶ 94} TMC 1760.05(a) presumes that paint on the interior and exterior of residential rental units constructed before 1978 is lead-based. The Code also requires that owners of rental properties consisting of four or less units identify and address “the presence of deteriorated paint, bare soil and lead dust on the interior and exterior of pre-1978 residential structures * * *.” TMC 1760.01. The presumption can only be rebutted by obtaining a lead-safe certification, and the City set deadlines for dwelling units in specific census tracts to comply with the lead safe certification requirement by one of three dates: June 30, 2018; June 30, 2019, or June 30, 2020. Failure to comply would result in fines. TMC 1760.05 and 1760.15. As we further noted, the ordinance‘s purpose is to “to help prevent the poisoning of” Toledo‘s residents. Id.
{¶ 95} The trial court‘s decision was based on the fact that, despite the presumption of the presence of lead, the ordinance burdens only some owners and gives other owners (of pre-1978 large rental units) a competitive advantage that lacks a fair and substantial relation to the ordinance‘s object. July 20, 2018 Opinion and Journal Entry at pp. 45-47.
{¶ 96} “An equal-protection analysis of any law centers upon the law‘s classification of persons and whether the classification relates to a legitimate government interest.” State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 24. The trial court applied a rational basis test, and the parties do not dispute the application of this test. The analysis under both the Ohio and federal systems is similar, although the Supreme Court of Ohio has recently held that equal protection under Ohio‘s constitution is “co-extensive with or stronger than, that of the federal constitution.” State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, ¶ 11, citing Mole at ¶ 14-23.15
{¶ 97} “A party who challenges a statute on equal-protection grounds must demonstrate ‘either that there was no rational basis for the creation of the class itself or that those within the
{¶ 98} In deciding that the classifications bore no rational relation to the ordinance‘s goals, the trial court focused on Toledo‘s findings in connection with a prior ordinance, which noted that lead poisoning poses a substantial risk to adults and especially children in Toledo, and that no amount of lead is safe, meaning that “[e]liminating all lead exposure in our environment is our best course of action.” Opinion and Journal Entry at p. 46.16 The trial court then commented that “[t]he Lead Ordinance does not contain any finding that rental properties owned by the unregulated owners pose no risk. On the contrary, eliminating all lead exposure in its environment is Toledo‘s best course of action.” Id. at p. 47.
{¶ 99} According to Appellants, the trial court ignored the finding in the ordinance that ” ‘the majority of lead poisoning of children occurs in rental properties that are either single family homes or four (4) units or less.’ ” District‘s Brief at p. 20, quoting TMC 1760.01. See also City‘s Amended Brief, pp. 4-5, 6, and 8. Appellants contend that statutes do not lack a rational basis simply because they address issues on an incremental basis. They also note that the Supreme Court of Ohio has upheld classifications between rental properties that contain different numbers of units. Id. at p. 8.
{¶ 100} In Ohio Apt. Assn. v. Levin, 127 Ohio St.3d 76, 2010-Ohio-4414, 936 N.E.2d 919, the Supreme Court of Ohio considered whether administrative rules adopted under
{¶ 101} While the underlying factual background in Ohio Apt. involved taxation, the court‘s decision was based on an application of general constitutional principles pertaining to equal protection. In Ohio Apt., properties improved with four of more dwellings received a 10% rollback in property taxes, while those improved with more than four units were not so entitled. Ohio Apt. at ¶ 36. The court rejected the appellants’ equal protection claim on various grounds, one of which was that appellants
{¶ 102} The court then said that “[t]o the extent that appellants’ claim relates to classification of property owners, we rejected a virtually identical argument in Roosevelt Properties Co. v. Kinney (1984), 12 Ohio St.3d 7, 12 OBR 6, 465 N.E.2d 421.” Id. at ¶ 40.17 After considering the appellants’ proof, the court concluded that they failed to show that they were similarly situated to owners of “single-family homes, duplexes, and triplexes * * *.” Id. at ¶ 40. Subsequently, the court considered appellants’ argument that the rules violated the Equal Protection Clause because the “distinction by number of units is illusory, and there is no evidence of any other reasonable basis for distinguishing between rental properties.” Id. at ¶ 48.
{¶ 103} Again citing Roosevelt Properties, the court noted that it had previously rejected this argument. Id. at ¶ 49. The court stressed that “when it comes to drawing legal classifications under the rational-basis standard, the line drawn need not be perfect for constitutional purposes.” Id., referencing Hegenes v. State, 328 N.W.2d 719 (Minn.1983) (which was cited in Roosevelt Properties). The Supreme Court of Ohio then stated that:
Hegenes observed that genuine distinctions exist between small rental properties and large multiunit apartment complexes. Moreover, the Hegenes court rejected the contention – the same contention raised by appellants here – that the classification became arbitrary and unreasonable for equal protection purposes solely because the differences between small and larger rental properties diminish when comparing triplexes to four-unit properties. * * *
In Roosevelt Properties, we agreed with the line of reasoning in Hegenes: the fact that these differences diminish when comparing four-unit properties to five-unit properties becomes a question of legislative line drawing. We held that “since the Equal Protection Clause does not impose an ‘iron rule of equality,’ ” the line drawn between four- and five-unit properties was reasonable. Roosevelt Properties, 12 Ohio St.3d at 15, 12 OBR 6, 465 N.E.2d 421, quoting Allied Stores of Ohio, Inc. v. Bowers (1959), 358 U.S. 522, 526, 79 S.Ct. 437, 3 L.Ed.2d 480. These same principles are directly applicable to this case.
Ohio Apt., 127 Ohio St.3d 76, 2010-Ohio-4414, 936 N.E.2d 919, at ¶ 50-51.
{¶ 104} The “line” in Ohio Apt. involved the fact that properties with three or fewer units “were more characteristic of residential properties” than properties with four or more units, which were more like commercial properties. Id. at ¶ 52. In addition, the properties with less units appreciated similarly in value, while appreciation rates for larger properties were substantially less. Id. The court, therefore, found a rational basis for the legislature‘s decision. Id. at ¶ 55.
{¶ 105} Here, the justification for the line the City drew is that the majority of lead problems exist in rental properties with four units or less. TMC 1760.02(a). We cannot say that this distinction is irrational or unrelated to a legitimate
Furthermore, as the City argues, “when a legislative body chooses to act to correct a given evil it need not correct all the evil at once, but it may proceed step-by-step.” State v. Buckley, 16 Ohio St.2d 128, 134, 243 N.E.2d 66 (1968), citing Yee Bow v. City of Cleveland, 99 Ohio St. 269, 124 N.E. 132 (1919), Porter v. City of Oberlin, 1 Ohio St.2d 143, 205 N.E.2d 363 (1965), and City of Xenia v. Schmidt, 101 Ohio St. 437, 130 N.E. 24 (1920).
{¶ 106} “Under the rational-basis standard, a state has no obligation to produce evidence to sustain the rationality of a statutory classification.” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91. In addition, a party attacking legislation “bears the burden to negate every conceivable basis that might support the legislation.” Id. See also Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 58, 717 N.E.2d 286 (1999).
{¶ 107} In view of the preceding discussion, Appellees failed to meet their burden in the trial court of establishing that the classifications in the ordinance lacked a rational basis and were unrelated to the ordinance‘s purpose, which was to “help prevent the poisoning of” Toledo‘s residents. TMC 1760.01. The classifications, therefore, did not violate equal protection, and the trial court erred in so holding. Accordingly, this part of the trial court‘s decision will be reversed.
2. Definition of Owner
{¶ 108} Appellants also challenge the trial court‘s conclusion that the ordinance‘s definition of “Owner” renders the classifications “so narrow in scope that they are irrational” and violate equal protection. July 20, 2018 Opinion and Journal Entry at p. 48. According to the City, even if the definition is flawed, that is not a constitutional basis for rejection, and if we can find a rational basis for the current definition, no violation has occurred. The City does not suggest, however, what the rational basis here would be.
{¶ 109} As noted, the lead ordinance imposes various duties on owners of residential rental property. “Owner” is defined
{¶ 110} The trial court concluded that the definition is irrational because every tenant is an owner, as is everyone who has a gas or electric bill placed in his or her name. Journal and Entry at p. 49. In addition, residential rental property under the ordinance does not include any “dwelling unit” occupied by the owner or members of the owner‘s immediate family. According to the court, it therefore is arguable whether the ordinance would ever be triggered. Id.
{¶ 111} We agree with the trial court‘s reservations, but have additional concerns. As noted, under the definition of an owner, any renter who has contracted with a public utility will be responsible for the duties imposed by the ordinance. This is irrational, as no one would expect tenants to be responsible for obtaining inspections and obtaining lead certification for properties they do not own. In addition, the definition of owner includes any person or entity or an agent of such who has “done any act to maintain or operate the premises.” (Emphasis added.) TMC 1726.01(b)(1). This could include someone who comes to a property to repair a door or an air-conditioner. While “maintaining or operating” is defined to include obtaining building permits and other permits or licenses, it also states that this definition “shall include [these items] without limitation” – meaning that “maintaining” could involve minor repairs. (Emphasis added.) TMC 1726.01(b)(1)(A). Again, this definition broadens the ordinance in such a way that it is irrational.
{¶ 112} Furthermore, an “operator” includes any lessee who sublets the premises to another, and such a lessee is deemed a co-owner with joint responsibility over the premises that are sublet. TMC 1726.01(c)(3). Again, this encompasses individuals who are not normally responsible for maintaining property or engaging in something like lead abatement.
{¶ 113} In light of the above discussion of law we cannot find any justification on which to sustain the definition of “Owner” in the ordinance. See Simpkins, 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, at ¶ 48. Accordingly, the trial court‘s decision will be affirmed only insofar as the court found that this definition violates equal protection by rendering the ordinance‘s classifications irrational.
{¶ 114} We note that in a trial court memorandum, the City included proposed legislation changing the definition of “Owner.” See June 13, 2018 City of Toledo Memorandum in Opposition to Plaintiff‘s Motion for Preliminary Injunction, Ex. A, p. 1 (Proposed Ord. 232-18, Version 1). Under the proposed legislation, the definition of “Owner” in TMC 1760.04(a)(20) would be changed to mean “any legal entity or person who has title to the Residential Rental Property.” Ex. A at p. 1. This has no effect here, since we are only considering the ordinance as it existed when Appellees filed the complaint. There is also no indication that the ordinance was ever amended, as the proposed definition does not appear in the current municipal code.
C. Award of Attorney Fees
{¶ 115} The City has raised an additional argument, even though it has not been included as a separate assignment of error.
{¶ 116} In an order filed in January 2019, the trial court concluded that Appellee, Mack, had good cause to believe her allegations were well-founded, and awarded her $35,000 in costs, including reasonable attorney fees, pursuant to
{¶ 117} In its brief, the City contends that the fee award was unwarranted for two reasons: first, Mack failed to wait for Toledo‘s law director to respond to her request before filing suit; and second, Mack‘s taxpayer action did not benefit the public because her purpose in filing suit was her own economic self-interest rather than the public interest. The City also maintains that the suit damaged public health by continuing to expose Toledo‘s children to lead hazards in residential rental properties.
{¶ 118}
{¶ 119}
If the court hearing a case under section 733.59 of the Revised Code is satisfied that the taxpayer had good cause to believe that his allegations were well founded, or if they are sufficient in law, it shall make such order as the equity of the case demands. In such case the taxpayer shall be allowed his costs, and, if judgment is finally ordered in his favor, he may be allowed, as part of the costs, a reasonable compensation for his attorney.
{¶ 120} “Where the statutory requirements necessary to maintain a taxpayer‘s action, pursuant to
{¶ 121} Because the trial court is exercising discretion, we would, therefore, review the decision for abuse of discretion. ” ’ ” ‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or unconscionable. * * * It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.” ’ ” State v. Flores, 6th Dist. Wood No. WD-18-016, 2018-Ohio-3980, ¶ 7, quoting State v. Stone, 2d Dist. Clark No. 2011 CA 96, 2012-Ohio-4755, ¶ 22, which in turn, quotes AAAA Ents., Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). ” ’ “A decision is unreasonable if there is
{¶ 122} “Although a prerequisite to the allowance of attorney fees in a taxpayer‘s action is the bestowal of a benefit upon the public through the efforts of the taxpayer, the benefit need not be monetary and a fund need not be created or preserved. The benefit obtained by the public through the action of the taxpayer may be of an intangible character, such as the prevention of illegal government activity.” Billington v. Cotner, 37 Ohio St.2d 17, 305 N.E.2d 805 (1974), syllabus.
{¶ 123} As to the City‘s first argument, the trial court commented that Mack had submitted a letter to Toledo‘s law director giving a full description of the issues and adequate time to decide whether to file suit. The trial court further said that the City obviously was not going to file suit. January 3, 2019 Order, pp.1-2.
{¶ 124} In situations where the plaintiff taxpayer failed to give the law director a written request before they filed suit, the Supreme Court has said that the question is “Did the circumstances here show that it would have been unavailing to have made a request upon the solicitor[?]” State ex rel. Nimon v. Village of Springdale, 6 Ohio St.2d 1, 6, 215 N.E.2d 592 (1966). In that case, the court concluded that a request to bring suit in face of the facts would have been futile, as “[t]he lines were drawn, an unalterable stand was made, and the gauntlet was thrown down.” Id.
{¶ 125} In the case before us, Appellees set out their position in detail in an October 23, 2017 letter to the City‘s law director, Adam Loukx, and asked Loukx to file suit. Appellees further indicated that if Loukx did not file suit by October 30, 2017, they would apply for an injunction in a court of competent jurisdiction. Loukx received the letter on October 23, 2017. Joint Stipulations, No. 1 and Ex. A attached to No. 7, p. 4. Rather than filing suit, Loukx sent Appellees’ attorney a letter on October 24, 2017, stating that his initial reading of the letter indicated that Appellees’ arguments were “meritless.” Id. at No. 1, Ex. B, p. 1. Loukx asked for additional time to research the issues, and said he would reply on or before November 7, 2017. Id. At that time, the initial deadline for property owners to obtain inspections and receive lead-safe certificates was June 30, 2018, or about seven months later. TMC 1760.15.
{¶ 126} Loukx did not file a complaint, nor did he apply for an injunction in response to the letter. Id. at No.3. Appellees then filed their complaint for permanent injunction on November 2, 2017. On November 15, 2017, the City filed a motion for an extension of time until January 1, 2018, to respond to the complaint, which was granted. Shortly thereafter, in responding to Appellee‘s previously-filed request to waive the security deposit, the City stressed that the lawsuit was meritless. In this regard, Toledo cited a November 20, 2017 editorial in the Toledo Blade. Among other things, the editorial stated that “The Property Investor‘s Network has sued Toledo to stop the city‘s ordinance aimed at eliminating lead hazards in the city‘s aging rental housing stock and day care centers. The group may have handed resistant Toledo landlords a new reason to drag their feet about complying with the ordinance, but dedicated city and
{¶ 127} Although Appellees did, in fact, send a written request as required by
{¶ 128} Toledo‘s second argument is that Mack was acting in her own behalf, not the public interest, and that she harmed public interest, rather than benefitting it. We disagree. While the ordinance‘s goal of preventing lead poisoning is a laudable goal, Appellees acted in the public‘s behalf by asking for broader enforcement. That they may have benefitted by decreasing the competitive edge of larger apartment complexes is beside the point. Moreover, the public received a benefit in that Toledo is precluded from enforcing an ordinance that has a poorly-worded definition of the persons who may be subject to the expense of compliance and fines for failing to comply. Compare Hess, 133 Ohio App.3d at 736, 729 N.E.2d 823. Certainly, a great deal of confusion (as well as the cost of future court actions challenging enforcement) has been avoided.
{¶ 129} The more pertinent question is whether an attorney fee award is appropriate, since Appellees have been defeated in part on the merits.
The plain and unambiguous language of
R.C. 733.61 establishes two criteria to recover attorney fees as part of the costs of an action filed underR.C. 733.59 . The first provision is a gatekeeping mechanism that requires a court to find either that the taxpayer had “good cause to believe” his complaint was “well founded” or that the complaint was “sufficient in law.” If either finding is made, the court must issue an order as equity demands and the taxpayer is to be awarded his costs. Second, if a judgment is issued in the taxpayer‘s favor, the court may allow, “as part of the costs, a reasonable compensation for his attorney.” The determination of what is “reasonable,” then, establishes the amount, if any, a taxpayer is entitled to recover.
(Emphasis added.) Rubino at ¶ 22 (Kennedy, J., concurring in part and dissenting in part).20
{¶ 130} The trial court found that Mack had good cause to believe her allegations were well-founded. The City has not disputed this point, and Mack is entitled to her costs, since she satisfied this the threshold requirement.
{¶ 131} However, recovery under the second part of the inquiry depends on whether a judgment has been rendered in
{¶ 132} Based on the preceding discussion, we conclude that: (1) the District did not lack authority under
III. Conclusion
{¶ 133} Appellants’ assignment of error is overruled in part and sustained in part. Accordingly, the judgment of the trial court is reversed in part and affirmed in part, and this cause is remanded to the trial court solely for consideration of whether Appellee, Cheryl Mack, is entitled to recover fees under
. . . . . . . . . . . . .
HALL, J. and TUCKER, J., concur.
(Hon. Jeffrey M. Welbaum, Hon. Michael T. Hall, and Hon. Michael L. Tucker, Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies sent to:
Andrew R. Mayle
Ronald J. Mayle
Jeffrey B. Charles
Kevin A. Pituch
Evy M. Jarrett
Tabitha Stearns
Heather L. Hall
Hon. Linda J. Jennings
Notes
According to documents attached to the brief of Amicus Curiae, Legal Aid, a coalition of advocates, including Advocates of Basic Legal Equality and Toledoans United for Social Action, had proposed a lead ordinance applying to “any unit built before 1978 and constructed as a single family home or duplex.” Appendix B, City of Toledo Analysis of Impediments to Fair Housing Choice 2015, p. 184. Although this document was apparently not before the trial court, it is available online at https://www.toledofhc.org/wp-content/uploads/2018/03/FH-Analysis-of-Impediments-Plan-part-2.pdf (accessed December 3, 2019).
Judicial notice has been taken of various matters found on websites. E.g., Disciplinary Counsel v. Weithman, 143 Ohio St.3d 84, 2015-Ohio-482, 34 N.E.3d 865, ¶ 22, fn. 4 (noting that the board of professional conduct had taken judicial notice of the Mayo Clinic website); State v. Menchu, 2d Dist. Montgomery No. 27339, 2017-Ohio-8252, ¶ 17, fn.1 (commenting that the court could take judicial notice of sunrise/sunset chart on the website of the United States Naval Observatory, Astronomical Applications Department, pursuant to Evid.R. 201, but did not need to do so for its decision); Malone v. Berry, 174 Ohio App.3d 122, 2007-Ohio-6501, 881 N.E.2d 283, ¶ 13 (10th Dist.) (taking judicial notice of factual information on website); State v. Elliott, 4th Dist. Ross No. 06CA2924, 2007-Ohio-2178, ¶ 14 (taking judicial notice of geographical facts on Mapquest website).
The submitted information indicates that the proposed ordinance the coalition of advocates recommended before their 2015 report (and before Toledo‘s ordinance was adopted) was more restrictive in that it only applied to single family and duplex units. While not critical to our analysis, this does speak to the rationality of the ordinance that was adopted.