OHIO CIVIL RIGHTS COMMISSION v. PHILIP MYERS
C.A. CASE NO. 25752
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
January 17, 2014
2014-Ohio-144
T.C. NO. 12CV1991
Rendered on the 17th day of January, 2014.
MEGAN M. HUDSON, Atty. Reg. No. 0086574, Assistant Attorney General, 30 East Broad Street, 15th Floor, Columbus, Ohio 43215 Attorney for Plaintiff-Appellant
NICHOLAS E. SUBASHI, Atty. Reg. No. 0033953 and LAUREN K. EPPERLEY, Atty. Reg. No. 0082924, The Greene Town Center, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440 Attorneys for Defendant-Appellee
FAIN, J.
{¶ 1} Plaintiff-appellant, the Ohio Civil Rights Commission, appeals from a
I. Myers Is a Not-So-Good Neighbor
{¶ 2} As alleged in the complaint, Myers resides at 108 Nimitz Drive, which is part of a multi-unit housing structure in Riverside, Ohio. In June 2010, Dotty Podiak moved into the attached adjacent residence at 110 Nimitz Drive. The properties are managed by Overlook Mutual Homes.
{¶ 3} Podiak has a hearing impairment, and she has two animal assistant dogs, both of which are Labradors. One of the dogs, Brittany, is trained to respond to sign language commands and to alert Podiak to door bells, alarm clocks, smoke detectors, and other common noises within a home. The property manager for the housing units notified Myers that Podiak‘s dogs were animal assistants that she had for her disability.
{¶ 4} The Commission alleged that Myers “harassed and intimidated” Podiak and her animal assistants due to Podiak‘s disability. Myers mocked Podiak‘s use of sign
{¶ 5} By late July 2010, Podiak felt she could no longer live at 110 Nimitz Drive and applied for an apartment in another area. A little less than a month later, Podiak moved out of 110 Nimitz Drive, allegedly due to Myers‘s conduct.
II. The Course of Proceedings
{¶ 6} Podiak filed a sworn housing discrimination charge with the Commission against Myers. The Commission conducted a preliminary investigation and determined that it is probable that Myers engaged in unlawful discriminatory practices. The Commission attempted, unsuccessfully, to achieve voluntary compliance. The Commission notified Myers and Podiak of their respective rights to elect to proceed with the administrative hearing process or to proceed in common pleas court. Myers elected to address the matter in a civil action. The Commission authorized the Office of the Attorney General to file a
{¶ 7} The Commission brought this action against Myers, alleging that he violated Ohio‘s Fair Housing Act, specifically,
{¶ 8} Myers moved to dismiss the complaint pursuant to
{¶ 9} The trial court granted Myers‘s motion, and dismissed the Commission‘s complaint. After quoting the statutory provisions at issue, the trial court noted that the
* * * Here, sections (H)(1), (H)(15), and (H)(16) all required the applicable individuals to be involved in some form of a sale, transfer, assignment, rental agreement, lease, sublease, or financial agreement. These requirements are then followed by, if at all, the phrases “or otherwise deny or make unavailable.” According to the rule of ejusdem generis, this phrase is strictly defined and qualified by the string of clearly defined words that precede it. Therefore, it can only be used in the context of a transaction in which the transfer of real property is involved. In the immediate case, Defendant was not selling, leasing, or managing the home in which Plaintiff lived. He was simply a neighbor, and the law under
R.C. 4112.02(H) does not apply to neighbors.Since Defendant was just a neighbor, and
R.C. 4112.02(H)(1) ,(15) , or(16) does not apply to him, section (H)(12) is equally inapplicable since there has not been a violation of “any right granted or protected by division (H) of [R.C. § 4112.02 ].”
{¶ 10} The Commission appeals from the dismissal of its complaint, setting forth
THE LOWER COURT IMPROPERLY FOUND THAT
R.C. 4112.02(H) DOES NOT APPLY TO CONDUCT BETWEEN NEIGHBORS.THE LOWER COURT IMPROPERLY FOUND THAT
R.C. 4112.02(H)(12) CANNOT BE ALLEGED ALONE.
III. Standard of Review
{¶ 11} In this case, the trial court dismissed the Commission‘s complaint pursuant to
{¶ 12} A trial court‘s dismissal of an action pursuant to
IV. The Acts Myers Is Alleged to Have Committed Are Not Within the Scope of the Acts Prohibited by R.C. 4112.02(H)(1) and (15)
(1) Refuse to sell, transfer, assign, rent, lease, sublease, or finance housing accommodations, refuse to negotiate for the sale or rental of housing accommodations, or otherwise deny or make unavailable housing accommodations because of * * * disability * * *;
* * *
(15) Discriminate in the sale or rental of, or otherwise make unavailable or deny, housing accommodations to any buyer or renter because of a disability of any of the following: (a) The buyer or renter; (b) A person residing in or intending to reside in the housing accommodations after they are sold, rented, or made available; (c) Any individual associated with the person described in division (H)(15)(b) of this section.
(16) Discriminate in the terms, conditions, or privileges of the sale or rental of housing accommodations to any person or in the provision of services or facilities to any person in connection with the housing accommodations because of a disability of any of the following: (a) That person; (b) A person residing in or intending to reside in the housing accommodations after they are sold, rented, or made available; (c) Any individual associated with the person described in division (H)(16)(b) of this section.
{¶ 14} The protections afforded by Ohio‘s Fair Housing Act are to be “construed liberally for the accomplishment of its purposes.”
{¶ 15} The Commission asserts that the plain language of
one or more individuals, partnerships, associations, organizations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and other organized groups of persons. “Person” also includes, but is not limited to, any owner, lessor, assignor, builder, manager, broker, salesperson, appraiser, agent, employee, lending institution, and the state and all political subdivisions, authorities, agencies, boards, and commissions of the state.
{¶ 17} Myers argues that the conduct addressed by
{¶ 18} Ejusdem generis (literally “of the same kind“) is a rule of statutory construction. Akron Home Med. Servs., Inc. v. Lindley, 25 Ohio St.3d 107, 109, 495 N.E.2d 417 (1986). It states that “whenever words of general meaning follow the enumeration of a particular class, then the general words are to be construed as limited to those things which pertain to the particularly enumerated class.” Id.; see also State v. Willan, 136 Ohio St.3d 222, 2013-Ohio-2405, 994 N.E.2d 400, ¶ 10.
{¶ 19} The Commission asserts that ejusdem generis should be applied only when a statute is to be strictly construed; Ohio‘s Fair Housing Act states that it is to be liberally construed. The Supreme Court of Ohio has stated that “[w]hen there is a listing of specific terms followed by a catchall word or phrase which is linked to the specific terms by the word ‘other,’ and the statute is to be strictly construed, we apply the doctrine of ejusdem generis.” Moulton Gas Serv. v. Zaino, 97 Ohio St.3d 48, 2002-Ohio-5309, 776 N.E.2d 72, ¶ 14. Moulton involved the interpretation of a tax exemption statute, which is strictly construed. We do not interpret Moulton to mean that ejusdem generis can never apply to a statute that is to be liberally
{¶ 20} Indeed, the Supreme Court of Ohio has applied the rule of ejusdem generis when interpreting
{¶ 21} To answer whether a neighbor can violate the Fair Housing Act, we focus on the statutory language. In interpreting a statute, a court should always turn first to one cardinal canon before all others: “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Natl. Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992).
{¶ 22}
{¶ 23} With respect to
{¶ 24} Accordingly, we agree with Myers that, as a matter of law, the complaint has not stated a claim against him under
{¶ 25}
{¶ 26}
{¶ 27} As with
V. The Acts Myers Is Alleged to Have Committed Are Not Within the Scope of the Acts Prohibited by R.C. 4112.02(H)(16)
{¶ 28}
{¶ 29} Cases under
{¶ 30} We do not see how Myers‘s alleged conduct, as Podiak‘s neighbor, constitutes discrimination in the terms, conditions, or privileges of the sale or rental of housing to Podiak. The “terms, conditions,” and “privileges” of the rental of the apartment to Podiak are established in her contract of lease with her landlord, to which Myers is not a party. Nor is there any allegation that Myers was acting as the landlord‘s agent. We also do not see how Myers‘s alleged conduct constitutes discrimination “in the provision of services or facilities” to Podiak “in connection with [her] housing accommodations,” since Myers was not providing services or facilities to Podiak.
VI. The Acts Myers Is Alleged to Have Committed Are Within the Scope of the Acts Prohibited by R.C. 4112.02(H)(12)
{¶ 31}
(H) For any person to do any of the following:
* * *
(12) Coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of that person‘s having exercised or enjoyed or having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by division (H) of this section;
* * *
{¶ 32} The trial court concluded that the Commission could not state a claim under
{¶ 33} Pursuant to
{¶ 34} Numerous federal courts have also found that a neighbor‘s intimidating, threatening, and/or harassing conduct is actionable under
{¶ 35} Recently, in Wells v. Rhodes, 928 F.Supp.2d 920 (S.D. Ohio 2013), the district court granted summary judgment under
{¶ 36} Nothing in
* * * Section 3617 nowhere says that it comes into play only when a violation of one of these other sections has also occurred. An example confirms the freestanding nature of some § 3617 claims. Suppose Alice says to Bob, a prospective home buyer, “If a seller ever discriminates against you because of your race, sue him!” Eve, a racist eavesdropper, becomes enraged upon hearing this conversation and threatens to assault Alice. At this point, Eve has violated § 3617, regardless of whether she discriminated against Bob or otherwise violated the fair housing rights secured by §§ 3603-3606. Eve has “threaten[ed] ... [a] person,” namely Alice. And this threat was “on account of [Alice‘s] having aided or encouraged any other person in the exercise or enjoyment of [a fair housing right].” Eve threatened Alice because Alice had encouraged Bob to protect himself against discrimination relating to housing. The statute requires no more.
Hidden Village, LLC v. City of Lakewood, Ohio, ___ F.3d ___, 2013 WL 5811642, * 7 (6th Cir.).
{¶ 37} In summary, based on the plain language of
{¶ 38} Myers argues that, even if claims against neighbors can be made under
{¶ 39} Accepting the allegations in the complaint as true and construing them in the light most favorable to the Commission, Myers “harassed and intimidated” Podiak and her animal assistants due to Podiak‘s disability. The Commission alleged that Myers mocked Podiak‘s use of sign language, intentionally made noises that caused the dogs to alert Podiak, and made false accusations to Overlook (the property manager) and the police regarding Podiak and her dogs. Finally, the Commission alleged that Myers‘s behavior forced Podiak to have a friend help care for her animal assistants and ultimately caused Podiak to move to a different residence. These allegations are sufficient to state a claim for violating
VII. Conclusion
{¶ 40} The Commission‘s First Assignment of Error is overruled with respect to
FROELICH, P.J., concurring in Parts IV and VI of the opinion, and dissenting as to Part V:
{¶ 41} I agree with Judge Fain‘s conclusions in Parts IV and VI of his opinion that the Commission failed to state a claim upon which may be granted under
{¶ 42}
{¶ 43} Cases under
{¶ 44} Nevertheless, construing the language of
{¶ 45} I would hold that the trial court erred when it concluded, as a matter of law, that the Commission could not state a claim against Myers under
Copies mailed to:
Megan M. Hudson
Nicholas E. Subashi
Lauren K. Epperley
Hon. Gregory F. Singer