Ohio Civ. Rights Comm. v. Fairmark Dev., Inc., 08ap-250 (12-11-2008)Ohio Civ. Rights Comm. v. Fairmark Dev., Inc., 08ap-250 (12-11-2008)
I. Facts and Procedural History
{¶ 2} River Oaks Apartments is a large apartment complex in Columbus consisting of several multi-family apartment buildings that were designed and constructed around 1998. Fairmark developed and constructed the apartment complex; Architectural Alliance, Ltd. and CNK Associates, Inc. provided designs used in the construction. {¶ 3} The city of Columbus issued final occupancy permits to signify each apartment building's cоmpletion, issuing the last such permits for the apartment complex on December 1, 1998. In September 2002, Fairmark sold River Oaks Apartments and transferred all of its rights, title and interests to River Oaks Investors, LLC. Each of the final occupancy permits issued for River Oaks Apartments states that "[i]n compliance with OBBC [Ohio Basic Building Code] Section 4101: 2-1-27 and CBC [Columbus Building Code] Chapter 4117, this certificate of use and occupancy is issued to certify compliance with the provisions of the Ohio Basic Building Code, Chapters
{¶ 4} The Board of Building Standards had standards and rules, then in effect, that required buildings and facilities to be designed and constructed to be accessible to physically disabled persons in accordance with the Fair Housing Act of 1988 ("the FHA"), Section 3601, Title 42, U.S. Code et seq., as amended, and the Americans with Disabilities Act of 1990 ("the ADA"), Section 12101, Title 42, U.S. Code et seq., as amended. See, e.g., Ohio Adm. Code
{¶ 5} On March 16, 2006, Dean Arlington filed an administrative charge with OCRC pursuant to R.C.
{¶ 6} At a public meeting held on March 1, 2007, OCRC determined both that defendants denied disabled persons various housing rights granted under R.C.
{¶ 7} On March 20, 2007, the Attorney General, on OCRC's behalf, filed a complaint against defendants under R.C.
{¶ 8} Fairmark moved to dismiss the complaint pursuant to Civ. R. 12(B)(6), and Architectural Alliance, Ltd. and CNK Associates, Inc. subsequently moved under Civ. R. 56 for summary judgment. In their motions, defendants argued that, pursuant to this court's decision inOhio Civil Rights Comm. v. Triangle Real Estate Serv., Franklin App. No. 06AP-157,
{¶ 9} Relying on Triangle, supra, the trial court first determined that any claims pertaining to an unlawful discriminatory practice described in R.C.
II. Assignments of Error
{¶ 10} OCRC appeals from the trial court's final judgment, assigning three errors:Appellant's First Assignment of Error
The Court of Common Pleas erred when it held that the State of Ohio is subject to a one-year statute of limitations when bringing a claim pursuant to R.C.
4112.052 seeking relief for housing discrimination made unlawful by R.C.4112.02 (H).Appellant's Second Assignment of Error
The Court of Common Pleas erred when it held that R.C.
4112.052 only authorizes claims alleging a "pattern or practice" of unlawful housing discrimination.Appellant's Third Assignment of Error
The Court of Common Pleas erred when it held that the relief available under R.C.
4112.052 does not, at the very least, include retrofitting the unlawful inaccessible features at issue (or creating a monetary fund for retrofitting).
III. Standards of Review
{¶ 11} In deciding whether to dismiss a complaint pursuant to Civ. R. 12(B)(6) for failure to state a claim upon which relief can be granted, the trial court must presume all factual allegations in the complaint are true and construe the complaint in the light most *6 favorable to the plaintiff, drawing all reasonable inferences in favor of the plaintiff. Mitchell v. Lawson Milk Co. (1988), {¶ 12} Summary judgment is proper only when the parties moving for summary judgment demonstrate (1) no genuine issue of material fact exists, (2) the moving parties are entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Civ. R. 56; State exrel. Grady v. State Emp. Relations Bd. (1997),
{¶ 13} This court's review of the trial court's decision on both motions is de novo. Walters v. Columbus, Franklin App. No. 07AP-917,
IV. First Assignment of Error
{¶ 14} In its first assignment of error, OCRC contends the trial court erred in relying on this court's decision in Triangle, supra, and in finding the statutes of limitations contained in R.C. ChapterA. R.C.
{¶ 15} As relevant here, three avenues of relief potentially were available to redress defendants' allegedly discriminatory actions: R.C.
{¶ 16} Moreover, OCRC did not purport to assert any claims pursuant to R.C.
{¶ 17} Instead, OCRC's complaint in the common pleas court was brought exclusively under R.C.
B. R.C.
{¶ 18} R.C.
{¶ 19} Here, as in Triangle, supra, OCRC was not pursuing its own claims under R.C. 4112.051A)(2). Instead it was pursuing Arlington's claims, derived from Arlington's charge filed with OCRC. OCRC's claims were dependent upon Arlington's timely filing the charge within the one-year limitations period contained in R.C.
C. R.C.
{¶ 20} OCRC also brought its complaint pursuant to R.C.
{¶ 21} OCRC's cause of action under R.C.
{¶ 22} In our analysis, we decline to apply the in pari material rule, a rule of statutory сonstruction, to discern what statute of limitations from R.C. Chapter
{¶ 23} Moreover, "[t]he in pari materia rule is to be applied only where the statute to be construed is ambiguous or the significance of its terms doubtful." Morris v. Kaiser Engineers, Inc. (1984),
{¶ 24} Indeed, OCRC contends, under the plain language of the statute, that it is subject to no statute of limitation. OCRC relies on federal case law for support of its interpretation of R.C.
{¶ 25} Federal courts addressing government housing discrimination claims under analogоus Section 3614, Title 42, U.S. Code consistently have held that requests for equitable and injunctive relief under the statute are not subject to any time limitation. See, e.g., United Statesv. Tanski (N.D.N.Y. 2007), case No. 1:04-CV-714,
{¶ 26} Consistent with such authority, we conclude that, as in the analogous federal law that authorizes preventive and injunctive relief for public wrongs involving unlawful discriminatory practices, Ohio's legislature did not impose a time limit on OCRC in seeking preventive relief under R.C.
{¶ 27} R.C.
V. Second Assignment of Error
{¶ 28} OCRC's second assignment of error contends that in dismissing OCRC's R.C. {¶ 29} To resolve OCRC's claim on appeal, we first look to the language of the statute itself. Courts must presume that the General Assembly, in enacting a statute, intended for the entire statute to be effective. R.C.
{¶ 30} The language of R.C.
{¶ 31} In again looking to federal law for guidance in this matter, we note Section 3614(a), Title 42, U.S. Code (" § 3614") contains language virtually identical to R.C.
{¶ 32} Federal courts examining § 3614(a) consistently have determined the statutory provision creates a cause of action for a "public importance" claim under the statute. See, e.g., United States v.Habersham Prop., Inc. (N.D.Ga. 2003), *14
{¶ 33} In accord with the federal law on the subject, we conclude R.C.
{¶ 34} Because the trial court erroneously concluded R.C.
VI. Third Assignment of Error
{¶ 35} OCRC's final assignment of error contends the trial court erred in determining that OCRC did not sеek "preventive relief," as permitted under R.C. {¶ 36} R.C.
{¶ 37} OCRC then argues that unless R.C.
{¶ 38} OCRC directs us to cases where, whеn the federal government sought to remedy public wrongs involving discrimination, federal courts adhered to the principle that "[r]elief should be aimed toward twin goals insuring that no future violations of the [FHA] occur and removing any lingering effects of past discrimination." United States v.Jamestown Center-in-the-Grove Apts. (C.A.5, 1977),
{¶ 39} The federal courts' awards of retrofitting were predicated on § 3614(d)(1), which provides the relief in the Attorney General's actions for violations of the FHA. In relevant part, § 3614(d)(1) states that in a Section 3614(a), Title 42, U.S. Code civil action, the court "(A) may award such preventive relief, including a permanent or temporary injunction, restraining order, or other order against the person responsible for a violation of this subchapter as is necessary to assure the full enjoymеnt of the rights granted by this subchapter"; and "(B) may award such other relief as the court deems appropriate, including monetary damages to persons aggrieved[.]"
{¶ 40} Significantly, the relief available under § 3614(d)(1) is much broader than the relief available under R.C.
{¶ 41} OCRC argues that, contrary to the trial court's conclusion, the relief it requests is not "monetary relief," and that, by having the inaccessible features of River Oaks Apartments brought into compliance, it is seeking only to prevent future injury, not redress past wrongs. We disagree.
{¶ 42} OCRC specifically requested that defendants "contribute to amonetary fund for the purpose of retrofitting * * * with the aim ofremoving the lingering effects of any past violations * * * ." "Damages" is broadly defined as "pecuniary compensation or indemnity, which may be recovered in the courts by any pеrson who has suffered loss, detriment, or injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another." Rice v. CertainTeedCorp. (1999),
{¶ 43} The purpose of "preventive relief" is to prevent future injury, not to redress past wrongs. See State ex. rel General Motors Corp. v.Indus. Comm.,
{¶ 44} We agree that, when authorized and available as a remedy, retrofitting is a particularly appropriate remedy to remove the lingеring effects of past discriminatory practices that have violated the rights of disabled persons to accessible housing. We conclude, however, that neither retrofitting nor the creation of a monetary fund for the purpose of retrofitting is "preventive relief" permitted under R.C.
{¶ 45} As a result, the trial court properly granted the Civ. R. 12(B)(6) dismissal of OCRC's R.C.
{¶ 46} Although we have sustained OCRC's first and second assignments of error, the trial court's errors were harmless to the final judgment in light of our overruling OCRC's third assignment of error. Accordingly, having overruled the third assignment of error, we affirm the trial court's judgment dismissing OCRC's complaint against defendants.
Judgment affirmed.
FRENCH and GREY, JJ., concur.
GREY, J., retired of the Fourth Appellate District, assigned to active duty under authority of Section