Mack v. City of Toledo

• Decision Date: 31 December 2019
• Docket Number: No. L-19-1010,L-19-1010
• Citation: 151 N.E.3d 151,2019 Ohio 5427
• Parties: Cheryl MACK, et al., Plaintiffs-Appellees v. CITY OF TOLEDO, et al., Defendants-Appellants
• Court: Ohio Court of Appeals

151 N.E.3d 151

2019 Ohio 5427

Cheryl MACK, et al., Plaintiffs-Appellees

v.CITY OF TOLEDO, et al., Defendants-Appellants

No. L-19-1010

Court of Appeals of Ohio, Sixth District, Lucas County.

Rendered on the day of December 31, 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

OPINION

WELBAUM, J.

{¶ 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 R.C. 3709.28 does not authorize the District to enforce the City's lead ordinance. Appellants further contend that the trial court erred in finding that the lead ordinance violated the Equal Protection Clause of the Ohio Constitution because it applied to some rental properties and family child care homes while failing to apply to other rental properties, and because the definition of "Owner" rendered the classifications of property irrational. Finally, the City contends that the trial court erred in awarding attorney fees against it pursuant to R.C. 733.61.

{¶ 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 Summit and Legal Aid were filed in support of the City and the District, and we thank them for aiding our consideration of this case.

{¶ 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 R.C. 733.61. First, the trial court erred in concluding that the District lacked authority under R.C. 3709.281 to enforce the City's lead ordinance. We conclude R.C. 3709.281 is ambiguous, requiring interpretation, and it is not an unlawful delegation of the City's legislative authority. Instead, a reasonable interpretation of the statute is that the legislative authority, on the City's behalf, may contract with the District to perform services, like enforcing the lead ordinance, for the City.

{¶ 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...