State ex rel. Pizza v. Rezcallah
| Citation | 702 N.E.2d 81,84 Ohio St.3d 116 |
| Decision Date | 09 December 1998 |
| Docket Number | 96-1895 and 96-1897,Nos. 96-1894,s. 96-1894 |
| Parties | The STATE ex rel. PIZZA, Pros. Atty., Appellant, v. REZCALLAH, Appellee. The STATE ex rel. PIZZA, Pros. Atty., Appellant, v. TERRELL, Appellee. The STATE ex rel. PIZZA, Pros. Atty., Appellant, v. GONZALES, Appellee. |
| Court | United States State Supreme Court of Ohio |
SYLLABUS BY THE COURT
1. R.C. 3767.02 does not require proof of knowledge of, acquiescence to, or participation in the creation or perpetuation of a nuisance in order to find an owner of a nuisance guilty of the civil offense of "maintaining a nuisance."
2. To the extent that R.C. 3767.06(A) requires a trial court, upon a finding of a nuisance, to issue an injunction closing property against its use for any purpose for one year, and to the extent that it allows release from such injunction only through the filing or renewal of a bond in the full value of the property, the statute violates the Fourteenth Amendment Due Process Clause and the Fifth Amendment Takings Clause of the United States Constitution, and Section 19, Article I of the Ohio Constitution, when applied to an owner who did not negligently or knowingly acquiesce to, and did not participate in the creation or perpetuation of the nuisance. (Lindsay v. Cincinnati [1961], 172 Ohio St. 137, 15 O.O.2d 278, 174 N.E.2d 96, overruled.)
Three cases have been consolidated in this matter. The facts of each case are as follows:
Defendant-appellee Mary Rezcallah owns a residence at 1137 1/2 N. Erie Street in Toledo. She rented this residence to Heather Anderson during all times relevant to the case.
The Toledo police began surveillance on the property in September 1995. The investigation culminated in the purchase of $20 of suspected crack cocaine (through the use of a confidential informant). A subsequent search on October 2, 1995 resulted in the seizure of $726, plastic baggies tied together, a scale, and razor blades.
The following day, police mailed a letter to Rezcallah, informing her of the illegal drug activities at the residence. Rezcallah did not receive this letter until October 13, 1995. However, in the meantime, a neighbor told Rezcallah that police had been to the house. Rezcallah went to the premises to discuss the matter with Anderson, who told Rezcallah that the police had found "nothing" during the search.
Rezcallah contacted the police October 4, 1995, and was informed that no arrests were made but that some might be forthcoming. Rezcallah also twice attempted to obtain a copy of the police report pertaining to the premises. She was told the report was not ready or could not be found.
Police again conducted surveillance on the residence, and on October 10, 1995 purchased $20 worth of suspected cocaine at the residence. On October 13, Rezcallah received the police report the police had sent regarding the first investigation. On the same day, Rezcallah met with her attorney and prepared eviction papers. The eviction notice was served on Anderson on October 16 with a required departure date of October 19.
On the 19th, the day Anderson was required to vacate the premises, the police executed a second search warrant, seizing 23.17 grams of crack cocaine, $316, plastic baggies, razor blades, a phony pop can, and an Ameritech caller identification instrument. On the same day, the state filed a Complaint to Abate a Nuisance against Rezcallah, and the trial court issued a temporary restraining order allowing the premises to be padlocked by the police. 1
The state requested preliminary and permanent injunctions. On October 31, 1995, the court entered judgment in favor of Rezcallah on the injunctions and dismissed the complaint in its entirety. In so doing, the court held that in order to obtain an abatement order pursuant to R.C. 3719.10 and 3767.02, it is necessary for the state to prove by clear and convincing evidence that the owner had knowledge of and either acquiesced to or participated in the nuisance. The Sixth District Court of Appeals affirmed.
Defendant-appellee Gilbert Terrell owns the property at 1315 Ironwood Avenue in Toledo. At all times relevant to this case, Julius Jones was an occupant and uninvited user of that residence.
Terrell invited Jones to live at his residence in August 1994. After one month, however, Terrell took his house key from Jones and asked him to leave. Jones did leave but kept returning to the house and breaking in when Terrell was not there. Terrell continuously filed criminal charges against Jones for breaking into his residence, installed an alarm system (which was stolen following the first police search), and reported Jones's illegal activities in an attempt to get him removed from the premises.
Terrell was not able to permanently remove Jones from the premises and prior to the first police search had abandoned the residence, leaving it to Jones.
In February 1995, Toledo Police Detective Jerry Gears received a complaint from an anonymous caller who informed him that drug sales were occurring at the Ironwood residence. Terrell had also reported Jones's illegal activities to the police both in person and over the phone. Based on these tips, the police had confidential informants purchase crack cocaine from the house on February 20 and March 7, 1995. The Toledo police executed a search warrant at the residence on March 12, 1995. The evidence they seized included forty-eight pieces of crack cocaine, one automatic revolver, cash, an Ohio driver's license, five shotgun shells, five or six .38 caliber shells, and two digital scales.
Jones was arrested at the scene and was charged with aggravated trafficking, though he was never convicted. Terrell was not present at the residence when the search warrant was executed.
Following this arrest Jones's illegal activities continued and Terrell again reported Jones to the Toledo police. Based upon the information supplied by Terrell, the police, using an informant, purchased $20 of crack cocaine from the residence. Based upon that purchase, the Toledo police executed a second search warrant on the premises on May 22, 1995. They seized crack cocaine weighing 2.2 grams. Jones again was present, and was arrested and charged with third-degree felony drug abuse. He was never convicted. Terrell was not present at the residence at the time of the search.
It is undisputed that Terrell assisted police in their investigation of the illegal activity at the residence. He contacted the police both in person and by telephone to inform them that drug activities were occurring at the residence. The trial court issued a temporary injunction, finding the residence to be a nuisance. The police padlocked the premises.
Following a hearing on the issuance of a permanent injunction, the trial court entered judgment dissolving the preliminary injunction, ordering removal of the padlock, and denying the state's motion for permanent injunction. The trial court found that Terrell had fully cooperated with the police in abating the nuisance, and that he had not acquiesced to or participated in felony drug sales on the property. The Sixth District Court of Appeals affirmed the decision of the trial court.
Defendant-appellee Teresa Gonzales (now Boardman) owns the property at 953 Butler Street in Toledo. Her brother, John Kochanski, was the occupant of that residence at all times relevant to this case.
Toledo police executed a search warrant on the residence on April 15, 1994, after a telephone complaint about drug sales, surveillance, and a purchase of $20 of crack cocaine from the residence by a confidential informant. The police seized marijuana, two crack pipes and another item of drug paraphernalia, and a telephone bill. Kochanski, at the time of the search, was arrested on charges of drug abuse and possession of drug paraphernalia.
On September 10, 1994, following another complaint by neighbors and further surveillance, an undercover officer made two purchases of crack cocaine from the residence. Kochanski was present at, and orchestrated, both sales. Based upon the sales, Kochanski was arrested on two counts of aggravated trafficking. Two of Kochanski's cohorts, Keith Douglas and Tammy Holder, were also arrested, and a third, Regina Williams, was indicted, all on charges of aggravated trafficking. Gonzales was never present for any drug sales.
Detective Delaney sent a letter dated April 22, 1994 to the residence, addressed to Gonzales, to notify her that drug sales were occurring on her property and what the consequences would be should the activities continue. Gonzales testified that she never saw the letter, and that she did not learn of the execution of the search warrant until June 1994. At that time she warned Kochanski that she would evict him if there was another incident. Gonzales also testified that she did not know of the September 1994 arrests, and that she never visited the residence after the execution of the search warrant on April 15, 1994. Detective Delaney testified that the residence had the reputation of being a crack house.
The state subsequently filed a Complaint to Abate a Nuisance pursuant to R.C. Chapter 3767. The trial court entered judgment in favor of Gonzales. The Sixth District Court of Appeals affirmed the trial court.
The cases are before this court upon the allowance of discretionary appeals.
Julia R. Bates, Lucas County Prosecuting Attorney, Steven J. Papadimos and Bertrand R. Puligandla, Assistant Prosecuting Attorneys, for appellant.
Barkan & Robon, and Cynthia G. Tesznar, Toledo, for appellee Mary Rezcallah.
Gilbert Terrell, pro se.
Wesley M. Miller, Jr., Toledo, for appellee Teresa Gonzales.
Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State Solicitor, and Simon B. Karas, Assistant Attorney General, urging reversal for amicus curiae, Ohio Attorney General.
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