Public Documents LUCAS COUNTY COURT OF COMMON PLEAS
J. BERNIE QUILTER, CLERK
700 ADAMS STREET
TOLEDO, OHIO
TIME:   6:19:10 AM
DATE:   4/25/2024
CASE: G -4801 -CI -0201704676-000  
TITLE: MACK VS CITY OF TOLEDO  
JUDGE: LINDA J JENNINGS   STATUS:   CLOSED/TERM'D
FILING DATE: 11/2/2017 CASE TYPE:   CI   CIVIL  
MONETARY AMOUNT:   DOCKET/PAGE:    
ORIGINAL COURT:   TAX TYPE:    
PREVIOUS CASE NUMBER:   STATE OF OHIO NUMBER:    
Party   Counsel
PLAINTIFF 1:
MACK CHERYL
3507 OAKWAY DRIVE
TOLEDO, OH  43614		ANDY MAYLE
4193348377
PO BOX 263
PERRYSBURG, OH  43552
PLAINTIFF 2:
PROPERTY INVESTORS NETWORK INC
3131 EXECUTIVE PARKWAY STE 100
TOLEDO, OH  43606		ANDY MAYLE
4193348377
PO BOX 263
PERRYSBURG, OH  43552
DEFENDANT 1:
CITY OF TOLEDO OHIO
C/O ADAM LOUKX
ONE GOVERNMENT CENTER STE 2250
TOLEDO, OH  43604		JEFFREY B CHARLES
4192451020
ONE GOVERNMENT CENTER STE 2250
TOLEDO, OH  43604
DEFENDANT 2:
TOLEDO LUCAS COUNTY BOARD OF HEALTH
635 N ERIE STREET
TOLEDO, OH  43604		EVY M. JARRETT
4192132001
LUCAS COUNTY PROSECUTORS OFFICE
APPELLATE DIVISION 711 ADAMS - 2ND FLOOR
TOLEDO, OH  43604
DEFENDANT 2:
KEVIN A. PITUCH
4192132001
LUCAS COUNTY PROSECUTORS OFFICE
711 ADAMS ST 2ND FL
TOLEDO, OH  43604
APPELLEE 1:
PROPERTY INVESTORS NETWORK INC
3131 EXECUTIVE PARKWAY
SUITE 100
TOLEDO, OH  43606
DATE SEQ EVENT
11/2/20172Title : OPN:COMPLAINT FILED
PLAINTIFFS COMPLAINT FOR PERMANENT INJUNCTION
PARTY : -
11/3/20172Title : FRM:CIVIL SUMMONS ISSUED
Form Number S2-180701
Issued by CO (CLERK) (6835) FRM:CIVIL SUMMONS ISSUED
PARTY : D1 - CITY OF TOLEDO OHIO
11/3/20173Title : FRM:CIVIL SUMMONS ISSUED
Form Number S2-180702
Issued by CO (CLERK) (6835) FRM:CIVIL SUMMONS ISSUED
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
11/3/20174Title : SRV:SUMM & COMPLT ISSUED
SUMMONS AND COPY OF COMPLAINT SENT CERTIFIED MAIL #
CITY OF TOLEDO OHIO 7017 1450 0001 1642 6180
C/O ADAM LOUKX
ONE GOVERNMENT CENTER STE 2250
TOLEDO OH 43604
TOLEDO LUCAS COUNTY BOARD OF HEALTH
7017 1450 0001 1642 6197
635 N ERIE STREET
TOLEDO OH 43604
PARTY : P1 - MACK CHERYL
11/3/20175Title : SRV:COPIES MAILED
COPY OF PLAINTIFFS COMPLAINT SENT CERTIFIED MAIL:
RICHARD M DEWINE ESQ 7017 1450 0001 1642 6203
OHIO ATTORNEY GENERAL
30 E BROAD STREET
COLUMBUS OH 43215
PARTY : P1 - MACK CHERYL
11/9/20171Title : MTN:MOTION FILED
PLAINTIFFS MOTION TO WAIVE SECURITY SET SCHEDULE
PARTY : P1 - MACK CHERYL
11/9/20172Title : RTN:CERTIFIED MAIL
RETURN RECEIPT FOR CERTIFIED MAIL #7017 1450 0001 1642 6197
SIGNED: C S
DATE: 11/06/17
TOLEDO LUCAS COUNTY BOARD OF HEALTH
635 N ERIE STREET
TOLEDO OH 43604
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
11/13/20171Title : ORD:REQ'T EXT TO PLD GRANTED
DEFENDANT TOLEDO-LUCAS COUNTY BOARD OF HEALTH'S REQUEST FOR
AN EXTENSION AND JOURNAL ENTRY RECEIVED NOVEMBER 9, 2017
IS HEREBY APPROVED.
IT IS ORDERED THAT DEFENDANT TOLEDO-LUCAS COUNTY BOARD OF
HEALTH RESPOND TO PLAINTIFF'S COMPLAINT ON OR BEFORE
12/28/17.
SEE ORDER.
PARTY : -
11/13/20172Title : EVT:J.E. FILED & JOURNALIZED
E-JOURNALIZED 11/14/17
PERTAINING TO: DEFTS REQUEST FOR EXTENSION IS APPROVED
Sent via email to P-2's attorney on 2017-11-14 02:53:04 PM:
ANDY MAYLE
amayle@mayleraymayle.com
PARTY : P1 - MACK CHERYL
11/15/20171Title : MTN:EXTENSION OF TIME FILED
MOTION FOR FIRST EXTENSION OF TIME
PARTY : D1 - CITY OF TOLEDO OHIO
11/15/20172Title : RTN:CERTIFIED MAIL
RETURN RECEIPT FOR CERTIFIED MAIL #7017 1450 0001 1642 6203
SIGNED: NANCY DUNN
DATE: 11/13/17
RICHARD M DEWINE ESQ
30 E BROAD STREET
COLUMBUS OH 43215
(COPY OF COMPLAINT)
PARTY : -
11/16/20171Title : PRO:MTN FOR EXTENSION GRANTED
DEFENDANT CITY OF TOLEDO'S MOTION FOR FIRST EXTENSION OF
TIME FILED 11/15/17 IS FOUND WELL-TAKEN AND GRANTED.
IT IS ORDERED THAT DEFENDANT CITY OF TOLEDO SHALL HAVE UNTIL
1/1/18 TO FILE THEIR RESPONSE TO PLAINTIFF'S COMPLAINT.
SEE ORDER.
PARTY : -
11/16/20172Title : EVT:ORDER FILE & JOURN EFF6/13
E JOURNALIZED 11-17-17
PERTAINING TO:DEFT (CITY OF TOLEDO) MOTION GRANTED AN
EXTENSION OF TIME
Sent via email to D-1's attorney on 2017-11-17 12:02:43 PM:
ADAM W. LOUKX
adam.loukx@toledo.oh.gov
Sent via email to D-1's attorney on 2017-11-17 12:02:43 PM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2017-11-17 12:02:43 PM:
ANDY MAYLE
amayle@mayleraymayle.com
PARTY : P1 - MACK CHERYL
11/16/20173Title : RTN:CERTIFIED MAIL
RETURN RECEIPT FOR CERTIFIED MAIL #7017 1450 0001 1642 6180
SIGNED: J BRADEN
DATE: 11/06/17
CITY OF TOLEDO OHIO
ONE GOVERNMENT CENTER STE 2250
TOLEDO OH 43604
PARTY : D1 - CITY OF TOLEDO OHIO
11/27/20171Title : PLD:NOTICE OF APPEARANCE
FILED ON BEHALF OF THE CITY OF TOLEDO
PARTY : D1 - CITY OF TOLEDO OHIO
11/27/20172Title : PLD:RESPONSE
TO PLAINTIFFS MOTION TO WAIVE SECURITY
PARTY : D1 - CITY OF TOLEDO OHIO
11/29/20171Title : PLD:REPLY
PLAINTIFFS REPLY IN SUPPORT OF MOTION TO WAIVE
SECURITY AND SET SCHEDULE
PARTY : -
11/29/20172Title : PLD:REPLY
PLAINTIFFS REPLY IN SUPPORT OF MOTION TO WAIVE SECURITY
AND SET SCHEDULE
PARTY : -
12/11/20171Title : PLD:ANSWER
OF DEFENDANT TOLEDO LUCAS COUNTY HEALTH DISTRICT
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
12/11/20172Title : MTN:MOTION FILED
DEFENDANT TOLEDO LUCAS COUNTY HEALTH DISTRICTS MOTION FOR
JUDGMENT ON THE PLEADINGS
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
12/11/20173Title : MIS:CORRESPONDENCE FILED
FILED BY OHIO ATTORNEY GENERAL
PARTY : D1 - CITY OF TOLEDO OHIO
12/21/20171Title : ORD:ORDER
This matter comes before the Court on Plaintiffs' motion
to waive security, set schedule. The Court having
reviewed Plaintiffs' motion, Defendants' response in
opposition, the memoranda and arguments presented and the
applicable law, Orders security to be set a $500.00, which
may be paid by check payable to the Lucas County Clerk of
Court.
The Court will set this matter for an initial scheduling
conference via separate order.
IT IS SO ORDERED.
December 21, 2017 Judge Linda J. Jennings
PARTY : -
12/21/20172Title : EVT:ORDER FILE & JOURN EFF6/13
E JOURNALIZED 12-22-17
PERTAINING TO:SECURITY TO BE SET AT $500.00
MATTER SET FOR INITIAL SCHEDULING CONFERENCE VIA SEPARATE
ORDER
Sent via email to D-2's attorney on 2017-12-22 09:31:02 AM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-1's attorney on 2017-12-22 09:31:02 AM:
ADAM W. LOUKX
adam.loukx@toledo.oh.gov
Sent via email to D-2's attorney on 2017-12-22 09:31:02 AM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2017-12-22 09:31:02 AM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2017-12-22 09:31:02 AM:
ANDY MAYLE
amayle@mayleraymayle.com
Sent via email to D-1's attorney on 2017-12-22 09:31:02 AM:
JOSEPH MCNAMARA
joe.mcnamara@toledo.oh.gov
PARTY : P1 - MACK CHERYL
12/21/20173Title : PLD:BRIEF
PLAINTIFFS COMBINED BRIEF IN OPPOSITION TO THE BOARD OF
HEALTHS MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION FOR
PARTIAL SUMMARY JUDGMENT AGAINST THE BOARD OF HEALTH
PARTY : P1 - MACK CHERYL
12/21/20174Title : MTN:MOTION FILED
DEFENDANT CITY OF TOLEDOS MOTION FOR JUDGMENT ON THE
PLEADINGS AND MEMORANDUM IN SUPPORT
PARTY : D1 - CITY OF TOLEDO OHIO
12/21/20175Title : PLD:ANSWER
OF CITY OF TOLEDO
PARTY : D1 - CITY OF TOLEDO OHIO
12/26/20171Title : PLD:BRIEF
PLAINTIFFS COMBINED (1) BRIEF IN OPPOSITION TO THE BOARD OF
TOLEDOS MOTION FOR JUDGMENT ON THE PLEADINGS AND (2) MOTION
FOR PARTIAL SUMMARY JUDGMENT AGAINST TOLEDO
PARTY : P1 - MACK CHERYL
12/28/20171Title : MTN:EXTENSION OF TIME FILED
DEFENDANTS JOINT MOTION FOR EXTENSION OF TIME AND
MEMORANDUM IN SUPPORT
PARTY : -
1/2/20181Title : PRO:JOINT MOTION GRANTED
JOINT MOTION FOR EXTENSION OF TIME AND MEMORANDUM IN SUPPORT
FILED 12/28/17 IS FOUND WELL-TAKEN AND GRANTED.
IT IS ORDERED THAT DEFENDANTS ARE GRANTED UNTIL JANUARY 19,
2018 TO FILE THEIR REPLY TO THE MOTIONS FOR JUDGMENT ON THE
PLEADINGS AS WELL AS THEIR RESPONSES TO THE PLAINTIFFS'
MOTIONS FOR PARTIAL SUMMARY JUDGMENT.
SEE ORDER.
PARTY : -
1/2/20182Title : EVT:ORDER FILE & JOURN EFF6/13
E JOURNALIZED 1-3-18
PERTAINING TO:DEFTS GRANTED EXTENSION OF TIME
Sent via email to D-2's attorney on 2018-01-03 11:56:44 AM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-2's attorney on 2018-01-03 11:56:44 AM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2018-01-03 11:56:44 AM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2018-01-03 11:56:44 AM:
ANDY MAYLE
amayle@mayleraymayle.com
Sent via email to D-1's attorney on 2018-01-03 11:56:44 AM:
JOSEPH MCNAMARA
joe.mcnamara@toledo.oh.gov
Sent via email to D-1's attorney on 2018-01-03 11:56:44 AM:
ADAM W. LOUKX
adam.loukx@toledo.oh.gov
PARTY : P1 - MACK CHERYL
1/5/20181Title : MTN:MOTION TO INTERVENE
FILED BY INTERVENORS TOLEDO LEAD POISONING PREVENTION
COALITION AND LATOYA JENKINS
PARTY : -
1/5/20182Title : PLD:CERTIFICATE OF SERVICE
OF THE MOTION TTO INTERVENE INTERVENING PLAINTIFFS
COMPLAINT AND A PROPOSED ORDER
PARTY : -
1/8/20181Title : PLD:BRIEF
PLAINTIFFS' BRIEF OPPOSING PROPOSED INTERVENTION
PARTY : P1 - MACK CHERYL
1/16/20181Title : PLD:AFFIDAVIT
OF LA TOYA JENKINS
PARTY : P1 - MACK CHERYL
1/16/20182Title : PLD:REPLY
TO PLAINTIFFS BRIEF IN OPPOSITION TO INTERVENTION FILED BY
INTERVENORS
PARTY : -
1/19/20181Title : MTN:EXTENSION OF TIME FILED
MOTION FOR SECOND EXTENSION OF TIME AND MEMORANDUM
IN SUPPORT
PARTY : D1 - CITY OF TOLEDO OHIO
1/19/20182Title : PLD:REPLY BRIEF
DEFENDANT HEALTH DISTRICT REPLY BRIEF RE MOTION FOR
JUDGMENT ON THE PLEADINGS AND MEMORANDUM OPPOSING MOTION FOR
PARTIAL SUMMARY JUDGMENT
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
1/22/20181Title : PRO:MTN FOR EXTENSION GRANTED
DEFENDANT CITY OF TOLEDO'S MOTION FOR SECOND EXTENSION OF
TIME AND MEMORANDUM IN SUPPORT, FILED 1/19/18 IS FOUND WELL-
TAKEN AND GRANTED.
IT IS ORDERED THAT THE DEFENDANT CITY OF TOLEDO IS
GRANTED UNTIL JANUARY 26, 2018 TO FILE ITS REPLY TO THE
MOTIONS FOR JUDGMENT ON THE PLEADINGS AS WELL AS ITS
RESPONSE TO THE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY
JUDGMENT.
SEE ORDER.
PARTY : -
1/24/20181Title : EVT:ORDER FILE & JOURN EFF6/13
E JOURNALIZED 1-25-18
PERTAINING TO:DEFT (CITY OF TOLEDO) GRANTED AN EXTENSION
OF TIME
Sent via email to D-2's attorney on 2018-01-25 11:44:43 AM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-1's attorney on 2018-01-25 11:44:43 AM:
ADAM W. LOUKX
adam.loukx@toledo.oh.gov
Sent via email to D-2's attorney on 2018-01-25 11:44:43 AM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2018-01-25 11:44:43 AM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2018-01-25 11:44:43 AM:
ANDY MAYLE
amayle@mayleraymayle.com
Sent via email to D-1's attorney on 2018-01-25 11:44:43 AM:
JOSEPH MCNAMARA
joe.mcnamara@toledo.oh.gov
PARTY : P1 - MACK CHERYL
1/25/20181Title : PLD:REPLY
PLAINTIFFS REPLY IN SUPPORT OF THEIR MOTION FOR PARTIAL
SUMMARY JUDGMENT AGAINST DEFENDANT BOARD OF HEALTH
PARTY : P1 - MACK CHERYL
1/26/20181Title : PLD:RESPONSE
CITY OF TOLEDOS COMBINED RESPONSE TO PLAINTIFFS MOTION FOR
SUMMARY JUDGMENT AND REPLY TO ITS MOTION FOR JUDGMENT ON
THE PLEADINGS
PARTY : D1 - CITY OF TOLEDO OHIO
2/2/20181Title : PLD:REPLY
IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT
AGAINST DEFENDANT CITY OF TOLEDO
PARTY : P1 - MACK CHERYL
3/19/20181Title : ORD:OPINION ISSUED SEE JE
This declaratory judgment action is before the Court on
the motion of Toledo Lead Poisoning Prevention Coalition
and Latoya Jenkins (TLPPC and Jenkins, or Intervenors) to
intervene in this action, pursuant to Civ.R. 24(A)
(intervention of right) or Civ.R. 24(B) (permissive
intervention).
The Court has reviewed the relevant pleadings, the parties
supporting and opposing memoranda, and the applicable law.
Having done so, the Court finds that TLPPC and Jenkins
have not shown that they are entitled to intervene in this
action and will therefore deny their motion in that
regard, as discussed below.
Introduction and Procedural History
The subject of this action is Toledo's Lead Safe Rental
Property Ordinance (lead -paint ordinance or ordinance),
which requires certain rental properties to be inspected
and deemed "lead safe" in order to prevent potential human
exposure to lead hazards.
Plaintiff Cheryl Mack (Mack) is a real-estate investor in
the Toledo residential rental market. Plaintiff Property
Investor's Network (PIN) is a non-profit trade group
comprised of substantial investors in the Toledo rental
market. In their November 2, 2017 complaint against the
City of Toledo (Toledo) and the Toledo-Lucas County Board
of Health (Board of Health), Plaintiffs seek a permanent
injunction against enforcement of the lead-paint
ordinance. As grounds for seeking injunctive relief,
Plaintiffs allege that the ordinance is unconstitutional
because the Board of Health has no statutory authority to
assert the inspection, licensing, and enforcement powers
contemplated by the ordinance, and Toledo has no power to
issue mandates to the Board of Health. Moreover,
according to Plaintiffs, the ordinance violates the Ohio
Constitution's equal-protection clause by singling out
rental -- as opposed to all -- residential properties, as
well as rental properties of four units or less.
On December 11, 2017, the Board of Health filed its
Answer, denying that the lead-paint ordinance is
unconstitutional and asserting numerous affirmative
defenses, including PIN's lack of standing and statutory
immunity. On the same day, the Board of Health filed a
motion for judgment on the pleadings.
On December 21, 2017, Toledo filed its Answer and a motion
for judgment on the pleadings.
On December 26, 2017, Plaintiffs filed a brief in
opposition to the Board of Health's motion for judgment on
the pleadings and a motion for partial summary judgment
against Toledo.
On January 5, 2018, TLPPC and Jenkins filed the motion to
intervene currently under consideration, which is now
decisional.
Since then, the existing parties have fully briefed the
motions for judgment on the pleadings and summary
judgment.
Motion to Intervene
According to the motion to intervene, TLPPC "is a
community organization whose mission is to significantly
reduce the number of children who continue to be lead
poisoned in our community by developing a comprehensive
primary preventive approach that will prevent children
from being lead poisoned, rather than waiting to react
until a child is lead poisoned as the current structure
requires." TLPPC members include families whose children
have been lead poisoned and the human service agencies,
health care providers, and educational organizations who
provide services to such children.
Jenkins is a single parent whose two-year-old son was lead
poisoned in a rental property that is subject to the lead-
paint ordinance.
TLPPC and Jenkins want to intervene as Plaintiffs in this
case and seek a declaratory judgment that the ordinance is
constitutional and otherwise consistent with Ohio's
general laws. They argue that they have a right to
intervene, pursuant to Civ.R. 24(A), because: (1) the
existing parties do not adequately represent their unique
interest in making sure that children are able to live in
lead-safe rental property; and (2) Ohio's Declaratory
Judgment Act, specifically R.C. 2721.12(A), mandates that
they be made parties to the action because their interests
would be affected by the declaratory judgment sought by
Plaintiffs. In the alternative, TLPPC and Jenkins maintain
that permissive intervention, pursuant to Civ.R. 24(B), is
warranted because: (1) the Declaratory Judgment Act gives
them a conditional right to intervene; and (2) their
defenses to Plaintiffs' claims, or any affirmative
declaratory relief they might seek in a separate action,
would share substantial common questions of law and fact
with the present litigation.
The final argument presented by Intervenors is that their
motion is timely because they filed it 14 days after
Toledo filed its Answer.
Plaintiffs' Opposition
CONTINUED ON NEXT ENTRY . . . .
PARTY : -
3/19/20182Title : ORD:OPINION ISSUED SEE JE
CONTINUED FROM PREVIOUS ENTRY . . .
Plaintiffs first argue that Civ.R. 24(A) does not mandate
intervention because: (1) the motion to intervene is not
timely because the lead law's compliance deadlines are
just months away, and all existing parties have already
filed dispositive cross-motions; (2) the Declaratory
Judgment Act does not confer an unconditional right to
intervene; (3) there is no property or transaction at
issue because the issue is the constitutionality of the
lead-paint ordinance; (4) disposition of the case will not
impair or impede Intervenors' ability to protect their
interests because they are not legally protectable; (5)
Intervenors offer no basis for holding that Defendants
and their counsel are inadequate to defend the ordinance,
and, in fact, Defendants' interests and Intervenors'
interests are identical since the goal of both groups is
to uphold the ordinance; and (6) the collateral and
extrinsic policy issues that Intervenors seek to introduce
into this case justify denial of the motion to intervene.
Plaintiffs' next, and final, argument is that Civ.R. 24(B)
does not authorize the Court to permit TLPPC and Jenkins
to intervene because: (1) their motion to intervene is not
timely; (2) no statute gives them a conditional right to
intervene; and (3) they do not assert any justiciable
claim, defense, or legally-protected interest.
In their reply brief, TLPPC and Jenkins first insist that
they have a right to intervene under Civ.R. 24(A)(2)
because: (1) their motion, filed approximately 41
business days after Plaintiffs filed their complaint and
just a few days after they learned of the lawsuit, was
timely; (2) they claim an interest in the rental
properties that are subject to the lead ordinance and in
the transactions of completing lead inspections; (3)
disposition of the case may impair or impede their ability
to protect their own interests because Jenkins has a
statutory right to live in a habitable and lead-free
rental home and they both have a statutory right to seek
declaratory judgment in favor of the ordinance; (4) the
existing parties do not adequately represent their
interests, which include treating and addressing the
issues faced by a lead-poisoned son, trying to find lead-
safe housing, and obtaining a speedy declaratory judgment;
and (5) intervention is consistent with prior case law,
which favors intervention.
In arguing for permissive intervention under Civ.R. 24(B),
TLPPC and Jenkins contend that (1) their claim that the
lead-paint ordinance is constitutional involves the same
questions of law and fact as Plaintiffs' action against
Toledo, and (2) Plaintiffs' sole argument against
permissive intervention -- that the motion is untimely --
fails due to Plaintiffs' failure to offer any valid reason
for such a conclusion and their showing to the contrary.
TLPPC and Jenkins' final point is that judicial economy
supports allowing them to intervene because filing a
separate declaratory judgment action would be less
expedient and more wasteful of judicial resources.
Law, Analysis, and Decision
The Court finds that TLPPC and Jenkins do not have an
unconditional right to intervene in this action, under
R.C. 2721.12(A) or Civ.R. 24(A), and that permissive
intervention under Civ.R. 24(B) is not warranted, either,
notwithstanding the requirement that the Court "construe
Civ.R. 24 liberally to permit intervention." (Citations
omitted.) State ex rel. Merrill v. Ohio Dept. of Natural
Resources. 130 Ohio St.3d 30, 2011-Ohio-4612, ΒΆ 41.
Given the relatively short time that elapsed between the
dates of filing the complaint and the motion to intervene,
the Court will not deny TLPPC and Jenkins' motion as
untimely. Rather, the Court will focus on the movants'
failure to satisfy the remaining requirements of Civ.R. 24
A.Intervention of Right Under Civ.R. 24(A)
Civ.R. 24(A) [Intervention of Right] states:
permitted to intervene in an action: (1) when a statute of
this state confers an unconditional right to intervene; or
(2) when the applicant claims an interest relating to the
property or transaction that is the subject of the action
and the applicant is so situated that the disposition of
the action may as a practical matter impair or impede the
applicant's ability to protect that interest, unless the
applicant's interest is adequately represented by existing
parties.
In order to intervene under Civ.R. 24(A)(2), the motion
must be timely and the intervenor must show: (1) an
interest relating to the property or transaction that is
the subject of the action; (2) that the disposition of the
action may impair or impede the intervenor's ability to
protect that interest; and (3) that the existing parties
do not adequately protect the intervenor's interest. The
intervenor's failure to satisfy each of the requirements
CONTINUED ON NEXT ENTRY . . . .
PARTY : -
3/19/20183Title : ORD:OPINION ISSUED SEE JE
CONTINUED FROM PREVIOUS ENTRY . . .
will result in denial of the right to intervene.
(Citations omitted.) Velocity Dev., LLC v. Perrysburg Twp.
Bd. of Trustees, 6th Dist. Wood No. WD-11-037, 2011-Ohio-
6192, ΒΆ 15.
1.
or Jenkins an unconditional right to intervene.
"R.C. Chapter 2721 provides a complete statutory scheme
for obtaining declaratory relief." Rumpke Sanitary
Landfill, Inc. v. State of Ohio, 128 Ohio St.3d 41, 2010-
Ohio-6037, ΒΆ 14, citing Gen. Acc. Ins. Co. v. Ins. Co. of
N. Am., 44 Ohio St.3d 17, 22 (1989). R.C. 2721.12(A)
provides, in pertinent part, that "when declaratory relief
is sought under this chapter in an action or proceeding,
all persons who have or claim any interest that would be
affected by the declaration shall be made parties to the
action or proceeding."
However, "only those persons who are legally affected are
proper parties to a lawsuit." (Emphasis added.) Driscoll
v. Austintown Assoc., 42 Ohio St. 2d 263, 273 (1975),
quoting Schriber Sheet Metal & Roofers v. Shook, 64 Ohio
App. 276, 285 (1940). A party who has a legal interest in
rights that are the subject of a cause of action is
"legally affected" by the action. (Citation omitted.)
Rumpke at ΒΆ 14. A "legal interest" is an interest
"recognized by law," as well as an interest that is
"legally protectable," meaning "protected by law." Id.,
quoting Black's Law Dictionary and In re Schmidt, 25 Oho
St.3d 331, 336 (1986).
"Thus, whether a nonparty is a necessary party to a
declaratory-judgment action depends upon whether that
nonparty has a le6gally protectable interest in rights
that are the subject matter of the action." Rumpke at ΒΆ
15. Similarly, a party has an unconditional right to
intervene in a declaratory judgment action, pursuant to
Civ.R. 24(A)(2), only where the applicant has a "legal
interest" in the action. Velocity Dev. at ΒΆ 17, citing
Rumpke at ΒΆ 22.
Here, TLPPC and Jenkins fail to demonstrate a "legal
interest" in the subject of Plaintiffs' action seeking a
declaration that the lead-paint ordinance is
unconstitutional. The ordinance, even if found to be
constitutional, gives Intervenors no private right of
action against landlords who violate the ordinance or
against Toledo or the Health Department for failure to
enforce the ordinance. Moreover, Intervenors' claimed
"interest" in the rental properties that are subject to
the lead-paint ordinance and in the transactions of
completing lead inspections are not "legally protectable"
interests. Likewise, Intervenors' vehement support of the
ordinance is insufficient to mandate their intervention in
this action.
2.
and their counsel are inadequate to represent their
interest.
The burden of proving that Defendants and their counsel
are inadequate to represent their interests is on TLPPC
and Jenkins. "The most important factor to consider is
the relation of the proposed intervenor's interest to that
of the representative." Moreover, "[r]epresentation is
generally considered adequate if no collusion is shown
between the representative and an opposing party, if the
representative does not represent an interest adverse to
the proposed intervenor[,] and if the representative has
been diligent in prosecuting the litigation." (Citations
omitted.) Fairview Gen. Hosp. v. Fletcher, 69 Ohio App.3d
827, 835 (10th Dist.1990).
Here, both Intervenors and Defendants have the same
interest, that is, to uphold the ordinance. Intervenors'
failure to demonstrate that Defendants and their counsel
are inadequate to represent that interest, in accordance
with the above guidelines, is fatal to their bid to
intervene as of right.
3.Conclusion
For the above reasons, TLPPC and Jenkins' motion to
intervene as of right, pursuant to Civ.R. 24(A), must be
denied.
B.Permissive Intervention Under Civ.R. 24(B)
Civ.R. 24(B) [Permissive Intervention] states:
to intervene in an action: (1) when a statute of this
state confers a conditional right to intervene; or (2)
when an applicant's claim or defense and the main action
have a question of law or fact in common. * * * In
exercising its discretion the court shall consider whether
the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.
Intervenors' argument that their permissive intervention
is warranted also fails, first because Intervenors have
not cited any statute that purportedly gives them a
CONTINUED ON NEXT ENTRY . . . .
PARTY : -
3/19/20184Title : ORD:OPINION ISSUED SEE JE
CONTINUED FROM PREVIOUS ENTRY . . .
conditional right to intervene.
Moreover, Jenkins' interest in protecting her son from
lead-poisoning is inconsistent with the lead-paint
ordinance as written, as the ordinance does not apply to
all rental properties in Toledo.
In addition, although common questions of law or fact may
exist, the Court still has discretion whether to allow
intervention; and intervention is frequently denied if
collateral or extrinsic issues would be brought in.
(Citations omitted.) City of Cleveland v. State of Ohio,
185 Ohio App.3d 59, 2009-Ohio-6106, ΒΆ 13 (8th Dist.).
Here, Intervenors argue that they would raise many legal
arguments that Plaintiffs would not raise. If allowed to
intervene, the issues that Intervenors would raise would
far exceed "the narrow legal issue" raised by Plaintiffs,
that is, whether the lead-paint ordinance is
constitutional. These "collateral and extrinsic issues"
justify denial of the request for permissive intervention.
Id. at ΒΆ 14.
Finally, time is of the essence here because the deadlines
for complying with the lead-paint ordinance are fast-
approaching. Allowing TLPPC and Jenkins to intervene and
raise collateral and extrinsic issues that are not germane
to the determination of the constitutionality of the
ordinance is likely to "unduly delay or prejudice the
adjudication of the rights of the original parties."
For the above reasons, the Court will exercise its
discretion to deny TLPPC and Jenkins' motion for
permissive intervention, pursuant to Civ.R. 24(B).
JOURNAL ENTRY
It is ORDERED that the "Motion to Intervene" filed January
5, 2018, by Toledo Lead Poisoning Prevention Coalition and
Latoya Jenkins, is DENIED.
March 19, 2018
Judge Linda J. Jennings
cc:Andrew R. Mayle, Esq. (Counsel for Plaintiffs)
Dale R. Emch, Esq. and Joseph V. McNamara, Esq. (Counsel
for Defendant City of Toledo)
Asst. Prosecuting Attorneys Kevin Pituch and Evy Jarrett
(Counsel for Defendant Toledo-Lucas County Health
Department)
Robert A. Cole, Esq., Kara Ford, Esq., and Monica Hoskins,
Esq. (Counsel for Intervenors TLPPC and Latoya Jenkins)
PARTY : -
3/19/20185Title : MIS:CRTROOM SERVICE VIA EMAIL
OPINION AND JOURNAL ENTRY FILE STAMPED 1/19/18, SENT VIA
EMAIL TO:
adam.loukx@toledo.oh.gov;jeffrey.charles@toledo.oh.gov;joe
.mcnamara@toledo.oh.gov;kpituch@co.lucas.oh.us;ejarrett@co
.lucas.oh.us;amayle@mayleraymayle.com
PARTY : -
3/19/20186Title : MIS:CRTROOM SERVICE VIA EMAIL
SENT OPINION AND JE FILE STAMPED 3/19/18 VIA EMAIL TO:
rcole@ablelaw.org; kford@ablelaw.org; mhoskins@ablelaw.org
PARTY : -
3/19/20187Title : EVT:OPIN & JE FILED & JOURN
E JOURNALIZED 3-20-18
PERTAINING TO:OPINION AND JUDGMENT ENTRY
Sent via email to D-2's attorney on 2018-03-20 12:15:46 PM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-1's attorney on 2018-03-20 12:15:46 PM:
ADAM W. LOUKX
adam.loukx@toledo.oh.gov
Sent via email to D-2's attorney on 2018-03-20 12:15:46 PM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2018-03-20 12:15:46 PM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2018-03-20 12:15:46 PM:
ANDY MAYLE
amayle@mayleraymayle.com
Sent via email to D-1's attorney on 2018-03-20 12:15:46 PM:
JOSEPH MCNAMARA
joe.mcnamara@toledo.oh.gov
PARTY : P1 - MACK CHERYL
5/30/20181Title : MTN:MOTION FILED
PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION
PARTY : P1 - MACK CHERYL
6/4/20181Title : ORD:ORDER
This matter is before the Court upon "Plaintiffs' Motion
for Preliminary Injunction". Upon due consideration, said
Motion shall be set for hearing.
It is therefore ORDERED that a hearing shall be held on
Friday, June 15, 2018 at 10:00 a.m. for Plaintiffs' Motion
for Preliminary Injunction.
Date: 6/4/18
JUDGE LINDA J JENNINGS
Distribution:
ANDREW R. MAYLE
JOSEPH V. MCNAMARA
KEVIN PITUCH
PARTY : -
6/4/20182Title : HRG:PRELIMINARY INJ HRG SET
HEARING SET ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
6/15/18 AT 10:00 A.M.
PARTY : -
6/4/20183Title : MIS:CRTROOM SERVICE VIA EMAIL
ORDER FILE STAMPED 6/4/18, SENT VIA EMAIL TO:
adam.loukx@toledo.oh.gov;jeffrey.charles@toledo.oh.gov;joe
.mcnamara@toledo.oh.gov;kpituch@co.lucas.oh.us;ejarrett@co
.lucas.oh.us;amayle@mayleraymayle.com
PARTY : -
6/4/20184Title : MIS:COURTROOM CASE NOTES
COUNSEL FOR DEFENDANTS REQUESTED A TELEPHONE CONFERENCE
WITH THE COURT. COUNSEL FOR DEFENDANTS WILL INITIATE THE
CONFERENCE.
TELEPHONE CONFERENCE: 6/7/18 AT 9:00 A.M.
PARTY : -
6/4/20185Title : EVT:ORDER FILE & JOURN EFF6/13
E JOURNALIZED 6-5-18
PERTAINING TO:HEARING SHALL BE HELD FOR PLTFS' MOTION FOR
PRELIMINARY INJUNCTION
Sent via email to D-2's attorney on 2018-06-05 09:39:50 AM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-2's attorney on 2018-06-05 09:39:50 AM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2018-06-05 09:39:50 AM:
ADAM W. LOUKX
adam.loukx@toledo.oh.gov
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JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2018-06-05 09:39:50 AM:
ANDY MAYLE
amayle@mayleraymayle.com
Sent via email to D-1's attorney on 2018-06-05 09:39:50 AM:
JOSEPH MCNAMARA
joe.mcnamara@toledo.oh.gov
PARTY : P1 - MACK CHERYL
6/7/20181Title : MIS:COURTROOM CASE NOTES
TELEPHONE CONFERENCE HELD THIS DAY. PRESENT BY TELEPHONE
ON BEHALF OF PLAINTIFFS, ATTORNEY ANDY MAYLE; ON BEHALF OF
DEFENDANTS CITY OF TOLEDO, ATTORNEYS ADAM LOUKX AND
JOE MCNAMARA; ON BEHALF OF DEFENDANT TOLEDO LUCAS COUNTY
BOARD OF HEALTH, ATTORNEY KEVIN PITUCH.
RE: 6/15/18 HEARING ON PLAINTIFF'S MOTION FOR PRELIMINARY
INJUCTION.
PARTY : -
6/13/20181Title : PLD:MEMORANDUM IN OPPOSITION
MEMORANDUM OPPOSING MOTION PLAINTIFFS MOTION FOR PRELIMINARY
INJUNCTION
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
6/13/20182Title : PLD:MEMORANDUM IN OPPOSITION
CITY OF TOLEDOS MEMORANDUM IN OPPOSITION TO PLAINTIFFS
MOTION FOR PRELIMINARY INJUNCTION
PARTY : D1 - CITY OF TOLEDO OHIO
6/14/20181Title : PLD:REPLY
PLAINTIFFS REPLY IN SUPPORT OF THEIR MOTION FOR A
PRELIMINARY INJUNCTION
PARTY : P1 - MACK CHERYL
6/14/20182Title : PLD:STIPULATION
JOINT STIPULATIONS WITH ATTACHED EXHIBITS
PARTY : -
6/15/20183Title : MIS: COURT REPORTER PRESENT
COURT REPORTER KENDRA CARROLL, ORDERED.
PARTY : -
6/15/20184Title : HRG:ORAL ARGUMENT HELD
ORAL ARGUMENTS ON PLAINTIFF'S MOTION FOR PRELIMINARY
INJUNCTION HELD THIS DAY. PRESENT ON BEHALF OF PLAINTIFF
ATTORNEY ANDREW R. MAYLE. PRESENT ON BEHALF OF DEFENDANT
CITY OF TOLEDO, ATTORNEYS JOSEPH V. MCNAMARA AND DALE EMCH.
PRESENT ON BEHALF OF DEFENDANT TOLEDO LUCAS COUNTY BOARD OF
HEALTH, ATTORNEY KEVIN PITUCH.
SEE 6/18/18 OPINION AND JE.
PARTY : -
6/18/20181Title : ORD:OPINION ISSUED SEE JE
This case is before the Court on the Civ.R. 65 motion for
preliminary injunction filed by Plaintiffs Cheryl Mack
(Mack) and Property Investors Network (PIN). Plaintiffs
ask the Court to preliminarily enjoin Defendants City of
Toledo and the Toledo-Lucas County Board of Health from
enforcing Toledo's lead-paint ordinance, codified at TMC
Chapter 1760.
The Court has considered all pleadings and briefs of all
parties, the materials submitted with those pleadings and
briefs, the parties' stipulations, and the argument of
counsel presented at the preliminary-injunction hearing on
June 15, 2018. Prior to the hearing, the Court conducted
a phone conference with counsel for all parties, who
agreed that no evidentiary hearing was needed. At the
June 15th hearing, the Court allowed counsel for all sides
to present in open court argument in support of their
clients' respective claims and defenses.
After notice to all parties and a hearing scheduled by
agreement of the parties, the Court hereby grants
Plaintiffs' application for preliminary injunctions
against Defendants, for the reasons discussed below.
Standing. The Court finds that Plaintiffs have standing
because they are a landlord and a trade-association of
landlords. The threatened enforcement of the ordinance
against Mack and PIN's membership gives Plaintiffs a stake
in the outcome of this case and therefore the standing
requirement is met. Standing requires "concrete
adverseness" of the parties. One purpose of this
concrete-adverseness requirement is to ensure adequate
briefing of the issues by the parties. The Court finds
that this is satisfied. All parties have aggressively
pursued their positions with exhaustive briefing on all
issues. There is no doubt that the parties are concretely
adverse, that all parties have a stake in the outcome of
this case, and that all other elements of common-law
standing are fulfilled. There is no "judicial admission"
by plaintiffs that undermines their standing. Further,
plaintiff Mack, at minimum, has taxpayer standing.
R.C. 3709.281. The board of health is enjoined from
administrating or enforcing the ordinance because the
board is a statutory creature with limited enumerated
powers. Therefore, the issue becomes: does the board have
the power to act as contemplated by this ordinance? The
answer is "no." The board and Toledo argue that R.C.
3709.281 enables the board to act. The Court finds that
the statute's language is plain and unambiguous and
conveys a clear and definite meaning. Therefore, the
statute needs no interpretation and must be applied as
written.
As written, the statute enables the legislative authority
of a municipality (here, Toledo city council) to make an
agreement with the board for the board to act in behalf of
the legislative authority, i.e., council. Again, the
legislative authority here is Toledo city council. But
Toledo city council has no administrative or enforcement
powers. Thus, council cannot delegate such non-existent
powers to the board of health or make an agreement to do
so. And the board cannot act under such an invalid
delegation because its powers only flow from statute.
Further, no agreement purportedly under R.C. 3709.281 was
executed until after the ordinance was enacted. Either
way, the ordinance is invalid ab initio and therefore
unenforceable. The passage of time and subsequent
performance of the (invalid) agreement cannot cure the
invalidity.
Equal Protection. Further, the ordinance violates the
Equal Protection Clause of the Ohio Constitution because
its classifications among property owners are not
rationally related to the ordinance's stated purposes and
presumptions. Therefore, the ordinance is invalid even
under a rational-basis standard of review. Because the
ordinance violates the Ohio Constitution, it should be
enjoined. Further, the ordinance contains definitions
that are unworkable.
Preliminary Injunction Factors. The Court has considered
the four factors traditionally required to be weighed on a
motion for preliminary injunction. The Court finds that
Plaintiffs have shown, by clear and convincing evidence,
that all four factors weigh in Plaintiffs' favor.
First, Plaintiffs are likely to prevail on the merits
because R.C. 3709.281 is inapplicable and because Toledo's
lead-paint ordinance violates the Ohio Constitution.
Second, the resultant harm in the absence of a preliminary
injunction is irreparable. Any fees paid to inspectors and
the board of health if the ordinance is not preliminarily
enjoined are likely not easily recoverable or recoverable
at all. The time to arrange for and prepare for an
inspection is not recoverable. The invasion of privacy
for the landlord and tenant to comply with the ordinance
is not redressable absent an injunction. The stress
caused by the threat of prosecution in the absence of a
preliminary injunction is likely not compensable.
CONTINUED ON NEXT ENTRY . . . .
PARTY : -
6/18/20182Title : ORD:OPINION ISSUED SEE JE
CONTINUED FROM PREVIOUS ENTRY . . .
Finally, the loss of dignity associated with being forced
to comply with an invalid ordinance is not recoverable.
Third, no parties will be unjustifiably harmed by a
preliminary injunction. Because the ordinance is invalid,
preliminarily enjoining its enforcement is justifiable.
Further, the ordinance itself is installed on a rolling
basis. Therefore, the Court is not persuaded that third
parties will suffer unjustifiable harm. No third party
has the right to governmental enforcement of an invalid
ordinance.
Fourth, a preliminary injunction enforcing R.C. 3709.281
as written, the Ohio Constitution, and the separation of
powers will, by definition, serve the public's interest.
For the above reasons, the Court will grant Plaintiffs'
motion for preliminary injunction, as set forth in the
following Journal Entry.
It is ORDERED that "Plaintiffs' motion for preliminary
injunction," filed May 30, 2018, is GRANTED.
It is further ORDERED that Defendants City of Toledo and
Toledo-Lucas County Board of Health are hereby
preliminarily enjoined from enforcing Toledo's lead-paint
ordinance, codified at TMC Chapter 1760. Under Civ. R.
65(D), this order is binding upon the parties to the
action, their officers, agents, servants, employees,
attorneys and those persons in active concert or
participation with them who receive actual notice of the
order whether by personal service or otherwise. Violation
of this order can result in sanctions and other penalties.
In case of doubt, this order extends to the "Toledo-Lucas
County Regional Health District."
It is further ORDERED that the security bond previously
posted by Plaintiffs is sufficient and will remain in
effect.
June 18, 2018
Judge Linda J. Jennings
cc:Andrew R. Mayle, Esq. (Counsel for Plaintiffs)
Dale R. Emch, Esq. and Joseph V. McNamara, Esq. (Counsel
for Defendant City of Toledo)
Asst. Prosecuting Attorneys Kevin Pituch and Evy Jarrett
(Counsel for Defendant Toledo-Lucas County Board of
Health)
Praecipe for Service:The Clerk shall serve counsel for all
parties and additionally serve defendant City of Toledo
and Defendant Toledo-Lucas County Board of Health as set
forth in Civ. R. 65.
PARTY : -
6/18/20183Title : EVT:OPIN & JE FILED & JOURN
E JOURNALIZED 6-19-18
PERTAINING TO:OPINION AND JOURNAL ENTRY GRANTING PLTFS'
MOTION FOR PRELIMINARY INJUNCTION
Sent via email to D-2's attorney on 2018-06-19 11:05:31 AM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-1's attorney on 2018-06-19 11:05:31 AM:
ADAM W. LOUKX
adam.loukx@toledo.oh.gov
Sent via email to D-2's attorney on 2018-06-19 11:05:31 AM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2018-06-19 11:05:31 AM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2018-06-19 11:05:31 AM:
ANDY MAYLE
amayle@mayleraymayle.com
Sent via email to D-1's attorney on 2018-06-19 11:05:31 AM:
JOSEPH MCNAMARA
joe.mcnamara@toledo.oh.gov
PARTY : P1 - MACK CHERYL
7/20/20181Title : ORD:OPINION ISSUED SEE JE
In this action, Plaintiffs Cheryl Mack (Mack) and
Property Investor's Network (PIN) [collectively referred
to at Plaintiffs] seek permanent injunctive relief against
Defendants City of Toledo, Ohio (Toledo) and Toledo-Lucas
County Board of Health (Health Department) [collectively
referred to as Defendants]. Plaintiffs ask the Court to
permanently enjoin the Health Department from enforcing
Toledo's Lead Ordinance, which is codified at Toledo
Municipal Code (TMC) Chapter 1760 [Lead Ordinance or
Ordinance], because it is unconstitutional.
The Court recently granted Plaintiffs' motion for a
preliminary injunction and now
addresses the following motions related to Plaintiffs'
request for a permanent injunction:
1.The Health Department's Civ.R. 12(C) motion for judgment
on the pleadings;
2.Toledo's Civ.R. 12(C) motion for judgment on the
pleadings;
3.Plaintiffs' Civ.R. 56 motion for partial summary
judgment against the Health Department; and
4.Plaintiffs' Civ.R. 56 motion for partial summary
judgment against Toledo.
The Court has reviewed the relevant pleadings, the parties
supporting and opposing memoranda, the parties'
stipulations, the oral arguments of counsel presented at
a June 15, 2018 hearing, the evidence presented, and the
applicable law. Having done so, the Court finds that
Plaintiffs have demonstrated that the Lead Ordinance is
unconstitutional, beyond a reasonable doubt, and that they
are entitled to injunctive relief. Therefore, the Court
will grant Plaintiffs' motions, deny Defendants' motions,
and permanently enjoin the Health Department's enforcement
of the Ordinance.
I. The Pleadings
A.Plaintiffs' Complaint
Plaintiffs filed their "Complaint for Injunctive Relief"
(Complaint) on November 2, 2017. Plaintiffs allege that
Mack is an investor in the Toledo residential rental
market and that PIN is a non-profit trade group comprised
of substantial investors in the Toledo rental market.
Complaint at ΒΆΒΆ 5-6. Both Plaintiffs claim to be subject
to the Lead Ordinance because of its requirements, which
include substantial inspection and governmental fees, and
to have an interest in the Ordinance's enforcement.
Complaint at ΒΆΒΆ 9, 11.
Plaintiffs seek a permanent injunction against enforcement
of the Lead Ordinance on two constitutional grounds:
First, the Health Department is a "creature of statute, "
has only the limited powers enumerated by state statute,
and cannot act in any area of public health without prior
legislative approval, pursuant to D.A.B.E., Inc. v.
Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-
Ohio-4172. The Health Department has no statutory
authority to assert the inspection, licensing, and
enforcement powers contemplated by the Ordinance; and
Toledo has no power to issue mandates to the Health
Department or any other "creature of statute." Plaintiffs
reject Defendants' claim that R.C. 3709.281 provides such
authority and allege that the Lead Ordinance "is an
arrogation of the General Assembly's exclusive powers
under Ohio Const. Art. II, Sec. 1 and is therefore a
nullity." Complaint at ΒΆΒΆ 23-32. Second, according to
Plaintiffs, the Ordinance violates the Ohio Constitution's
Equal Protection Clause by singling out rental -- as
opposed to all -- residential properties and rental
properties having four or less units. Such distinctions
are allegedly unrelated to the Ordinance's "plain -- and
mandatory -- presumption that '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.' " (Emphasis
sic.) Complaint at ΒΆΒΆ 33-34. Therefore, the Court should
enjoin enforcement of the Lead Ordinance. Complaint at ΒΆ
35.
Attached to the Complaint is the October 23, 2017 letter
that Plaintiffs' attorney, Andrew Mayle, sent to Toledo's
Law Director, Adam Loukx. Mayle, on behalf of Plaintiffs,
asks Loukx to "apply in a court of competent jurisdiction
to enjoin enforcement of Toledo's so-called 'lead
ordinance,' codified at Toledo Municipal Code Chapter
1760," because, "[w]hile the ordinance may have a noble
purpose, it is unconstitutional. We bring this matter to
your attention now in the hopes that this dispute can be
resolved in advance of the ordinance's various 2018
deadlines." The letter's final sentence states: "If by
October 30, 2017 you do not apply for an injunction * * *
we intend to file our own lawsuit under R.C. 733.59,"
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CONTINUED FROM PREVIOUS ENTRY . . .
which authorizes Plaintiffs to file a lawsuit in their own
name if Loukx fails to do so. Complaint at ΒΆΒΆ 14-16.
Plaintiffs allege that Loukx promptly acknowledged receipt
of Mayle's letter "but stated that he did not see merit in
the complaint and that he would not act before November 7,
2017 -- Election Day." Complaint at ΒΆ 18.
The parties have stipulated that Loukx received Mayle's
letter on October 23, 2017, and requested "additional time
to adequately research the issues," but did not file a
complaint or apply for an injunction. See Joint
Stipulations 1, 2, and 3, Exhibits A and B.
B. The Health Department's Answer
On December 11, 2017, the Health Department filed its
Answer, admitting that: Mack is a taxpayer, resident, and
investor in the Toled residential rental market (ΒΆ 4); PIN
is a non-profit trade group consisting of members in the
Toledo-area real estate market (ΒΆ 5); Toledo's Lead
Ordinance is codified at TMC Chapter 1760 (ΒΆ 6); Mayle
sent the letter attached as Exhibit 1 to Loukx, asking
Loukx to take action by October 30, 2017, but Loukx has
taken no action in court to enjoin the Lead Ordinance (ΒΆΒΆ
9-12); the Health Department is a creature of statute
having only the limited powers enumerated by statute and
cannot act without prior legislative approval (ΒΆΒΆ 16-17);
R.C. 3709.281 governs Plaintiffs' claims in part, and
Toledo and the Health Department have executed the
requisite contract, attached as Exhibit 2, for the Health
Department to enforce Toledo's Lead Ordinance (ΒΆ 19).
However, the Health Department denies Plaintiffs'
allegations that the Court should enjoin enforcement of
the Lead Ordinance because it is unconstitutional. Health
Department's Answer, ΒΆΒΆ 15-20..
The Health Department also asserts numerous affirmative
defenses, including failure to state a claim, PIN's lack
of standing, and statutory immunity. Id. at ΒΆΒΆ 22-30.
In its prayer for relief, the Health Department asks the
Court to dismiss Plaintiffs' complaint and for recovery of
any costs incurred. Id. at page 4.
Exhibit 1 to the Health Department's Answer is Mayles'
October 23, 2017 letter to Loukx, which is identical to
the sole attachment to Plaintiffs' Complaint.
Exhibit 2 is the "Agreement to Enforce Toledo Municipal
Code Chapter 1760 between The City of Toledo and The
Toledo-Lucas County Regional Health District," which the
Health Commissioner apparently signed on May 25, 2017, and
Toledo's Mayor signed on June 13, 2017.
The parties have stipulated to Exhibits 1 and 2. See
Joint Stipulations 1 and 7, Exhibits A and E.
C. Toledo's Answer
In its December 21, 2017 Answer, Toledo admits essentially
the same allegations that the Health Department admits.
In addition, Toledo denies that the Health department is a
"creature of statute" but "admits that the Ohio Revised
Code allows for the creation of a combined general health
district by agreement and that the Toledo-Lucas County
Health Department was created by the agreement attached as
Exhibit A" (ΒΆ 23); states that the case cited by
Plaintiffs, D.A.B.E, Inc. v. Toledo-Lucas Cty. Bd. of
Health, 96 Ohio St.3d 250 (2002), supports the Health
Department's ability to enforce the Lead Ordinance (ΒΆ 24);
and admits that R.C. 3709.281 authorizes the Health
Department to enforce the Lead Ordinance in accordance
with "the requisite contract for enforcement * * *
attached as Exhibit B" (ΒΆ 32).
Like the Health Department, Toledo denies Plaintiffs'
allegations that the Court should enjoin enforcement of
the Lead Ordinance because it is unconstitutional.
Toledo's Answer at ΒΆΒΆ 14, 22, and 26-35.
Toledo also asserts the same affirmative defenses as the
Health Department asserts (including failure to state a
claim, PIN's lack of standing, and statutory immunity) and
adds the defense that the challenged law is presumptively
valid. Id. at ΒΆΒΆ 37-47.
Toledo asks the Court to dismiss Plaintiffs' Complaint,
with prejudice, and award any security posted by
Plaintiffs to Toledo. Id. at page 6.
Exhibit A to Toledo's Answer is the "Agreement for the
Establishment of a Regional Combined Health District for
the Administration of Health and Environmental Services
Within the Geographical Jurisdiction of Lucas County,
Ohio," which the contracting parties signed on various
dates in September and October of 1999, and became
effective on November 2, 1999.
Exhibit B ("Agreement to Enforce [Lead Ordinance]" is
identical to Exhibit 2 to the Health Department's Answer.
The parties have stipulated to the Agreement.
II. The Lead Ordinance
Generally speaking, Toledo's Lead Ordinance prohibits
owners of residential rental properties comprised of four
or less units from renting the properties without first
obtaining a lead-safe certificate for each property from
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CONTINUED FROM PREVIOUS ENTRY . . .
the Health Department. The Ordinance also charges the
Health Department with its administration, implementation,
and enforcement, and mandates the transfer of all fees and
fines generated under the Ordinance to the Health
Department for those purposes.
Toledo first enacted the Lead Ordinance in August of 2016
and amended it in April of 2017. The Ordinance originally
mandated compliance by September 17, 2017. See Toledo
Ord. 226-16 Β§ 1, TMC 1760.15(a), eff. Sept. 16, 2016;
Exhibit 2 to the Health Department's Answer; Exhibit B to
Toledo's Answer. In April 2017, "to encourage compliance,"
Toledo City Council passed a new ordinance (Ord. 167-17)
amending TMC Chapter 1760 "to enact a three-year phase in
of the deadline based on a three-tier ranking of Toledo's
census tracts based on the level of greatest danger of
lead exposure to children." Thus,
tracts must comply with the law by June 30, 2018. The
second tier must comply with the law by June 30, 2019.
All remaining census tracts must comply with the law by
June 30, 2020.
Toledo Ord. 167-17, Summary & Background; TMC 1760.15
(a), as amended April 18, 2017; Exhibit 2 to the Health
Department's Answer; Exhibit B to Toledo's Answer.
Toledo Ord. 167-17 also contained "other technical changes
and policies to promote compliance and protect the public
health." Ord. 167-17, Summary & Background.
Toledo Ord. 226-16's version of TMC 1760.01 (Policy and
Intent) was different than that found in Toledo Ord. 167-
17's version. The latter (and current) version states:
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.
(Emphasis added.)
TMC 1760.05 (Presumption of lead-based paint) states, in
pertinent part, that for purposes of TMC Chapter 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." TMC 1760.05(a).
The Lead Ordinance's main prohibitions are found in TMC
1760.02(a) and (b), which state:
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.
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.
Thus, every "Owner" of a "Residential Rental Property" in
Toledo must: (1) maintain the property free from
deteriorated-paint, lead-dust, and bare-soil conditions;
(2) remedy any such condition in accordance with the Lead
Ordinance's requirements; and (3) obtain a "Lead-Safe
Certificate" for the property before renting or otherwise
allowing its occupancy.
The Lead Ordinance adopts TMC 1726.01's definition of
"Owner." TMC 1760.04(a)(20). Thus,
company, partnership, limited partnership, limited
liability partnership, or any shareholder, officer, trust,
trustee, partner, agent or employee of any of the above
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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.
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.
Pursuant to TMC 1760.04(a)(22), a "Residential Rental
Property" is
'Dwelling Unit" being used or occupied, or intended to be
used or occupied as a private residence, including
attached structures such as porches or stoops, occupied by
any person or persons other than the Owner and/or members
of the Owner's immediate family regardless of whether or
not the owner occupies another unit in the structure.
TMC 1760.04(a)(6) defines a "Dwelling Unit" as
family home and built prior to 1978, and (2) any
residential unit constructed as a duplex and built prior
to 1978, [and] (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.
A "Lead-Safe Certificate" is "a certificate issued by
the Health Department that indicates that a Residential
Rental Property or a Family Child Care Home has been
certified as lead-safe." TMC 1760.04(a)(13).
An owner can obtain a Lead-Safe Certificate by filing with
the Health Department: (1) an application; (2) a $45
filing fee; and (3) a Lead-Safe Report issued by a
licensed and registered Local Lead Inspector. TMC 1760.03
- 1760.07.
The Ordinance also authorizes the Commissioner or his or
her designee to enter all properties subject to the Lead
Ordinance in order to determine compliance with the
Ordinance and requires the owner or other person in
charge of the premises to permit such entry for the
"limited and exclusive purpose" of conducting the
inspection. TMC 1760.09. The inspection must occur at a
reasonable time and with sufficient advance notice to the
occupants. If permission to enter is not obtained or is
denied, the Commissioner and the Director of the
Department of Neighborhoods may petition any court of
competent jurisdiction to seek relief. TMC 1760.08.
Failure to timely obtain a Lead-Safe Certificate subjects
violators to administrative fines of $50 per day for non-com
dwelling unit. Anyone assessed an administrative fine may
appeal the fine imposed to the Board of Nuisance
Abatement/Housing Appeals. All imposed and collected
fines must be transferred to the Health Department and
used "for the administration, implementation and
compliance activities related to [the Lead Ordinance]."
TMC 1760.15(b), (c), and (f).
TMC 1760.13 requires the Health Department to create a
public electronic registry for properties that have
complied with the Lead Ordinance and have been determined
to be lead safe, as well as a registry for the properties
that have failed a lead inspection.
Section 3 of Toledo Ord. 167-17 authorizes the Mayor "to
enter into all necessary agreements with the Toledo-Lucas
County Health Department in order to facilitate the
enforcement of Chapter 1760 of the Toledo Municipal Code."
III. R.C. 3709.281 and the Agreement to Enforce the Lead
Ordinance
The statute at issue in this case, R.C. 3709.281
(Agreement by a board of health to perform municipal
services), states:
district may enter into an agreement with the legislative
authority of a municipality in which such health district
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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.
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.
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.
The parties have stipulated that Toledo City Council
enacted TMC Chapter 1760 on April 18, 2017, but Toledo and
the Health Department did not execute the purported R.C.
3709.281 "Agreement to Enforce Toledo Municipal Code
Chapter 1760" (Agreement) until June 13, 2017. See Joint
Stipulations 5 and 7 and Exhibits C and E.
The Agreement authorizes the Health Department to "perform
the duties listed in the [Lead Ordinance] and enforce its
requirements." Agreement at Β§ 1. The Agreement further
authorizes the Health Department to collect all fines and
fees owed pursuant to the Lead Ordinance on Toledo's
behalf and deposit the funds in its health fund as
consideration for its performance under the Agreement.
Id. at Β§ 2. Toledo also agreed to pay the Health
Department $90,000, as further consideration for its
performance under the Agreement "and to offset existing
expenses related to enforcing [the Lead Ordinance]." Id.
at Β§ 3.
IV. Pending Motions
A.The Health Department's Motion for Judgment on the
Pleadings
On the same day it filed its Answer (December 11, 2017),
the Health Department filed a motion for judgment on the
pleadings, pursuant to Civ.R. 12(C). The Department
generally asserts that it is entitled to judgment as a
matter of law and dismissal of Plaintiffs' claims against
the Department, with prejudice, because Plaintiffs have
not stated viable claims against the Department upon which
injunctive relief can be granted.
The Health Department concedes that it is a "creature of
statute" and has only those powers expressly or impliedly
granted by statute but asserts that R.C. 3709.281 (titled
"Agreement by a board of health to perform municipal
services") gives it "ample authority" to administer and
enforce the Lead Ordinance. According to the Health
Department, R.C. 3709.281 empowers a general health
district [such as the Health Department] to enter into an
agreement with a municipality [such as Toledo] to provide
health services when the municipality is a city that is
part of the general health district [which Toledo is].
In addition, the Health Department contends that Toledo
has "home-rule" powers, pursuant to Article XVII, Section
3 of the Ohio Constitution, which states that
"[m]unicipalities shall have authority to exercise all
powers of local self-government and to adopt and enforce
within their limits such local police, sanitary and other
similar regulations, as are not in conflict with general
laws." Therefore, Toledo, through its City Council, may
protect its citizens by enacting an ordinance regulating
the presence of lead paint in residential buildings (the
Lead Ordinance) and delegating its administration and
enforcement to the Health Department. "[R.C. 3709.281's]
'broad language' permits such a delegation."
The Health Department also argues that D.A.B.E., Inc. v.
Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-
Ohio-4172, is inapposite because Toledo does not rely upon
the general administrative statute at issue in D.A.B.E.
(R.C. 3709.21) for the Lead Ordinance's enforcement, but
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upon R.C. 3709.281's specific grant of authority.
According to the Health Department, the latter statute
permits a municipality to delegate any power it has to the
Health Department and further permits the Department to
exercise the same powers that the municipality, as a
legislative authority, has.
Next, the Health Department argues that its enforcement of
the Lead Ordinance does not violate the Equal Protection
Clauses of the United States or Ohio Constitution because
(1) it bears a real and substantial relation to the
public's health, safety, morals, or general welfare and
(2) is not unreasonable or arbitrary. According to the
Health Department, the choice of properties built prior to
the 1978 federal lead-paint ban is rationally related to
findings made by Toledo City Council and the federal
government and does not appear to be arbitrary.
The Health Department then insists that its step-by-step
approach to regulating Toledo's lead-paint problem
(starting with regulating residential rental properties
containing one-four families) is permissible under Ohio
case law.
In conclusion, the Health Department asks the Court to
dismiss Plaintiffs' injunctive relief claims against it,
with prejudice.
The Health Department supports its motion with the factual
allegations in the Complaint and its Answer, the exhibits
attached to those pleadings, and its memorandum of law.
B.Toledo's Motion for Judgment on the Pleadings
On the same day it filed its Answer (December 21, 2017),
Toledo filed a motion for judgment on the pleadings,
joining and incorporating the Health Department's motion
in its own memorandum of law.
Generally, Toledo argues that: (1) the home-rule
authority granted to it by Article XVIII, Section 3 of the
Ohio Constitution and Toledo's Charter gives it the power
to ban presumed lead hazards in smaller-unit rental
properties; (2) it has banned such hazards by enacting the
Lead Ordinance; (3) R.C. Chapter 3709 and the Health
Department's contractual agreement with Toledo authorize
the Department to enforce the Lead Ordinance; and (4) the
Lead Ordinance does not violate the Equal Protection
Clauses in the Ohio and United States Constitutions.
Accordingly, Toledo says that the Court should dismiss
Plaintiffs' Complaint seeking injunctive relief, with
prejudice.
Toledo notes that its power to prohibit lead hazards in
rental property emanates from Section 8 of its Charter,
which authorizes Toledo to "suppress all things
detrimental to the health, morals, comfort, safety,
convenience, and welfare of the people, and all nuisances
and causes thereof." Lead poisoning is an insidious
problem that can permanently damage children's brains
without any initial symptoms. Ohio law is reactive in
that it permits health authorities to order that a lead
hazard be controlled only after a child has become
poisoned. Toledo's Lead Ordinance, specifically TMC
1760.02, on the other hand, takes a proactive approach by
prohibiting the leasing of rental properties with four
units or less if they contain presumed lead hazards, which
include deteriorated paint, lead dust, and bare soil
within the dripline of the structure's exterior.
R.C. 3709.281 authorizes health districts to perform
municipal services and grants exceptionally broad powers.
Toledo has exercised the power necessary to ban presumed
lead hazards in rental property and entered into a
contract with the Health Department for the enforcement of
this power in accordance with R.C. 3709.281.
Toledo characterizes Plaintiffs' construction of R.C.
3709.281 -- that Toledo City Council only has legislative
powers and so can only delegate legislative powers to the
Health Department -- as nonsensical. Toledo cites Ohio
Attorney General Opinions and D.A.B.E. for the
proposition that health districts may enforce regulations
passed by home-rule municipalities like Toledo.
In addition to legislative powers, Toledo City Council has
police power, pursuant to TMC 129.05(A), including the
power to enforce Toledo's laws. Therefore, Council has
the authority to contract with the Health Department to
enforce the Lead Ordinance.
Addressing the equal-protection issue, Toledo insists that
the Lead Ordinance is constitutional under the rational-
basis test because it includes the finding that the
majority of lead poisoning in Toledo children occurs in
rental properties having four units or less. Moreover,
the Ohio Supreme Court has definitively settled the
constitutional question of treating rental properties
differently based on the number of units in Ohio Apt.
Assn. v. Levin, 127 Ohio St.3d 76, 2010-Ohio-4414, by
holding that the line drawn between four- and five-unit
rental properties was reasonable under the Equal
Protection Clause. (Citations omitted.) Id. at ΒΆ 51.
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Accordingly, Toledo also asks the Court to dismiss
Plaintiffs' claims with prejudice.
Toledo supports its motions with the factual allegations
in the pleadings, the exhibits attached to the pleadings,
and its memorandum of law.
C.Plaintiffs' Motion for Partial Summary Judgment Against
the Health Department
On December 21, 2017, Plaintiffs filed a combined brief in
opposition to the Health Department's motion for judgment
on the pleadings and motion for partial summary judgment
against the Health Department. Plaintiffs assert the
following arguments:
1.There is no dispute of material fact because (1) Civ.R.
44(A)(2) authorizes the Court to take judicial notice of
the Lead Ordinance and "inform itself in such a manner as
it deems proper" and (2) the Health Department cannot
seriously argue that a dispute of material fact precludes
summary judgment because the Department moved for judgment
on the pleadings;
2.The Lead Ordinance is invalid because Toledo City
Council cannot issue edicts to a statutory agency (such as
the Health Department) or make an agreement with the
Health Department to "administer and enforce" the
ordinances that Council enacts.
In support of this main argument, Plaintiffs assert that:
a.the Health Department's argument cannot account for R.C.
3709.281's operative text or Toledo's Charter, which
vests only "legislative" power -- not "executive" or
"administrative" power -- in Toledo City Council;
b.the Health Department cites Attorney General Opinions
that are neither applicable nor persuasive and, if
anything, support Plaintiffs' position; and
c. the agreement that the Health Department relies upon
was executed after the Ordinance's enactment and is
therefore immaterial, pursuant to Middletown v. Ferguson,
25 Ohio St.3d 71 (1986).
Plaintiffs focus on their claim that the Lead Ordinance
and the Health Department's administration and enforcement
of the Ordinance violate Ohio Const. Art. II, Sec. 1,
which sets forth the General Assembly's exclusive power to
make state law, stating: "The legislative power of the
state shall be vested in a general assembly consisting of
a senate and house of representatives."
Expanding this argument, Plaintiffs contend that Toledo
City Council, which does not possess executive powers,
cannot delegate the power to administer and enforce the
Lead Ordinance to the Health Department. Nor can Council
agree with or order the Health Department to enforce the
Lead Ordinance because no statute allows the Department to
wield the power or bear the burdens contemplated by the
Ordinance.
According to Plaintiffs, section 26 of Toledo's Charter
vests only legislative power in Council, stating: "Except
as reserved to the people by this Charter, the legislative
power of the City shall be vested in a Counsel of twelve
(12) members elected at the 1993 regular City election and
thereafter." Therefore, R.C. 3709.281 implicates only
Council's legislative power and does not allow the Health
Department to administer or enforce the Lead Ordinance.
Plaintiffs assert that the Charter vests power to
"administer and enforce" ordinances solely in the mayoral
or executive branch of Toledo government, citing Chapter
V, Section 61 of the Charter, which states:
Administrative Officer of the City 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 this Charter.
Consequently, Plaintiffs insist that the Court cannot
uphold the Lead Ordinance without rewriting R.C. 3709.281,
which the Court lacks authority to do.
Alternatively, Plaintiffs argue that even if Toledo City
Council could vest the Health Department with the power to
"administer and enforce" the Lead Ordinance by agreement
under R.C. 3709.281, there was no such agreement when
Council enacted the Ordinance. Plaintiffs interpret R.C.
3709.281 as requiring that any agreement under the statute
be made before any delegation of legislative authority,
i.e., is a condition precedent to any delegation.
Plaintiffs also point out that the Agreement the
Department relies upon is not between the Department and
Council, as R.C. 3709.281 requires. Rather, it is between
the Mayor (who is not Toledo's legislative authority) and
the Department.
3.The Lead Ordinance violates the Ohio Constitution's
Equal Protection Clause because it targets only certain
building owners even though all paint on the exterior and
interior of the buildings owned by the unregulated class
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is presumptively lead-based. Plaintiffs deem the Lead
Ordinance's creation of a double classification for
landlords who own buildings with four or less rental units
to be irrational and unrelated to the Ordinance's purpose,
which is to decrease lead exposure.
Challenging the Department's claim that the classification
is based on Council's finding that lead poisoning is more
likely to occur in buildings with four or less units,
Plaintiffs point out that there is no finding that the
buildings owned by the unregulated owners pose no risk.
Likewise, Plaintiffs contend that the Department's
argument that Ohio law authorizes it to combat lead
exposure on a step-by-step basis lacks merit due to the
absence of any plan to take any further steps.
4.Lastly, Plaintiffs argue that the Ordinance,
specifically TMC 1760.08, allows governmental agents to
enter private property, thereby interfering with their
private-property rights, which are fundamental rights that
trigger a higher level of scrutiny than rational-basis
review. However, the Health Department has waived any
Civ.R. 12(C) defense under the proper standard by not
offering any argument under a level of scrutiny higher
than rational-basis review.
Plaintiffs support their motion with the affidavits of
Mack and Andrew Fidler (on behalf of PIN).
D.Plaintiffs' Motion for Partial Summary Judgment Against
Toledo
On December 26, 2017, Plaintiffs filed a combined brief in
opposition to Toledo's motion for judgment on the
pleadings and motion for partial summary judgment against
Toledo, incorporating by reference their motion for
partial summary judgment against the Health Department.
Challenging Toledo's argument that R.C. 3709.281's use of
the phrase "legislative authority" signals a broad
legislative intent to permit cities to delegate all
municipal powers to a health board, Plaintiffs cite R.C.
731.05. That statute, which predates R.C. 3709.281,
states, in pertinent part: "The powers of the legislative
authority of a city shall be legislative only, it shall
perform no administrative duties * * * ." Therefore,
under both statutes and Toledo's own Charter, city council
has no administrative or executive authority. R.C.
3709.281's utilization of the term "municipal services" in
its title is not dispositive, as the text of a statute,
not its title, determines its extent and scope.
According to Plaintiffs, R.C. 3709.281 permits a local
city council to delegate its legislative power to the
board of health to enact rules to remedy perceived
problems but does not suspend the council's legislative
power because of an R.C. 3709.281 agreement. Thus,
problem but not know how to best address it and therefore
delegate its legislative powers to the board of health,
which could then adopt rules. The ordinance would provide
penalties for violating the rules. But the board of a
health department would not "administer" or "enforce" this
regulatory scheme because it has no enforcement mechanism
or executive authority under R.C. 3709.281. Instead, the
office of the mayor elected by the relevant electorate
would enforce the law.
Turning to the equal-protection issue, Plaintiffs argue
that notwithstanding the stated presumption that all
housing units built prior to 1978 are presumed to contain
lead-based paint, the Lead Ordinance burdens owners of
rental properties having four or less units, naturally
giving the owners of larger rental properties a
competitive advantage that has no "fair and substantial
relation to the object of the legislation, so that all
persons similarly circumstanced [are] treated alike," as
mandated by State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-
5124, ΒΆ 25. Therefore, the Lead Ordinance cannot pass any
level of scrutiny, whether "rational basis" or "heightened
scrutiny."
Plaintiffs support their motion with the affidavits of
Mack and Andrew Fidler (on behalf of PIN).
E. Oppositions to Partial Summary Judgment and Replies in
Support of Pending Motions
The Health Department and Toledo each filed a combined
memorandum in opposition to partial summary judgment and
reply brief in support of judgment on the pleadings.
Plaintiffs then filed separate briefs in support of their
motions for partial summary judgment. The arguments in
those memoranda and briefs are substantially the same as
those detailed above. Therefore, the Court does not deem
it necessary to enumerate them here.
F.New Equal-Protection Argument Raised in Plaintiffs'
Motion for Preliminary Injunction
In their May 30, 2018 motion for preliminary injunction,
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Plaintiffs raised a new equal-protection argument -- that
the Lead Ordinance's "own plain language dooms it." This
is because the Ordinance's definition of "Owner," which is
the same as defined in TMC 1726.01(b), includes any person
who has care, custody, control, or charge of the premises
and anyone who enters into a public utility contract
relating to the premises. Because a tenant has custody or
control of the rental premises, every tenant is an Owner
under the Lead Ordinance, as is anyone who has an electric
or gas bill in their name. Further, if any member of the
Owner's immediate family lives with the tenant in custody
or control of the property or the person executing a
public utility contract, their presence will not trigger
the definition of "Residential Rental Property" because
someone other than the Owner or his or her immediate
family living in the premises is what triggers that
definition. Therefore, Plaintiffs deem it arguable that
the Lead Ordinance will almost never be triggered and
assert that the Lead Ordinance is so narrow in scope that
its classifications are "grossly irrational and would do
nothing to solve the perceived problem the ordinance
presumabl[y] seeks to remedy."
In their briefs in opposition, Toledo and the Health
Department both challenged Plaintiffs' "Owner" argument as
(1) untimely, (2) specious, (3) absurd, (4) and/or so
inconsistent with Plaintiffs' position as stated in the
Complaint and affidavits in support of partial summary
judgment that it (a) divests Plaintiffs of standing to
challenge the Lead Ordinance's constitutionality and (b)
deprives the Court of jurisdiction over Plaintiffs' claims
for lack of ripeness.
Toledo also noted that it had already introduced new
legislation to clarify that an "Owner" is "any legal
entity or person who has legal title to the Residential
Real Property." Toledo asserted that the entire "Owner"
issue would be moot if Toledo City Council passed the
proposed ordinance changing the definition of "Owner."
V. STANDARDS
A.Standard Applicable to the Health Department's and
Toledo's Civ.R. 12(C) Motions for Judgment on the
Pleadings
Civ.R. 12(C) authorizes any party to move for judgment on
the pleadings "[a]fter the pleadings are closed but
within such times as not to delay the trial." A motion
for judgment on the pleadings is effectively a belated
Civ.R. 12(B)(6) motion to dismiss for failure to state a
claim upon which relief can be granted. (Citations
omitted.) Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio
St.3d 574, 581 (2001). As the Ohio Supreme Court
explained in State ex rel. Midwest Pride IV, Inc. v.
Pontius, 75 Ohio St.3d 565 (1996):
complaint and answer, but a Civ.R. 12(B)(6) motion must be
judged on the face of the complaint alone. * * * [T]he
standards for Civ. R. 12(B)(6) and (C) motions are
similar, but Civ.R. 12(C) motions are specifically for
resolving questions of law. Under Civ. R. 12(C),
dismissal is appropriate where a court (1) construes the
material allegations in the complaint, with all reasonable
inferences to be drawn therefrom, in favor of the
nonmoving party as true, and (2) finds beyond doubt, that
the plaintiff could prove no set of facts in support of
his claim that would entitle him to relief. Thus, Civ.R.
12(C) requires a determination that no material factual
issues exist and that the movant is entitled to judgment
as a matter of law.
(Citations omitted.) Pontius at 569-570. See, also,
Rayess v. Edn. Comm. for Foreign Med. Graduates, 134 Ohio
St.3d 509, 2012-Ohio-512, ΒΆ 18; Walker v. Toledo,
2017-Ohio-416, 84 N.E.3d 216, ΒΆ 18-19 (6th Dist.).
Although the Court must accept the complaint's factual
allegations as true, it may disregard legal conclusions
couched as factual allegations and unwarranted factual
inferences. (Citations omitted.) See Mitchell v. Lawson
Milk Co., 40 Ohio St. 3d 190, 193 (1988); Thomas v.
Jackson Hewitt, Inc., 192 Ohio App.3d 732, 2011-Ohio-618,
ΒΆ 8 (8th Dist.).
"A copy of any written instrument attached to a pleading
is a part of the pleading for all purposes." Civ.R. 10(C).
Therefore, the Court may consider the complaint and the
answer, as well as "any material incorporated by reference
or attached as exhibits to those pleadings.." (Citations
omitted.) Walker at ΒΆ 19.
B.Standard Applicable to Plaintiffs' Civ.R. 56 Motions for
Partial Summary Judgment Against the Health Department and
Toledo
Summary judgment is proper only when (1) no genuine issue
as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law;
and (3) after construing the evidence most favorably in
the nonmoving party's favor, reasonable minds can only
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reach a conclusion that is adverse to the nonmoving party.
Civ.R. 56(C); Zivich v. Mentor Soccer Club, Inc., 82 Ohio
St.3d 367, 369-370 (1998); State ex rel. Parsons v.
Fleming, 68 Ohio St.3d 509, 511 (1994).
The party seeking summary judgment bears the initial
burden of showing that no genuine issue of material fact
exists for trial and of informing the trial court of the
basis for the summary judgment motion and identifying the
portions of the record that show the absence of a genuine
issue of fact on a material element of the nonmoving
party's claim. Celotex Corp. v. Catrett, 477 U.S. 317,
330 (1986); Mitseff v. Wheeler, 38 Ohio St.3d 112, 115
(1988); Dresher v. Burt, 75 Ohio St.3d 280, 296 (1996).
The trial court may not consider any evidence other than
materials of the type listed in Civ.R. 56(C) -- "the
pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence in
the pending case, and written stipulations of fact, if
any" -- and those materials must show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Civ.R.
56(C); Dresher at 292-293.
A genuine issue of material fact exists if the evidence
presents "a sufficient disagreement to require submission
to a jury" but not if the evidence is so "one-sided that
one party must prevail as a matter of law." Turner v.
Turner, 67 Ohio St.3d 337, 340 (1993), citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986).
Doubts must be resolved in favor of the nonmoving party,
and the summary judgment motion must be denied if the
moving party fails to satisfy its initial burden. Murphy
v. Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992); Civ.R.
56(C); Dresher at 293. But once the moving party satisfies
its initial burden by supporting its motion with
appropriate evidentiary materials, the nonmoving party
must produce evidence on any issue for which that party
bears the burden of production at trial, may not rest on
the mere allegations or denials of its pleadings, and must
set forth specific facts showing that there is a genuine
issue for trial in order to avoid summary judgment.
Civ.R. 56(E); Dresher at 293.
The standard for summary judgment mirrors the standard for
a directed verdict. Therefore, the evidentiary material
must establish that the nonmoving party's claim is more
than simply colorable. Celotex at 323.
=========================================================
VI. Stipulations/Undisputed Facts
On June 14, 2018, the parties filed "Joint Stipulations
with Attached Exhibits" to assist the Court in reaching a
decision on the merits of the case. The parties agree
that:
1.Loukx received the letter from Mayle that was attached
to the complaint on October 23, 2017. Exhibit A.
2.Loukx responded to Mayle's letter on October 24th,
asking for "additional time to adequately research the
issues * * * ." Exhibit B.
3.Loukx did not file a complaint or apply for an
injunction in response to Mayle's letter.
4.Plaintiffs have posted the security required by the
Court.
5.Toledo City Council enacted the Lead Ordinance (TMC
Chapter 1760) on April 18, 2017. Exhibit C.
6.The Lead Ordinance incorporates TMC 1726.01 (Exhibit
D)'s definition of "Owner."
7.Toledo and the Health Department executed Exhibit E
(Agreement to Enforce the Lead Ordinance) on June 13,
2017.
8.The Court may take judicial notice of all of Toledo's
ordinances and Toledo's Charter.
9.Toledo is considering legislation to change the
definition of "Owner" to mean "any legal entity or person
who has legal title to the Residential Rental Property."
Exhibit F.
10.By entering into the stipulations, the parties are not
necessarily agreeing to their materiality or legal
significance, and any party is free to argue their legal
significance or lack thereof.
VII. LAW, ANALYSIS, AND DECISION
A.Plaintiffs have standing to challenge the Lead
Ordinance's constitutionality.
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Plaintiffs allege that they have standing to bring this
action under R.C. 733.59, Toledo's Charter, and the common
law. Complaint at ΒΆ 1. They claim to have a personal
stake in the action's outcome for several reasons: (1)
they are active participants in the Toledo residential
rental market (Mack as an investor, PIN as a non-profit
trade group comprised of substantial investors); (2) they
do not wish to be subjected to unconstitutional demands;
(3) they are subject to the Lead Ordinance because of its
requirements, which include substantial inspection and
governmental fees; (4) the Lead Ordinance is causing
uncertainty in the Toledo rental market; and (5) their
further investment in the Toledo residential rental market
depends in part on the Ordinance's status, which will
affect future rents, property values, and related sales
transactions. Id. at ΒΆΒΆ 2, 5, 6, 8, 9, and 11-14.; Mack
also claims standing as a taxpayer and Toledo resident.
Id. at ΒΆ 5.
Mack is a member of PIN, which "advocates for the
constitutional rights and financial interests of property
owners" and "provides educational programs to its
members." Mack Affidavit at ΒΆ 8. Fidler Affidavit at ΒΆ 6.
The Lead Ordinance, which covers virtually all of PIN's
members, "gives an unfair advantage to other landlords.
The substantial costs for inspections and associated fees
only apply to certain landlords, which allows the
unregulated landlords to charge more competitive rents. *
* * Landlords not covered by the ordinance face no
penalties for not getting, paying for, and passing the
same inspection that Mack [and PIN's members] must pass
just because of the size of [their] rental units." Fidler
Affidavit at ΒΆ 8; Mack Affidavit at ΒΆ 4.
Prior to filing their Complaint, Plaintiffs asked Toledo's
then-Law Director, Adam Loukx, to apply under R.C. 733.56
to a court of competent jurisdiction for orders declaring
the Lead Ordinance unconstitutional and restraining its
enforcement by the Health Department, but Loukx failed to
seek the requested relief. Complaint at ΒΆΒΆ 14-19 and
attachment; Joint Stipulations 1-3, Exhibits A and B; Mack
Affidavit at ΒΆ 6. According to Plaintiffs, "[w]aiting for
action -- or the inevitable 'no action' -- from the law
department [would have been] wholly futile" because "the
law department helped craft the ordinance" and public
comments made by law department attorneys and Toledo City
Council members reflected their opinion that Plaintiffs'
challenge lacked merit. Complaint at ΒΆΒΆ 20-21.
R.C. 733.56 (Application for injunction) states:
shall apply, in the name of the municipal corporation, to
a court of competent jurisdiction for an order of
injunction to restrain the misapplication of funds of the
municipal corporation, the abuse of its corporate powers,
or the execution or performance of any contract made in
behalf of the municipal corporation in contravention of
the laws or ordinance[s] governing it, or which was
procured by fraud or corruption.
Section 113 of Toledo's Charter requires the "City
Attorney" to seek an injunction in the City's name :
City, to a court of competent jurisdiction for an order of
injunction to restrain the misapplication of funds of the
City, or the abuse of its corporate powers, or the
execution or performance of any contract made in behalf of
the City in contravention of law, or which was procured by
fraud or corruption.
R.C. 733.59 (Suit by taxpayer) states, in pertinent part:
fails, upon the written request of any taxpayer of the
municipal corporation, to make any application provided
for in sections 733.56 to 733.58 of the Revised Code, the
taxpayer may institute suit in his own name, on behalf of
the municipal corporation.
Section 116 of Toledo's Charter also authorizes a taxpayer
action:
of any taxpayer, fails to make any application provided
for in the three preceding sections, such taxpayer may
institute suit or proceedings for such purpose in his or
her own name on behalf of the City. No such suit or
proceedings shall be entertained by any court until such
request to the City Attorney shall first have been made,
nor until the taxpayer shall have given security for the
costs of the proceeding.
Standing determines "whether a litigant is entitled to
have a court determine the merits of the issues
presented." Ohio Contrs. Assn. v. Bicking, 71 Ohio St.3d
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318, 320 (1994), citing Warth v. Seldin, 422 U.S. 490, 498
(1975). "[I]in the vast majority of cases brought by a
private litigant, 'the question of standing depends upon
whether the party has alleged such a personal stake in the
outcome of the controversy, as to ensure that the dispute
sought to be adjudicated will be presented in an adversary
context and in a form historically viewed as capable of
judicial resolution.' '' (Citations omitted.) State ex
rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio
St.3d 451, 469 (1999). Thus, "in order to have standing
to attack the constitutionality of a legislative
enactment, the private litigant must generally show that
he or she has suffered or is threatened with direct and
concrete injury in a manner or degree different from that
suffered by the public in general, that the law in
question has caused the injury, and that the relief
requested will redress the injury." (Citations omitted.)
Sheward at 469-470. In other words, "[a] party who has
been or will be adversely affected by the enforcement of
an ordinance has standing to attack its
constitutionality." Walker v. Toledo, 2013-Ohio-2809, 994
N.E.2d 467 (6th Dist.), ΒΆ 15, rev'd on other grounds , 143
Ohio St.3d 420, 2014-Ohio-5461, citing State v. Bloomer,
122 Ohio St.3d 200, 2009-Ohio-2462, ΒΆ 30.
"[S]tanding is not a technical rule intended to keep
aggrieved parties out of court." On the contrary, "it is
a practical concept designed to insure that courts and
parties are not vexed by suits brought to vindicate
nonjusticiable interests and that judicial decisions which
may affect the rights of others are forged in hot
controversy, with each view fairly and vigorously
represented." (Citations omitted.) Moore v. Middletown,
133 Ohio St.3d 55, 2012-Ohio-3897, ΒΆ 47.
"[A]n association [that is a voluntary membership
organization] has standing to bring suit on behalf of its
members when: (a) its members would otherwise have
standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization's
purpose; and (c) neither the claim asserted nor the relief
requested requires the participation of individual members
in the lawsuit." Hunt v. Washington State Apple
Advertising Comm., 432 U.S. 333, 342-343 (1977), quoted in
Bicking at 320.
Having considered Plaintiffs' allegations and
attestations, as well as the applicable law, the Court
finds that Plaintiffs have met their burden of
establishing that they have standing to bring this action
seeking to enjoin the Health Department's enforcement of
the Lead Ordinance on the ground that it is
unconstitutional.
B.Permanent Injunction Standard
"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. The grant or denial of an injunction is solely
within the trial court's discretion." (Citations
omitted.) Garono v. State, 37 Ohio St.3d 171, 173
(1988). See, also, Szuch v. FirstEnergy Nuclear
Operating Co., 2016-Ohio-620, 60 N.E.2d 494, ΒΆ 48 (6th
Dist.). Moreover, "[t]he grant or denial of an
injunction depends largely on the character of the case,
the particular facts involved, and factors relating to
public policy and convenience." Cementech, Inc. v.
Fairlawn, 109 Ohio St.3d 475, 2006-Ohio-2991, ΒΆ 10, citing
Perkins v. Quaker City, 165 Ohio St. 120, 125 (1956).
"The party requesting a preliminary injunction ['to
preserve a status between the parties pending a trial on
the merits'] is required to show that '(1) there is a
substantial likelihood that the plaintiff will prevail on
the merits, (2) the plaintiff will suffer irreparable
injury if the injunction is not granted, (3) no third
parties will be unjustifiably harmed if the injunction is
granted, and (4) the public interest will be served by the
injunction.' " (Emphasis added.) Island Express Boat
Lines, Ltd. v. Put-In-Bay Boat Line Co., 6th Dist. Erie
No. E-06-002, 2007-Ohio-1041, ΒΆ 92, quoting Procter &
Gamble Co. v. Stoneham , 140 Ohio App.3d 260, 267 (1st
Dist.2000). See, also, Village of Ottawa Hills v. Boice,
6th Dist. Lucas No. L-12-1301, 2014-Ohio-1992, ΒΆ 14.
" 'A permanent injunction is not considered an interim
remedy' and 'is issued after a hearing on the merits in
which a party has demonstrated a right to relief under the
applicable substantive law.' " The party must also show
that a permanent injunction is necessary " 'to prevent
irreparable harm' " and that " 'the party does not have an
adequate remedy at law.' " (Emphasis added.) Boice at ΒΆ
14, quoting Procter & Gamble at 267. See, also, Island
Express at ΒΆ 93. In other words: "The test for the
granting or denial of a permanent injunction is
substantially the same as that for a preliminary
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injunction, except instead of the plaintiff proving a
'substantial likelihood' of prevailing on the merits, the
plaintiff must prove that he has prevailed on the merits."
(Citations omitted; emphasis sic). Miller ex rel. Trumbull
Industries, Inc. v. Miller, 11th Dist. Trumbull No.
2004-T-0150, 2005-Ohio-5120, ΒΆ 11. See, also, Szuch at ΒΆ
49.
"In determining whether to grant injunctive relief, * * *
no one factor is dispositive and all must be balanced with
the flexibility inherent to the laws of equity."
(Citations omitted.) Toledo Police Patrolman's Assn.,
Local 10 v. Toledo, 127 Ohio App.3d 450, 469 (6th
Dist.1998). Moreover, "[t]he required elements for either
type of injunction must be established by clear and
convincing evidence." Island Express at ΒΆ 93, citing
Procter & Gamble at 268.
C.Plaintiffs have established, beyond a reasonable doubt,
that the Lead Ordinance is unconstitutional.
"Municipal ordinances, like other legislative enactments,
are entitled to the presumption of constitutionality."
Walker v. Toledo, 2013-Ohio-2809, 994 N.E.2d 467 (6th
Dist.), ΒΆ 21, reversed on other grounds, 143 Ohio St.3d
420, 2014-Ohio-5461, citing Hudson v. Albrecht, 9 Ohio
St.3d 69, 71 (1984). Moreover, "[t]he burden is on the
party challenging the ordinance to prove otherwise beyond
a reasonable doubt." Walker at ΒΆ 21, citing State v.
Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, ΒΆ 17, and Klein
v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779,ΒΆ 4.
1.The Lead Ordinance and the Agreement for the Health
Department to enforce the Ordinance violate Article II,
Section 1 of the Ohio Constitution, which gives the
General Assembly exclusive powers to enact state laws.
Article II, Section 1 of the Ohio Constitution vests
exclusive power to make state law in the General Assembly:
"The legislative power of the state shall be vested in a
general assembly consisting of a senate and house of
representatives * * *."
a.The Health Department is a creature of statute and has
only those powers conferred by statute.
It is undisputed that the Health Department is a combined
general health district, created pursuant to R.C. 3709.07
in 1999, that provides services for all of the cities,
villages, and townships within Lucas County. See Toledo's
Answer, Exhibit A.
It is also undisputed that the Health Department, as a
"creature of statute," generally "has no greater power
than that expressly conferred upon it and has no inherent
power." Browning-Ferris Industries of Ohio, Inc. v.
Mahoning Cty. Bd. of Health, 69 Ohio App.3d 96, 100 (10th
Dist.1990), citing Washington v. Pub. Util. Comm., 99 Ohio
St. 70, 72 (1918). Thus, the Health Department "may not
act in any area of public health without prior legislative
approval." D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of
Health, 96 Ohio St.3d 250, 2002-Ohio-4172, ΒΆ 46.
While a statutory grant of power may be either express or
implied, any implied powers are limited to those
"reasonably necessary to make the express power
effective." (Emphasis sic.) Browning Ferris at 100,
quoting State, ex rel. Bentley & Sons Co. v. Pierce, 96
Ohio St. 44, 47 (1917).
In construing a statutory grant of power, "particularly
administrative power through and by a legislative body,
the rules are well settled that the intention of the grant
of power, as well as the extent of the grant, must be
clear; that in case of doubt that doubt is to be resolved
not in favor of the grant but against it." Burger Brewing
Co. v. Thomas, 42 Ohio St.2d 377, 383 (1947), quoting
Bentley & Sons at 47.
b.Notwithstanding its title, R.C. 3709.281 is limited in
scope and does not authorize Defendants to enter into an
agreement for the Health Department to administer,
implement, and enforce the Lead Ordinance.
Defendants insist that Toledo enacted the Lead Ordinance
and delegated the administration and enforcement powers
incidental to its power to ban presumed lead hazards in
rental property to the Health Department, pursuant to R.C
3709.281. According to Defendants, R.C. 3709.281 grants
exceptionally broad powers and authorizes the Health
Department to enforce local laws and perform "municipal
services." The Court disagrees, as discussed below.
"The primary rule in statutory construction is to give
effect to the legislature's intention." Cline v. Ohio Bur.
of Motor Vehicles, 61 Ohio St.3d 93, 97 (1991), citing
Carter v. Youngstown, 146 Ohio St. 203 (1946), paragraph
one of the syllabus. "To ascertain the legislative
intent, courts rely upon ordinary principles of statutory
construction." Cline at 97, citing Stewart v. Trumbull
Cty. Bd. of Elections, 34 Ohio St.2d 129, 130 (1973). "In
determining intent, it is the duty of the court to give
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effect to the words used, not to delete words used or
insert words not used." (Citations omitted.) Id. If a
statute's meaning is unambiguous and definite, the statute
must be applied as written and no further interpretation,
or application of rules of statutory construction, is
necessary. (Citations omitted.) State ex rel. Savarese
v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d
543, 545 (1996); Cline at 96. See, also, Image Group of
Toledo, Inc. v. Holland-Springfield Twp. Joint Economic
Dev. Zone, 2017-Ohio-4470, 93 N.E.3d 343, ΒΆ 27 (6th
Dist.). "A statute is ambiguous when its language is
subject to more than one reasonable interpretation."
(Emphasis added.) Bernard v. Unemp. Comp. Rev. Comm., 136
Ohio St.3d 264, 2013-Ohio-3121, ΒΆ 13, citing Clark v.
Scarpelli, 91 Ohio St.3d 271, 274 (2001).
The Court finds that R.C. 3709.281's operative text is not
subject to more than one reasonable interpretation and
that Defendants' claim that the Health Department may
administer and enforce the Lead Ordinance pursuant to a
delegation of Toledo's municipal authority under R.C.
3709.281 lacks merit.
The General Assembly crafted R.C. 3709.281 with precision;
its first two paragraphs clearly implicate the delegation
of only the powers of the "legislative authority of a
municipality" (here Toledo City Council), not the powers
of the municipality itself:
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.
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.
(Emphasis added.)
In clear and unambiguous language, the statute authorizes
the Health Department and Toledo City Council to enter
into an agreement for the Health Department to exercise
any power, perform any function, or render any service, in
Toledo City Council's behalf, that Toledo City Council may
exercise, perform, or render.
Pursuant to R.C. 731.05, "[t]he powers of the legislative
authority of a city shall be legislative only, [and] it
shall perform no administrative duties." R.C. 731.05
predates R.C 3709.281. The Court " 'must presume that the
General Assembly [was] aware of previously enacted
legislation.' " Dillon v. Farmers Ins. of Columbus, Inc.,
145 Ohio St.3d 133, 2015-Ohio-5407, ΒΆ 21, quoting State v.
Conyers, 87 Ohio St.3d 246, 250-251 (1999).
Moreover, Section 26 of Toledo's Charter vests the City's
"legislative power" in Toledo City Council while Section
61 of the Charter vests the City's "executive and
administrative powers" in the Mayor, as Toledo's Chief
Executive and Administrative Officer, subject to the
Mayor's "appropriate delegation" of such powers to
department directors and others. Council cannot endow
itself with more powers than the Charter allows.
Defendants' argument that R.C. 3709.281's title
("Agreement by a board of health to perform municipal
services") is significant is unavailing. Section headings
are not part of the law. R.C. 1.01. Therefore, it is
"unnecessary and improper" to consider "a statute's title
in ascertaining its meaning," and the Court can attach no
significance to R.C. 3709.281's heading. (Citations
omitted.) Walker v. Toledo, 2013-Ohio-2809 (6th Dist.), ΒΆ
30.
The Ohio General Assembly knows the difference between an
agreement with a "political subdivision" [such as a
municipality] and a municipality's "legislative
authority." See, e.g., R.C. 3709.085, which empowers "the
board of health of a city or general health district" to
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contract with "any political subdivision or other
governmental agency" to obtain or provide services to
control air pollution. Thus, if the General Assembly had
intended to enable an unlimited delegation of
constitutional home-rule power to a board of health, it
could have found the words to do so. See, e.g., Lake
Shore Elec. Ry. Co. v. Pub. Util. Comm. of Ohio, 115 Ohio
St. 311, 319 (1926) ("If the Legislature meant that
irregular route * * * should refer to universal or
unlimited operations, it would not have been difficult to
find language which would express that purpose.")
The General Assembly may have intended for R.C. 3709.281
to authorize an agreement for the Health Department to
"perform municipal services," but the statute as drafted
does not authorize such an agreement. The Court has no
authority to rewrite R.C. 3709.281 in order to render the
Lead Ordinance constitutional; that is the province of the
legislature. (Citations omitted.) Ohioans for Concealed
Carry, Inc. v. Cleveland, 2017-Ohio-1560, 90 N.E.3d 80
(8th Dist.), ΒΆ 16 ("A court may not invade the province of
the legislature and violate the separation of powers by
rewriting a statute or ordinance. Moreover, a court cannot
simply rewrite it to make it constitutional. Rather, it is
for the legislative body to rewrite legislation if it
deems necessary.") Thus, Toledo's remedy is with the
General Assembly to get the wording of R.C. 3709.281
changed to expressly authorize the Health Department to
perform municipal services, such as R.C. 302.21 and
307.15(A)(1) authorize a board of county commissioners to
do. Comparing R.C. 3709.281 with those statutes clearly
reflects the General Assembly's failure to authorize the
Health Department to perform municipal services.
c. Plaintiffs' (and the Court's) interpretation of R.C.
3709.281 does not require the Court to ignore any of the
words or provisions in the statute.
Defendants insist that interpreting "legislative
authority" as referring to a municipality's overall power
is consistent with the General Assembly's use of the words
"exercise any power, perform any function, or render any
service." According to Defendants, such words go beyond
simply legislating and are superfluous if the General
Assembly intended to "only allow a contract to empower a
health district to legislate." The Court disagrees.
A "legislative authority" such as Toledo City Council does
not merely perform a "series of robotic acts" (such as
attending meetings, voting, and going home). Rather,
before enacting an ordinance and in exercising its
legislative powers, Toledo City Council may, for example,
deliberate, conduct studies, seek public comment, take
testimony, consult with independent experts, and even
travel to other areas. Under Plaintiffs' interpretation
of R.C. 3709.281, Council may delegate the performance of
such functions and the rendering of such services to the
Health Department, and the Health Department would perform
such functions and render such services before deciding to
make recommendations or promulgate rules addressing a
public-health problem. In short, R.C. 3709.281 authorizes
Toledo City Council to leverage the Health Department's
expertise by delegating its legislative powers to the
Health Department to study a health-related problem (such
as lead paint in residential properties) and make
recommendations to Council, and/or enact appropriate
rules, for remedying it.
In a related argument, Toledo asserts that the concept of
legislative authority encompasses deliberation (setting
policy and enacting legislation) and direction (dictating
who shall enforce the policy) and includes the power to
confer authority as to execution of laws. Toledo cites
R.C. 715.03, which provides that a municipal corporation's
legislative authority may provide by ordinance or
resolution for the exercise and enforcement of the
municipality's general powers, as set forth in R.C. 715.01
to 715.67. Specifically, Toledo notes that R.C. 715.29
(Sanitation) authorizes a municipality to regulate the
use, control, repair, and maintenance of buildings used
for human occupancy or habitation and compel the building
owners to alter, reconstruct, or modify them, in order to
insure the occupants' healthful, safe, and sanitary
environment.
While deliberation is a legislative function, as discussed
above, the Court finds that R.C. 715.03 does not
authorize a legislative authority to dictate to itself
that it will administer the ordinances it enacts or to
perform municipal services. Rather, it authorizes the
legislative authority to enact ordinances providing for
the exercise and enforcement of the municipality's general
powers. State ex rel. Waldick v Williams, 74 Ohio St.3d
192 (1995), cited by Defendants, reflects that R.C. 715.03
authorizes a legislative authority to select a municipal
officer or agency to enforce an ordinance. However, the
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power to select which officer or agency will enforce an
ordinance does not mean that Toledo City Council itself
has the authority to enforce ordinances or may delegate
such authority to the Health Department.
Defendants also argue that the R.C. 3709.281's payment
provision is superfluous under such a narrow
interpretation. The Court disagrees. The statute's
third, and final, paragraph states:
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.
If the Health Department expends funds to, for example,
study a problem and make recommendations or promulgate
rules related to a public-health issue in Toledo City
Council's behalf, the payment provision ensures that the
Health Department is compensated accordingly.
d.The Ohio Supreme Court's decision in D.A.B.E., Inc. v.
Toledo-Lucas Cty. Bd. of Health supports Plaintiffs'
position, not Defendants' position.
In D.A.B.E., Ohio's high court enjoined the Health
Department's regulation banning smoking in all public
places in Lucas County, holding that "the language of R.C.
3709.21 that 'the board of health of a general health
district may make such orders and regulations as are
necessary * * * for the public health' does not vest local
boards of health with unlimited authority to adopt
regulations to address all public-health concerns."
D.A.B.E., 2002-Ohio-4172, at ΒΆ 47 and paragraph one of
the syllabus. The D.A.B.E. court also held that
"[a]dministrative regulations cannot dictate public policy
but rather can only develop and administer policy already
established by the General Assembly" and that "R.C.
3709.21 is a rules-enabling statute, not a provision
granting substantive regulatory authority." Id. at
paragraphs two and three of the syllabus.
In dicta, the D.A.B.E. court opined:
regulation adopted by [Toledo-Lucas County Board of
Health] may be, we refuse to extend by mere implication
the authority of local boards of health beyond clearly
stated and well-defined limits. To do so would require
that we embrace policies and objectives that were not
specifically designated by the General Assembly. Within
its constitutional grant of powers, the General Assembly
possesses both the authority to enact smoking legislation
such as the regulation at issue and the prerogative to
delegate that authority to local boards of health.
However, unless the General Assembly or a local
municipality with home-rule power decides otherwise, local
boards of health are powerless to act as petitioners have
acted herein.
(Emphasis added.) Id. at ΒΆ 54.
The Court agrees with Plaintiffs that the principle
animating D.A.B.E.'s result -- that a board of health is
a creature of statute with limited enumerated powers and
cannot act except as enabled by statute -- is dispositive
here. As the D.A.B.E. court held that R.C. 3709.21 does
not grant substantive regulatory authority, the Court
finds that R.C. 3709.281 does not allow the Health
Department to "administer" ordinances in behalf of a
legislative authority that has no such power.
Moreover, the Court does not agree with Toledo that Ohio's
high court, in the above-quoted dicta, recognized the
ability of health districts to enforce regulations passed
by home-rule municipalities like Toledo. Rather, the
passage indicates that the General Assembly or a local
municipality with home rule powers may delegate their
authority to pass legislation to local boards of health,
but boards of health have no power to enact regulations
without such a delegation.
In any event, D.A.B.E. does not directly address the issue
of whether R.C. 3709.281 authorizes a health department to
enforce and administer an ordinance; and dicta is not
binding authority. See, e.g., Internatl. Paper Co. v.
Testa, 150 Ohio St.3d 348, 2016-Ohio-7454, ΒΆ 27; Williams
v. Ward, 18 Ohio App.2d 37, 39 (6th Dist.1969), fn. 1.
e.The Ohio Attorney General opinions cited by Defendants
are neither applicable nor persuasive.
Both Toledo and the Health Department cite Ohio Attorney
General Opinions for the proposition that R.C. 3709.281
authorizes the Health Department to perform the services
contemplated by the Lead Ordinance. However, "Attorney
General Opinions are not binding on courts; at best, they
are persuasive authority." (Citations omitted.) State ex
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rel. v. Van Dyke v. Pub. Emps. Retirement Bd., 99 Ohio
St.3d 430, 2003-Ohio-4123, ΒΆ 40. Moreover, the questions
prompting the attorney general opinions did not raise the
issue presented here and, therefore, are "neither
applicable nor persuasive." State ex rel. Vanorder v.
Bodenbender, 3d Dist. Henry No. 7-13-16, 2014-Ohio-3775, ΒΆ
13.
f.R.C. 3709.281 does not mandate that any agreement under
the statute be made prior to any delegation by the
legislative authority.
The Court does not agree with Plaintiffs' argument that
the Lead Ordinance is necessarily invalid, pursuant to
Middletown v. Ferguson, 25 Ohio St.3d 71 (1986), because
"the putative R.C. 3709.281 agreement" was executed after
the Lead Ordinance's enactment. The statute's second
paragraph states, in pertinent part:
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.
The Court interprets this paragraph to require that an
agreement be in place before the Health Department
exercises the legislative authority's powers in performing
any function or rendering any service pursuant to the
agreement. Such requirement does not mandate that the
agreement be in place before the legislative authority
enacts an ordinance delegating its powers to the Health
Department.
Regardless, the "timing" issue is moot given the Court's
ruling that R.C. 3709.281 does not authorize the Health
Department and Toledo to enter into an agreement for the
Health Department to administer, implement, and enforce
the Lead Ordinance.
g.Conclusion re Interpretation of R.C. 3709.281.
The Health Department is a "creature of statute" that has
no powers beyond those conferred by statute. R.C.
3709.281 does not authorize the Health Department and
Toledo to enter into an agreement for the Health
Department to enforce the Lead Ordinance or perform the
other "municipal services" contemplated by the Ordinance.
Therefore, the Court finds that the Lead Ordinance and the
agreement for the Health Department to enforce it are
unconstitutional, beyond a reasonable doubt, because they
violate Article II, Section 1 of the Ohio Constitution,
which gives the General Assembly exclusive powers to enact
state laws.
2.The Lead Ordinance violates the Equal Protection Clauses
of the Ohio and United States Constitutions.
The Equal Protection Clause of the Ohio Constitution
(Article I, Section 2) provides that "[a]ll political
power is inherent in the people. Government is instituted
for their equal protection and benefit, and they have the
right to alter, reform, or abolish the same, whenever they
may deem it necessary."
The Equal Protection Clause of the United States
Constitution (Fourteenth Amendment, Section 1) provides
that "[n]o State shall * * * deny to any person within its
jurisdiction the equal protection of the laws."
The Equal Protection Clauses do not forbid classifications
but do "keep[ ] governmental decisionmakers from treating
differently persons who are in all relevant respects
alike." Nordlinger v. Hahn, 505 U.S. 1, 10 (1992),
quoted in Burnett v. Motorists Mut. Ins. Co., 118 Ohio
St.3d 493, 2008-Ohio-2751, ΒΆ 30. In other words, "the
Equal Protection Clauses require that individuals be
treated in a manner similar to others in like
circumstances." McCrone v. Bank One Corp., 107 Ohio St.3d
272, 2005-Ohio-6505, ΒΆ 6.
"The Equal Protection Clauses of the Ohio and United
States Constitutions are functionally equivalent, and the
standards for determining violations of equal protection
are essentially the same under state and federal law."
(Citations omitted.) Am. Assn. of Univ. Professors, Cent.
State Univ. Chapter v. Cent. State Univ., 83 Ohio St.3d
229, 233 (1998).
There is no real dispute that "rational basis" is the
proper standard of review. Plaintiffs assert in their
summary judgment briefs that there is a fundamental
property right at issue that renders the Lead Ordinance
subject to heightened scrutiny. However, Plaintiffs did
not advance any such argument in their motion for
preliminary injunction or at the June 15, 2018 hearing;
and Plaintiffs have never argued that they belong to a
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suspect class. Moreover, the Court finds that the Lead
Ordinance's provisions do not implicate any fundamental
right or suspect class. Therefore, rational-basis review
applies. Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray,
127 Ohio St.3d 104, 2010-Ohio-4908, ΒΆ 18.
The rational-basis standard requires a high degree of
judicial deference to legislative enactments. Lyons v.
Limbach, 40 Ohio St.3d 92, 93 (1988). A statutory
classification which involves neither a suspect class nor
a fundamental right does not violate the Equal Protection
Clause of the Ohio or United States Constitutions if it
bears a rational relationship to a legitimate governmental
interest." (Citations omitted.) Menefee v. Queen City
Metro, 49 Ohio St.3d 27, 29 (1990). However, "any
classification must rest upon some ground of difference
having a fair and substantial relation to the object of
the legislation, so that all persons similarly
circumstanced shall be treated alike." (Emphasis added;
citations omitted.) State v. Mole, 149 Ohio St.3d 215,
2016-Ohio-5124, ΒΆ 25.
Based on the above, the Court must determine if there is
there a rational (that is, a fair and substantial)
relationship between the Lead Ordinance's classifications
(Ordinance applies only to owners of pre-1978 rental
properties having one, two, three, or four units) and the
Ordinance's ostensible purposes ("to help prevent the
poisoning of its residents" and "to prevent potential
human exposure to lead hazards"), as stated in TMC 1760.01
(Policy and Intent). The Court must also determine if the
Lead Ordinance's definition of "Owner" renders the
Ordinance's classifications irrational.
=========================================================
a.There is not a "rational basis" for treating rental
properties having four or less units differently than
other larger rental properties/complexes because such
classifications are not "fairly and substantially" related
to the Lead Ordinance's stated purposes and presumptions.
As originally enacted, the Lead Ordinance's Policy and
Intent provision (TMC 1760.01) stated, in pertinent part:
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.
See Toledo Ord. 226-16.
Council amended the Ordinance in 2017, purportedly "to
enact a three-year phase in of the deadline based on a
three-tier ranking of Toledo's census tracts based on the
level of greatest danger of lead exposure to children."
Thus, the Lead Ordinance now provides that
tracts must comply with the law by June 30,
2018. The second tier must comply with the law by June
30, 2019. All remaining census tracts must comply with
the law by June 30, 2020.
Toledo Ord. 167-17, Summary & Background; TMC 1760.15
(a), as amended April 18, 2017; Exhibit B to Toledo's
Answer; Exhibit 2 to the Health Department's Answer; Joint
Stipulation 5 and Exhibit C.
Toledo Ord. 167-17 also contained "other technical changes
and policies to promote compliance and protect the public
health." Ord. 167-17, Summary & Background.
One of the "technical changes" amended TMC 1760.01 to add
the following sentence after the sentence quoted above:
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.
Defendants insist that this "finding" renders the Lead
Ordinance constitutional under the rational-basis test for
two reasons: (1) The Ohio Supreme Court has definitively
settled the constitutional question of treating rental
properties differently based on the number of units by
holding that the line drawn between four- and five-unit
rental properties is reasonable under the Equal Protection
Clause; and (2) Ohio case law authorizes them to combat
the lead-paint problem on a step-by-step or piecemeal
basis (starting with regulating residential rental
properties containing four or less units), and focusing on
the "worst first" is a pragmatic and rational approach to
decreasing the number of lead poisonings in Toledo. The
Court disagrees.
First, both the 2016 and 2017 versions of the Lead
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Ordinance applied only to the owners of residential rental
properties having four or less units. See TMC 1760.02,
1760.04(a)(6), and 1760.04(a)(22) in Toledo Ords. 226-16
and 167-17. Thus, the "new" finding is suspect at best.
Second, TMC 1760.05 (Presumption of lead-based paint), as
originally enacted and as amended in 2017, states, in
pertinent part: "For purposes of [TMC Chapter 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." TMC 1760.05 (a). Despite this presumption ,
the Lead Ordinance applies to and burdens only owners of
rental properties having four or less units, naturally
giving the owners of larger rental properties a
competitive advantage that has no "fair and substantial
relation to the object of the legislation, so that all
persons similarly circumstanced [are] treated alike," as
mandated by State v. Mole.
Moreover, the Ordinance's classifications do not bear a
rational relationship to the findings that supported
Toledo City Council's enactment of the Lead Ordinance in
the first instance. Toledo Ord. 226-16 included the
following "Summary & Background":
poisoning poses a serious health threat to adults and
especially children in the City of Toledo. Children are
particularly susceptible to the hazards of lead since
their bodies are still developing and since they are more
likely to ingest lead through hand-to-mouth contact.
Fetuses are also vulnerable to the effects of lead paint
because women of child bearing age can, when they become
pregnant, transfer lead to their fetuses, which can result
in adverse developmental effects.
child can produce a variety of impairments and health
related problems, including reduced intelligence and
attention span, learning disabilities, hearing
impairments, and behavior problems. Further, evidence of
irreversible damage to a child's developing brain
resulting in both psychological and cognitive deficits can
occur at lead levels much lower than previously believed.
No amount of lead is safe. Eliminating all lead exposure
in our environment is our best course of action. Children,
especially African American children, living in older,
poorly maintained homes are disproportionately at risk for
exposure to lead-hazards. Lead hazards, including paint,
soil, and dust hazards both from deteriorated lead-based
paint and from lead-based paint on friction, impact, and
chewable surfaces, as well as from soil, are the primary
cause of elevated blood lead levels.
to contain lead hazards. Residential properties are more
likely than are non-residential properties to be a cause
of elevated lead blood levels in young children.
Deteriorating Paint in a residential unit constructed
prior to 1978 is a potential source of lead poisoning in
children.
potential occupants know whether lead-based paint hazards
in a property have been identified and controlled in order
to make informed housing decisions about the health
hazards to which they and their families and guests may be
exposed. The protection of persons in the City of Toledo,
and particularly children six years of age and younger,
from lead-based paint hazards is in the public interest.
Based on an analysis of public health and socio-economic
data, at any given time there are an estimated 3400
children, under the age of six, living in Toledo who have
been lead poisoned and have a blood lead level of 5 ug/dL,
or greater.
that lead poisoning rates in children is higher in Lucas
County than the state average and the rate of lead
poisoning in the City of Toledo is even higher than the
Lucas County average.
(Emphasis added.)
The 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; all
pre-1978 properties are presumed to contain lead hazards,
which pose a serious health threat to Toledo's adults,
children, and fetuses; and the lead-poisoning rate in
children in Toledo is higher than it is in Lucas County,
which is higher than the State average. Thus, the Court
finds that limiting the Lead Ordinance's application to
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rental properties comprised of four or less units, while
leaving the Toledo families who live in pre-1978 rental
properties having more than four units, large apartment
buildings, or apartment complexes at risk of lead
exposure, is not rationally, fairly, or substantially
related to a legitimate governmental purpose or interest.
Defendants base their assertion that the Ohio Supreme
Court has definitively settled the constitutional question
of treating rental properties differently based on the
number of units on Ohio Apt. Assn. v. Levin, 127 Ohio
St.3d 76, 2010-Ohio-4414, and Roosevelt Properties Co. v.
Kinney, 12 Ohio St.3d 7 (1984). However, both cases have
to do with the taxation of rental properties and cannot
reasonably be deemed relevant to the purpose of the Lead
Ordinance, which is protecting Toledo's renters from
exposure to lead hazards.
Defendants' claim that Ohio case law authorizes them to
combat the lead-paint problem on a step-by-step or
piecemeal basis also lacks merit. The Lead Ordinance
phases in compliance over a two year-period, requiring
compliance by June 30, 2018 in the most dangerous (first
tier) census tracts, by June 30, 3019 in the second tier,
and by June 30, 2010 in the third tier. However, the
Ordinance does not include any plan, or reflect any
intent, to eventually require all Toledo residential
landlords to maintain their rental properties free of lead
hazards and obtain lead-safe certificates before renting
them. Moreover, the cases that Defendants rely on are not
on point and do not concern a serious health threat like
lead poisoning.
b.The Lead Ordinance's definition of "Owner" renders its
classifications so narrow in scope that they are
irrational.
It is undisputed that the Lead Ordinance incorporates TMC
1760.01(b)'s definition of "Owner." Joint Stipulation 6
and Exhibit D. Thus,
(b) "Owner" means 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.
Id.
It is also undisputed that Toledo is currently considering
legislation to change the Lead Ordinance's definition of
"Owner," as set forth in TMC 1760.04(a)(20) to "any legal
entity or person who has legal title to the Residential
Rental Property." Joint Stipulation 9 and Exhibit F.
The Court agrees with Plaintiffs (and Defendants
apparently do, too) that the Lead Owner's current
definition of "Owner" is unworkable and renders the
Ordinance's classifications irrational.
Under the Lead Ordinance's main prohibition section, TMC
1760.02, every "Owner" of a "Residential Rental Property"
in Toledo must: (1) maintain the property free from
deteriorated-paint, lead-dust, and bare-soil conditions;
(2) remedy any such condition in accordance with the Lead
Ordinance's requirements; and (3) obtain a "Lead-Safe
Certificate" for the property before renting or otherwise
allowing its occupancy. However, "Owner" includes any
person who has care, custody, control, or charge of the
premises, as well as anyone who enters into a public
utility contract relating to the premises. Therefore,
because a tenant has custody or control of the rental
premises, every tenant is an Owner under the Lead
Ordinance, as is anyone who has an electric or gas bill in
their name. This is key because, under TMC
1760.04(a)(22), "Residential Rental Property" does not
include any "Dwelling Unit" that is occupied by the Owner
or members of the Owner's immediate family. Thus, it is
arguable that the Lead Paint Ordinance will almost never
be triggered.
The Lead Ordinance's definition of "Dwelling Unit" already
limits its application to Owners of pre-1978 residential
rental properties that are single-family homes, duplexes,
or otherwise comprised of four or less units. TMC
1760.04(a)(6). The definition of "Owner" dooms the Lead
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Ordinance by making TMC 1760.04(a)(6)'s classifications
(which the Court has already declared unconstitutional) so
narrow in scope that they are irrational and fatal to the
Ordinance on equal-protection grounds.
In granting Plaintiffs' motion for preliminary injunction,
the Court rejected Defendants' arguments challenging
Plaintiffs' claim that the definition of "Owner" dooms the
Lead Ordinance. The Court finds no basis for changing its
opinion in that regard.
=========================================================
c.Conclusion re Equal Protection
The Lead Ordinance's classifications limiting its
application to pre-1978 rental properties having four or
less units are not rationally related to a legitimate
governmental interest because they are not "fairly and
substantially" related to the Ordinance's stated purposes
and presumptions. Even if Toledo amends the Lead
Ordinance's irrational definition of "Owner," the
classifications will not pass muster under rational-basis
review. Therefore, the Court finds that the Lead
Ordinance is unconstitutional, beyond a reasonable doubt,
because it violates the Equal Protection Clauses of the
Ohio and United States Constitutions.
D.The remaining permanent injunction factors weigh in
Plaintiffs' favor.
The Court has already ruled in Plaintiffs' favor on the
merits of their claim that the Lead Ordinance is
unconstitutional and must now consider the remaining
factors relevant to determining whether Plaintiffs are
entitled to a permanent injunction. The Court finds that
those factors clearly and convincingly weigh in
Plaintiffs' favor.
First, Plaintiffs will suffer irreparable injury if the
Court does not grant a permanent injunction. "Irreparable
harm exists when there is a substantial threat of a
material injury which cannot be adequately compensated
through monetary damages." (Citations omitted.) Restivo
v. Fifth Third Bank of N.W. Ohio, 113 Ohio App. 3d 516,
521 (6th Dist.1996). If the Court does not permanently
enjoin the Health Department from enforcing the Lead
Ordinance, Plaintiffs will be subject to the Ordinance's
requirements, which mandate significant expenditures of
time and money in order to obtain Lead-Safe Certificates
for their properties and impose significant fines for
failure to comply. Moreover, Plaintiffs' overhead will
increase, which will make it difficult for them to compete
with landlords who are not subject to the Lead Ordinance.
Perhaps most importantly, monetary damages cannot
compensate Plaintiffs for the loss of dignity associated
with being forced to comply with an invalid ordinance or
the stress caused by the threat of "prosecution" for non-
compliance.
Second, a permanent injunction will not unjustifiably harm
any third parties. The Lead Ordinance is unconstitutional
and invalid. Therefore, permanently enjoining its
enforcement is justifiable. No third party has the right
to governmental enforcement of an unconstitutional or
invalid ordinance.
Third, a permanent injunction enjoining enforcement of an
unconstitutional and invalid ordinance and enforcing R.C.
3709.281 as written, the Ohio Constitution, and the
separation of powers will serve the public's interest.
Fourth, there can be no dispute that Plaintiffs do not
have an adequate remedy at law. Therefore, equitable
relief in the form of a permanent injunction is warranted.
E.Decision
Plaintiffs have standing to challenge the
constitutionality of Toledo's Lead Ordinance. R.C.
3709.281 does not allow the Health Department to wield all
the powers of Toledo's government. On the contrary, it
only enables Toledo City Council and the Health Department
to agree to the Health Department's exercise of Council's
powers in Council's behalf. Council's powers are
legislative in nature and do not extend into the realm of
implementation, administration, or enforcement of
ordinances. Moreover, the Lead Ordinance's
classifications are not rationally related to its stated
purposes and presumptions. Therefore, the Lead Ordinance
and the agreement for the Health Department to enforce it
are unconstitutional beyond a reasonable doubt.
In view of the above findings, the factors relevant to
granting permanent injunctive relief, and the standards
applicable to the pending motions, the Court finds that
Plaintiffs are entitled to partial summary judgment on
their Complaint for Permanent Injunction, as a matter of
law, and will permanently enjoin the Health Department
from enforcing Toledo's Lead Ordinance. " 'An
unconstitutional act is not a law; it confers no rights;
it imposes no duties; it affords no protection; it creates
no office; it is, in legal contemplation, as inoperative
as though it had never been passed.' " Middletown v.
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Ferguson, 25 Ohio St.3d 71, 80 (1986), quoting Norton v.
Shelby County, 118 U.S. 425, 442 (1886).
The Court's decision is set forth in the following Journal
Entry.
JOURNAL ENTRY
It is ORDERED that the "motion for partial summary
judgment against the board of health" filed by Plaintiffs
Cheryl Mack and Property Investor's Network on December
21, 2017, and Plaintiffs' "motion for partial summary
judgment against Toledo," filed December 26, 2017, are
GRANTED.
It is further Ordered that "Defendant Toledo-Lucas County
Health District (Health Department)'s Motion for Judgment
on the Pleadings," filed December 11, 2017, and "Defendant
City of Toledo [Toledo]'s Motion for Judgment on the
Pleadings," filed December 21, 2017, are DENIED.
It is further ORDERED that Defendant Toledo's Lead
Ordinance, codified at TMC Chapter 1760, is found to be
unconstitutional under Article II, Section 1 of the Ohio
Constitution, due to Toledo's lack of statutory or other
authority to direct Defendant Health Department to
administer and enforce it and the Health Department's lack
of statutory authority to do so [contrary to Defendants'
assertion, R.C. 3709.281 does not provide such authority
to Toledo or the Health Department], and because it
violates the Equal Protection Clauses of the Ohio and
United States Constitutions.
It is further ORDERED that Defendant Health Department is
permanently enjoined from enforcing Defendant Toledo's
Lead Ordinance. This permanent injunction is binding upon
the parties to this action, the parties' officers, agents,
servants, employees, and attorneys, and those persons in
active concert or participation with them who receive
actual notice of the injunction, whether by personal
service or otherwise. Violation of this injunction may
result in sanctions and other penalties.
It is further ORDERED that this permanent injunction
extends to the "Toledo-Lucas County Regional Health
District" and to the "Toledo-Lucas County Board of
Health," the latter of which is the named defendant in
this action.
It is further ORDERED that the Clerk shall return the $500
security bond posted by Plaintiffs to them, through their
attorney, Andrew Mayle.
It is further ORDERED that Plaintiffs are awarded their
court costs, pursuant to R.C. 733.61, and that Plaintiffs'
request for an award of their attorney fees, pursuant to
R.C. 733.61, is continued for further hearing.
July 20, 2018
Judge Linda J. Jennings
cc:Andrew R. Mayle, Esq. (Counsel for Plaintiffs)
Dale R. Emch, Esq. and Joseph V. McNamara, Esq. (Counsel
for Defendant City of Toledo)
Asst. Prosecuting Attorneys Kevin Pituch and Evy Jarrett
(Counsel for Defendant Toledo-Lucas County Health
Department)
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OPINION AND JOURNAL ENTRY FILE STAMPED 7/20/18 SENT VIA
EMAIL TO:
adam.loukx@toledo.oh.gov;jeffrey.charles@toledo.oh.gov;joe
.mcnamara@toledo.oh.gov;kpituch@co.lucas.oh.us;ejarrett@co
.lucas.oh.us;amayle@mayleraymayle.com
PARTY : -
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E JOURNALIZED 7-23-18
PERTAINING TO:OPINION AND JUDGMENT ENTRY
Sent via email to D-2's attorney on 2018-07-23 11:16:37 AM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-1's attorney on 2018-07-23 11:16:37 AM:
ADAM W. LOUKX
adam.loukx@toledo.oh.gov
Sent via email to D-2's attorney on 2018-07-23 11:16:37 AM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2018-07-23 11:16:37 AM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2018-07-23 11:16:37 AM:
ANDY MAYLE
amayle@mayleraymayle.com
Sent via email to D-1's attorney on 2018-07-23 11:16:37 AM:
JOSEPH MCNAMARA
joe.mcnamara@toledo.oh.gov
PARTY : P1 - MACK CHERYL
7/25/20181Title : MTN:MOTION FILED
PLAINTIFF CHERYL MACKS MOTION FOR ATTORNEY FEES
PARTY : P1 - MACK CHERYL
7/26/20181Title : ORD:ORDER
This matter is before the Court upon "Plaintiff Cheryl
Mack's motion for attorney fees". Upon due consideration,
said motion shall be set for hearing.
It is therefore ORDERED that a hearing shall be held
Thursday, August 30, 2018 at 9:00 a.m. on "Plaintiff
Cheryl Mack's motion for attorney fees".
Date: 7/26/18
JUDGE LINDA J JENNINGS
Distribution:
ANDY MAYLE
KEVIN PITUCH
JOSEPH V. MCNAMARA
PARTY : -
7/26/20182Title : HRG:MOTION HEARING SET
MOTION HEARING SET FOR 8/30/18 AT 9:00 A.M.
PARTY : -
7/26/20183Title : MIS:CRTROOM SERVICE VIA EMAIL
ORDER FILE STAMPED 7/26/18 SENT VIA EMAIL TO:
adam.loukx@toledo.oh.gov;jeffrey.charles@toledo.oh.gov;joe
.mcnamara@toledo.oh.gov;kpituch@co.lucas.oh.us;ejarrett@co
.lucas.oh.us;amayle@mayleraymayle.com
PARTY : -
7/26/20184Title : EVT:ORDER FILE & JOURN EFF6/13
E JOURNALIZED 7-27-18
PERTAINING TO:HEARING SHALL BE HELD ON PLTFS MOTION FOR
ATTORNEY FEES
Sent via email to D-2's attorney on 2018-07-27 12:57:57 PM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-1's attorney on 2018-07-27 12:57:57 PM:
ADAM W. LOUKX
adam.loukx@toledo.oh.gov
Sent via email to D-2's attorney on 2018-07-27 12:57:57 PM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2018-07-27 12:57:57 PM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2018-07-27 12:57:57 PM:
ANDY MAYLE
amayle@mayleraymayle.com
Sent via email to D-1's attorney on 2018-07-27 12:57:57 PM:
JOSEPH MCNAMARA
joe.mcnamara@toledo.oh.gov
PARTY : P1 - MACK CHERYL
7/31/20182Title : CLS: CASE STAYED
PARTY : -
7/31/20183Title : PLD:NOTICE OF APPEAL FILED
PARTY : D1 - CITY OF TOLEDO OHIO
7/31/20184Title : PLD:PRAECIPE FILED
PURSUANT TO 6TH DIST LOCAL RULE APP R 3 B
PARTY : D1 - CITY OF TOLEDO OHIO
7/31/20185Title : PLD:DOCKETING STATEMENT
PURSUANT TO APP R 3 F 6TH DIST LOC APP R 3 C AND 12 A
PARTY : D1 - CITY OF TOLEDO OHIO
8/1/20181Title : SRV:COPIES MAILED
COPY OF APPEAL DOCKETING STATEMENT AND PRAECIPE MAILED
ORDINARY MAIL
ANDY MAYLE
210 SOUTH FRONT ST
FREMONT OHIO 43420
EVY M JARRETT
LUCAS CO PROS OFFICE CIVIL DIV
711 ADAMS 2ND FL
TOLEDO OHIO 43604
KEVIN A PITUCH LUCAS CO PROS OFFICE CIVIL DIV
711 ADAMS 2ND FL
TOLEDO OHIO 43604
PARTY : D1 - CITY OF TOLEDO OHIO
8/1/20183Title : EVT:APPELLATE CASE NUMBER
COURT OF APPEALS
CL 2018-1164
PARTY : D1 - CITY OF TOLEDO OHIO
8/2/20181Title : SRV:COPIES MAILED
COPY OF NOTICE OF APPEAL, PRAECIPE, DOCKETING STATEMENT
SENT BY ORDINARY MAIL TO:
ANDY MAYLE
210 SOUTH FRONT ST
FREMONT, OH 43420
ADAM W LOUKX
CITY OF TOLEDO
DEPT OF LAW
ONE GOVERNMENT CENTER SUITE 2250
TOLEDO, OH 43604-2230
JOSEPH MCNAMARA
ONE GOVERNMENT CENTER SUITE 2250
TOLEDO, OH 43604-2230
JEFFREY B CHARLES
ONE GOVERNMENT CENTER SUITE 2250
TOLEDO, OH 43604-2230
PROPERTY INVESTORS NETWORK INC
3131 EXECUTIVE PARKWAY
SUITE 100
TOLEDO, OH 43606
PARTY : P1 - MACK CHERYL
8/2/20183Title : EVT:APPELLATE CASE NUMBER
COURT OF APPEALS
CL 2018-1167
PARTY : D1 - CITY OF TOLEDO OHIO
8/2/20184Title : PLD: TRANSCRIPT OF PROCEEDINGS
PARTY : P1 - MACK CHERYL
8/2/20185Title : PLD:NOTICE OF APPEAL FILED
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
8/2/20186Title : PLD:PRAECIPE FILED
PURSUANT TO 6TH DIST LOC APP R 3 B
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
8/2/20187Title : PLD:DOCKETING STATEMENT
PURSUANT TO APP R 3 F 6TH DIST LOC APP R 3 C AND 12 A
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
10/23/20181Title : MIS:MANDATE DISMISSING APPEAL
PARTY : P1 - MACK CHERYL
10/24/20181Title : OPN:CASE REACTIVATED
PARTY : -
10/30/20181Title : MIS:COURTROOM CASE NOTES
CASE REACTIVATED. MOTION FOR ATTORNEY FEES FILED BY
PLAINTIFF CHERYL MACK, REMAINS PENDING. DEFENDANTS SHALL
FILE THEIR RESPONSE TO SAID MOTION ON OR BEFORE 11/16/18.
PLAINTIFF'S SHALL FILE THEIR REPLY ON OR BEFORE 11/30/18.
PARTY : -
11/9/20181Title : PLD:MEMORANDUM
TLCHDS MEMORANDUM RE: PLAINTIFFS STATUTORY REQUEST FOR
ATTORNEY FEES
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
11/16/20181Title : PLD:MEMORANDUM IN OPPOSITION
CITY OF TOLEDOS MEMORANDUM IN OPPOSITION TO PLAINTIFFS
MOTION FOR ATTORNEY FEES
PARTY : D1 - CITY OF TOLEDO OHIO
11/19/20181Title : PLD:REPLY
PLAINTIFF CHERYL MACKS REPLY IN SUPPORT OF HER APPLICATION
FOR COSTS AND FEES UNDER RC 733.61
PARTY : P1 - MACK CHERYL
12/21/20181Title : PLD:NOTICE
NOTICE OF WITHDRAWAL OF COUNSEL
PARTY : D1 - CITY OF TOLEDO OHIO
1/3/20191Title : PRO: PLTF ORD SIGNED MTN GRTD
PLAINTIFF CHERYL MACK'S MOTION FOR ATTORNEY FEES FILED
7/25/18 IS FOUND WELL-TAKEN AND GRANTED.
SEE ORDER UNDER R.C. 733.61.
PARTY : -
1/3/20192Title : MIS:CRTROOM SERVICE VIA EMAIL
ORDER FILE STAMPED 1/3/19 SENT VIA EMAIL TO:
jeffrey.charles@toledo.oh.gov;kpituch@co.lucas.oh.us;
ejarrett@co.lucas.oh.us;amayle@mayleraymayle.com
PARTY : -
1/3/20193Title : MIS:CRTROOM SERVICE VIA EMAIL
ORDER FILE STAMPED 1/3/19 SENT VIA EMAIL TO:
john.madigan@toledo.oh.gov- PER JOHN MADIGAN'S REQUEST
PARTY : -
1/3/20194Title : EVT:ORDER FILE & JOURN EFF6/13
E JOURNALIZED 01-03-19
PERTAINING TO:ORDER UNDER R.C. 733.61
THIS COURT NOW DECIDES PLTF CHERYL MACK'S FEE REQUEST
AGAINST DEFT TOLEDO
THIS COURT HEREBY AWARDS JUDGMENT IN FAVOR OF CHERYL MACK
Sent via email to D-2's attorney on 2019-01-03 01:05:47 PM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-2's attorney on 2019-01-03 01:05:47 PM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2019-01-03 01:05:47 PM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2019-01-03 01:05:47 PM:
ANDY MAYLE
amayle@mayleraymayle.com
PARTY : P1 - MACK CHERYL
1/11/20192Title : CLS:JUDGMENT FOR PLAINTIFF
PARTY : -
1/22/20191Title : SRV:COPIES MAILED
COPIES OF THE NOTICE OF APPEAL, PRAECIPE, DOCKETING
STATEMENT SENT BY ORDINARY MAIL SERVICE TO:
ANDY MAYLE
PO BOX 263
PERRYSBURG, OH 43552
EVY M JARRETT
711 ADAMS ST 2ND FLOOR
TOLEDO, OH 43604
KEVIN A PITUCH
711 ADAMS ST 2ND FLOOR
TOLEDO, OH 43604
PROPERTY INVESTORS NETWORK INC
3131 EXECUTIVE PARKWAY SUITE 100
TOLEDO, OH 43606
PARTY : D1 - CITY OF TOLEDO OHIO
1/22/20193Title : PLD:NOTICE OF APPEAL FILED
PARTY : D1 - CITY OF TOLEDO OHIO
1/22/20194Title : PLD:DOCKETING STATEMENT
PURSUANT TO APP R 3 F 6TH DIST LOC APP R 3 C AND 12 A
PARTY : D1 - CITY OF TOLEDO OHIO
1/22/20195Title : PLD:PRAECIPE FILED
PURSUANT TO 6TH DIST LOCAL RULE APP R 3 B
PARTY : D1 - CITY OF TOLEDO OHIO
1/23/20191Title : EVT:APPELLATE CASE NUMBER
COURT OF APPEALS
CL 2019-1010
PARTY : D1 - CITY OF TOLEDO OHIO
1/24/20191Title : SRV:COPIES MAILED
COPY OF NOTICE OF APPEAL DOCKETING STATMENT AND PRAECIPE
MAILED ORIDNARY MAIL
ANDY MAYLE
PO BOX 263
PERRYSBURG OHIO 43552
JEFFREY B CHARLES
ONE GOVERNMENT CENTER STE 2250
TOLEDO OHIO 43604
PROPERTY INVESTORS NETWORK INC
3131 EXECUTIVE PARKWAY STE 100
TOLEDO OHIO 43606
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
1/24/20193Title : PLD:NOTICE OF APPEAL FILED
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
1/24/20194Title : PLD:PRAECIPE FILED
PURSUANT TO 6TH DIST LOC APP R 3 B
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
1/24/20195Title : PLD:DOCKETING STATEMENT
PURSUANT TO APP R 3 F 6TH DIST LOC APP R 3 C AND 12 A
PARTY : D2 - TOLEDO LUCAS COUNTY BOARD OF HEALTH
2/1/20191Title : MTN:TO STAY FILED
MOTION TO STAY JUDGMENT PURSUANT TO CIV R 62
PARTY : D1 - CITY OF TOLEDO OHIO
2/6/20191Title : PLD:OPPOSITION
PLAINTIFFS' OPPOSITION TO DEFENDANTS MOTION FOR STAY OF FEE
AWARD
PARTY : P1 - MACK CHERYL
2/13/20191Title : PLD:REPLY
REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANT CITY OF TOLEDOS
MOTION TO STAY JUDGMENT PURSUANT TO CIV R 62
PARTY : D1 - CITY OF TOLEDO OHIO
2/13/20192Title : MTN:FOR LEAVE FILED
TO FILE AMENDED REPLY INSTANTER
PARTY : D1 - CITY OF TOLEDO OHIO
2/19/20191Title : PRO:MTN FOR LEAVE GRANTED
DEFENDANT CITY OF TOLEDO'S MOTION FOR LEAVE TO FILE
AMENDED REPLY INSTANTER FILED 2/13/19 IS FOUND WELL-TAKEN
AND GRANTED.
SEE ORDER.
PARTY : -
2/19/20192Title : EVT:ORDER FILE & JOURN EFF6/13
E JOURNALIZED 02-20-19
PERTAINING TO:DEFT CITY OF TOLEDO IS GRANTED LEAVE TO FILE
ITS AMENDED REPLY TO THE OPPOSITION FILED IN RESPONSE TO ITS
PREVIOUSLY FILED MOTION TO STAY THE PAYMENT OF ATTORNEY
FEES
Sent via email to D-2's attorney on 2019-02-20 12:05:26 PM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-2's attorney on 2019-02-20 12:05:26 PM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2019-02-20 12:05:26 PM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2019-02-20 12:05:26 PM:
ANDY MAYLE
amayle@mayleraymayle.com
PARTY : P1 - MACK CHERYL
2/19/20193Title : PLD:REPLY
AMENDED REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANT CITY OF
TOLEDOS MOTION TO STAY JUDGMENT PURSUANT TO CIV R 62
PARTY : D1 - CITY OF TOLEDO OHIO
2/21/20191Title : PRO:MOTION TO STAY GRANTED
AFTER CAREFUL CONSIDERATION AND FOR GOOD CAUSE SHOWN AND
UPON MOTION FILED BY THE CITY OF TOLEDO, THE COURT FINDS
WELL-TAKEN AND GRANTS THE PENDING CIV. R. 62 MOTION TO
STAY ANY ENFORCEMENT OF ITS PREVIOUS ORDER DIRECTING THE
CITY OF TOLEDO PAY $35,000.00 IN ATTORNEY FEES TO
PLAINTIFFS' COUNSEL. THIS STAY SHALL REMAIN IN FORCE AND
EFFECT PENDING THE FULL AND FINAL RESOLUTION OF THIS MATTER
IN ALL APPLICABLE COURTS OF JURISDICTION.
SEE ORDER.
PARTY : D1 - CITY OF TOLEDO OHIO
2/21/20192Title : EVT:ORDER FILE & JOURN EFF6/13
E JOURNALIZED 02-22-19
PERTAINING TO:MOTION FILED BY THE CITY OF TOLEDO TO STAY ANY
ENFORCEMENT OF ITS PREVIOUS ORDER DIRECTING THE CITY OF
TOLEDO TO PAY ATTORNEY FEES TO PLTFS' COUNSEL IS GRANTED
Sent via email to D-2's attorney on 2019-02-22 12:24:36 PM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-2's attorney on 2019-02-22 12:24:36 PM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2019-02-22 12:24:36 PM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2019-02-22 12:24:36 PM:
ANDY MAYLE
amayle@mayleraymayle.com
PARTY : P1 - MACK CHERYL
12/31/20191Title : MIS:MANDATE AFFIRM & REVERSE
L-19-1010
PARTY : P1 - MACK CHERYL
1/15/20201Title : ORD:ORDER
This matter comes before the Court based upon a recent
decision by the Sixth District Court of Appeals on
December 31, 2019 which found that:
"Because the circumstances have changed and only a partial
judgment has been rendered in Mack's favor, the trial
court
should reconsider the amount of fees, if any, that should
be
awarded. Accordingly, this part of the City's assignment
of
error is sustained in part and overruled in part, and this
cause
will be remanded to the trial court for a decision on what
fees,
if any, Mack should receive under R.C. 733.61." Mack v.
City
of Toledo, 6th Dist. Lucas No. L-19-1010, 2019-Ohio-5427,
ΒΆ 131.
After review of the Sixth Districts December 31, 2019
Opinion, this Court shall grant the parties until February
28, 2020 to file simultaneous briefs regarding what, if
any, attorney fees Mack should receive under R.C. 733.61.
IT IS SO ORDERED.
Date
1/15/2020 Judge Linda J. Jennings
PARTY : -
1/15/20202Title : MIS:CRTROOM SERVICE VIA EMAIL
ORDER FILE STAMPED 1/15/20 SENT VIA EMAIL TO:
jeffrey.charles@toledo.oh.gov;kpituch@co.lucas.oh.us;
ejarrett@co.lucas.oh.us;amayle@mayleraymayle.com
PARTY : -
1/15/20203Title : EVT:ORDER FILE & JOURN EFF6/13
E-JOURNALIZED 1/16/2020
PERTAINING TO: PARTIES TO FILE SIMULTANEOUS BRIEF
Sent via email to D-2's attorney on 2020-01-16 02:56:15 PM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-2's attorney on 2020-01-16 02:56:15 PM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2020-01-16 02:56:15 PM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2020-01-16 02:56:15 PM:
ANDY MAYLE
amayle@mayleraymayle.com
PARTY : P1 - MACK CHERYL
2/12/20201Title : MTN:MOTION TO STAY PROCEEDINGS
PLAINTIFF CHERYL MACKS MOTION TO STAY BRIEFING ON COSTS
UNDER RC 733.61
PARTY : P1 - MACK CHERYL
2/13/20201Title : PRO:MOTION TO STAY GRANTED
PLAINTIFF CHERYL MACK'S MOTION TO STAY BREIFING ON COSTS
UNDER R.C. 733.61 FILED 2/12/20 IS FOUND WELL-TAKEN AND
GRANTED.
IT IS ORDERED THAT
THIS COURT'S PREVIOUS SCHEDULING ORDER RESPECTING BRIEFING
ON THE REMANDED MATTER OF COSTS, INCLUDING FEES, IS HEREBY
VACATED.
BRIEFING OF THIS ISSUE IS HEREBY STAYED PENDING EXHAUSTION
OF MACK'S AND PIN'S JURISDICTIONAL APPEAL FILED IN THE
SUPREME COURT OF OHIO.
THE PARTIES' COUNSEL SHALL PROMPTLY NOTIFY THIS COURT'S
CIVIL BAILIFF AFTER EXHAUSTION OF THE SUPREME COURT APPEAL.
SEE ORDER.
PARTY : -
2/13/20202Title : EVT:ORDER FILE & JOURN EFF6/13
E JOURNALIZED 02-14-2020
PERTAINING TO:ORDER ON CHERYL MACK'S MOTION TO STAY
BRIEFING ON COSTS UNDER R.C.733.61
Sent via email to D-2's attorney on 2020-02-14 11:37:03 AM:
KEVIN A. PITUCH
kpituch@co.lucas.oh.us
Sent via email to D-2's attorney on 2020-02-14 11:37:03 AM:
EVY M JARRETT
ejarrett@co.lucas.oh.us
Sent via email to D-1's attorney on 2020-02-14 11:37:03 AM:
JEFFREY B CHARLES
jeffrey.charles@toledo.oh.gov
Sent via email to P-2's attorney on 2020-02-14 11:37:03 AM:
ANDY MAYLE
amayle@mayleraymayle.com
PARTY : P1 - MACK CHERYL

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