[Cite as Cotton v. Connor , 2020-Ohio-1129.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

TOM COTTON : JUDGES: : Hon. John W. Wise, P.J. Appellant-Appellant : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : PATRICK CONNOR, FIRE CHIEF, : CITY OF NEWARK FIRE : DEPARTMENT : Case No. 19CA0088 : Appellee-Appellee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 18CV01332

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 23, 2020

APPEARANCES: For Appellant-Appellant For Appellee-Appellee JAMES R. COOPER CAROLINE J. CLIPPINGER 33 West Main Street 40 West Main Street P.O. Box 4190 Newark, OH 43055Licking County, Case No. 19CA0088 2

Newark, OH 43058 Wise, Earle, J. {¶ 1} Appellant, Tom Cotton, appeals the August 12, 2019 judgme nt entry of the Court of Common Pleas of Licking County, Ohio, upholding the de cision of the Ohio Board of Building Appeals. Appellee is Patrick Connor, Fire Chief, C ity of Newark Fire Department. FACTS AND PROCEDURAL HISTORY {¶ 2} Newark Downtown Center, Inc. owns real estate in downtown Newark known as The Arcade. Appellant is president of the corporation . The Arcade is made up of interconnected businesses with a glass covered walkway in th e center. It covers approximately 70,000 square feet. The Arcade is over one hundr ed years old and has

been deemed an historical site. {¶ 3} On September 19, 2017, appellee issued a citation to appe llant, listing fortytwo violations of the Ohio Fire Code. Appellant filed an appea l with the Ohio Board of Building Appeals (Case No. 17-0197). {¶ 4} On April 10, 2018, appellee issued a second citation to a ppellant regarding the same property, listing thirteen additional violations of th e Ohio Fire Code. Appellant filed an appeal with the Ohio Board of Building Appeals (Case N o. 18-0069). {¶ 5} A hearing on both citations was held on October 30, 2018. The Ohio Board of Building Appeals upheld the citations and imposed monetary p enalties. {¶ 6} Appellant filed appeals with the Court of Common Pleas. By judgment entry filed August 12, 2019, the trial court affirmed the decisions o f the Ohio Board of Building Appeals.Licking County, Case No. 19CA0088 3

{¶ 7} Appellant filed an appeal and this matter is now before t his court for consideration. Assignment of error is as follows:

I {¶ 8} "THE TRIAL COURT ERRED IN ITS JUDGMENT THAT THE AGENCY'S ORDER WAS SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL EVIDENCE AND WAS IN ACCORDANCE WITH LAW."

I {¶ 9} In his sole assignment of error, appellant claims the tri al court erred in affirming the decisions of the Ohio Board of Building Appeals. We disagree. {¶ 10} R.C. 3737.42 governs citations for violation of state fi re code and states the following in subsection (A):

If, upon inspection or investigation, the fire marshal, an ass istant fire marshal, or a certified fire safety inspector believes that the state fire code or an associated order has been violated, the fire marshal, ass istant fire marshal, or certified fire safety inspector shall, with reasona ble promptness, issue a citation to the responsible person. Each citation shal l be in writing and shall describe with particularity the nature of the violati on, including a reference to the provision of the state fire code or associated order alleged to have been violated. In addition, the citation shall fix a r easonable time for the abatement of the violation. When the citation is issue d by a certified fire safety inspector or an assistant fire marshal, a copy of t he citation shall be furnished to the fire marshal.Licking County, Case No. 19CA0088 4

{¶ 11} The responsible person has the "right to appeal the cita tion and penalty, under Chapter 119. of the Revised Code, to the state board of b uilding appeals established under section 3781.19 of the Revised Code within th irty days after receipt of the notice." R.C. 3737.43(A). In the event of an adverse ruli ng by the state board of building appeals, the responsible person "may appeal directly t o the court of common pleas pursuant to section 3781.031 of the Revised Code." R.C. 3781.19. R.C. 3781.031(D) states in pertinent part:

The court shall not be confined to the record as certified to it by the agency but any party may produce additional evidence and the co urt shall hear the matter upon the record and additional evidence any par ty introduces. The court shall not affirm the agency's order unle ss the preponderance of the evidence before it supports the reasonable ness and lawfulness of the order and any rule of the board of building s tandards upon which the order is based in its application to the particular s et of facts or circumstances involved in the appeal.

{¶ 12} "The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and any ad ditional evidence the court has admitted, that the order is supported by reliable, probativ e, and substantial evidence and is in accordance with law." R.C. 119.12(M).Licking County, Case No. 19CA0088 5

{¶ 13} As explained by our colleagues from the Eighth District in S.R. Products v. Gerrity, 156 Ohio App.3d 150, 154, 2004-Ohio-472, 805 N.E.2d 104, ¶ 22 (8th Dist.):

An appellate court, reviewing the judgment of the court of com mon pleas, considers only questions of law and does not weigh the e vidence. An appellate court will not substitute its judgment for that of the administrative agency or the court of common pleas, unless this court finds that there is not a preponderance of reliable evidence to suppo rt the board's

decision. Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR 26, 465 N.E.2d 848. Within the ambit of questions of law is included w hether the common pleas court abused its discretion . Henley v. Youngstown Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 147, 735 N.E.2d 433. To constitute an abuse of discretion, the ruling must be more than legal error; it must be unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140.

{¶ 14} On August 3, 2017, Newark Fire Inspector Bruce Gossett i nspected the basement area of the subject property and notified appellant of numerous violations of the fire code. Inspector Gossett returned on August 25, 2017 f or a re-inspection; the violations remained noncompliant. As a result, on September 19 , 2017, appellee issued appellant a citation listing forty-two violations of the fire c ode with the attendant civil penalties, and declared the building a distinct hazard. Appell ant was given three days toLicking County, Case No. 19CA0088 6

complete the listed corrective measures. At the time of the he aring on October 30, 2018, eleven violations were still outstanding. {¶ 15} On March 23, and 26, 2018, Inspector Gossett conducted i nspections of the entire building and notified appellant of numerous violations o f the fire code. Inspector Gossett returned on April 9, 2018 for a re-inspection; the viol ations remained noncompliant. As a result, on April 10, 2018, appellee issued appellant a citation listing thirteen additional violations of the fire code with the attend ant civil penalties. Appellant was given seven days to complete the listed corrective measures . At the time of the hearing on October 30, 2018, none of the thirteen violations ha d been corrected. {¶ 16} During the hearing, Inspector Gossett testified to the o utstanding violations. Appellant presented the testimony of Beau Bromberg, a friend wh o helped correct some of the violations, and Sergei Jackson, a retired professional e ngineer, to testify to the

corrective measures taken. Mr. Jackson was not an active certi fied engineer as required per the building code. T. at 23-25. {¶ 17} Mr. Bromberg agreed that at the time of the last inspect ions, outstanding violations existed, but the violations had been corrected befor e the hearing date "on everything except for the building maintenance." T. at 29-34, 37-47. Appellant and his assistant, Kelly Lowe, and Mr. Jackson also testified to the co rrection of some of the violations prior to the hearing date. T. at 47-54. {¶ 18} Inspector Gossett contested some of the alleged correcti ons. T. at 59-62. He did not go out for re-inspections after issuing the citation s because "[w]e were due for hearing in the meantime, and that's when we were told about the sale and continuances, and we were just ready to come to the hearing at that point." T. at 59. Appellant wasLicking County, Case No. 19CA0088 7

attempting to sell the property to someone who would come in an d bring the building to code, and in fact had a buyer, but appellant would not complete the sale. T. at 7-9. Bottom line, the cited violations were not corrected as of the remedy date. T. at 62. {¶ 19} The board of building appeals upheld the citations "upon the overwhelming evidence and testimony provided," and imposed financial penalti es. In its August 12, 2019 judgment entry affirming the decision, the trial court con cluded the following:

Appellant has not identified any citations he believes were err oneous or for which the Board did not have reliable, probative, and su bstantial evidence. Appellant does not appear [to] identify any issues o f law or fact for this Court to review in his brief. The brief merely recoun ts that efforts were made to remedy some of the violations and that appellant a nd the city had been working together to make progress on the condition of the property. "[T]he burden of showing that the decision is erroneous rests o n the party contesting the decision." C. Miller Chevrolet, Inc. v. City of Willoughby Hills, 38 Ohio St.2d 298, 302 (1974). Appellant has not identified or demonstrated any error in the Board's decisions.

{¶ 20} We concur with the trial court's decision. Between the first inspection date of August 3, 2017, and the first citation date of September 19, 2017, appellant had fortyseven days to correct the violations. As for the second citati on, appellant had fifteen days to correct the violations from the last inspection date (March 26, 2018) to the issuance ofLicking County, Case No. 19CA0088 8

the citation (April 10, 2018). According to the Timeline and S ummary of the Inspections outline, appellee worked with appellant from July 2017 through April 2018 to correct the fire code deficiencies on the subject property. As of the Octo ber 30, 2018 hearing date, outstanding violations existed and some of the corrective measu res were in question. We do not find testimony from a "representative from the Building Code Enforcement for the City of Newark" was necessary. Appellant's Brief at 6. {¶ 21} Upon review, we find a preponderance of reliable, probat ive, and substantial evidence to support the trial court's decision. The trial cour t did not abuse its discretion in affirming the decision of the board of building appeals. {¶ 22} The sole assignment of error is denied. {¶ 23} The judgment of the Court of Common Pleas of Licking Cou nty, Ohio is hereby affirmed. By Wise, Earle, J. Wise, John, P.J. and Baldwin, J. concur.

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