[Cite as Gainer v. Cavanaugh , 2020-Ohio-175.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

MICHAEL GAINER, ET AL. : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiffs-Appellants : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : ANGELA CAVANAUGH, ET AL. : Case No. 2019CA00043 : Defendants-Appellees : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2018CV01869 (Consolidated with Case No. 2018CV02129)

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: January 21, 2020

APPEARANCES: For Plaintiffs-Appellants For Defendants-Appellees

JACK B. COOPER JOHN D. FERRERO 4684 Douglas Circle NW Stark County Prosecuting Attorney Canton, OH 44718 DAVID E. DEIBEL JESSICA LOGOTHETIDES 110 Central Plaza South, Suite 510 Canton, OH 44702Stark County, Case No. 2019CA00043 2

Wise, Earle, J. {¶ 1} Plaintiffs-Appellants, Michael and Brenda Gainer, their s tatutory agent Jack B. Cooper, and Storybrook Farm LLC, appeal the December 12, 201 8 and February 28, 2019 judgment entries of the Court of Common Pleas of Stark Cou nty, Ohio, upholding administrative decisions issued by the Stark County Board of Bu ilding Appeals and the Ohio Board of Building Appeals.

FACTS AND PROCEDURAL HISTORY {¶ 2} On July 10, 2018, Angela Cavanaugh, Chief Building Offici al for the Stark County Building Department, sent Michael and Brenda Gainer an o rder to comply, ordering the Gainers to stop assembly occupancy immediately reg arding an agricultural barn on their property, alleging the barn had been converted in to an assembly occupancy without approval as required by the Ohio Building Code. The Ga iners owned Storybrook Farm and used the barn in question to operate a wedding venue b usiness. {¶ 3} On July 23, 2018, Mark Stewart, Lawrence Township Fire De partment Fire Chief, sent the Gainers a citation and order, citing them for o perating an event and rustic wedding facility in a barn on the ir property without obtaining a change of use or occupancy, and ordering them to comply with the Ohio Building C ode and the Stark County Building Department's Change of Occupancy Policy. {¶ 4} The Gainers appealed the Cavanaugh order to comply to the Stark County Board of Building Appeals. A hearing was held on September 13, 2018. By final order dated same date, the Board denied the issuance of a variance.Stark County, Case No. 2019CA00043 3

{¶ 5} The Gainers appealed the Stewart citation and order to co mply to the Ohio Board of Building Appeals. A hearing was held on October 19, 2 018. By final order dated October 22, 2018, the Board upheld the citation. {¶ 6} On September 25, 2018, the Gainers appealed the final ord er of the Stark County Board with the Court of Common Pleas of Stark County, Oh io (Case No. 2018CV01869). {¶ 7} On October 31, 2018, the Gainers appealed the final order of the Ohio Board with the Court of Common Pleas of Stark County, Ohio (Cas e No. 2018CV02129). {¶ 8} On November 14, 2018, the Gainers filed a motion for evid entiary hearing to present additional evidence on factual issues pursuant to R. C. 3781.031. {¶ 9} On December 3, 2018, the trial court consolidated the cas es. {¶ 10} On December 12, 2018, the trial court denied the Gainers ' motion for an evidentiary hearing. {¶ 11} By judgment entry filed February 28, 2019, the trial cou rt upheld the decisions of both Boards, finding the Gainers did not meet the requirements under R.C. 3781.06 (building safety and sanitation for intended use and oc cupancy) and was not exempt from the subject regulations. {¶ 12} Appellants filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:

I {¶ 13} "THE TRIAL COURT ERRED IN FINDING THAT THE AGRICULTURAL EXEMPTION IN ORC §3781.06(B) DID NOT MAKE THE ADMINISTRATIVE OR DERSStark County, Case No. 2019CA00043 4

AT ISSUE ILLEGAL, WHERE THE EVIDENCE PROVED THAT THE STRUCTURE IN QUESTION (A BARN) WAS INCIDENT TO THE AGRICULTURAL USE OF THE L AND."

II {¶ 14} "THE TRIAL COURT ERRED IN DENYING APPELLANTS AN

EVIDENTIARY HEARING AS THE RELEVANT STATUTE EXPRESSLY PROVIDES FOR ONE AND APPELLANTS REQUESTED A HEARING." {¶ 15} We will address Assignmen t of Error II first as we find it to be dispositive of this appeal.

II {¶ 16} Appellants claim the trial court erred in denying their request for an evidentiary hearing. We agree. {¶ 17} The administrative appeal in this case originated under R.C. 3781.031 which governs issuance of adjudication orders and stop work ord ers. Subsection (D) provides the following in pertinent part:

Any party adversely affected by an order issued following an adjudication hearing may appeal to the court of common pleas of the county in which the party is a resident or in which the premises affec ted by the

order is located. The court shall not be confined to the recor d as certified to it by the agency but any party may produce additional evidence and the court shall hear the matter upon the record and additional evidence any party introduces. (Emphasis added.)Stark County, Case No. 2019CA00043 5

{¶ 18} In a motion filed November 14, 2018, appellants moved pu rsuant to this cited section to present "additional evidence on the factual is sues pertinent to this appeal." Given the language of R.C. 3781.031(D), appellants have the rig ht to present additional evidence and the trial court "shall hear the matter upon the re cord and additional evidence any party introduces." {¶ 19} In their appellate brief at 21, appellees argue appellan ts "did not detail what additional evidence was necessary for the court to hear to reso lve the appeal nor did they state why they could not have produced such evidence prior to t he hearings before the agencies." R.C. 119.12 is the general statute that governs adm inistrative appeals. Subsection (K) permits additional evidence if the trial court i s "satisfied that the additional evidence is newly discovered and could not with reasonable dili gence have been ascertained prior to the hearing before the agency." Subsectio n (K) prefaces this requirement with the words, "[u]nless otherwise provided by law ." R.C. 3781.031(D) is the governing statute in this case. The legislature could have mirrored the language in R.C. 119.12(K), but did not do so. R.C. 3781.031(D) does not l ist any qualifiers or limitations, it simply permits "additional evidence." {¶ 20} Appellees also argue the case of Davis Metal Sales, Inc. v. Walz, 5th Dist. Knox No. 89-CA-55, 1990 WL 97632 (July 9, 1990). We find this case to be inapplicable because the court therein did not review or consider the langua ge of R.C. 3781.031(D). {¶ 21} Based upon the language of R.C. 3781.031(D), we find app ellants have the right to present additional evidence that was not presented at the hearings before the Boards, and the trial court shall hear the matter upon the reco rd.Stark County, Case No. 2019CA00043 6

{¶ 22} Upon review, we find the trial court erred in denying ap pellants' request for an evidentiary hearing. Given this decision, Assignment of Err or I is premature. {¶ 23} Assignment of Error II is granted. {¶ 24} The judgment of the Court of Common Pleas of Stark Count y, Ohio is hereby reversed, and the matter is remanded to the trial court to hold a hearing to

entertain additional evidence. By Wise, Earle, J. Hoffman, P.J. and Wise, John, J. concur.

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