Canton v. Kavod

[Cite as Canton v. Kavod, 2024-Ohio-5384.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

CITY OF CANTON, OHIO, ET AL., JUDGES:

Hon. Patricia A. Delaney, P.J.

Appellees Hon. W. Scott Gwin, J.

Hon. William B. Hoffman, J.

-vs-

Case No. 2024CA00040

BEIT HA KAVOD

Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of

Common Pleas, Case No. 2023 CV 0448

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 12, 2024

APPEARANCES:

For Appellees For Appellant

KEVIN R. L'HOMMEDIEU STEVEN W. MASTRANTONIO

PHILLIP D. SCHANDEL DANIEL J. ORLANDO

RICHARD A. NICODEMO The Nantucket Building, Suite 301

CARRIE T. D'ANDREA 23 South Main Street

Canton Law Department Akron, Ohio 44308-1822

218 Cleveland Avenue, S.W.

Canton, Ohio 44701-4218

Stark County, Case No. 2024CA00040 2

Hoffman, J.

{¶1} Defendant-appellant Beit Ha Kavod (hereinafter “the Synagogue”) appeals

the summary judgment entered by the Stark County Common Pleas Court granting

Plaintiff-appellee City of Canton1 (hereinafter “the City”) injunctive relief and civil

damages2 on their complaint based on the Synagogue’s violation of the fire code, and

dismissing the Synagogue’s counterclaim for religious discrimination.

STATEMENT OF THE FACTS AND CASE

{¶2} In 2013, the Synagogue purchased property, formerly known as the Timken

Stables, at a tax foreclosure auction. The property is on the National Register of Historic

Places, and prior to its purchase by the Synagogue, operated as a restaurant. The

property had fallen into a state of disrepair.

{¶3} In 2018, the Synagogue attempted to repair the property, but did not use

licensed contractors and did not obtain required permits. The City ordered the

Synagogue to cease work. Officials from the City met with the Synagogue in 2018, to

discuss repairs; however, the Synagogue lacked funds to repair the property, as the roof

alone would cost more than $1 million to repair.

{¶4} The Canton Fire Department learned of possible violations of the Ohio Fire

Code in July of 2019. The Fire Department inspected the property and cited the

Synagogue for eight violations of the code. The Synagogue was given 30 days to repair

the property, but fixed only two of the eight violations.

1 Plaintiff Ohio Department of Commerce, Division of State File Marshall has not filed an appearance in this

appeal.

2 The amount of civil damages has been set for hearing at a future date. The trial court’s entry of summary

judgment recited there was no just cause for delay pursuant to Civ. R. 54(B).

Stark County, Case No. 2024CA00040 3

{¶5} The Ohio State Board of Building Appeals (hereinafter “BBA”) held a

hearing on the citations in December of 2019. The Synagogue did not appear. The Board

upheld four of the five violations which were before the BBA on appeal, relating to exit

and emergency lights, obstructed egress, wiring, and roof instability. The Synagogue did

not complete the repairs, and did not appeal the Board’s decision.

{¶6} The City and the Ohio Department of Commerce, Division of the State Fire

Marshal filed the instant action seeking injunctive relief and imposition of penalties

associated with the Synagogue’s failure to remedy the violations of the fire code upheld

by the BBA. The Synagogue counterclaimed for religious discrimination pursuant to 42

U.S.C. §1983. The City moved for summary judgment.

{¶7} The trial court granted the motion for summary judgment as to injunctive

relief as set forth in R.C. 3737.45 and the City’s right to civil penalties; however, the trial

court found the City was not entitled to summary judgment as to the amount of such

penalties, and set the matter for further hearing. The trial court found the Synagogue

failed to meet its burden on summary judgment as to its claim of religious discrimination,

and dismissed the counterclaim. It is from the February 29, 2024 judgment of the trial

court the Synagogue prosecutes its appeal, assigning as error:

I. THE TRIAL COURT ERRED IN ITS DECISION TO GRANT

APPELLEE’S MOTION FOR SUMMARY JUDGMENT ON APPELLEE’S

CLAIMS BECAUSE APPELLEE DID NOT MEET ITS BURDEN TO

PRESENT RELEVANT UNDISPUTED FACTS ON SUMMARY

JUDGMENT.

Stark County, Case No. 2024CA00040 4

II. THE TRIAL COURT ERRED IN GRANTING SUMMARY

JUDGMENT ON APPELLANT’S FIRST AMENDMENT CLAIM UNDER 42

U.S.C. §1983 TO THE CITY AS APPELLANT PRESENTED SUFFICIENT

EVIDENCE TO SHOW THAT THE APPELLEE HAD VIOLATED THE

SYNAGOGUE’S CONSTITUTIONAL RIGHTS OF FREEDOM OF

EXERCISE THROUGH THEIR TARGETED APPLICATION OF THE OHIO

FIRE CODES.

{¶8} Both assignments of error argue the trial court erred in entering summary

judgment.

{¶9} Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must refer to Civ. R.

56(C) which provides in pertinent part:

Summary Judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action, 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. No evidence

or stipulation may be considered except as stated in this rule. A summary

judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds

Stark County, Case No. 2024CA00040 5

can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being

entitled to have the evidence or stipulation construed most strongly in the

party’s favor.

{¶10} Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. The party moving for summary judgment

bears the initial burden of informing the trial court of the basis for its motion and identifying

those portions of the record demonstrating the absence of a genuine issue of material

fact. The moving party may not make a conclusory assertion the non-moving party has

no evidence to prove its case. The moving party must specifically point to some evidence

which demonstrates the moving party cannot support its claim. If the moving party

satisfies this requirement, the burden shifts to the non-moving party to set forth specific

facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 1997-

Ohio-259, citing Dresher v. Burt, 1996-Ohio-107.

{¶11} It is pursuant to this standard of review we address both of the Synagogue’s

assignments of error.

I.

{¶12} In its first assignment of error, the Synagogue argues the trial court erred in

granting summary judgment on the City’s complaint because the City failed to present

sufficient evidence the violations of the fire code present dangerous conditions as

required by statute, and the City failed to provide the Synagogue with reasonable time in

which to abate the violations of the fire code.

Stark County, Case No. 2024CA00040 6

{¶13} R.C. 3737.45 provides:

If any responsible person fails to comply with an order of the fire

marshal, an assistant fire marshal, or a certified fire safety inspector as

finally affirmed or modified by the state board of building appeals under

section 3737.43 of the Revised Code, within the time fixed in the order, then

the fire marshal, assistant fire marshal, or certified fire safety inspector may

file a complaint in the court of common pleas of the county where the

property is located for a court order authorizing the fire marshal, assistant

fire marshal, or certified fire safety inspector to cause the building, structure,

or premises to be repaired or demolished, materials to be removed, and all

dangerous conditions to be remedied, if such was the mandate of the order

as affirmed or modified by the state board of building appeals, at the

expense of the responsible person. If the responsible person, within thirty

days thereafter, fails, neglects, or refuses to pay the expense that would be

incurred in enforcing the order of the court of common pleas under this

section, the court shall order that the real estate upon which the building,

structure, or premises is or was situated be sold pursuant to Chapter 2329.

of the Revised Code, except as otherwise provided in this section. The

proceeds of the sale shall be credited to the fire marshal's fund. The fire

marshal shall use the proceeds of the sale to cause the repair or demolition

of any building, structure, or premises, the removal of materials, or the

remedy of all dangerous conditions unless the purchaser of the real estate

Stark County, Case No. 2024CA00040 7

enters into an agreement with the court to perform the repair, demolition,

removal, or remedy within a time period acceptable to the court. No bid of

a prospective purchaser shall be acceptable which is insufficient to pay the

expense that the fire marshal would incur. If the amount received from the

sale exceeds the expense that the fire marshal would incur, the court shall

direct the payment of the surplus first to those parties with encumbrances,

mortgages, or liens on the real estate in order of their priority, and then to

the responsible person or into the court for its use and benefit.

{¶14} The Synagogue argues the language of the statute requires the City to

come forth with evidence of dangerous conditions on the property in the instant action.

We disagree. R.C. 3737.45 provides a mechanism by which the order of the city fire

department, as affirmed or modified by the BBA, may be enforced by the common pleas

court. The “dangerous conditions to be remedied” were previously determined by the

BBA, and need not be relitigated in the common pleas court action to enforce the BBA’s

decision upon the Synagogue’s failure to remedy the conditions. We find the Synagogue

is bound by the decision of the BBA regarding the dangerous conditions which need to

be remedied on the property, and the City is not required to relitigate those issues

previously determined by the BBA. By the plain language of the statute, the City need

only demonstrate the Synagogue has failed to comply with the BBA’s order within the

time fixed in the order in order to be entitled to injunctive relief. The facts are undisputed

in this case the Synagogue failed to comply with the order within the 90 days fixed in the

order. We find the trial court did not err in granting summary judgment to the City without

Stark County, Case No. 2024CA00040 8

requiring the City to prove dangerous conditions exist on the property, as such issue was

already determined by the BBA, and the Synagogue failed to appeal the BBA’s decision.

{¶15} The Synagogue also argues the City did not give it a reasonable time to

abate the conditions, and is therefore barred from applying for injunctive relief under R.C.

3737.45. R.C. 3737.42(B) provides:

(B) If, upon inspection or investigation, the fire marshal, an assistant

fire marshal, or a certified fire safety inspector believes that the state fire

code or an associated order has been violated, or if an authority having

jurisdiction believes that section 3737.07 of the Revised Code has been

violated and that the school governing authority is not actively taking steps

to achieve compliance within the time prescribed by division (H)(1) of that

section, the fire marshal, assistant fire marshal, certified fire safety

inspector, or authority having jurisdiction shall, with reasonable promptness,

issue a citation to the responsible person. Each citation shall be in writing

and shall describe with particularity the nature of the violation, 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 reasonable time for

the abatement of the violation. When the citation is issued by a certified fire

safety inspector, an assistant fire marshal, or an authority having jurisdiction

other than the fire marshal, a copy of the citation shall be furnished to the

fire marshal.

Stark County, Case No. 2024CA00040 9

{¶16} The citation was issued in August of 2019, and gave the Synagogue thirty

days to make repairs, which the Synagogue argues was not a reasonable amount of time.

However, we find the appropriate forum in which to challenge the reasonableness of the

thirty-day abatement period was the hearing before the BBA. R.C. 3737.43 provides:

(A) If, after an inspection or investigation, the fire marshal, an

assistant fire marshal, or a certified fire safety inspector issues a citation

under section 3737.41 or 3737.42 of the Revised Code, the issuing authority

shall, within a reasonable time after such inspection or investigation and in

accordance with Chapter 119. of the Revised Code, notify the responsible

person of the citation and penalty, if any, proposed to be assessed under

section 3737.51 of the Revised Code, and of the responsible person's right

to appeal the citation and penalty, under Chapter 119. of the Revised Code,

to the state board of building appeals established under section 3781.19 of

the Revised Code within thirty days after receipt of the notice.

(B) If the responsible person is aggrieved by an order of the board,

the person may appeal to the court of common pleas where the property

that is the subject of the citation is located, within thirty days after the board

renders its decision.

{¶17} The Synagogue failed to appear for the hearing before the BBA, and failed

to appeal the decision of the BBA to the common pleas court. We find the Synagogue

Stark County, Case No. 2024CA00040 10

cannot now attempt to litigate for the first time the issue of the reasonableness of the

abatement time given by the City in the original citation.

{¶18} In addition, the undisputed evidence establishes the City had been involved

with the Synagogue in an attempt to resolve the problems with the property since October,

2018, nearly a year before the citation was issued by the City providing an additional 30

days for repairs. Further, while the Synagogue presented evidence the City halted the

Synagogue’s attempts to repair the property, the evidence is undisputed the City ordered

work to be halted because the Synagogue did not hire proper contractors and obtain the

proper permits.

{¶19} The first assignment of error is overruled.

II.

{¶20} In its second assignment of error, the Synagogue argues the trial court erred

in granting summary judgment dismissing its counterclaim for religious discrimination

under 42 U.S.C. §1983.

{¶21} In a case such as the instant case where the City’s action is not facially

unconstitutional, the Synagogue must show the City intentionally sought to burden

religious activities, and there was a disparate impact. Prater v. City of Burnside Ky., 289

F. 3d 417, 428 (6th Cir. 2002). An inference of religious discrimination based upon

disparate treatment requires evidence demonstrating a party was treated differently from

a similarly situated party with a different religious affiliation. Id., citing Vandiver v. Hardin

County Bd. of Educ., 925 F.2d 927, 934 (6th Cir. 1991).

{¶22} The Synagogue failed to demonstrate it was treated differently from similarly

situated parties with different religious affiliations. The Synagogue argues the affidavit of

Stark County, Case No. 2024CA00040 11

Scott Winkhart demonstrates the City issued notice of violations of the fire code to 48

properties owned by religious organizations, yet none of these organizations were

officially cited, demonstrating disparate treatment. However, Winkhart’s affidavit also

avers, “All of these 48 organizations fixed the violations, and none therefore required an

official citation from Canton.” Winkhart Aff. ¶13. We find the Synagogue has not

demonstrated disparate treatment because it is not similarly situated to the other 48

religious organizations, having failed to make the repairs prior to official citation. We find

the trial court did not err in granting summary judgment dismissing the Synagogue’s

counterclaim.

{¶23} The second assignment of error is overruled.

{¶24} The judgment of the Stark County Common Pleas Court is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Gwin, J. concur