Lawson v. Mahoning Cty. Mental Health Bd.

[Cite as Lawson v. Mahoning Cty. Mental Health Bd., 2010-Ohio-6388.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

ELAINE LAWSON, ADMINISTRATRIX )

OF THE ESTATE OF )

STEPHEN LAWSON, )

) CASE NO. 10 MA 24

PLAINTIFF-APPELLANT, )

)

- VS - ) OPINION

)

MAHONING COUNTY MENTAL )

HEALTH BOARD, et al., )

)

DEFENDANTS-APPELLEES. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,

Case No. 08CV973.

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiffs-Appellants: Attorney Ronald Yarwood

Attorney James Gentile

42 North Phelps Street

Youngstown, Ohio 44503

For DefendantsAppellees: Attorney John McLandrich

Attorney James Climer

Attorney Frank Scialdone

100 Franklin’s Row

34305 Solon Road

Cleveland, Ohio 44139

JUDGES:

Hon. Joseph J. Vukovich

Hon. Cheryl L. Waite

Hon. Mary DeGenaro

Dated: December 22, 2010

VUKOVICH, P.J.

¶{1} Plaintiff-appellant Elaine Lawson, Administratrix of the Estate of Stephen

Lawson (the estate) appeals the decision of the Mahoning County Common Pleas

Court granting defendant-appellee City of Youngstown’s Motion for Judgment on the

Pleadings.

¶{2} The estate’s first argument for reversal concerns the statutory claims that

were allegedly made in the complaint. One of the reasons the trial court granted the

Judgment on the Pleadings was because it found that the complaint did not

adequately contain the allegation that Youngstown violated the rights owed to the

deceased that are enumerated in R.C. 5123.62 and R.C. 5123.64. The estate argues

that that determination is incorrect and accordingly, it contends that Motion for

Judgment on the Pleadings was erroneously granted.

¶{3} Youngstown counters the above argument by contending that even if the

trial court incorrectly determined that the complaint did not adequately plead a violation

of R.C. 5123.62, it is still immune from liability under R.C. 2744.02(B). According to

Youngstown the only possible applicable exception to liability under R.C. 2744.02(B) is

(B)(5) which indicates that if a statute expressly imposes civil liability on the political

subdivision, the grant of immunity under R.C. 2744.02(A)(1) is stripped. It claims that

neither R.C. 5123.62 nor R.C. 5123.64 expressly impose civil liability.

¶{4} A review of the complaint indicates that the trial court was incorrect in its

determination that the complaint did not plead a violation of R.C. 5123.62 and R.C.

5123.64. That said, Youngstown is correct that neither R.C. 5123.62 nor R.C. 5123.64

expressly impose liability and as such, R.C. 2744.02(B)(5) does not strip Youngstown

of its sovereign immunity. Accordingly, the estate’s first argument does not provide a

basis for reversal.

¶{5} The second and third arguments made by the estate contend that the

common law claim that Youngstown acted negligently in granting the proprietors of the

group home a license to operate it. The estate contends that the trial court’s

determination that licensing a group home is a governmental function and, as such,

immunity applies, is incorrect. It asserts that licensing is a proprietary function and

R.C. 2744.02(B)(2), which strips a governmental body’s general immunity for

proprietary functions, applies. While the estate acknowledges that licensing is not

listed in either of the lists of governmental or proprietary functions enumerated in R.C.

2744.01(C)(2) and (G)(2) respectively, it contends that licensing meets the general

definition of proprietary function in R.C. 2744.01(G)(1) because the granting or

denying of a license is part of everyday business that is engaged in regularly by

private parties.

¶{6} Youngstown counters arguing that licensing a group home is a

governmental function and R.C. 2744.02(B)(2) is inapplicable. It first contends that

licensing a group home falls under the list of governmental functions enumerated in

R.C. 2744.01(C)(1), specifically under either subsection (o) or (x). Alternatively, it

argues that licensing is a governmental function because it can satisfy any of the three

provisions under the general definition of governmental function in R.C.

2744.01(C)(1)(a)-(c).

¶{7} We agree with the estate that licensing a group home is not listed in

either of the lists for governmental or proprietary functions in R.C. 2744.01(C)(2) or

(G)(2), however, we disagree with its assertion that licensing meets the general

definition of a proprietary function. While licensing in some situations may be a

proprietary function, licensing a group home is not, as the act of licensing a group

home is typically done by a governmental entity. Thus, the trial court’s grant of

Judgment on the Pleadings for the common law claims was not erroneous.

¶{8} Consequently, none of the estate’s arguments require reversal. The trial

court’s Judgment on the Pleadings is hereby affirmed.

STATEMENT OF CASE

¶{9} On March 11, 2007, Stephen Lawson, the deceased, was residing in a

group home at 135 Illinois Avenue in Youngstown, Ohio. Also residing at that group

home was James DiCioccio. On that date, DiCioccio choked Stephen and Stephen

died as a result.

¶{10} Thereafter, Elaine Lawson filed a wrongful death action on behalf of

Stephen’s estate against Youngstown, as well as others not involved in this appeal.

The estate asserted in the complaint that the deceased was a “disabled, mentally

retarded and incapacitated adult.” The estate alleged that Youngstown was

responsible for licensing the group home and it should have known that it was not an

appropriate facility and was dangerous to the residents. It also alleged that

Youngstown knew of DiCioccio’s history of aggression and thus, Youngstown

breached its duty of care owed to the decedent. It also contended that Youngstown

was negligent in continuing to permit the group home to operate when Youngstown

knew or should have known that it was dangerous to the health, safety and welfare of

the residents of the group home. Lastly, the estate alleged that all defendants,

including Youngstown, provided services to the residents under R.C. 5123.62, that

they were negligent in breaching the duty under R.C. 5123.62 and thus, were the

direct and proximate cause of death. 03/10/08 Complaint; 03/25/08 Amended

Complaint.

¶{11} Youngstown answered the complaint and admitted that it licenses certain

group homes, but denied any legal enforceable duties arising from licensing activities.

It also asserted as a defense that it was immune from liability based on the common

law and R.C. Chapter 2744. 05/13/08 Answer.

¶{12} In June 2009, Youngstown filed a Motion for Judgment on the Pleadings

asserting that it was immune from liability based on R.C. Chapter 2744. The estate

filed a response to the motion asserting that Youngstown was not immune from liability

because licensing is a not a governmental function, rather it is a proprietary function.

08/17/09 Response.

¶{13} Following these filings the magistrate issued its decision denying the

Motion for Judgment on the Pleadings. 09/22/09 Decision. It found that licensing was

a proprietary function, and thus, immunity did not survive based on R.C.

2744.02(B)(2). It also found that R.C. 5123.64 expressly grants liability against

Youngstown and R.C. 2744.02(B)(5) applies and immunity is stripped.

¶{14} Youngstown filed objections to the magistrate’s decision arguing that

licensing is a governmental function not a proprietary function and R.C. 2744.02 does

not strip its immunity. Next, it argued R.C. 5123.64 does not expressly impose liability

and R.C. 2744.02(B)(5) does not strip its immunity.

¶{15} The trial court found merit with the objections and instructed the

magistrate to correctly apply R.C. Chapter 2744. 10/28/09 J.E. The magistrate then

issued a new decision complying with the trial court’s order. It found that the Motion

for Judgment on the Pleadings should be granted because immunity applied; R.C.

2744.02(B)(2) does not strip immunity because licensing is a governmental function

and R.C. 2744.02(B)(5) does not strip immunity because R.C. 5123.62 and R.C.

5123.64 do not expressly confer liability on a political subdivision. 11/02/09 Decision.

The estate objected to the magistrate’s decision.

¶{16} The trial court reviewed the objections and found that there was no error

of law or other defect on the face of the Magistrate’s Decision. As to the common law

claims, it then found that licensing or failure to properly license a group home is a

governmental function from which immunity attaches. As to the statutory claims, the

trial court found that the complaint failed to list one or more rights in R.C. 5123.62 that

Youngstown violated. It then added that R.C. 5123.62-5123.64 does not expressly

impose liability as required by R.C. 2744.02(B)(5). Thus, it concluded that

Youngstown was immune from liability and that granting the Motion for Judgment on

the Pleadings was appropriate. 01/26/10 J.E. The judgment included no just cause

for delay language and stated that it was a final appealable order. The estate timely

appealed the trial court’s January 26, 2010 order.

STANDARD OF REVIEW

¶{17} All assignments of error address the trial court’s decision to grant

Youngstown’s Motion for Judgment on the Pleadings. Likewise they also address in

some way Youngstown’s claim and the trial court’s finding that Youngstown is immune

from liability under the governmental immunity statutes in R.C. Chapter 2744. Thus,

our review of the assignments involves both the standard of review for the granting of

a Motion for Judgment on the Pleadings and the law on sovereign immunity.

¶{18} First, as to the standard of review, we have previously indicated that we

review the granting of a Motion for Judgment on the Pleadings under the same

standard we use to review Civ.R. 12(B)(6) rulings. Doolittle v. Shook, 7th Dist. No.

06MA65, 2007-Ohio-1412, ¶9. The standard of review for a Civ.R. 12(B)(6) motion to

dismiss requires the appellate court to independently review the complaint or

counterclaim to determine if the dismissal was appropriate. Ferreri v. Plain Dealer

Publishing Co. (2001), 142 Ohio App.3d 629, 639. A motion to dismiss for failure to

state a claim upon which relief can be granted is a procedural motion that tests the

sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs.

(1992), 65 Ohio St.3d 545, 548. In order to dismiss a complaint for failure to state a

claim upon which relief can be granted, the court must find beyond doubt that

appellant can prove no set of facts warranting relief after it presumes all factual

allegations in the complaint are true, and construes all reasonable inferences in

appellant's favor. State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490.

¶{19} Second, as to governmental immunity the general rule in R.C.

2744.02(A)(1) is that a political subdivision, which in this case would be Youngstown,

may not be held liable in damages for injury or loss caused by an act or omission in

connection with a governmental or proprietary function. This general rule, however, is

subject to the five exceptions carved out in R.C. 2744.02(B). In these five

circumstances, a political subdivision will be responsible for its tortious conduct. Still,

although one of these circumstances exists, the political subdivision can re-establish

its immunity using the defenses in R.C. 2744.03.

¶{20} Both parties agree that Youngstown has a general grant of immunity

under R.C. 2744.02(A)(1). Their disagreement lies in whether the exceptions to

immunity in R.C. 2744.02(B), specifically R.C. 2744.02(B)(2) and (5), can strip that

general grant of immunity. With the above laws in mind, we now turn to the

assignments of error.

FIRST ASSIGNMENT OF ERROR

¶{21} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTIONS TO THE MAGISTRATE AS TO HIS HOLDING THAT APPELLANT’S

AMENDED COMPLAINT FAILED TO PLEAD A VIOLATION OF THE RIGHTS

ENUMERATED IN ORC § 5123.62 WITH SUFFICIENT PARTICULARITY TO EVADE

DISMISSAL.”

¶{22} This assignment of error deals solely with the alleged statutory claims

the estate asserted against the City of Youngstown. In the trial court’s final order it

stated that R.C. 5123.62 lists the rights of a person with a mental retardation or

developmental disability. The court stated that after reviewing the complaint it could

not find that the complaint alleged one or more rights that Youngstown violated under

that section.

¶{23} That determination is incorrect. The final two paragraphs of the

complaint state:

¶{24} “All Defendants herein are providers of services to persons with mental

retardation or developmental disabilities and are therefore obligated to provide those

rights enumerated in Section 5123.62 of the Ohio Revised Code.

¶{25} “All Defendants were negligent, breaching their duties of care as set forth

in Ohio Revised Code Section 5123.64, thus directly and proximately causing the

death of Stephen A. Lawson.” 03/25/09 Amended Complaint.

¶{26} Ohio is a notice pleading state, which means that the claim must

concisely set forth only those operative facts sufficient to give fair notice of the nature

of the action. Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480,

¶29. These final two paragraphs clearly assert that Youngstown violated the

deceased rights under R.C. 5123.62 and R.C. 5123.64.

¶{27} In addition to the final two paragraphs of the complaint clearly asserting a

violation of R.C. 5123.62 and R.C. 5123.64, the estate also asserted in the complaint

that Youngstown was responsible for licensing group homes and providing for the

health, safety and welfare of the residents. It further claimed that Youngstown knew or

should have known that the home was not an appropriate facility and that Youngstown

knew or should have known that DiCioccio was residing at the home and had a record

of aggression. It then alleged that Youngstown was negligent in continuing to permit

the home to operate when it had knowledge of or should have had knowledge of the

danger to the health, safety and welfare of the residents.

¶{28} Reading those allegations in conjunction with the last two paragraphs of

the complaint, it can be concluded that the complaint is alleging that Youngstown

violated R.C. 5123.62(A), (B) and (O), which states:

¶{29} “(A) The right to be treated at all times with courtesy and respect and

with full recognition of their dignity and individuality;

¶{30} “(B) The right to an appropriate, safe, and sanitary living environment

that complies with local, state, and federal standards and recognizes the persons'

need for privacy and independence;

¶{31} “* * *

¶{32} “(O) The right to be free from emotional, psychological, and physical

abuse.”

¶{33} Consequently, when the complaint is read in its entirety, the allegations

asserted against Youngstown were sufficient to put Youngstown on notice that the

estate was pleading a violation of R.C. 5123.62 and R.C. 5123.64. As such, the trial

court erroneously concluded that the complaint did not sufficiently plead a violation of

R.C. 5123.62 and R.C. 5123.64.

¶{34} That said, the existence of error does not require reversal in this

instance. In addition to making the finding regarding the adequacy of the pleadings,

the trial court also stated:

¶{35} “As a result, ORC §5123.62-64 does not expressly grant liability as

required by ORC §2744.02(B)(5) and such does not apply.” 01/26/10 J.E.

¶{36} This is a clear finding that sovereign immunity applies to any claim made

under R.C. 5123.62 through R.C. 5123.64. Furthermore, that finding is correct as a

matter of law.

¶{37} R.C. 2744.02(B)(5) states:

¶{38} “(5) In addition to the circumstances described in divisions (B)(1) to (4) of

this section, a political subdivision is liable for injury, death, or loss to person or

property when civil liability is expressly imposed upon the political subdivision by a

section of the Revised Code, including, but not limited to, sections 2743.02 and

5591.37 of the Revised Code. Civil liability shall not be construed to exist under

another section of the Revised Code merely because that section imposes a

responsibility or mandatory duty upon a political subdivision, because that section

provides for a criminal penalty, because of a general authorization in that section that

a political subdivision may sue and be sued, or because that section uses the term

‘shall’ in a provision pertaining to a political subdivision.”

¶{39} The estate uses R.C. 5123.62 and R.C. 5123.64 to state that

Youngstown owed a duty of care to the deceased. R.C. 5123.62 does not contain any

language that can be construed as expressly imposing liability on Youngstown; it is a

bill of rights for persons with mental retardation or a developmental disability. R.C.

5123.64 is the statute that is used to give R.C. 5123.62 enforcing powers. That statute

provides:

¶{40} “Any person with mental retardation or a developmental disability who

believes that the person's rights as enumerated in section 5123.62 of the Revised

Code have been violated may:

¶{41} “(1) Bring the violation to the attention of the provider for resolution;

¶{42} “(2) Report the violation to the department of mental retardation and

developmental disabilities, the ombudsperson section of the legal rights service, or the

appropriate county board of mental retardation and developmental disabilities;

¶{43} “(3) Take any other appropriate action to ensure compliance with

sections 5123.60 to 5123.64 of the Revised Code, including the filing of a legal action

to enforce rights or to recover damages for violation of rights.” R.C 5123.64(B)

(version in effect in 2007).

¶{44} One of our sister districts has determined that R.C. 5123.64 does not

expressly impose liability and, as such, R.C. 2744.02(B)(5) does not strip liability.

Havely v. Franklin Cty., 10th Dist. No. 07AP-1077, 2008-Ohio-4889, ¶54-55 (injured

party was suing the Department of Mental Retardation and Developmental Disability

(MRDD)).1 In reaching that decision, the Tenth Appellate District reviewed the Ohio

Supreme Court’s decision in Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-

Ohio-1946, where the supreme court found that R.C. 2744.02(B)(5) applies to strip the

political subdivision of immunity because the Ohio Nursing Home Patients’ Bill of

Rights expressly imposed liability. Havely, supra, ¶54. The Tenth Appellate District

then compared the Nursing Home Patients’ Bill of Rights statute, R.C. 3721.71(I) and

R.C. 5123.64. Id. at ¶55. R.C. 3721.17(I) specifically states:

¶{45} “(I)(1)(a) Any resident whose rights under sections 3721.10 to 3721.17 of

the Revised Code are violated has a cause of action against any person or home

committing the violation.”

¶{46} Consequently, since that statute specifically authorizes a civil action

against the individual tortfeasor and the “home,” and R.C. 5123.64 contains no specific

authorization for the bringing of a suit against political subdivisions that operate

facilities for the mentally retarded, the Tenth Appellate District concluded that R.C.

2744.02(B)(5) prohibits construing liability to exist solely because a statute imposes a

responsibility or mandatory duty upon a political subdivision. Id.

¶{47} In coming to that determination the Tenth Appellate District also

commented that the Ohio Supreme Court “has observed that no section of the Ohio

Revised Code expressly imposes liability upon a public agency for the failure to

perform the duties enumerated in R.C. 5123.62. Estate of Ridley v. Hamilton Cty. Bd.

of Mental Retardation and Dev. Disabilities, 102 Ohio St.3d 230, 2004-Ohio-2629.” Id.

¶{48} In Estate of Ridley, the estate conceded that no section of the Revised

Code expressly imposed liability for failure to perform the duties in R.C. 5123.62. It

1

The version of R.C. 5123.64(B) used to decide Havely is identical to the version of R.C.

5123.64(B) that is at issue in this case.

argued that the Enforcement Clause of the Fourteenth Amendment would satisfy R.C.

2744.02(B)(5). 102 Ohio St.3d 230, 2004-Ohio-2629, ¶24. The Court concluded that

“none of these code sections-R.C. 5123.62, * * * -through the Enforcement Clause of

the Fourteenth Amendment expressly imposes liability within the meaning of former

R.C. 2744.02(B)(5).” Id. at ¶26.

¶{49} The Supreme Court’s decision in Estate of Ridley is not directly on point

as to whether R.C. 5123.64 expressly imposes liability on a political subdivision.

However, our sister district’s reasoning in Havely concerning the Supreme Court’s

decision in Cramer and the comparison of R.C 5123.64 to R.C. 3721.17(I) is

compelling. Its decision that R.C. 5123.64 does not expressly impose liability is well

reasoned and is persuasive. As such, we adopt its reasoning as our own and hold

that R.C. 5123.64 does not expressly impose liability upon a public agency for the

failure to perform the duties enumerated in R.C. 5123.62 and therefore, immunity is

not removed under R.C. 2744.02(B)(5).

¶{50} Consequently, while the trial court erred in concluding that the complaint

did not sufficiently plead a violation of R.C. 5123.62 and R.C. 5123.64, the trial court’s

determination that R.C. 2744.02(B)(5) did not strip Youngstown’s immunity for any

alleged violation under either of those statutes was correct. Thus, although this

assignment of error has some merit, it does not require reversal.

SECOND AND THIRD ASSIGNMENTS OF ERROR

¶{51} “THE TRIAL COURT ERRED IN RELYING ON JAMES V. CITY OF

TOLEDO TO MAKE ITS RULING ON WHETHER THE LICENSING OF A GROUP

HOME IS A ‘PROPRIETARY’ OR ‘GOVERNMENTAL’ FUNCTION FOR THE

PURPOSES OF STATUTORY IMMUNITY.”

¶{52} “THE TRIAL COURT ERRED IN DETERMINING THAT THE

LICENSING OF A GROUP HOME IS A ‘GOVERNMENTAL’ RATHER THAN

‘PROPRIETARY’ FUNCTION FOR THE PURPOSES OF STATUTORY IMMUNITY

PURSUANT TO ORC § 2744.”

¶{53} The second and third assignments of error are disposed of

simultaneously because they both address the trial court’s conclusion that

Youngstown is immune from liability for any negligent action in licensing the group

home because such action is a governmental function.

¶{54} As explained above, Youngstown enjoys a general grant of immunity

under R.C. 2744.02(A) for governmental and proprietary functions. The parties agree

that the only possible exception under R.C. 2744.02(B) that could strip the general

grant of immunity for the common law claim of negligently granting a license to operate

a group home is subsection (B)(2). That subsection provides:

¶{55} “(2) Except as otherwise provided in sections 3314.07 and 3746.24 of

the Revised Code, political subdivisions are liable for injury, death, or loss to person or

property caused by the negligent performance of acts by their employees with respect

to proprietary functions of the political subdivisions.” R.C. 2744.02(B)(2).

¶{56} Thus, the key to our resolution of these assignments of error is whether

licensing a group home is a governmental or proprietary function.

¶{57} R.C. 2744.01 provides lists of specific functions that are considered

governmental and proprietary functions. R.C. 2744.01(C)(2) (list of governmental

functions); R.C. 2744.01(G)(2) (list of proprietary functions). That statute also contains

general definitions for governmental functions and proprietary functions so that if a

function is not enumerated in either list, it can be determined whether such function is

governmental or proprietary. R.C. 2744.01(C)(1) (general definition of governmental

function); R.C. 2744.01(G)(1) (general definition of proprietary function).

¶{58} Starting with the specific lists of governmental and proprietary functions,

neither R.C. 2744.01(C)(2) or (G)(2) expressly state that “licensing” or “licensing a

group home” is a governmental or proprietary function. However, in its brief,

Youngstown argues that licensing of a group home falls under either R.C.

2744.01(C)(2)(o) or (x).2

¶{59} We disagree. R.C. 2744.01(C)(2)(o) states that the “operation of mental

health facilities, mental retardation or developmental disabilities facilities, alcohol

treatment and control centers, and children's homes or agencies” are governmental

functions. In the complaint, the estate acknowledged that the group home at 135

Illinois Ave., Youngstown, provided mental health services for adults. In contending

that this section includes licensing a group home, it asserts that if the operation of the

2

In its brief, Youngstown also argues that the alleged failure to inspect and revoke a license is a

governmental function. It cites R.C. 2744.01(C)(2)(p) for that proposition. The estate argued at the trial

court level that the alleged failure to inspect and revoke a license is a proprietary function. However, it

does not make that argument in the appellate brief. Its argument instead focuses solely on whether the

granting of the license is a governmental function. As such, Youngstown’s argument concerning

inspection and revocation of the license and subsection (p) is not addressed.

home is a governmental function than the licensing of the same is a governmental

function. In support of this position Youngstown cites to Butler v. Jordan (Aug. 12,

1999), 8th Dist. No. 74509.

¶{60} In Butler, the Eighth Appellate District was reviewing a trial court’s order

finding that the Cuyahoga County Department of Human Services was immune from

liability for its alleged negligent licensing of a day-care facility. The injured party in that

case asserted that immunity was stripped by R.C. 2744.02(B)(2) and (5). The Eighth

District found that the licensing of a day-care facility fell under R.C. 2744.01(C)(2)(m)

which provides that the operation of a human services department or agency is a

governmental function. Id. It explained that Black’s Law Dictionary defines operation

as “the process of operating or mode of action; an effect brought about in accordance

with a definite plan; action; activity” and that licensing could be “considered an exertion

of power or part of a process integral to human services.” Id. It then stated that since

the legislature in enacting R.C. 5104.11 required the human services department to be

responsible for licensing or contracting with another agency for licensing of a day-care

facility, it is part of the operation of a human services department. Id. Thus, immunity

was not stripped by R.C. 2744.02(B)(2).3

¶{61} We do not find the Butler case to be controlling in this matter.

Youngstown has failed to direct us to a statute in the Revised Code that is equivalent

to R.C. 5104.11 that indicates that a City is responsible for licensing or contracting for

licensing of group homes. There are statutes that require the health department,

department of developmental disabilities, department of jobs and family services,

department of mental health, or the directors of those departments to license certain

homes. See R.C. 3721.02 (licensing of rest homes and nursing homes); R.C.

3722.04(A) (licensing adult care facilities); R.C. 5103.03 (Iicensing foster homes); R.C.

5119.20 (licensing of hospital for mentally ill); R.C. 5123.19(B) (licensing of residential

facilities). Admittedly a group home could fit under the definition of a residential facility

or an adult care facility, however, the statements in the complaint do not provide

enough information to establish that it was either of those. See R.C. 3722.01(A)(9)

3

The Eighth District also opined that R.C. 5104.11 imposed a mandatory duty on CCDHS, and

thus, while immunity was not stripped by R.C. 2744.02(B)(2), it was stripped by R.C. 2744.02(B)(5). The

portion of the opinion addressing R.C. 2744.02(B)(5) and its application to R.C. 5104.11 was overruled

by the Ohio Supreme Court in Butler v. Jordan (2001), 92 Ohio St.3d 354. The analysis concerning

R.C. 2744.02(B)(2), however, was not overruled.

(defining adult care facility); 5123.19(A)(1)(a) (defining residential facility). From the

complaint, the most we can conclude is that the group home is licensed by the City of

Youngstown. Therefore, we cannot find that R.C. 2744.01(C)(2)(o) clearly establishes

that licensing a group home is a governmental function.

¶{62} Likewise, we also find no merit with Youngstown’s argument that R.C.

2744.01(C)(2)(x), which states that a “function that the general assembly mandates a

political subdivision to perform” clearly indicates that licensing a group home is a

governmental function. The argument that this section applies is made for the first

time on appeal and is not properly before this court. However, even if it were properly

before us, it still lacks merit. As explained above, there is not enough information from

the complaint to determine whether the General Assembly through the Revised Code

requires a governmental body to license the group home in question. Although

Youngstown has enacted its own ordinances for licensing a group home, that does not

satisfy R.C. 2744.01(C)(2)(x) because that section specifically requires a mandate

from the general assembly, not the city.

¶{63} Therefore, Youngstown has failed to establish, with only the information

in the complaint, that R.C. 2744.01(C)(2)(o) or (x) apply and render the licensing of a

group home a governmental function.

¶{64} But that does not mean that the licensing of a group home is a

proprietary function, rather than a governmental function. In order to determine

whether it is a proprietary or governmental function, we must look to the definition of

governmental and proprietary functions in R.C. 2744.01(C)(1)(a)-(c) and (G)(1)(a)-(b).

Moore v. Lorain Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio-1250, ¶11-12.

¶{65} “(C)(1) ‘Governmental function’ means a function of a political

subdivision that is specified in division (C)(2) of this section or that satisfies any of the

following:

¶{66} “(a) A function that is imposed upon the state as an obligation of

sovereignty and that is performed by a political subdivision voluntarily or pursuant to

legislative requirement;

¶{67} “(b) A function that is for the common good of all citizens of the state;

¶{68} “(c) A function that promotes or preserves the public peace, health,

safety, or welfare; that involves activities that are not engaged in or not customarily

engaged in by nongovernmental persons; and that is not specified in division (G)(2) of

this section as a proprietary function.

¶{69} “* * *

¶{70} “(G)(1) ‘Proprietary function’ means a function of a political subdivision

that is specified in division (G)(2) of this section or that satisfies both of the following:

¶{71} “(a) The function is not one described in division (C)(1)(a) or (b) of this

section and is not one specified in division (C)(2) of this section;

¶{72} “(b) The function is one that promotes or preserves the public peace,

health, safety, or welfare and that involves activities that are customarily engaged in by

nongovernmental persons.” R.C. 2744.01(C)(1); R.C. 2744.01(G)(1).

¶{73} The Second Appellate District has recently noted that the simple

difference between the definitions for proprietary and governmental functions in R.C.

2744.01(C)(1) and (G)(1) is that proprietary functions include activities customarily

performed by nongovernmental persons whereas governmental functions are activities

that are not customarily engaged in by nongovernmental persons. Foland v.

Englewood, 2d Dist. No. 22940, 2010-Ohio-1905, ¶49.

¶{74} In determining whether a function is customarily engaged in by

nongovernmental persons, the central consideration is the specific activity, not the

general activity. Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 560,

2000-Ohio-486. Black’s Law Dictionary provides two definitions for licensing. The first

is “[t]he sale of a license authorizing another to use something (such as computer

software) protected by copyright, patent or trademark.” Black’s Law Dictionary (4

Ed.2004) 940. The second is “[a] governmental body’s process of issuing a license.”

Id. Given these two different definitions, it is clear that licensing in some instances

may be a proprietary function, while in other instances it is a governmental function.

For example, licensing software would fall under the first definition of licensing and

would most likely be a proprietary function because it is not typically engaged in by

governmental persons. Conversely, the licensing of lawyers and real estate agents is

left to governmental bodies and is a governmental function. Ohio State Bar Assn. v.

Burdzinski, Brinkman, Czarzasty & Landwehr, Inc., 112 Ohio St.3d 107, 2006-Ohio-

6511, ¶11 (indicating that licensing of lawyers has been left exclusively to the states);

Cerreta v. Ohio Dept. of Commerce, 9th Dist. No. 2008 CA 00125, 2009-Ohio-1760,

¶86 (finding that the issuing of licenses for a real estate agent is a governmental

function). See, also, Duncan v. Ohio State Liquor Control Comm., 10th Dist. No.

08AP-236, 2008-Ohio-4550, ¶16 (stating that issuing a liquor license is a

governmental function). The above clearly indicates that licensing is not the specific

activity, but rather is the general activity. Consequently, the issue before us is not

whether licensing falls with in the definition of a governmental function or whether it

falls within the definition of a proprietary function. Rather, the question is which

definition, governmental or proprietary, does licensing a group home fall under.

¶{75} While there is not a case directly on point that licensing a group home is

a governmental or proprietary function, the Sixth District has stated that the city cannot

be held liable for damages in the granting or refusing to grant a building permit

because that activity is a governmental function. James v. City of Toledo (1927), 24

Ohio App. 268, 271. The trial court relied on this case in finding that licensing a group

home is a governmental function. However, as the estate points out, this case was

decided before the enactment of R.C. Chapter 2744. The First Appellate District has

recently stated that cases decided before the enactment of R.C. Chapter 2744 cannot

be “relied upon for interpreting a statutory framework that would not exist until nearly

half a century later.” Kenko Corp. v. Cincinnati, 183 Ohio App.3d 583, 2009-Ohio-

4189, ¶21. Or in other words, the James case is not conclusive evidence that the City

issuing a license is a governmental function because the requirements in R.C.

2744.01(C)(1) need to be met for the licensing to be a governmental function. The

James case, having been decided prior to the enactment of R.C. Chapter 2744, did

not consider those requirements. Additionally, James is not directly on point because

it dealt with issuing a building permit or license to build a house on a lot, it does not

deal with issuing a license to operate a group home.

¶{76} That said, we find that licensing of group homes falls within the definition

of a governmental function under R.C. 2744.01(C)(1). Issuing licenses for the

operation of homes that provide supervision is an activity typically done by

governmental persons. For instance, as stated above, R.C. 5123.19 indicates that the

licensing of a residential facility for mentally retarded or developmentally disabled

persons is typically the director of disabilities responsibility. R.C. 5123.19(B). The

director of health is responsible for licensing an adult care facility, which is a residence

that provides accommodation and supervision for unrelated adults. R.C. 3722.04(A);

R.C. 3722.01(A)(9). Licensing of nursing homes and rest homes is done by the

director of health. R.C. 3721.02. The department of job and family services is

responsible for licensing foster homes. R.C. 5103.03. The department of mental

health is responsible for licensing all hospitals that receive mentally ill persons. R.C.

5119.20. As these examples show, facilities that are providing accommodation and

supervision or treatment requires licensing by a government agency or person, which

is a governmental function. Those examples are similar to the group home and

support the conclusion that licensing the group home is a governmental function.

¶{77} Furthermore, we note that the fact that the general assembly has not

specifically provided a statute for licensing “group homes” does not necessarily render

the action a proprietary function. The Ohio Supreme Court has indicated that it is the

action we look at, not whether it is legislatively imposed. Greene, 89 Ohio St.3d at

558. In fact, it noted that the performance of the governmental functions can be

voluntarily taken on by the political subdivision. Id. Youngstown has enacted its own

ordinances for group homes and regulation of them, thereby voluntarily taking on the

governmental function.

¶{78} Admittedly, as the estate notes, the Ohio Supreme Court has stated that

when a political subdivision’s acts go beyond governmental functions, and when it acts

in a proprietary nature, there is little justification for affording it immunity. Id. at 559.

However, in this instance, there is nothing in the record to show that the City went

beyond its governmental function.

CONCLUSION

¶{79} For the foregoing reasons, all assignments of error lack merit. The

judgment of the trial court is hereby affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.