Opinion
No. 46726
Decided November 28, 1983.
Appellate procedure — Error not considered by appellate court, when — Constitutional law — Claim of unconstitutionality of legislation never waived — Must be addressed by appellate court.
O.Jur 3d Appellate Review § 137.
1. In the absence of plain error, an appellate court will not consider an issue not raised below.
2. A claim of the unconstitutional vagueness of legislation must be addressed by an appellate court even if not raised in the trial court since a claim of the unconstitutionality of legislation is never waived.
APPEAL: Court of Appeals for Cuyahoga County.
Mr. Michael Murman, for appellee.
Mr. Lawrence J. Rich, for appellant.
In this case defendant All Structures, Inc., d.b.a. B-Dry Systems, Inc., appeals the decision of the trial court finding it guilty of performing work without a permit, in violation of Section 1505.01 of the Lakewood Codified Ordinances. For the reasons adduced below, the judgment is affirmed.
I
Defendant is in the business of waterproofing homes and other structures. The procedure is roughly this: A trench is dug along the perimeter of the basement floor about eighteen inches from the inside of the exterior wall. It may be as wide as fifteen inches and as deep as "eight, ten inches." The trench is the filled with gravel and drain tile, and a sump pump installed which forces water through the wall "to the downspout line and then out through the storm sewer line."
In October 1982, defendant waterproofed a home in Lakewood. The job took six days to complete and cost about $3,800; it required the removal of a stairway.
The relevant ordinance, Section 1505.01 provides:
"A building permit shall be obtained from the Building Official before proceeding with any excavation, grading, construction, alteration, repair, moving or demolition of any dwelling or appurtenant structure. A separate permit shall be obtained for electrical work, plumbing work, heating and air-conditioning appliances and all other equipment installations that are essential features in the construction or use of a dwelling house."
Defendant's work was done without the benefit of a permit. The court found defendant guilty of violating the ordinance and fined it $300. Four errors are assigned.
II Assignment of Error No. I
"Ordinance Number 1505.01 of the Codified Ordinances of Lakewood is inoperative and void for uncertainty of meaning."
A pretrial hearing was held below on defendant's motion to dismiss at which the unconstitutionality of the ordinance was argued on equal protection grounds. The constitutionality of the ordinance was sustained. Counsel has adopted a different theory of unconstitutionality on appeal — one not presented to the trial court. Ordinarily, in the absence of plain error, this court need not consider an issue not raised below, State v. Williams (1977), 51 Ohio St.2d 112, 117 [5 O.O.3d 98]. However, a claim of unconstitutionality of legislation is never waived. For unconstitutional legislation is a nullity, cf. Ex Parte Siebold (1879), 100 U.S. 371, 376-377; Blackledge v. Perry (1974), 417 U.S. 21, 30; Journigan v. Duffy (C.A. 9, 1977), 552 F.2d 283, 289. Accordingly, the claim of unconstitutional vagueness must be decided. Turning to that issue and reading the ordinance carefully (even without recourse to the presumption of validity) one is driven to the conclusion that no extended analysis is necessary. The legislative purpose to require permits and when one is necessary could hardly be clearer. The ordinance is constitutional.
The second argument made at the hearing was not constitutional but statutory: that defendant's conduct did not amount to an "excavation," thereby freeing it from ordinal regulation. This issue is addressed by defendant's second assignment of error.
The first assignment of error is without merit.
III Assignment of Error No. II
"The trial court erred in not ruling that a permit is not needed for the work done by defendant-appellant."
Defendant does not argue, nor could it, that its conduct was privileged, i.e., beyond the reach of any regulation. The sole question is whether this particular ordinance reached defendant's conduct. The issue is one of statutory interpretation. If defendant's waterproofing process reasonably admits being described as an "excavation" within the intent of the ordinance, it was properly subjected to regulation.
The ordinance reveals an intent to broadly control all aspects of "building" from repair to demolition. While there may be de minimus exceptions to its scope, defendant's activity does not present such a case. Its excavation was significant in every respect.
Assignment of Error No. II is without merit.
IV Assignment of Error No. III
"The judgment of the Lakewood Municipal Court is against the manifest weight of the evidence."
Defendant here contests the city's proof of the absence of a permit. That proof consisted of the testimony of the Lakewood Building Commissioner, the custodian of the records of the permit issuing department. To his knowledge, defendant had not been issued a permit. In the absence of any other evidence on the issue the legitimate inference that defendant did not have a permit was not against the weight of the evidence.
At the pretrial hearing defendant admitted that a formal application for a permit had never been made.
Assignment of Error No. III is without merit.
V Assignment of Error No. IV
"The court erred in failing to consider that a building official could not have issued a permit due to the decision of the Board of Building Standards of the city of Lakewood."
Defendant here argues that the court should have considered that the local administrative body refused to issue defendant a permit for its work without the filing of engineering drawings, a costly and discriminatory requirement according to defendant.
But defendant does not show how this squares as a defense to the present prosecution for working without a permit. The remedy for the city's wrongful failure to issue a permit, if any, was recourse to legal remedies. Flagrant disregard of the ordinance is not an alternative.
Assignment of Error No. IV is without merit.
VI
The judgment is affirmed.
Judgment affirmed.
CORRIGAN and NAHRA, JJ., concur.