Summary
In Charles Pollack, the city ordered Charles Pollack to install a standpipe and automatic sprinkler equipment under the city's codified ordinances.
Summary of this case from Sunpace Prop. L.L.C. v. City of ClevelandOpinion
No. 79-117
Decided December 12, 1979.
Municipal corporations — Appeal from order of city official to administrative board — Validity of board's order questioned.
APPEAL from the Court of Appeals for Cuyahoga County.
On February 19, 1969, the Chief of the Division of Fire of the city of Cleveland ordered appellant, Charles Pollock Sons, Inc., lessee of a certain building and premises, to, inter alia, install a standpipe and automatic sprinkler equipment pursuant to the Codified Ordinances of the city of Cleveland. Appellant timely appealed this order to the Board of Building Standards and Building Appeals (hereinafter "board").
On March 30, 1970, the board held a hearing on the merits at which the appellant and the Fire Chief were present. At the close of the hearing that day, by resolution in Docket A-49-69, the board announced its decision sustaining the order of the Fire Chief. Though appellant thereby had actual notice of that resolution, it took no steps either to comply with the Fire Chief's order or to perfect a judicial appeal as provided for by city ordinance. On or about August 20, 1970, the board published the resolution of March 30, 1970, in the Cleveland City Record. By letter dated August 31, 1970, the board sent a copy of the resolution to appellant's lessor that was returned to the board marked "addressee unknown." The board did not mail appellant a copy.
Appellant received a Notice of Violation of Building Ordinances issued by the Department of Community Development, Division of Building of the city of Cleveland, on July 2, 1971, based essentially on appellant's failure to install the standpipe and automatic sprinkler system. The notice ordered appellant to comply with the terms of the resolution of March 30, 1970.
On September 27, 1971, following a hearing and by supplemental resolution, the board denied appellant's appeal from the July 2, 1971, order. At this hearing, appellant attempted to introduce evidence that the ordinance upon which the resolution of March 30, 1970, was based was unreasonable as applied to appellant. The board, however, found that the determination of this issue was embraced by the resolution of March 30, 1970, and thus refused to hear the evidence. On appeal, the Court of Common Pleas reversed the board's September 27, 1971, decision, holding that the board erred in refusing to allow appellant to present the above described evidence, and remanded to the board for further hearing.
The Court of Appeals reversed the judgment of the Court of Common Pleas and remanded with instructions to affirm the board's September 27, 1971, decision sustaining the July 2, 1971, order on the grounds of res judicata.
The cause is now before this court upon the allowance of a motion to certify the record.
Sindell, Sindell, Selker, Rubenstein, Einbund Pavlik Co., L.P.A. Mr. Lewis Einbund and Mr. Mark A. Selker, for appellant.
Mr. Jack M. Schulman, director of law, and Mr. Robert McCarthy, for appellee.
To decide this cause, we only need to determine if the resolution in Docket A-49-69, dated March 30, 1970, is valid under Section 3103.18 of the Codified Ordinances of the city of Cleveland. Appellant does not contest that board resolutions can be given res judicata effect, nor does appellant assert that res judicata would not properly apply to the resolution of March 30, 1970, at the September 27, 1971, hearing if the resolution were valid.
See State, ex rel. Bingham, v. Riley (1966), 6 Ohio St.2d 263.
For example, appellant has not argued that there was a material change in circumstance between March 30, 1970, and September 27, 1971.
Appellant contends that the resolution is invalid because the board failed to send appellant a certified copy of it as required by Section 3103.18(c)(1). Moreover, appellant asserts that the board's arbitrary disregard of this section's mandatory notice requirement is a denial of appellant's due process rights under the Fourteenth Amendment to the United States Constitution.
Section 3103.18 (c) (1) of the Codified Ordinances of the city of Cleveland provides:
"Every rule or regulation, and every amendment or repeal thereof, and every order, requirement, decision or determination of the Board shall immediately be filed in the office of the Board, and the office of the Commissioner of Building and in the office of any other administrative official or agency directly affected thereby, and shall be open to public inspection. When action has been taken upon an appeal, a certified copy of the Board's decision shall be sent by mail or otherwise to the appellant."
Section 1 of the Fourteenth Amendment to the United States Constitution provides:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Our examination of the board's procedure pursuant to Section 3103.18 discloses that the sending of a certified copy of the resolution of March 30, 1970, to appellant was a directory rather than a mandatory requirement. Therefore, there is no merit to either of appellant's contentions.
Under Section 3103.18 (c) (2), the board constructively notifies parties of its decisions by publishing its resolutions in the City Record, not through mailing certified copies of these resolutions to parties. The periods within which a party must either comply or seek judicial review are keyed to this date of publication, not to the date of mailing or receipt of a certified copy. In fact no procedures under Section 3103.18 turn on whether or when a certified copy is mailed, nor does Section 3103.18 specify when a certified copy is to be mailed, or that it needs to be received.
Section 3103.18 (c) (2) provides:
"The Board shall publish in the City Record every order, requirement, decision and determination of the Board and the reasons therefor whenever it deems it practical to do so; and such other matters as the Board may deem advisable to publish."
Section 3103.18 (c) (1) also requires that the board immediately file its decisions in the office of the board, in the office of the Commissioner of Building and in any other interested office or agency. All such filings are open for public inspection.
In its final form as published in the City Record, the resolution of March 30, 1970, required appellant "to comply within sixty working days of the publication of this resolution, namely by the date of November 17, 1970." (Emphasis added.)
Section 3103.18 (g) (3) provides:
"A person aggrieved by a decision of the board may, within 15 days after the posting or publication of such decision, apply to the appropriate court to correct errors of law in such decision."
In addition, Section 3103.18 (g) (3) requires that appellant apply to the appropriate court "within 15 days after the posting or publication***to correct errors of law***." Under Section 3103.18 (c) (2), the board publishes a decision by entering it in the City Record. The resolution of March 30, 1970, was so published on or about August 20, 1970. Thus, under Section 3103.18, appellant's receipt or non-receipt of a certified copy of the resolution had no impact upon the commencement of this 15-day period.
Because the mailing of the certified copy serves no essential function under Section 3103.18, we determine it to be a directory requirement. Thus, the resolution is valid without regard to its mailing. Since the resolution is valid, we also find appellant's due process argument totally without merit.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, LYNCH, LOCHER and HOLMES, JJ., concur.
LYNCH, J., of the Seventh Appellate District, sitting for SWEENEY, J.