[Cite as State v. King, 2018-Ohio-1319.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 CITY OF DAYTON                                  :
                                                 :
         Plaintiff-Appellee                      :  C.A. CASE NO.: 27777
                                                 :
 v.                                              :  T.C. NO.: 2017-CRM-5891
                                                 :
 ROBERT KING                                     :  (Criminal Appeal from
                                                 :  Municipal Court)
         Defendant-Appellant                     :
                                                 :
                                            ...........

                                           OPINION

                               Rendered on the 6th day of April, 2018.

                                            ...........

BARBARA DOSECK, Atty. Reg. No. 79159, 101 West Third Street, Dayton, Ohio 45402
    Attorney for Plaintiff-Appellee


MARTIN BEYER, Atty. Reg. No. 60078, 204 S. Ludlow Street, Suite 204, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                           .............

DONOVAN, J.

        {¶ 1} This matter is before the Court on the October 19, 2017 Notice of Appeal of

Robert King. King appeals from his October 4, 2017 Judgment of Conviction in the

Dayton Municipal Court, following a bench trial, for failure to maintain exterior premises,

in violation of R.C.G.O. 93.46(E), a minor misdemeanor. We hereby reverse and vacate
                                                                                          -2-


the judgment of the municipal court.

       {¶ 2} King received a citation on September 7, 2017, which provides: “you did

unlawfully cause/commit failure to maintain exterior premises free of objects, materials,

or conditions which create a health, safety, fire hazard, or public nuisance, to wit: trash

and debris throughout yard, trash and debris on rear porch.”

       {¶ 3} On September 20, 2017, King pled not guilty, and the bench trial occurred on

October 4, 2017.       At the start thereof, the prosecutor advised the court that “the

conditions are abated and we still tend [sic] to proceed given that Mister King has prior

violations.”

       {¶ 4} Kenneth Jackson testified that he is a conservation specialist with the City of

Dayton, having been so employed for almost six months. Jackson stated that in the

course of his employment, he performs exterior inspections “for environmental violations,

as well as * * * structural violations.” He stated that on September 7, 2017, he wrote a

citation to King at the address of 218/220 Rockwood Avenue for a violation of R.C.G.O.

93.46(E). Jackson stated that he had received a complaint about the trash and debris at

the property, and that when he proceeded to the address, he observed “a couple of dirty

diapers that had been shredded.        I went to the back, there was trash and debris

throughout the back. I believe there was trash and debris that was on the rear porch, as

I said, of two twenty.” Jackson stated that the “trash and debris put on the rear porch

posed * * * a serious life safety issue because it could, technically block the egress during

a fire or such,” as well as hinder the police or fire department from entering the building

in an emergency.       Jackson stated that trash and debris “can attract rodents, cause

rodent infestation.”
                                                                                          -3-


       {¶ 5} Jackson stated that King is the legal owner of the property, and King so

stipulated. Jackson identified four photographs taken by him of the property. Exhibit 4

depicts the rear porch of the property, and trash and a box spring are depicted thereon.

Jackson testified that Exhibit 5 depicts “trash and debris within the bushes of the house,”

and that Exhibit 6 “is also a picture of trash and debris along the fence line * * * in the

trees.” Finally, he stated that Exhibit 7 depicts trash and debris, as well as dirty diapers,

in the front yard of the residence. Jackson stated that the photos accurately depict the

conditions at the property on September 7, 2017.

       {¶ 6} The following exchange occurred on cross-examination:

              Q. Do you recall me leaving a voicemail with you on September

       seventh?

              A. Yes.

              Q. Do you recall me within that voicemail telling you that Mister

       Wetzel had a copy of that lease in question for that particular property and

       that if you needed to get it directly from me, I would be willing to email that

       to you[?]

              A. Yes.

              Q. Did you respond to my questions about if you needed any further

       information?

              A.    No sir.   I did not understand your phone number on my

       voicemail.

       {¶ 7} On re-direct, the following exchange occurred:

              Q. The Defendant made reference to a phone call that he made to
                                                                                          -4-


       you regarding another inspector[’]s inspection of his property, is that fair to

       say?

              A. That is correct.

              Q. * * * Is it also fair to say that that phone call gave you notice that

       Mister King had been involved, that this property had been an issue for

       housing inspection before?

              A. Yes.

       {¶ 8} On re-cross examination, when asked by King why he did not ask the other

housing inspector involved with the previous inspection for King’s phone number and

email address, Jackson responded, “I did not think to do that.”

       {¶ 9} King testified that he leases the property at issue to Thaddeus Earl. He

provided a copy of the lease, the term of which is December 15, 2016 to the last day of

November, 2017, and he testified that it requires Earl to abide by all housing code

regulations. King testified as follows:

              * * * In the past, I’ve been here two previous times and that has been

       deemed an actionable defense in both of those cases and they weren’t, they

       did not go to trial. So, I’m wondering whether the law has changed or why

       that is not still a valid defense and why the people committing the actions or

       the offenses are not the ones being issued the tickets. I’ve had these

       conversations with Mister Wetzel and I’ve tried to have that conversation

       with Mister Jackson, to try and have these citations issued to the people

       responsible for the offenses. In my opinion, that is the only way that these,

       that the people that are committing the offenses are going to change their
                                                                                  -5-


way of behavior. For them to issue the tickets to me, the property owner,

the one not committing the offenses, I agree that I would be responsible for

housing code violations that are part of the property, paint, gutters, roofing,

those kinds of things that are directly responsible for the owner of the

property. Offenses such as trash, debris * * * or storing their personal

property outside, particularly in this case, when I’m not able to remove their

personal property without eviction and a bailiff coming out with a writ served,

I can’t touch any personal property of a tenant so I’m at a loss to do anything

about it. I don’t know why, in this particular case, the prosecuting attorney

chose to bring this to trial since herself and the previous prosecutor deemed

this an actionable defense in the past.

{¶ 10} On cross-examination, the following exchange occurred:

       Q. * * * Reviewing the rental agreement that you gave me before

court, is it fair to say that this rental agreement authorizes you or gives you

leave to file an eviction, if your alleged tenant does not comply with the

terms of the lease?

       A. Yes.

       Q. What is the case number for your eviction against a tenant?

       A. A three-day notice was served yesterday.

       Q. * * * So, when this was filed initially, when you originally received

notice of this, of this case, did you file an eviction?

       A. No.

       ***
                                                                                       -6-


             Q. At this point you’ve taken steps?

             A. Yes.

             ***

             Q. And this is not the first issue you’ve had with Thaddeus, is it? * *

      *

             A. No.

             ***

             Q. As a matter of fact, you made reference to it yourself. You’ve

      dealt * * * with another inspector regarding issues at this property.

             A. Yes.

             Q. Okay and at that point and time, what steps did you take to evict

      Thaddeus?

             A. None.

      {¶ 11} When asked if he “had any response based on the questions posed * * *

by the prosecutor,” King responded as follows:

             * * *    The reason no action was taken against Thaddeus Earl

      previously when David Wetzel issued the ticket to me previously, was I was

      under the understanding that with my discussions that occurred during court

      on that day, that they were going to issue the ticket to Thaddeus Earl. They

      excused me from the case and I was under the impression that Thaddeus

      Earl would receive the ticket. Obviously, that didn’t happen since I got

      another ticket from Ken Jackson approximately four weeks later. So, I was,

      I was under the impression that when the case was dismissed because I
                                                                                 -7-


had an actionable defense with the lease, that they would issue the ticket

to Thaddeus Earl, which is what I wanted to happen. * * * I don’t have a lot

of leverage other than eviction to get someone to do these kinds of, what I

call, common sense maintenance issues of picking up their own trash and

storing their items inside. Now, since then, I talked to Mister Earl yesterday

and he received the three-day notice. Bulk waste is scheduled to come out

today and remove the mattress and some other items he may have had and

he agreed to police the yard. Whether that happens or not I’m not sure,

since the ticket was issued to me and he doesn’t think he’s responsible for

anything, which leaves me with no leverage to have someone maintain the

property like a normal person would of picking up their own trash and debris

and not storing items outside. So because of other items, he’s back on his

rent and failure to maintain the property in the proper sense of picking up

trash, which would be a simple item and some noise complaints, I did issue

the three-day notice yesterday. * * *

{¶ 12} The following exchange occurred between King and the court:

       THE COURT:       I’m looking at this lease agreement.       What this

agreement is and I’m looking at the second page and Mister King, I’m

assuming that this part that’s [highlighted] in yellow, you [highlighted] that

and that’s the part you want me to look at.

       THE DEFENDANT: I do.

       THE COURT: That’s the part that you believe supports that the

tenant is responsible for cleanup.
                                                                               -8-


       THE DEFENDANT: I think that’s the primary part that supports that,

yes.

       THE COURT: Okay. So, that part says use and occupancy and it

is the second paragraph. It says, the resident agrees to use and occupy

the premises in a safe, proper, and sanitary manner. The resident shall not

use any part of the * * * premises for any noisy, disorderly, unlawful, or

immoral purpose or in any manner offensive to the neighbors, or for any

purpose deemed hazardous by the owner. The resident [further] agrees to

comply * * * with all applicable state and local housing health and safety

codes and any other laws or ordinances or insurance regulations, in or

about the premises. And so, as I read this his agreement is to comply with

those. His agreement is not that he is going to be responsible for anything.

I also read it in conjunction with the resident’s responsibilities, number

seven, I mean, I’m sorry number twelve, which is to keep the lawn cut and

trimmed as required to maintain a neat appearance. There is nothing else

in this lease that talks about * * * how this property should be maintained.

Yeah, I think it is common sense that it should be maintained neat, a neat

appearance but you want me to take it a step further. You want me to look

at the [highlighted] areas and read that there is something in writing where

he assumes responsibility for maintaining the facilities and all exterior

premises free from objects, materials, or conditions which would create a

health, safety and this lease doesn’t do that. * * *

       THE DEFENDANT: May I –
                                                                                       -9-


             THE COURT: So I, nope. I find that this lease doesn’t do that. I

      * * * have a couple of problems. This ordinance, to me, it looks like it is

      written that there is an affirmative defense created in the ordinance. The

      City basically agrees with that and they have to show that there is no

      affirmative defense. You have, by preponderance of the evidence, to show

      that there is. I don’t think that this lease does that. I want to be clear. I

      do not believe that this lease does what you testified that it does and absent

      some other evidence, your affirmative defense has not been proved and so

      I am going to make a finding of guilty in this matter.

             ***

             THE COURT:       Sir, is there anything you’d like to say regarding

      sentencing before I sentence?

             THE DEFENDANT: In regard to sentencing, I have taken steps to

      remove, what I consider, the offensive tenant from the property with the

      three-day notice that has been served, bulk pickup has been contracted.

      They are supposed to be there today - -

             ***

             THE DEFENDANT: [ - - ] to remove the items.        The tenant agreed

      with me on the phone yesterday that he would clean up whatever trash and

      debris is on the exterior of the property. I will go by today and confirm that

      that happens.

      {¶ 13} The court imposed a fine of $150.00 and suspended $75.00 thereof, as well

as court costs. King asserts a sole assignment of error herein as follows:
                                                                                            -10-


               THE TRIAL COURT ERRED IN CONVICTING DEFENDANT

       ROBERT KING OF FAILING TO MAINTAIN REAL ESTATE.

       {¶ 14} King argues that the City erroneously convicted him of violating R.C.G.O.

93.46(E).    According to King, the City improperly prosecuted him and should have

prosecuted Earl. King asserts that “the tenant assumed responsibility for maintaining the

premises when he executed the Lease. The Lease specifically reflects that the tenant

must comply with all housing codes, which necessarily includes R.C.G.O. 93.46(E).”

According to King, “the City previously dismissed its prior case against King based for

[sic] the same property and conditions and based on the same Lease. Double jeopardy,

anyone?” Citing R.C.G.O. 93.02, King asserts that an “Owner” is defined in part as a

“lessee, or other person, firm, or corporation in control of a building,” and that “the City

should have cited the tenant.”

       {¶ 15} The City responds that as “the owner of the subject property, Mr. King had

an obligation to maintain its exterior unless the occupant had undertaken that duty.”

According to the City, “Mr. King wants to rely on the lease provisions to shift responsibility

to Mr. Earl but conveniently ignores the provision that allowed him to enforce the lease

against his tenant.” The City argues that “Mr. King’s position is that if he submits his

lease as a ‘get out of jail free card’ he can endlessly ignore his tenant’s failure to undertake

responsibility.”   The City asserts that “a great deal of Mr. King’s testimony also

established that he was both aware and indifferent to the fact that the maintenance

responsibilities had not been assumed by his tenant.” According to the City, King’s

“awareness that the responsibilities detailed in his written agreement had not actually

been assumed in over four months – if at all – undercuts any affirmative defense to the
                                                                                              -11-


City’s statute.”

       {¶ 16} In reply, King asserts that he “had the burden of proof, by a preponderance

of evidence, of producing a written agreement reflecting that the tenant assumed

responsibility to maintain the property.       He did that.”    King argues that “the tenant

assumed responsibility for maintaining the premises when he executed the Lease. The

Lease specifically states that the tenant must comply with all housing codes, which

necessarily includes R.C.G.O. 93.46(E).” King asserts that the “ordinance requires only

a ‘written agreement.’ The Lease is a written agreement. Case closed.”

       {¶ 17} R.C.G.O. 93.46 provides:

               Every owner of a dwelling shall be responsible for the provision of all

       facilities, utilities, services, or conditions required by this chapter for dwelling

       or rooming units and premises, except where such responsibility is

       assumed by an * * * occupant by written agreement. Such responsibility

       shall include, but not be limited to, the following:

               ***

               (E) Maintaining driveways, terrace steps, yard walks, fences, yard

       cisterns, and all exterior premises free of objects, materials, or conditions

       which create a health, safety, or fire hazard or which is a public nuisance.

       {¶ 18} R.C.G.O. 93.02 defines an occupant as “[a]ny person living, sleeping,

cooking or eating in or having possession or use of a dwelling unit or rooming unit.” We

conclude that Thaddeus is an “occupant” within the meaning of R.C.G.O. 93.46.

       {¶ 19} The lease provides, as noted above, that the “Resident further agrees to

comply with all applicable * * * local housing, health and safety codes.” We conclude
                                                                                        -12-


that in entering into the lease, Thaddeus assumed the responsibility to comply with

R.C.G.O. 93.46(E).

       {¶ 20} The City appears to have relied on the following section of the lease:

              OWNER’S RIGHT TO RECOVER. If the rent is not received on the

       date specified in Paragraph #2 of this Agreement, or if the Resident violates

       any of the terms and conditions of this Agreement, or any addendums

       thereof, including any community guidelines herein or hereafter adopted by

       the Owner, then the Owner may at any time begin eviction proceedings,

       enter and take possession of the premises, sue for and recover all the rent

       and damages occasioned by such violation along with any other damages

       or costs to which the Owner may be entitled by law, and re-rent for the

       remainder of the term at the best rent obtainable.

       {¶ 21} We agree that the trial court erred in finding King guilty. We initially note

that the trial court’s analysis was inconsistent. At first the court appeared to concede

that Thaddeus Earl assumed the responsibility of complying with local housing codes,

such as R.C.G.O. 93.46(E), noting, “as I read this[,] his agreement is to comply with

those.” In the following sentence, however, the court indicated, “[h]is agreement is not

that he is going to be responsible for anything.” The above paragraph provides that “the

Owner may at any time begin eviction proceedings,” and we cannot conclude that King

was required to initiate eviction proceedings upon receipt of the citation or assume

liability, as the City appears to suggest.

       {¶ 22} This conclusion is further supported by a review of Chapter 5321 of the

Ohio Revised Code, which governs landlords and tenants. R.C. 5321.06 provides that a
                                                                                         -13-


“landlord and a tenant may include in a rental agreement any terms and conditions * * *

and any other provisions governing the rights and obligations of the parties that are not

inconsistent with or prohibited by Chapter 5321 of the Revised Code or any other rule of

law,” such as a requirement that a tenant comply with all housing codes. R.C. 5321.05

(A) governs the obligations of a tenant and provides that a “tenant who is a party to a

rental agreement shall do all of the following: (1) Keep that part of the premises that he

occupies and uses safe and sanitary,” and “(2) Dispose of all rubbish, garbage, and other

waste in a clean, safe, and sanitary manner,” and “(5) Comply with the requirements

imposed on tenants by all applicable state and local housing, health, and safety codes.”

R.C. 5321.05(C)(1) provides that “[i]f the tenant violates any provision of this section, * *

* the landlord may recover any actual damages that result from the violation together with

reasonable attorney’s fees. This remedy is in addition to any right of the landlord to

terminate the rental agreement [See R.C. 5321.11], [or] to maintain an action for the

possession of the premises * * *.”

       {¶ 23} Since Earl was required by law to keep the premises safe and sanitary,

and dispose of waste in a sanitary manner, and since he further assumed the

responsibility of complying with R.C.G.O. 93.46(E), the trial court erred in convicting King

for the violation of R.C.G.O. 93.46. Accordingly, King’s assignment of error is sustained,

and the judgment of the municipal court is reversed and vacated.

                              .............

FROELICH, J. and TUCKER, J., concur.


Copies mailed to:

Barbara Doseck
                        -14-


Martin Beyer
Hon. Deirdre E. Logan
