[Cite as Gainer v. Cavanaugh, 2020-Ohio-175.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



MICHAEL GAINER, ET AL.                          :   JUDGES:
                                                :   Hon. William B. Hoffman, P.J.
        Plaintiffs-Appellants                   :   Hon. John W. Wise, J.
                                                :   Hon. Earle E. Wise, Jr., J.
-vs-                                            :
                                                :
ANGELA CAVANAUGH, ET AL.                        :   Case No. 2019CA00043
                                                :
        Defendants-Appellees                    :   OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2018CV01869
                                                    (Consolidated  with   Case  No.
                                                    2018CV02129)


JUDGMENT:                                           Reversed and Remanded




DATE OF JUDGMENT:                                   January 21, 2020



APPEARANCES:

For Plaintiffs-Appellants                           For Defendants-Appellees

JACK B. COOPER                                      JOHN D. FERRERO
4684 Douglas Circle NW                              Stark County Prosecuting Attorney
Canton, OH 44718                                    DAVID E. DEIBEL
                                                    JESSICA LOGOTHETIDES
                                                    110 Central Plaza South, Suite 510
                                                    Canton, OH 44702
Stark County, Case No. 2019CA00043                                                       2


Wise, Earle, J.

      {¶ 1} Plaintiffs-Appellants, Michael and Brenda Gainer, their statutory agent Jack

B. Cooper, and Storybrook Farm LLC, appeal the December 12, 2018 and February 28,

2019 judgment entries of the Court of Common Pleas of Stark County, Ohio, upholding

administrative decisions issued by the Stark County Board of Building Appeals and the

Ohio Board of Building Appeals.

                        FACTS AND PROCEDURAL HISTORY

      {¶ 2} On July 10, 2018, Angela Cavanaugh, Chief Building Official for the Stark

County Building Department, sent Michael and Brenda Gainer an order to comply,

ordering the Gainers to stop assembly occupancy immediately regarding an agricultural

barn on their property, alleging the barn had been converted into an assembly occupancy

without approval as required by the Ohio Building Code. The Gainers owned Storybrook

Farm and used the barn in question to operate a wedding venue business.

      {¶ 3} On July 23, 2018, Mark Stewart, Lawrence Township Fire Department Fire

Chief, sent the Gainers a citation and order, citing them for operating an event and rustic

wedding facility in a barn on their property without obtaining a change of use or

occupancy, and ordering them to comply with the Ohio Building Code and the Stark

County Building Department's Change of Occupancy Policy.

      {¶ 4} The Gainers appealed the Cavanaugh order to comply to the Stark County

Board of Building Appeals. A hearing was held on September 13, 2018. By final order

dated same date, the Board denied the issuance of a variance.
Stark County, Case No. 2019CA00043                                                   3


      {¶ 5} The Gainers appealed the Stewart citation and order to comply to the Ohio

Board of Building Appeals. A hearing was held on October 19, 2018. By final order dated

October 22, 2018, the Board upheld the citation.

      {¶ 6} On September 25, 2018, the Gainers appealed the final order of the Stark

County Board with the Court of Common Pleas of Stark County, Ohio (Case No.

2018CV01869).

      {¶ 7} On October 31, 2018, the Gainers appealed the final order of the Ohio

Board with the Court of Common Pleas of Stark County, Ohio (Case No. 2018CV02129).

      {¶ 8} On November 14, 2018, the Gainers filed a motion for evidentiary hearing

to present additional evidence on factual issues pursuant to R.C. 3781.031.

      {¶ 9} On December 3, 2018, the trial court consolidated the cases.

      {¶ 10} On December 12, 2018, the trial court denied the Gainers' motion for an

evidentiary hearing.

      {¶ 11} By judgment entry filed February 28, 2019, the trial court upheld the

decisions of both Boards, finding the Gainers did not meet the requirements under R.C.

3781.06 (building safety and sanitation for intended use and occupancy) and was not

exempt from the subject regulations.

      {¶ 12} Appellants filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶ 13} "THE TRIAL COURT ERRED IN FINDING THAT THE AGRICULTURAL

EXEMPTION IN ORC §3781.06(B) DID NOT MAKE THE ADMINISTRATIVE ORDERS
Stark County, Case No. 2019CA00043                                                         4


AT ISSUE ILLEGAL, WHERE THE EVIDENCE PROVED THAT THE STRUCTURE IN

QUESTION (A BARN) WAS INCIDENT TO THE AGRICULTURAL USE OF THE LAND."

                                             II

       {¶ 14} "THE    TRIAL    COURT        ERRED    IN   DENYING      APPELLANTS        AN

EVIDENTIARY HEARING AS THE RELEVANT STATUTE EXPRESSLY PROVIDES

FOR ONE AND APPELLANTS REQUESTED A HEARING."

       {¶ 15} We will address Assignment of Error II first as we find it to be dispositive of

this appeal.

                                             II

       {¶ 16} Appellants claim the trial court erred in denying their request for an

evidentiary hearing. We agree.

       {¶ 17} The administrative appeal in this case originated under R.C. 3781.031

which governs issuance of adjudication orders and stop work orders. Subsection (D)

provides the following in pertinent part:



               Any party adversely affected by an order issued following an

       adjudication hearing may appeal to the court of common pleas of the county

       in which the party is a resident or in which the premises affected by the

       order is located. The court shall not be confined to the record as certified

       to it by the agency but any party may produce additional evidence and the

       court shall hear the matter upon the record and additional evidence any

       party introduces. (Emphasis added.)
Stark County, Case No. 2019CA00043                                                           5


       {¶ 18} In a motion filed November 14, 2018, appellants moved pursuant to this

cited section to present "additional evidence on the factual issues pertinent to this appeal."

Given the language of R.C. 3781.031(D), appellants have the right to present additional

evidence and the trial court "shall hear the matter upon the record and additional evidence

any party introduces."

       {¶ 19} In their appellate brief at 21, appellees argue appellants "did not detail what

additional evidence was necessary for the court to hear to resolve the appeal nor did they

state why they could not have produced such evidence prior to the hearings before the

agencies."   R.C. 119.12 is the general statute that governs administrative appeals.

Subsection (K) permits additional evidence if the trial court is "satisfied that the additional

evidence is newly discovered and could not with reasonable diligence have been

ascertained prior to the hearing before the agency."          Subsection (K) prefaces this

requirement with the words, "[u]nless otherwise provided by law." R.C. 3781.031(D) is

the governing statute in this case. The legislature could have mirrored the language in

R.C. 119.12(K), but did not do so. R.C. 3781.031(D) does not list any qualifiers or

limitations, it simply permits "additional evidence."

       {¶ 20} Appellees also argue the case of Davis Metal Sales, Inc. v. Walz, 5th Dist.

Knox No. 89-CA-55, 1990 WL 97632 (July 9, 1990). We find this case to be inapplicable

because the court therein did not review or consider the language of R.C. 3781.031(D).

       {¶ 21} Based upon the language of R.C. 3781.031(D), we find appellants have the

right to present additional evidence that was not presented at the hearings before the

Boards, and the trial court shall hear the matter upon the record.
Stark County, Case No. 2019CA00043                                                      6


      {¶ 22} Upon review, we find the trial court erred in denying appellants' request for

an evidentiary hearing. Given this decision, Assignment of Error I is premature.

      {¶ 23} Assignment of Error II is granted.

      {¶ 24} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby reversed, and the matter is remanded to the trial court to hold a hearing to

entertain additional evidence.

By Wise, Earle, J.

Hoffman, P.J. and

Wise, John, J. concur.




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