[Cite as Hall v. Youngstown Water Dept., 2012-Ohio-1411.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

DAVID M. HALL,                  )
                                )                           CASE NO. 11 MA 16
    PLAINTIFF-APPELLANT,        )
                                )
    - VS -                      )                                 OPINION
                                )
YOUNGSTOWN WATER DEPT., et al., )
                                )
    DEFENDANTS-APPELLEES.       )


CHARACTER OF PROCEEDINGS:                                   Civil Appeal from Common Pleas
                                                            Court, Case No. 10 CV 210.


JUDGMENT:                                                   Affirmed.


APPEARANCES:
For Plaintiff-Appellant:                                    David M. Hall, Pro-se
                                                            19 East Ravenwood Street
                                                            Youngstown, OH 44507

For Defendant-Appellant:                                    Attorney Dan Pribich
                                                            Deputy Law Director
                                                            Attorney Margaret Koval
                                                            Senior Assistant Law Director
                                                            26 S. Phelps Street
                                                            Youngstown, OH 44503




JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Gene Donofrio


                                                            Dated: March 23, 2012
[Cite as Hall v. Youngstown Water Dept., 2012-Ohio-1411.]
DeGenaro, J.
        {¶1}    Pro-se Plaintiff-Appellant, David M. Hall, appeals the January 21, 2011
judgment of the Mahoning County Court of Common Pleas dismissing his claims against
Appellees, the Youngstown Water Department (YWD), Youngstown Mayor Jay Williams,
Youngstown Water Commissioner John Casciano and YWD Collections Supervisor
Candace Norwood. Hall’s argument that the court erroneously dismissed his complaint is
meritless. The trial court correctly granted Appellees' motion to dismiss because Hall
failed to exhaust his administrative remedies prior to filing suit. Accordingly, the judgment
of the trial court is affirmed.
                                  Facts and Procedural History
        {¶2}    On January 7, 2010, Hall returned to his Youngstown residence to discover
his water service had been disconnected. A disconnection notice attached to his
doorknob stated: "Your water bill amounting to $99.58 is unpaid and has been evidently
overlooked. Your water has been disconnected. The reconnection charge is $40.00."
        {¶3}    On January 22, 2010, Hall filed a Complaint against YWD in the Mahoning
County Court of Common Pleas, in which he alleged that YWD improperly disconnected
his water service without first providing him with a written disconnection notice. He
alleged claims of due process violations and negligence, and sought compensatory,
punitive and general damages. A series of filings by the parties followed, including First
and Second Amended Complaints, which, but for adding additional parties, were
substantively identical to the allegations made in Hall’s original complaint. Notably, Hall
does not contest that he was delinquent in paying his water bill.
        {¶4}    Pertinent to this appeal, Appellees filed a motion to dismiss the Second
Amended Complaint on December 10, 2010, again arguing, as they had in response to
Hall’s First Amended Complaint, that it should be dismissed because Hall failed to
exhaust his administrative remedies.
        {¶5}    On December 22, 2010, the magistrate issued a decision granting
Appellees' motion to dismiss, concluding that Hall had failed to exhaust his administrative
remedies prior to initiating suit, specifically Rule 13.1 of the YWD Rules and Regulations.
Further the magistrate concluded that "This Rule and the process contained therein,
satisfies the administrative remedies doctrine as it provides for notice, hearing, and relief."
                                                                                          -2-

       {¶6}   Hall filed objections to the magistrate's decision and Appellees responded.
On January 21, 2011, the trial court issued a judgment entry adopting the magistrate's
decision as its own.
                       Failure to Exhaust Administrative Remedies
       {¶7}   Hall asserts two assignments of error on appeal, which essentially raise the
same issue and will be discussed together:
       {¶8}   "The trial court abused its discretion by failing to grant Plaintiff's opposition
to Defendant's motion to dismiss the Complaint filed December 15, 2010."
       {¶9}   "The trial court abused its discretion in dismissing Plaintiff's Complaint for
failure to exhaust administrative remedies prior to seeking judicial action."
       {¶10} Dismissal of a complaint for failure to state a claim upon which relief can be
granted is appropriate if, after all factual allegations of the complaint are presumed true
and all reasonable inferences are made in favor of the nonmoving party, it appears
beyond doubt that the nonmoving party can prove no set of facts entitling him to the
requested relief. Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d
420, ¶13. A Civ.R. 12(B)(6) motion to dismiss is procedural, and tests the sufficiency of
the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545,
548, 605 N.E.2d 378 (1992). In resolving a Civ.R. 12(B)(6) motion to dismiss, a court
must confine its review to the allegations contained in the complaint. Butler v. Jordan, 92
Ohio St.3d 354, 356, 750 N.E.2d 554 (2001), fn. 4. Whether a trial court properly granted
a motion to dismiss for failure to state a claim presents a question of law and is therefore
subject to a de novo review on appeal. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79,
2004-Ohio-4362, 814 N.E.2d 44, ¶5.
       {¶11} It is a "long settled rule of judicial administration that no one is entitled to
judicial relief for a supposed or threatened injury until the prescribed administrative
remedy has been exhausted." Jones v. Chagrin Falls, 77 Ohio St.3d 456, 462, 674
N.E.2d 1388 (1997), quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51,
58 S.Ct. 459, 82 L.Ed. 638 (1938). The purpose of the doctrine is to "prevent [ ]
premature interference with agency processes, so that the agency may function efficiently
and so that it may have an opportunity to correct its own errors, as well as to afford the
                                                                                          -3-

parties and the courts the benefit of its experience and expertise, and to compile a record
which is adequate for judicial review." Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct.
2457, 45 L.Ed.2d 522 (1975).
       {¶12} "[I]n Ohio, the exhaustion-of-administrative-remedies doctrine is a court-
made rule of judicial economy." Nemazee v. Mt. Sinai Medical Center, 56 Ohio St.3d
109, 111, 564 N.E.2d 477 (1990), citing G.S.T. v. Avon Lake, 48 Ohio St.2d 63, 65, 357
N.E.2d 38 (1976). Thus, "[t]he failure to exhaust administrative remedies is not a
jurisdictional defect but is rather an affirmative defense, if timely asserted and
maintained." Dworning v. Euclid, 119 Ohio St.3d 83, 2008-Ohio-3318, 892 N.E.2d 420,
¶11, citing Jones at syllabus.
       {¶13} There are two exceptions to the exhaustion doctrine. First, "when there is a
judicial remedy that is intended to be separate from the administrative remedy."
Dworning at ¶10 (holding that because the legislature provided a clear private cause of
action to remedy discriminatory practices, which is superior to any exhaustion
requirement, a public employee is not required to first exhaust the public employer's
administrative remedies before pursuing a civil action.) Accord Basic Distrib. Corp. v.
Ohio Dept. of Taxation, 94 Ohio St.3d 287, 290, 762 N.E.2d 979 (2002). The second
exception is when the administrative body lacks the authority to grant the relief sought.
Gates Mills Invest. Co. v. Pepper Pike (1978), 59 Ohio App.2d 155, 167, 392 N.E.2d
1316. This is also known as the "vain act" exception. "A vain act is defined in the context
as lack of authority to grant administrative relief and not in the sense of lack of probability
that the application for administrative relief will be granted." Id. at 167. For example, in
Salvation Army v. Blue Cross & Blue Shield of N. Ohio, 92 Ohio App.3d 571, 579, 636
N.E.2d 399 (8th Dist.2001), the court held that the plaintiff was not required to exhaust
administrative remedies with regard to its defamation claim since the Ohio Department of
Insurance lacked the authority to grant the relief requested under that claim.
       {¶14} Hall first contends that the administrative procedure offered by the YWD is
constitutionally inadequate. "The fundamental requirement of procedural due process is
notice and hearing, that is, an opportunity to be heard." Korn v. Ohio State Med. Bd., 61
Ohio App.3d 677, 684, 573 N.E.2d 1100 (1988), citing Luff v. State, 117 Ohio St. 102,
                                                                                         -4-

157 N.E. 388 (1927). "Determining the adequacy of predeprivation procedures requires
consideration of the Government's interest in imposing the temporary deprivation, the
private interests of those affected by the deprivation, the risk of erroneous deprivation
through the challenged procedures, and the probable value of additional or substitute
procedural safeguards." Brock v. Roadway Express, Inc., 481 U.S. 252, 262, 107 S.Ct.
1740, 95 L.Ed.2d 239 (1987).
          {¶15} The YPD Rules and Regulations provide an adequate administrative
procedure that conforms to due process requirements. Several of the rules address
notice:

          3.11    METERED BILLS BECOME DELINQUENT
                  Bills become delinquent when not paid by the date indicated on the
          bill.
          3.12    SERVICE DISCONTINUED
                  Service may be discontinued thirty (30) days after the previous bill
          was mailed and remains unpaid and delinquent.
          * * *
          3.14    SERVICE MAY [SIC] DISCONTINUED DUE TO DELINQUENCY
                  Whenever a Customer or Consumer becomes delinquent in the
          payment of services, the supply of water may be discontinued to any
          property of such a Customer or Consumer. Notice of such action shall
          have been previously given as provided in Section 3.12 regardless of
          whether such indebtedness was incurred at the property where service is
          discontinued or for any other service provided to such Customer or
          Consumer at notice address. In the event of a proposed discontinuation of
          service, Consumers and Customers shall be entitled to notice and a
          hearing pursuant to Chapter 13 of these Rules.           (YWD Rules and
          Regulations, Rule 3.11, 3.12, 3.14.)

          {¶16} Turning next to the hearing component of due process, Chapter 13 of the
Rules provides a detailed administrative hearing procedure:
                                                                                         -5-


       13.1   REQUESTING A HEARING
              Customers and Consumers shall have the right to request a hearing
       in writing for the reasons and purposes set forth in these Rules. The
       request for a hearing must be made by the Customer or Consumer or
       person acting on their behalf at the office of the Water Department to an
       employee during regular business hours. The Water Department reserves
       the right to require that the applicant sign a Request for Hearing form.
       Whenever a Customer or Consumer timely requests a hearing regarding
       the right of the Water Department to discontinue service during the
       pendency of the hearing, service shall not be denied to them unless, and
       until authorized to do so, by the decision of the hearing officer or upon prior
       settlement of the dispute. However, a Customer or Consumer may not
       request a hearing for the sole purpose of preventing the discontinuance of
       service. A Consumer, who is not a Customer, may not dispute at a hearing
       the Water Department's claims of delinquency in the water service account
       to the Customer not incurred by the Consumer. The hearing shall be
       limited to the right of the Water Department to discontinue service. (YWD
       Rules and Regulations, Rule 13.1)

       {¶17} Chapter 13 of the YWD Rules goes on to provide that the consumer or
customer shall be provided with standards and procedures pursuant to which the hearing
will be governed (Rule 13.2); timetable for a hearing date (Rule 13.3); consumer access
to records (Rule 13.4); appointment of hearing officer (Rule 13.5); consumer rights at the
hearing (Rule 13.6); and communication of the hearing outcome (Rule 13.7).
       {¶18} The Rules provide notice and an adequate administrative process as
contemplated by due process. Hall’s constitutionality argument is meritless.
       {¶19} Second, neither of the exceptions to the exhaustion doctrine apply. There is
no judicial remedy intended to be separate from the administrative one. Hall points to no
statute creating a private right to sue for grievances regarding a municipal water bill.
       {¶20} Further, YWD has the authority to provide the relief sought. Article XVIII,
                                                                                      -6-

Section 4 of the Ohio Constitution authorizes municipalities, such as the City of
Youngstown, to provide water service to its residents and other consumers. The City of
Youngstown Charter authorizes the creation of a Division of Water, to be run by the
Commissioner of Water who "shall adopt and enforce, with the approval of the Mayor, all
rules and regulations governing the Division of Water, and fix the rates and conditions for
supplying of water." Youngstown City Charter § 45. Pursuant to this mandate, the YWD
adopted the Rules and Regulations cited above. When Hall applied for water service, he
agreed to be bound by the Rules:

       3.7    APPLICANTS MUST AGREE TO CONFORM TO CODIFIED
       ORDINANCES, RULES AND REGULATIONS
              Applicants for water shall make such deposits or assessments as
       may be required, and shall agree to abide by Codified Ordinances of the
       City of Youngstown and the Water Department Rules and Regulations
       pertaining to the use of water. Applicant shall sign the Water Department
       Form 1.     Copies of the Rules and Regulations and Deposits and
       Assessments and Rates shall be available from the Water Department.
       (YWD Rules and Regulations, Rule 3.7.)

       {¶21} Because none of the exceptions to the exhaustion doctrine apply, the trial
court correctly dismissed Hall's claims for his failure to exhaust the available
administrative remedies prior to filing suit. Accordingly, Hall's assignments of error are
meritless, and the judgment of the trial court is affirmed.
Waite, P.J., concurs.
Donofrio, J., concurs.
