[Cite as Defiance Cty. Bd. of Health v. McCalla, 2012-Ohio-4107.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              DEFIANCE COUNTY




BOARD OF HEALTH, DEFIANCE COUNTY,

        PLAINTIFF-APPELLEE,                                         CASE NO. 4-12-07

        v.

EDWARD MCCALLA, ET AL.,                                             OPINION

        DEFENDANTS-APPELLANTS.




                Appeal from Defiance County Common Pleas Court
                           Trial Court No. 11CV41575

                                     Judgment Affirmed

                         Date of Decision:        September 10, 2012




APPEARANCES:

        Tim Holtsberry for Appellants

        Morris J. Murray and Russell R. Herman for Appellee
Case No. 4-12-07


SHAW, P.J.

         {¶1} Defendant-appellants Edward McCalla (“McCalla”) and Scott Hilbert

(“Hilbert”) appeal the judgment entries of the Defiance County Common Pleas

Court dated November 14, 2011, December 13, 2011, and January 17, 2011,

awarding judgments in favor of plaintiff-appellee Board of Health of Defiance

County (hereinafter “Board of Health”) asserting various procedural and

substantive issues for our review. For the reasons that follow, we affirm the

judgments of the trial court.

         {¶2} The facts relevant to this appeal are as follows. The property at 2738

Buckskin Road in Hicksville, Ohio (hereinafter “Buckskin Rd. property”), went

through foreclosure and was acquired by First Place Bank on the sale date of

September 30, 2008.

         {¶3} First Place Bank employed Leonard L. Guilford (“Guilford”) as

realtor for the Buckskin Rd. property. Guilford then employed Shannon Watson

(“Watson”), an excavating Contractor licensed to install septic systems in Ohio, to

inspect the Buckskin Rd. property’s septic system. Watson inspected the system

and found that the septic tank was in disrepair, that the lid on the septic tank was

falling in and that there was a hole in the tank that he described as three feet by

five feet.1 According to Watson, the septic tank needed replaced and a secondary


1
  As to the three people that testified to the size of the hole, all three gave a different account. Watson
asserted that the hole was three feet by five feet, Guilford asserted that the hole was approximately two feet

                                                     -2-
Case No. 4-12-07


treatment system needed to be installed in order to make the property compliant

with current laws. Watson then notified Guilford and the Board of Health that the

septic system was a failed system.

         {¶4} On April 7, 2009, Lennis J. Prigge (“Prigge”) of the Board of Health

did an inspection on the Buckskin Rd. property “for the replacement of the

existing collapsed septic system.” Prigge informed Guilford via a letter dated

April 8, 2009, of the next steps to take in getting the property in compliance with

the code. Prigge also notified Guilford that the septic system would have to be

replaced before anyone could live on the Buckskin Rd. property.

         {¶5} In early July of 2009, Guilford sold the Buckskin Rd. property to John

McCalla, the defendant’s son. Guilford informed John that the septic system

would need to be replaced before anyone could reside on the Buckskin Rd.

property.

         {¶6} On or about November 4, 2009, Shannon Watson observed McCalla

and his son John installing what Watson thought was a 1500 gallon septic tank on

the property. Watson then called the Board of Health because he thought the

McCallas were illegally installing a septic tank without a license.

         {¶7} Prigge came out to the property just as McCalla and his son John were

finishing putting the septic tank into the ground. According to Prigge, the septic


by two feet, and McCalla testified that the hole was triangular in shape and no more than fifteen to eighteen
inches.

                                                    -3-
Case No. 4-12-07


tank that they installed did not comply with new legislation regarding sewage

systems, and it did not comply with old legislation as the septic tank installed was

merely one component of a larger septic system that was otherwise not functional

and not in compliance with the law.

       {¶8} On or about February 8, 2010, John McCalla applied for a variance

with the Board of Health for his septic tank. The Board of Health denied that

variance. A copy of this denial was sent to John on February 26, 2010.

       {¶9} On or about June 17, 2010, the property was transferred from John to

his father, McCalla. In July of 2010, McCalla began leasing/renting the Buckskin

Rd. property to Hilbert for $525 per month.

       {¶10} On December 30, 2010, a warning letter was sent to McCalla

informing him that enforcement actions would commence if McCalla did not

either correct the household sewage treatment or vacate the subject premises of

renters.

       {¶11} On May 3, 2011, McCalla filed another request for a variance with

the Board of Health, asserting that “due to special conditions that include the

limited space available on this lot for the installation of a filter bed and the

unnecessary hardship created by imposing a whole new septic system, I am asking

the Board to accept the work I have done as complete * * *.”




                                        -4-
Case No. 4-12-07


       {¶12} On June 13, 2011, a hearing was held on McCalla’s variance request.

Ultimately the Board of Health granted that variance request with special

conditions requiring McCalla to comply with the following requirements within 90

days: McCalla had to pay for a site evaluation, McCalla needed to be granted a

permit for the new tank, as he was also the adjacent landowner McCalla needed to

grant a perpetual easement for the off lot drainage, and McCalla needed to install a

secondary treatment system.

       {¶13} On June 17, 2011, seeing that Hilbert had not vacated the Buckskin

Rd. property, the Board of Health sent another letter to McCalla stating that the

Board of Health had “issued [McCalla] orders to abate the sewage nuisance at

2738 Buckskin Rd. Hicksville, Oh. The house cannot be lived in without a septic

system.”

       {¶14} The 90-day period in the conditional variance passed with nothing

being done to the property by McCalla.

       {¶15} On October 19, 2011, the Defiance County Board of Health filed a

complaint against McCalla and “unknown tenant” of the Buckskin Rd. property—

Hilbert—, requesting a preliminary and a permanent injunction. (Doc. 1). The

complaint alleged that McCalla was in violation of R.C. provisions 3718.011, R.C.

3718.10, 3718.08, various provisions of the Ohio Administrative Code, and

provisions of the Defiance County Sewage Treatment System Regulations


                                         -5-
Case No. 4-12-07


(hereinafter “Defiance County regulations”) 3701-29-02, 3702-29-04, as his

household sewage treatment was a “nuisance.” (Id.) The complaint also alleged

that McCalla illegally installed a septic tank. (Id.) The Board of Health sought,

inter alia, for McCalla to immediately cease leasing/renting the premises, to have

all solid waste removed from the premises, and to have fines imposed for the

above violations of law. (Id.)

       {¶16} On October 19, 2011, the Board of Health also filed a motion for a

temporary restraining order (“TRO”) seeking to restrain McCalla from

renting/leasing or residing in the subject property, and further seeking to require

McCalla to notify Hilbert to vacate the premises until the sewage treatment system

had been constructed. (Doc. 2).

       {¶17} On October 27, 2011, McCalla filed a motion to dismiss the action

pursuant to Civil Rules 12(b)(1) and 12(b)(6), arguing that the court did not have

subject matter jurisdiction and arguing that the Board of Health had failed to state

a claim upon which relief could be granted. (Doc. 5). In addition, McCalla filed a

memorandum in opposition to the Board of Health’s motion for a TRO. (Doc. 4).

       {¶18} On October 28, 2011, a hearing was held on the Board of Health’s

motion for a TRO. (Doc. 9). On October 31, 2011, the court filed a judgment

entry denying the TRO. (Id.) It was further ordered that “the request for a




                                        -6-
Case No. 4-12-07


permanent injunction be consolidated for trial on the merits and that trial to the

court be had on December 16, 2011.” (Id.)

       {¶19} On November 4, 2011, the Board of Health filed a response to

McCalla’s motion to dismiss. (Doc. 8).

       {¶20} On November 14, 2011, the court filed a judgment entry overruling

McCalla’s motion to dismiss. (Doc. 11). This judgment entry is the first subject

of this appeal.

       {¶21} On November 28, 2011, McCalla and Hilbert filed answers to the

earlier complaint of the Board of Health accompanied by a demand for a jury trial.

(Docs. 14, 15).

       {¶22} On December 8, 2011, the Board of Health filed a motion for default

and summary judgment, and a response to the jury demand. (Doc. 16).

       {¶23} On December 13, 2011, McCalla and Hilbert filed a memorandum in

opposition to the Board of Health’s motion for default judgment and a response to

the motion for summary judgment. (Doc. 17).

       {¶24} On December 13, 2011, the court filed a judgment entry denying the

Board of Health’s motion for default judgment and denying the Board of Health’s

motion for summary judgment. (Doc. 18). The entry further denied McCalla’s

jury demand stating that McCalla was “not entitled to a jury on the equitable claim

for injunction.” (Id.) This judgment entry is the second subject of this appeal.


                                         -7-
Case No. 4-12-07


      {¶25} On December 16, 2011, the case proceeded to a bench trial wherein

Guilford, Watson, McCalla, Prigge, and Hilbert testified. Rebecca Fuggit of the

Ohio Department of Health-Bureau of Environmental Health also testified, stating

that as it is, McCalla did not have a septic system, he merely had a septic tank

which was one component of a system. Fuggit also clarified the State’s stance that

McCalla’s lack of a septic system was a public health nuisance.

      {¶26} At the end of the hearing, McCalla and Hilbert submitted a trial brief

in lieu of a closing argument. After the court and the Board of Health reviewed

the brief, the Board of Health had an opportunity to respond.

      {¶27} Ultimately the court found that the septic tank was not a septic

system as no secondary sewage treatment system had been installed and the court

found that the non-functioning septic system was a public health nuisance. The

court then issued a permanent injunction prohibiting occupation of the property in

question until a proper and legal home sewage treatment system was installed.

This was memorialized in a judgment entry filed December 21, 2011. (Doc. 22).

      {¶28} The court delayed disposition to hear arguments on what sanctions

and penalties were proper to impose on McCalla given the violations. The court

also expected to hear arguments pertaining to McCalla’s claim that there was a

lack of due process in his variance request, arguments pertaining to whether any

purported lack of due process prevented this matter from being prosecuted, and


                                        -8-
Case No. 4-12-07


arguments as to whether any purported lack of due process had any bearing on this

matter. (Id.)

        {¶29} On January 11, 2012, at the scheduled disposition hearing, the parties

stipulated to a total cumulative fine of $365,000 for McCalla, and further

stipulated that the Board of Health would take no actions to collect said fines so

long as McCalla complied with the court’s permanent injunction.                                This was

memorialized in a judgment entry filed January 17, 2012. This judgment entry is

the third subject of this appeal.

        {¶30} McCalla then filed this appeal, asserting the following assignments

of error for our review arising out of the November 14, 2011, December 13, 2011,

and January 11, 2012 judgment entries.2

                    ASSIGNMENT OF ERROR 1
        THE TRIAL COURT ERRED IN NOT GRANTING
        APPLLANT’S MOTION TO DISMISS AS IT LACKED
        JURISDICTION TO HEAR THE CASE AS ALL
        STATUTORILY      REQUIRED     ADMINISTRATIVE
        REMEDIES HAD NOT BEEN EXHAUSTED.

                   ASSIGNMENT OF ERROR 2
        THE TRIAL COURT ERRED IN NOT FINDING THAT
        APPELLANT’S DUE PROCESS RIGHTS HAD BEEN
        VIOLATED AS APPELLEE HAD FAILED TO GIVE THE
        APPELLANT HIS STATUTORILY REQUIRED NOTICE OF
        ADMINISTRATIVE REMEDIES.
2
  The notice of appeal establishes that both McCalla and Hilbert are challenging the trial court’s judgment;
however, the assignments of error and arguments in the brief primarily pertain to McCalla’s rights. The
Board of Health does not challenge Hilbert’s standing to raise any of the claims alongside McCalla, and
therefore we do not address this issue. Instead, we note that we are aware that Hilbert is joining in
McCalla’s arguments and when the assignments of error are overruled, they are overruled as to Hilbert as
well.

                                                    -9-
Case No. 4-12-07



                  ASSIGNMENT OF ERROR 3
      THE TRIAL COURT ERRED IN DENYING APPELLANT’S
      MOTION FOR DISMISSAL FOR FAILURE TO STATE A
      CLAIM ON WHICH RELIEF CAN BE GRANTED.

                   ASSIGNMENT OF ERROR 4
      THE TRIAL COURT ERRED IN DENYING APPELLANT A
      JURY TRIAL AS REQUESTED.

                  ASSIGNMENT OF ERROR 5
      THE TRIAL COURT ERRED IN MISAPPLYING THE NEW
      LAW IN R.C. CHAPTER 3718 ENACTED FROM
      SUBSTITUTE SENATE BILL 110.

                   ASSIGNMENT OF ERROR 6
      THE APPLICATION OF THE NEW STATUTE HAS
      RESULTED IN A TAKING OF PROPERTY IN VIOLATION
      OF  THE    FIFTH   AMENDMENT    TO   THE  U.S.
      CONSTITUTION.

                   ASSIGNMENT OF ERROR 7
      THE TRIAL COURT ERRED IN LEVYING AN EXCESSIVE
      FINE NOT IN ACCORDANCE WITH R.C. CHAPTER 3718.

                   ASSIGNMENT OF ERROR 8
      THE TRIAL COURT’S INTERPRETATION OF R.C. 3718.011
      WOULD MEAN THAT SECTION OF THE CODE VIOLATES
      ARTICLE II SECTION 28 OF THE OHIO CONSTITUTION.

      {¶31} In the interests of clarity we elect to address some of the assignments

of error together and some of the assignments of error out of the order in which

they were raised.




                                      -10-
Case No. 4-12-07


                            Third Assignment of Error

       {¶32} In McCalla’s third assignment of error, McCalla argues that the trial

court erred in denying his motion to dismiss for failure to state a claim upon which

relief could be granted.

       {¶33} A motion to dismiss for failure to state a claim upon which relief can

be granted is procedural and tests whether the complaint is sufficient. State ex rel.

Hanson v. Guernsey Cty. Bd. Of Commrs., 65 Ohio St.3d 545, 548 (1992). In

considering a Civ.R. 12(B)(6) motion to dismiss, a trial court may not rely on

allegations or evidence outside the complaint. State ex rel. Fuqua v. Alexander,

79 Ohio St.3d 206, 207 (1997). Rather, the trial court may review only the

complaint and may dismiss the case only if it appears beyond a doubt that the

plaintiff can prove no set of facts entitling the plaintiff to recover. O’Brien v.

Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus.

Moreover, the court must presume that all factual allegations in the complaint are

true and draw all reasonable inferences in favor of the nonmoving party. Mitchell

v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). We review de novo a

judgment on a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon

which relief can be granted. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79,

2004-Ohio-4362, ¶ 5.




                                        -11-
Case No. 4-12-07


      {¶34} In this case, the Board of Health filed a “Complaint for Preliminary

and Permanent Injunction” against McCalla on October 19, 2011. (Doc. 1). The

complaint was filed pursuant to R.C. 3718.10(A), which reads:

      [the] prosecuting attorney of the county or the city director of
      law, village solicitor, or other chief legal officer of the municipal
      corporation where a violation has occurred or is occurring, upon
      complaint of the director of health or a board of health, shall
      prosecute to termination or bring an action for injunction or
      other appropriate relief against any person who is violating or
      has violated this chapter, any rule adopted or order issued under
      it, or any condition of a registration or permit issued under rules
      adopted under it. The court of common pleas or the municipal
      or county court in which an action for injunction is filed has
      jurisdiction to grant such relief upon a showing that the
      respondent named in the complaint is or was in violation of the
      chapter or rules, orders, or conditions.

R.C. 3718.10(A).

      {¶35} The complaint contained four counts alleging that McCalla was in

violation of Ohio Revised Code provisions 3718.011, 3718.10, 3718.08, 3718.99,

and claiming that McCalla was in violation of Defiance County regulations 3701-

29-04, and 3701-29-02. The complaint alleged, inter alia, that McCalla illegally

installed a septic tank on the Buckskin Rd. property, and that the septic system

was a nuisance as it failed to “comply with the household sewage treatment

system rules and regulations [and] endangers the life and the safety of the public

due to contamination from this illegal household sewage treatment system.” (Doc.

1).


                                      -12-
Case No. 4-12-07


      {¶36} Assuming that the above facts are true, as we are directed to do

pursuant to our standard of reviewing a motion to dismiss, we cannot find that the

trial court erred in failing to dismiss the case for failure to state a claim upon

which relief could be granted. The facts as alleged and the cited legal provisions

state a colorable claim.   Accordingly appellants’ third assignment of error is

overruled.

                     First and Second Assignments of Error

      {¶37} In McCalla’s first and second assignments of error, McCalla claims

that his administrative remedies had not been exhausted and therefore the trial

court lacked jurisdiction to hear the case. McCalla further claims that his due

process rights were violated as he was unable to exhaust his administrative

remedies.

      {¶38} Questions concerning procedural due process are matters of law to be

determined de novo on appellate review. See generally Slorp v. Dept. of Admin

Serv. 10th Dist. No. 97APE08-1136 (Apr. 30, 1998), citing Univ. Hosp., Univ of

Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339,

paragraph one of the syllabus.     Procedural due process is guaranteed by the

Fourteenth Amendment of the United States Constitution and Section 16, Article I

of the Ohio Constitution. Ohio Valley Radiology Associates, Inc. v. Ohio Valley

Hosp. Ass’n, 28 Ohio St.3d 118, 125 (1986), quoting State ex rel. Allstate Ins. Co.


                                       -13-
Case No. 4-12-07


v. Bowen 130 Ohio St. 347 (1936), paragraph five of the syllabus. To satisfy due

process, a defendant must have notice of the hearing and have an opportunity to be

heard. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970).

       {¶39} In the case before us McCalla’s son John purchased the Buckskin

Rd. property having been informed that in order for anyone to reside on the

property the septic system would have to be brought into compliance with state

and local laws. After John acquired ownership of the property, despite not having

a license or a permit to do so, John and McCalla replaced the old septic tank with a

new larger septic tank. Following this installation John was notified that his

system was still not in compliance with state and local laws. John then applied for

a variance with the Board of Health. The Board of Health denied John’s Variance

request.

       {¶40} Subsequently John transferred the Buckskin Rd. property to his

father, McCalla. McCalla filed for a second variance with the Board of Health.

This time the Board of Health conditionally granted the variance, giving McCalla

90 days to meet the conditions. After allowing McCalla more than 90 days to

comply with the conditions in the conditional variance and thus remove the

nuisance, the Board of Health filed a complaint against appellants.

       {¶41} McCalla now claims that he was not informed of his administrative

rights or right to appeal his grant of a conditional variance, and that because of


                                       -14-
Case No. 4-12-07


this, his administrative remedies had not been exhausted and he had been denied

due process. Despite McCalla’s claims, the Board of Health did not file an appeal

from any administrative action wherein McCalla may or may not have been

informed of his right to appeal the conditional variance. McCalla’s arguments that

his administrative rights are implicated here are misplaced.

       {¶42} The case before us is predicated on a complaint filed against McCalla

alleging various violations of state and local sewage treatment laws.          The

violations pertaining to this matter included that McCalla was maintaining a public

health nuisance.   McCalla, and his son John before him, had been notified

repeatedly that he needed to get the septic system into compliance with state and

local laws to remove that nuisance. This case centers on the injunction preventing

that alleged nuisance, and is not related to any matter of administrative remedies

as McCalla asserts. Therefore we find that the motion to dismiss was properly

overruled and McCalla’s due process rights were not violated.         Accordingly

appellants’ first and second assignments of error are overruled.

                            Fourth Assignment of Error

       {¶43} In McCalla’s fourth assignment of error he argues that the trial court

erred in denying him a jury trial. McCalla’s jury demand was denied in the trial

court’s December 13, 2011 judgment entry.




                                        -15-
Case No. 4-12-07


       {¶44} The Ohio Supreme Court held in State ex. rel. Miller v. Anthony, 72

Ohio St.3d 132 (1995), that Section 5 Article I of the Ohio Constitution “did not

preserve the right to a jury trial in a particular cause of action unless the action is

one that was recognized as a jury issue at common law.” Anthony at 136, citing

Digital & Analog Design Corp. v. N. Supply Co., 63 Ohio St.3d 657, 661 (1992).

The Court went on to hold that the Ohio Constitution did not provide a right to a

jury trial in a nuisance abatement action, finding that there is no right to a jury trial

on equitable claims for injunction. Anthony at 136.

       {¶45} In this case, the Board of Health filed a complaint seeking injunctive

relief. Particularly, the Board of Health sought a nuisance abatement. Based upon

the reasoning in Anthony, McCalla was not entitled to a jury trial as he claims.

Accordingly appellants’ fourth assignment of error is overruled.

                              Sixth Assignment of Error

       {¶46} In McCalla’s sixth assignment of error, McCalla argues that there

was a “per se” taking of his property due to the regulations requiring McCalla to

install a compliant septic system.        McCalla claims that the regulation “has

completely deprived [McCalla of] all economically beneficial use of his property.”

(Appt. Br. at 21).

       {¶47} Both the United States and the Ohio Constitutions guarantee that

private property shall not be taken for public use without just compensation. Fifth


                                          -16-
Case No. 4-12-07


and Fourteenth Amendments to the United States Constitution; Section 19, Article

I, Ohio Constitution. The United States Supreme Court has consistently held that

the application of land-use regulations to a particular piece of property is a taking

only if either the regulation is constitutionally invalid in that it does not

substantially advance legitimate state interests or if it denies an owner

economically viable use of his land. State ex rel. Shemo v. Mayfield hts., 95 Ohio

St.3d 59, 63, 2002-Ohio-1627, citing United States v. Riverside Bayview Homes,

Inc. 474 U.S. 121, 126, 106 S.Ct. 455 (1985), citations omitted.

       {¶48} To determine the extent to which a regulation has deprived land of

economic viability, we must compare the value of the property that has been taken

by the regulation against the value of the property that remains.          Keystone

Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 497, 107 S.Ct. 1232 (1987).

If, in doing so, the regulation has deprived the property of all economic value, a

compensable taking results unless the regulation prevents a use that creates a

nuisance. Natl. Lime & Stone Co. v. Blanchard Twp., 3d Dist. Nos. 6-04-04, 6-04-

05, 2005-Ohio-5758, ¶ 44, citing Lucas v. South Carolina Coastal Council, 505

U.S. 1003, 112 S.Ct. 2886 (1992).

       {¶49} While McCalla claims that he has been deprived of all economically

beneficial uses of his property, there is absolutely nothing in the record

establishing that McCalla cannot use the property for storage or for farmland (as


                                        -17-
Case No. 4-12-07


McCalla owns and farms the surrounding land). Thus there are still potentially

viable economical uses for the property. Moreover, the trial court found that

McCalla’s violation of the regulation was a public health nuisance, which would

create an exception even if there was a taking. Furthermore, there is still value to

the home, being that the estimated cost for repair of the system was $12,000 and

according to McCalla the property is apparently valued at least at $40,000.3 For

all of these reasons, appellants’ sixth assignment of error is overruled.

                                    Seventh Assignment of Error

         {¶50} In McCalla’s seventh assignment of error, McCalla argues that the

trial court erred in levying an excessive fine not in accordance with the Ohio

Revised Code. In support of his argument, McCalla cites State v. Tri-State Group,

Inc., 7th Dist. No. 03-BE-61, 2004-Ohio-4441, ¶¶ 102-104, wherein the court

utilized four factors in deciding whether a given fee is appropriate.4

         {¶51} At the outset, we note that the $365,000 fine against McCalla was

jointly agreed to by the parties at the dispositional hearing. After the trial court

determined McCalla’s septic tank to be a public health nuisance, the trial court

delayed disposition pending a hearing on several issues, one of which was the


3
  There is no estimate of the property’s value in the record but McCalla, in his brief, states that the value of
the property is $40,000.
4
  Those factors included: the harm or threat of harm posed to the environment by the violations, the level of
recalcitrance, defiance, or indifference demonstrated by the violator of the law, the economic benefit gained
by the violation, and the extraordinary costs incurred in enforcement. Tri-State Group at ¶ 104, citing State
ex rel. Brown v. Dayton Malleable, 1 Ohio St.3d 151, 153 (1982).


                                                     -18-
Case No. 4-12-07


appropriate amount of a fine. The record in this case unambiguously demonstrates

that the parties agreed to the imposition of a $365,000 fine.

       {¶52} The trial court’s January 17, 2012 judgment entry contained the

following language:

       WHEREUPON, after much discussion between the Parties, and
       with the Judge in his chambers, a mutual Agreement was
       reached as to the remaining issues to be determined by the
       Court.

       WHEREUPON, the Judge recited the mutual Agreement of the
       Parties on the record, with all Parties individually
       acknowledging that they concurred with the terms of said
       Agreement. It is now, therefore, ORDERED ADJUDGED, and
       DECREED, and the Court finds the following:

       ***

       That the parties stipulate to the imposition of the following
       penalties for [McCalla’s] violation of R.C. § 3718.011(A)(1), and
       under the Defiance County Sewage Treatment System
       Regulations: a $1,000.00 fine for each day of the violation,
       pursuant to R.C. §§ 3718.08 and 3718.99, for the past year (365
       days) for a TOTAL CUMULATIVE FINE OF $365,000.00[.]

(Emphasis in original.) (Doc. 28). The language in the court’s judgment entry

accurately reflected the dispositional hearing. At the dispositional hearing, the

court stated,

       THE JUDGE: * * * [T]he parties are willing to agree that the
       amount of the – the accumulative amount of those Civil Penalties
       would be three hundred and sixty five thousand dollars.

       ***


                                        -19-
Case No. 4-12-07


       It is also my understanding that the parties have entered into an
       agreement that the Board of Health will forego collection of that
       amount provided that [McCalla] complies with the injunction[.]

       ***

       Is that an accurate and complete recitation of the agreement or
       the arrangement?

       MR. HERMAN:                Yes, Your Honor.

       THE JUDGE:                Mr. Holtsberry appears on behalf of
       [McCalla]. Mr. Holtsberry, is that an accurate and complete
       recitation of the agreement?

       MR. HOLTSBERRY:            I Believe it is, Your Honor.

(Jan. 11, 2012 tr. at 3-4).

       {¶53} Despite the fact that McCalla stipulated to the fine, McCalla appeals

the amount, stating that the amount of the fine was inappropriate and contrary to

law. “It is axiomatic, however, that a party may not appeal a judgment to which it

has agreed.” Wells v. Spirit Fabricating Ltd., 8th Dist. No. 67940, 1995 WL

527541, citing Jackson v. Jackson, 16 Ohio St. 163 (1865), at paragraph one of

the syllabus; In re Annexation of Riveredge Twp. to Fairview Park, 46 Ohio

App.3d 29, 31-32 (8th Dist.1988); Madorsky v. Madorsky, Cuyahoga App. No.

57517, unreported, (Sept. 27, 1990). Having entered into a mutual agreement to

the amount of the fine to the court, McCalla is estopped from challenging this

amount on appeal. See Trautwein v. Runyon, 5th Dist. No. 94-CA-E-11-032, 1995



                                       -20-
Case No. 4-12-07


WL 498951 (holding that appellants, having stipulated a fact before the trial court,

could not challenge it on appeal).

       {¶54} Furthermore, as the trial court implied in its entry and in the

dispositional hearing, the fine imposed in this case could have been “greater” than

the mutually agreed amount of $365,000. (Jan. 11, 2012, tr. at 3). Pursuant to R.C.

3718.99, McCalla could have been fined $1,000 per day for being in violation of

R.C. 3718.08. Revised Code 3718.08 states that “[n]o person shall violate this

chapter, any rule adopted or order issued under it, or any condition of a

registration or permit issued under rules adopted under it.” Therefore, pursuant to

the code, any violation of the corresponding chapter of the revised code could

result in a fine of up to $1,000 for each day of the violation. As the violation

continued for well in excess of a year the fine could potentially have been far

greater. The fine was thus well within the parameters of the Revised Code. For

all of the foregoing reasons, appellants’ seventh assignment of error is overruled.

                             Fifth Assignment of Error

       {¶55} In McCalla’s fifth assignment of error, McCalla argues that the trial

court misapplied provisions of the Ohio Revised Code in deciding this case,

namely R.C. 3718.02(A)(3), R.C. 3718.011, and R.C. 3718.012.

       {¶56} R.C. 3718.02(A)(3) reads

       (A) The public health council, in accordance with Chapter 119.
       of the Revised Code, shall adopt, and subsequently may amend

                                        -21-
Case No. 4-12-07


      and rescind, rules of general application throughout the state to
      administer this chapter. Rules adopted under division (A) of this
      section shall do at least all of the following:

      (3) Prescribe standards for the siting, design, installation,
      operation, monitoring, maintenance, and abandonment of
      sewage treatment systems that may be used in this state and for
      the progressive or incremental alteration or repair of an existing
      sewage treatment system or the progressive or incremental
      installation of a new system to replace an existing sewage
      treatment system. The rules shall be adopted so as to establish a
      preference for the repair of an existing sewage treatment system,
      when technically and economically feasible, rather than its
      replacement with a new system. The standards shall include at a
      minimum all of the following:

      {¶57} R.C. 3718.011 reads,

      (A) For purposes of this chapter, a sewage treatment system is
      causing a public health nuisance if any of the following situations
      occurs and, after notice by a board of health to the applicable
      property owner, timely repairs are not made to that system to
      eliminate the situation:

      (1) The sewage treatment system is not operating properly due
      to a missing component, incorrect settings, or a mechanical or
      electrical failure.

      (2) There is a blockage in a known sewage treatment system
      component or pipe that causes a backup of sewage or effluent
      affecting the treatment process or inhibiting proper plumbing
      drainage.

      (3) An inspection conducted by, or under the supervision of,
      the environmental protection agency or a sanitarian registered
      under Chapter 4736. of the Revised Code documents that there
      is ponding of liquid or bleeding of liquid onto the surface of the
      ground or into surface water and the liquid has a distinct sewage
      odor, a black or gray coloration, or the presence of organic
      matter and any of the following:

                                     -22-
Case No. 4-12-07



      (a) The presence of sewage effluent identified through a dye
      test;

      (b) The presence of fecal coliform at a level that is equal to or
      greater than five thousand colonies per one hundred milliliters
      of liquid as determined in two or more samples of the liquid
      when five or fewer samples are collected or in more than twenty
      per cent of the samples when more than five samples of the
      liquid are collected;

      (c) Water samples that exceed one thousand thirty e. coli
      counts per one hundred milliliters in two or more samples when
      five or fewer samples are collected or in more than twenty per
      cent of the samples when more than five samples are collected.

      (4) With respect to a discharging system for which an NPDES
      permit has been issued under Chapter 6111. of the Revised Code
      and rules adopted under it, the system routinely exceeds the
      effluent discharge limitations specified in the permit.

      (B) With respect to divisions (A)(1) and (2) of this section, a
      property owner may request a test to be conducted by a board of
      health to verify that the sewage treatment system is causing a
      public health nuisance. The property owner is responsible for
      the costs of the test.

      {¶58} R.C. 3718.012 reads,

      [a] sewage treatment system that was in operation prior to the
      effective date of this section shall not be required to be replaced
      with a new sewage treatment system under this chapter or rules
      adopted under it and shall be deemed approved if the system
      does not cause a public health nuisance or, if the system is
      causing a public health nuisance as provided in section 3718.011
      of the Revised Code, repairs are made to the system that
      eliminate the public health nuisance as determined by the
      applicable board of health.



                                     -23-
Case No. 4-12-07


      {¶59} Citing the above provisions, McCalla specifically argues that the

complaint did not allege that McCalla’s septic “system” was a “public health

nuisance,” and that the trial court did not consider the law’s preference for making

alterations to a current system rather than replacing it along with the economic

impact accompanying it.

      {¶60} First, addressing McCalla’s claim regarding the complaint, we have

already found the complaint to be sufficient. The Board of Health’s complaint

repeatedly characterized the septic situation on McCalla’s property as a “nuisance”

and cited various provisions of the revised code, the administrative code and

Defiance County regulations. Revised Code section 3718.011, cited as being

violated multiple times in the Board of Health’s complaint, specifically addresses

“public health nuisance situations” and thereby the complaint incorporates

numerous references to a “public health nuisance.”            See R.C. 3718.011.

Therefore, McCalla’s argument that a “public health nuisance” was not alleged in

the complaint is without merit.

      {¶61} Second, McCalla claims the trial court erred by failing to take into

account what McCalla argues is the law’s preference for making alterations to a

current system in lieu of replacing it and that the trial court failed to take into

account the economic impact of requiring McCalla to bring his system up to code.




                                       -24-
Case No. 4-12-07


         {¶62} At the outset we note that the trial court made no specific findings as

to whether McCalla would need to replace his old system or merely have it

repaired as he suggests. The trial court simply held that an injunction was in effect

on the property “until a proper and legal home sewage treatment system is

installed.” (Doc. 22). Under this holding McCalla was not required to install a

new system rather than repair his old system, he was simply required to have a

properly functioning system—something that he was fully aware of when he took

on the property in the first place.

         {¶63} McCalla argues essentially that the economic impact of requiring

McCalla to bring his “system” up to code would be unduly burdensome and that

the trial court did not take this into account. McCalla claims that the Buckskin Rd.

property is worth $40,000 and that installing the system would cost him at least

$12,000, making the cost of repairing/replacing his septic “system” up to half of

the property’s value.5 (Appt. Br. 19-20).

         {¶64} Despite McCalla’s claims, the record does not contain an actual

valuation of the Buckskin Rd. property.                       The State did enter the purchase

agreement between Guilford and McCalla’s son into the record showing that the

sale price of the property was $40,000, but there is no estimate of the Buckskin

Rd. property’s value. (State’s Ex. C). Nothing in the record establishes whether


5
  In his brief, McCalla originally states that it would cost at least $12,000 to get his system up to code, and
then he uses a figure of $20,000 for the repair/replacement without substantiating that figure in the record.

                                                    -25-
Case No. 4-12-07


$40,000 was the value of the Buckskin Rd. property with or without a working

septic system (and the septic system was not functioning at the time McCalla’s son

purchased the property, a fact that McCalla and McCalla’s son were aware of).

       {¶65} Thus the value McCalla cites in his brief, if we accept that figure as

the actual value of the Buckskin Rd. property at the time of purchase, could be

merely the “as-is” value of the Buckskin Rd. property. There is nothing in the

record that would establish a value of the Buckskin Rd. property with a working

septic system. This fact makes McCalla’s argument increasingly speculative as a

$12,000 system might increase the value of the Buckskin Rd. property

substantially. Therefore there is not enough evidence in the record to illustrate any

type of economic hardship on McCalla on a property that he acquired knowing

that the septic system needed repaired/replaced, and on a property that may see a

direct increase in value with a working septic system.

       {¶66} Despite McCalla’s arguments it seems that McCalla himself might

not have considered the economic impact of purchasing a property that he knew

had a non-compliant septic system.       Rather than remedy the problem on the

property, McCalla chose to seek a variance.          Even after the variance was

conditionally granted McCalla did not comply with it.

       {¶67} Finally, it would seem from the trial court’s holding that the trial

court was legitimately concerned with the potential health risks of the public


                                        -26-
Case No. 4-12-07


health nuisance. The trial court heard testimony from Prigge and Rebecca Fuggit

about the danger inherent in allowing someone to reside on the Buckskin Rd.

property without having a properly functioning septic system. At the dispositional

hearing the court stated

       I realize there was testimony that you don’t perceive there to be
       any problem, but in no way shape or form can that system be
       used. It is in fact – not only is this a matter of statutory
       definition, it is a real life * * * Public Health Nuisance and thank
       God nothing bad has happened either to the tenant or to the
       neighbors or anything like that today, but common sense tells
       you that you just can’t operate that kind of a thing. It’s
       dangerous and that’s the Court’s principle motivation * * *.

(Jan. 11, 2012 tr. at 5-6).

       {¶68} For all of these reasons, appellants’ fifth assignment of error is

overruled.

                              Eighth Assignment of Error

       {¶69} In his eighth assignment of error, McCalla argues that the trial

court’s application of R.C. 3718.011 is retroactive and therefore violates Article II

Section 28 of the Ohio Constitution.

       {¶70} At the outset we note that McCalla failed to raise this Constitutional

issue at the trial court level. The “[f]ailure to raise at the trial court level the issue

of the constitutionality of a statute or its application, which is apparent at the time

of trial, constitutes a waiver of such issue and a deviation from this state’s orderly

procedure, and therefore need not be heard for the first time on appeal.” State v.

                                          -27-
Case No. 4-12-07


Awan, 22 Ohio St.3d 120 (1986), at syllabus. Although we retain the discretion to

consider a waived constitutional argument, State v. Rice, 3d Dist. Nos. 1-02-15, 1-

02-29, 1-02-30, 2002-Ohio-3951, ¶ 7, we decline to do so here.

       {¶71} Accordingly, appellants’ eighth assignment of error is overruled.

       {¶72} For the foregoing reasons appellants’ assignments of error are

overruled and the judgment entries of the Defiance County Common Pleas Court

are affirmed.

                                                              Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




                                       -28-
