STRONG v. TOLEDO (2024)

OPINION

{¶1} Plaintiff-appellant Charmarlyn Strong (“Strong”) appeals the judgment of the Lucas County Court of Common Pleas, arguing that the trial court erred by denying her motion for summary judgment and granting summary judgment in favor of the City of Toledo (“Toledo”) and the Toledo-Lucas County Board of Health (“Board of Health”). For the reasons set forth below, the judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} Toledo Municipal Code Chapter 1760 (“TMC 1760”) contains the city's lead-paint safety ordinance for residential rental properties. Strong is the owner of a rental property in Toledo, Ohio. A provision in TMC 1760 requires the owners of residential rental properties in her area to conform to various requirements in the lead paint ordinance by June 30, 2023. (Complaint). TMC 1760.14(a)(2).

{¶3} In a complaint filed on June 27, 2022, Strong requested preliminary and permanent injunctions to enjoin TMC 1760. Her primary argument was that TMC 1760 was invalid because it “presumes that the [Board of Health] * * * has powers that it does not possess by statute under R.C. 3709.281” to administer or enforce provisions within the lead-paint ordinance. (Complaint). Strong alternatively argued that, if this statute does confer such authority, then R.C. 3709.281 unconstitutionally delegates powers and TMC 1760 is still invalid.

{¶4} In August of 2023, Strong, the Board of Health, and Toledo each filed motions for summary judgment. The Board of Health and Toledo raised two main arguments in their motions. First, they pointed out that, in Mack v. City of Toledo, the Sixth District Court of Appeals concluded that R.C. 3709.281 authorized the Board of Health and Toledo to enter into an agreement for the administration of a lead-paint ordinance. Mack v. City of Toledo, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 64 (6th Dist.). Second, they argued that R.C. 3709.281 does not unconstitutionally delegate municipal powers to the Board of Health.

{¶5} On November 1, 2023, the trial court granted summary judgment in favor of the Board of Health and Toledo. In its decision, the trial court set forth the following two bases for its decision:

1) Pursuant to the Sixth District Court of Appeals Decision in Mack v. City of Toledo * * *, the current version of Toledo Municipal Code (“TMC”) Chapter 1760 is not an improper delegation of municipal authority by Toledo City Council to the Toledo-Lucas County Board of Health; and 2) Under the facts presented in this case, R.C. 3709.281 does not create an unconstitutional delegation of municipal powers.

(Nov. 1, 2023 Judgment Entry). For these reasons, the trial court also denied Strong's motion for summary judgment.

{¶6} Strong filed her notice of appeal on November 6, 2023. On appeal, she raises the following two assignments of error:

First Assignment of Error

The trial court erroneously held that R.C. 3709.281 empowers an appointee of a board of health, which is a creature of statute with limited statutory powers, to act as contemplated by a series of Toledo ordinances that would require the board's statutory appointee to: (a) issue or reject licenses for leasing housing units in the city, (b) regulate inspectors essential to the licensing process, (c) randomly search rental residences, and (d) file judicial enforcement actions on behalf of the city. This interpretation caused the court to erroneously fail to enjoin enforcement of the underlying ordinances on summary judgment.

Second Assignment of Error

If the trial court's interpretation of R.C. 3709.281 is correct, then the result is that R.C. 3709.281 is void under the anti-delegation doctrine and therefore the underlying ordinances are also invalid because their validity depends upon the validity of R.C. 3709.281 as construed by the trial court.

Standard of Review

{¶7} “Appellate review of a summary judgment is de novo * * *.” Nuckols v. Consolidated Rail Corporation, 2024-Ohio-1070, 240 N.E.3d 373, ¶ 22 (6th Dist.). Under Civ.R. 56, summary judgment is appropriate only where the moving party establishes

(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.

Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). The party moving for summary judgment bears the initial burden of “specifically delineat[ing] the basis upon which the motion is brought and identify[ing] those portions of the record that demonstrate the absence of a genuine issue of material fact.” Riesterer v. Porter, 2022-Ohio-1698, 2022 WL 1599887, ¶ 14 (6th Dist.).

{¶8} If the moving party makes this initial showing, the burden then shifts to the nonmoving party “to set forth specific facts showing that there is a genuine issue for trial.” Robinson v. Lafarge North America, Inc., 2022-Ohio-231, 183 N.E.3d 1255, ¶ 16 (6th Dist.), quoting Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). The nonmoving party “may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact.” Riesterer at ¶ 14. “A trial court must grant the motion with caution and must be ‘careful to resolve doubts and construe evidence in favor of the nonmoving party.’ ” Afjeh v. Ottawa Hills, 2015-Ohio-3483, 2015 WL 5050526, ¶ 10 (6th Dist.), quoting Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993).

{¶9} Further, “[a]n injunction is an extraordinary remedy in equity where there is no adequate remedy available at law. It is not available as a right but may be granted by a court if it is necessary to prevent a future wrong that the law cannot.” Garono v. State, 37 Ohio St.3d 171, 173, 524 N.E.2d 496 (1988).

A party seeking a preliminary injunction bears the burden of establishing, by clear and convincing evidence, that ‘(1) there is a substantial likelihood that the plaintiff will prevail on the merits; (2) the plaintiff will suffer irreparable injury if the injunction is not granted; (3) no third parties will be unjustifiably harmed if the injunction is granted; and (4) the public interest will be served by the injunction.’ Keefer v. Ohio Dept. of Job and Family Servs., 10th Dist. Franklin No. 03AP-391, 2003-Ohio-6557, [2003 WL 22890291] ¶ 14[.] * * *

The test for the granting or denial of a permanent injunction is substantially the same as that for a preliminary injunction. However, in the case of a permanent injunction, the plaintiff must prove that he has prevailed on the merits, not merely that there is a ‘substantial likelihood’ of prevailing on the merits.

Gimex Properties Corp., Inc. v. Reed, 2022-Ohio-4771, 205 N.E.3d 1, ¶ 61-62 (6th Dist.). In general, “[t]he decision to grant or deny an injunction is within the discretion of the trial court, and we review that decision on appeal for an abuse of discretion.” Id. at ¶ 59. An abuse of discretion is more than an error of judgment but is a decision that is arbitrary, unreasonable, or unconscionable. Id. “However, where statutory interpretation is involved, de novo review applies.” Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 30.

First Assignment of Error

{¶10} Strong argues that the trial court erred by concluding that R.C. 3709.281 permits Toledo to enter an agreement that tasks the Board of Health with various administrative functions that are set forth in TMC 1760.

Legal Standard

{¶11} R.C. 3709.281 addresses agreements that are made between a board of health and the “legislative authority of a municipality.” This provision reads, in its relevant parts, as follows:

A board of health of a city or general health district may enter into an agreement with the legislative authority of a municipality in which such health district is totally or partially located, and such legislative authority may enter into an agreement with such board of health, whereby such board of health undertakes, and is authorized by such legislative authority to exercise any power, perform any function, or render any service, in behalf of such legislative authority which such legislative authority may exercise, perform, or render.

Upon the execution of such agreement and within the limitations prescribed by it, such board of health may exercise the same powers as such legislative authority possesses with respect to the performance of any function or the rendering of any service, which, by such agreement, it undertakes to perform or render, and all powers necessary or incidental thereto, as amply as such powers are possessed and exercised by such legislative authority directly. Any agreement authorized by this section does not suspend the possession by such legislative authority of any power or function exercised or performed by such board of health in pursuance of such agreement, and no board of health, by virtue of any agreement entered into under this section, shall acquire any power to levy taxes in behalf of such legislative authority unless approved by a majority of the electors of the municipality. * * *

(Emphasis added.) R.C. 3709.281. “The interpretation and application of a statute is a question of law subject to de novo review.” Kerger & Hartman, L.L.C. v. Ajami, 2015-Ohio-5157, 54 N.E.3d 682, ¶ 39 (6th Dist.). “Under such review, an appellate court does not give deference to the trial court's determination.” Id.

{¶12} “With statutory construction, the ‘paramount concern is the legislative intent in enacting the statute.’ ” Sullivan-White v. Aukland, 2023-Ohio-141, 205 N.E.3d 1147, ¶ 58 (6th Dist.). “[I]f the terms of the statute are clear and unambiguous, the statute must be applied without interpretation.” Bowling v. Norman, 2024-Ohio-2658, ––– N.E.3d ––––, ¶ 23 (6th Dist.). “It is only where the words of a statute are ambiguous, are based upon an uncertain meaning, or there is an apparent conflict of some provisions, that a court has the right to interpret a statute.” Ohio Bus Sales, Inc. v. Toledo Bd. of Edn., 82 Ohio App.3d 1, 6, 610 N.E.2d 1164 (6th Dist. 1992).

{¶13} “A statute is ambiguous when its language is subject to more than one reasonable interpretation.” Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 61, quoting Clark v. Scarpelli, 91 Ohio St.3d 271, 274, 744 N.E.2d 719 (2001).

Under established principles of statutory construction, where statutes are ambiguous, courts ‘may consider several factors, including the object sought to be obtained, circumstances under which the statute was enacted, the legislative history, and the consequences of a particular construction.’

Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 61, quoting Bailey v. Republic Engineered Steels, Inc., 91 Ohio St.3d 38, 40, 741 N.E.2d 121 (2001).

Legal Analysis

{¶14} Strong asserts that the term “legislative authority” in R.C. 3709.281 is unambiguous and refers only to a city council. Under this interpretation, R.C. 3709.281 would authorize agreements under which a board of health is only tasked with functions otherwise performed by the city council. A city council has legislative powers and performs legislative functions. See R.C. 731.05. For this reason, Strong contends that R.C. 3709.281 does not permit the arrangement in TMC 1760 because the agreement at issue tasks the board of health with administrative functions that the city council does not otherwise perform.

{¶15} In Mack v. City of Toledo, this Court considered the interpretation of R.C. 3709.281 now advanced by Strong. Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 28. In this prior case, the trial court determined that “R.C. 3709.281 is unambiguous and refers to delegation only of the powers of the legislative authority (the City Council), which are legislative, not executive or administrative, and are not the powers of the municipality (Toledo)[.]” Id. at ¶ 28. The trial court then concluded that “R.C. 3709.281 did not authorize the * * * [Board of Health] and Toledo to enter into an agreement to enforce the lead ordinance or perform the other municipal services the lead ordinance contemplates.” Id. Toledo then appealed this decision.

{¶16} In the resulting appeal, this Court found the term “legislative authority” to be ambiguous. Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 60-61. We reached this conclusion after noting that several attorney general opinions interpreted this term differently from the court of common pleas. Id. at ¶ 53, 60 (“A statute is ambiguous when its language is subject to more than one reasonable interpretation.”), quoting Scarpelli, 91 Ohio St.3d 271, 274, 744 N.E.2d 719. We also observed that the text of R.C. 3709.281 permits a board of health to “render any service” otherwise rendered by a legislative authority but noted that a city council “do[es] not perform services.” Mack at ¶ 86.

{¶17} Since “[t]here is minimal authority interpreting R.C. 3709.281,” we conducted an analysis of attorney general opinions that “equated a ‘legislative authority’ with a ‘municipality’ or ‘village.’ ” Mack, 2019-Ohio-5427, 151 N.E.3d 151, at ¶ 49, 60. Further, in examining this term in another statutory provision, the Ohio Supreme Court “did not distinguish between ‘legislative authority’ and city council or commissioners, and municipality or county; instead, the court mixed these terms.” Id. at ¶ 83, citing State ex rel. Ranz v. City of Youngstown, 140 Ohio St. 477, 488-492, 45 N.E.2d 767 (1942) (interpreting the predecessor statute to R.C. 307.14).

{¶18} Based on this analysis, we rejected the trial court's conclusions that the term “legislative authority,” as used in R.C.3709.281, referred only to the city council and that this provision could not, therefore, authorize an agreement that tasked the board of health with various administrative responsibilities. Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 4, 28, 91. In addressing the ambiguous language of this provision, we found that “a more reasonable interpretation” of R.C. 3709.281 was

that the [state] legislature intended for municipalities, through ordinances passed by city council, to be able to contract with a health district (or any agency) for functions or services that the municipality is otherwise authorized to perform or can appoint an agent for the carrying out of the legislative will * * *.

Id. at ¶ 64. Accordingly, we concluded that the agreement between Toledo and the Board of Health regarding the administration of TMC 1760 was permissible under R.C. 3709.281. Id. at ¶ 91, 132.

{¶19} In the case presently before us, the trial court granted summary judgment based upon the reasoning in Mack.¹ On appeal, Strong approaches this Court with candor, acknowledging that Mack’s interpretation of the term “legislative authority” in R.C. 3709.281 must be rejected for her arguments in this assignment of error to prevail. She asserts that Mack was wrongly decided and should not be followed. However, Strong's arguments do not persuade us that Mack’s interpretation of the term “legislative authority” was incorrect. Thus, her arguments must fail.

{¶20} In summary, having decided to follow the reasoning in Mack, we conclude that agreements made pursuant to R.C. 3709.281 are not limited to tasking a board of health only with functions otherwise performed by a city council. Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 3, 90-91. Rather, this provision enables a “legislative authority” to enter an agreement that tasks a board of health with “services, like enforcing the lead ordinance, for the [c]ity.” Id. at ¶ 3. Since Strong's argument does not establish that the trial court erred in deciding the motions for summary judgment, the first assignment of error is overruled.

Second Assignment of Error

{¶21} Strong argues that Mack’s interpretation of the term “legislative authority” in R.C. 3709.281 renders this provision facially unconstitutional under the nondelegation doctrine. Alternatively, she argues that R.C. 3709.281 only enables a city council to delegate rulemaking authority to a board of health.

Legal Standard

{¶22} “The nondelegation doctrine is rooted in the principle of separation of powers * * *.” Mistretta v. U.S., 488 U.S. 361, 371, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Under our tripartite structure of government, “the executive, legislative, and judicial branches of our government have their own unique powers and duties that are separate and apart from the others.” State v. Thompson, 92 Ohio St.3d 584, 586, 752 N.E.2d 276 (2001). “In framing the Ohio Constitution, the people of this state conferred on the General Assembly the legislative power.” City of Toledo v. State, 154 Ohio St.3d 41, 2018-Ohio-2358, 110 N.E.3d 1257, ¶ 26.

{¶23} Under the nondelegation doctrine, “the General Assembly cannot delegate its essential legislative power to administrative bodies or officers.” Redman v. Ohio Dept. of Indus. Relations, 75 Ohio St.3d 399, 403, 662 N.E.2d 352 (1996).

A statute does not unconstitutionally delegate legislative power if it establishes, through legislative policy and such standards as are practical, an intelligible principle to which the administrative officer or body must conform and further establishes a procedure whereby exercise of the discretion can be reviewed effectively.

Id. at 406, 662 N.E.2d 352, quoting Blue Cross of Northeast Ohio v. Ratchford, 64 Ohio St.2d 256, 416 N.E.2d 614 (1980), at syllabus.

{¶24} “The basic purpose of the nondelegation doctrine is to control unbridled agency discretion.” Redman at 404, 662 N.E.2d 352. However, the Ohio Supreme Court has held that “a rigid application of the nondelegation doctrine would unduly hamstring the administration of the laws.” Id. “R.C. 3709.281 was enacted in 1967” and “has functioned for many years.” Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 63, 86. In this timeframe, the essential function of R.C. 3709.281—and several other statutes using the term “legislative authority”—has been “to ease the ability of various governmental entities to contract with each other to perform functions that one of the parties is unable or unwilling to do.” Id. at ¶ 86.

{¶25} Further, when arguing a statute is unconstitutional on its face, “the challenger must provide proof beyond a reasonable doubt that no set of circumstances exists under which the statute would be valid.” State v. Eaton, 2022-Ohio-2432, 192 N.E.3d 1236, ¶ 21 (6th Dist.). Thus, “[a] statute is not constitutionally infirm on its face merely because it may ‘operate unconstitutionally under some plausible set of circumstances.’ ” Id., quoting Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. In this analysis, “statutes are presumed to be constitutional * * *.” Taxiputinbay, LLC v. Put-In-Bay, 2023-Ohio-1237, 212 N.E.3d 1215, ¶ 35 (6th Dist.), quoting Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 12.

Legal Analysis

{¶26} Strong raises two main arguments herein. First, she identifies the following portion of Mack as the basis of her initial challenge:

the [state] legislature intended for municipalities, through ordinances passed by city council, to be able to contract with a health district (or any agency) for functions or services that the municipality is otherwise authorized to perform or can appoint an agent to for the carrying out of the legislative will * * *.

Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 64, citing State ex rel. Campbell v. Cincinnati St. Ry. Co., 97 Ohio St. 283, 293, 119 N.E. 735 (1918).

{¶27} Strong argues that this interpretation of R.C. 3709.281 does not avoid a conflict between this statute and the nondelegation doctrine. See Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 63-64. She points out that Mack’s interpretation of the term “legislative authority” still encompasses a city council with legislative powers. Since an agreement under R.C. 3709.281 can task a board of health with powers or functions possessed by a legislative authority, Strong argues that Mack’s interpretation of this provision does not eliminate the possibility that a legislative authority could attempt to enter an agreement that transfers its essential legislative powers to a board of health in violation of the nondelegation doctrine. For this reason, she argues that R.C. 3709.281 is facially unconstitutional. See Reply Brief, 10.

{¶28} However, the text of R.C. 3709.281 does not, on its face, contain a delegation of any essential legislative powers to an executive agency. Rather, this provision creates a pathway between a legislative authority and the local board of health that enables these “governmental entities to contract with each other to perform functions that one of the parties is unable or unwilling to do.” Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 86. Any agreements made pursuant to R.C. 3709.281 would still be subject to the limitations imposed by the nondelegation doctrine. But in this assignment of error, Strong only challenges R.C. 3709.281 and does not identify any provision contained within TMC 1760 or the agreement with the Board of Health for scrutiny under the nondelegation doctrine.²

{¶29} Since Strong has not identified an actual delegation of essential legislative powers in R.C. 3709.281, she has failed to establish that this statute runs afoul of the nondelegation doctrine and is, therefore, facially unconstitutional. She has also failed to establish that Mack’s interpretation of the term “legislative authority” puts R.C. 3709.281 into conflict with the nondelegation doctrine such that no set of circumstances exists in which this provision is valid. Thus, we again decline to reject the reasoning of our prior decision. The first argument is without merit.

{¶30} Second, Strong raises an alternative argument that is based on several assertions that she made in her brief about the purpose of the statute at issue:

R.C. 3709.281 merely enables the legislative authority of Toledo—i.e., Toledo city council—to delegate its powers to a board of health.

The purpose is to empower a city council to leverage a board of health's expertise as needed * * *.

(Appellant's Brief, 2).³ Based on these assertions, Strong argues that R.C. 3709.281 is limited to “enabl[ing] a city council to leverage a board of health's expertise to promulgate rules for the protection of public health in times of need.” (Id. at 16).

{¶31} In other words, Strong again asserts that the term “legislative authority” in R.C. 3709.281 is essentially a synonym for “city council.” Based on this restrictive interpretation, she again argues that agreements made pursuant to R.C. 3709.281 can only task a board of health with the functions or powers otherwise possessed by the city council. However, under the first assignment of error, we followed Mack’s broader interpretation of the term “legislative authority.” Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 4, 28, 91. As noted previously, this broader interpretation of “legislative authority” permits a board of health to be tasked with a range of functions that goes beyond those exclusively performed by a city council.

{¶32} Further, in Mack, we also noted (1) that the text of R.C. 3709.281 expressly permits a board of health to be tasked with “render[ing] any service” that is otherwise rendered by a legislative authority and (2) that a city council “do[es] not perform services.” Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 86. This statutory language does not suggest that agreements made under R.C. 3709.281 are limited to tasking the board of health with functions performed by a city council. Rather, the text of the statute clearly indicates that a board of health can also be tasked with services.

{¶33} Based on the statutory language in R.C. 3709.281 and Mack’s interpretation of the term “legislative authority,” we find Strong's second argument to be without merit. Mack, 2019-Ohio-5427, 151 N.E.3d 151, ¶ 3, 83, 86. Since she has failed to establish that the trial court erred in deciding the motions for summary judgment, the second assignment of error is overruled.

Conclusion

{¶34} Having found no error prejudicial to the appellant in the particulars assigned and argued, the judgment of the Lucas County Court of Common Pleas is affirmed.

Judgment Affirmed

FOOTNOTES

1.   In its judgment entry, the trial court noted that Strong argued Mack was an advisory opinion because the plaintiff in that case filed a motion to dismiss after the initial version of TMC 1760 was repealed during the pendency of that appeal. However, this motion was denied because Mack presented (1) claims that were capable of repetition yet evading review and (2) issues that may have outlived the controversy but were of great public interest. The ordinance was subsequently modified into its current form. In the case now before us, the trial court concluded that it was bound by Mack but found that, even if this decision was not binding, the reasoning contained therein was persuasive. Further, while Mack did consider the interplay of R.C. 3709.281 and TMC 1760, this Court is now considering the interplay of R.C. 3709.281 and a revised version of TMC 1760. See New Riegel Local School District Board of Education v. Buehrer Group Architecture & Engineering, Inc., 157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482, ¶ 19-20 (courts apply “a fresh review” when legislation differs from a prior enactment “in significant and important ways,” even where the former and current versions of the provision bear “a resemblance.”). However, even if Mack is not binding precedent, we agree with the trial court in concluding that the reasoning in Mack is persuasive.

2.   Strong also makes no challenge as to whether there is an established procedure whereby exercise of the discretion (to the Board of Health) can be reviewed effectively by the legislative authority.

3.   At the outset of this alternative argument, Strong expressly directs us to the assertions that she made on page two of her brief. Appellant's Brief, 16.

WILLAMOWSKI, P.J.

ZIMMERMAN and MILLER, JJ., concur. Judges John R. Willamowski, William R. Zimmerman, and Mark C. Miller, from the Third District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.