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## cda (Nov 4, 2013)

[File – Chapter 1, American Legal System]

OH: FIRE CODE CITATION UPHELD / FINE REDUCED - PROPANE HEATERS AND FUEL CYLINDERS IN OUTDOOR PATIO OF A BAR

On Oct. 29, 2013 in Drop Bar, L.L.C. v. City of Cleveland, 2013-Ohio-4797, the Ohio Court of Appeals for Eight Appellate District (Cuyahoga County), held (2 to 1) that the Court of Common Pleas properly upheld the Ohio Board of Building Appeals, and Board had discretion to reduce the fine to $4,000 http://www.sconet.state.oh.us/rod/docs/pdf/8/2013/2013-ohio-4797.pdf

Dec. 28, 2011 – Outside Patio Violation – in a public right-of-way

“Inspector John Petkac (“Petkac”), city of Cleveland’s superintendent for the

Bureau of Sidewalks, testified that on December 28, 2011, a letter was issued to George advising him that the Drop Bar’s outdoor patio was not in compliance with the city’s codified ordinances for having an enclosed patio area in a public right-of-way.”

March 8, 2012 – fire code violations

“Subsequently on March 8, 2012, Petkac was notified about various alleged violations of the fire code regarding the enclosed patio area at the Drop Bar. Specifically, Petkac was notified that the bar had propane heaters inside the tented enclosed patio.”

March 8, 2012 – Cleveland Fire Captain visit

“Cleveland Fire Department Captain John McKenna …testified that he was notified by Petkac of these alleged violations. Accordingly, McKenna visited the Drop Bar on March 8 and confirmed the presence of the propane heaters and fuel cylinders within the enclosed patio. Although he did not immediately identify himself as being from the fire department, he notified the bartender at the bar that the heaters had to be removed and that the propane tanks could not be stored inside the building. McKenna did not issue a written citation.”

[McKenna was in plain clothes; gave bartender his business card and told her could not use the heaters.]

***

George [bar owner] testified that he was advised by Austin [bartender] on March 8 that McKenna told them not to use the heaters anymore. Accordingly, he told Austin not to use the heaters.”

March 16, 2012 – photos taken; building owner contacted

“In the late morning of March 16, McKenna returned to the Drop Bar establishment and saw that the propane heaters had not been removed from inside the enclosed patio. McKenna then contacted the owner of the building and notified him of the violations on the premises, but did not contact [bar owner] George. As on his prior visit, McKenna did not issue a written citation after this visit.

McKenna testified that he took pictures of the enclosed patio and heaters while he was there on March 16, but was unable to recover them from his computer for the hearing before the Board.”

March 22, 2012 – citation posted on door; required “immediate” abatement

“On March 22, McKenna again returned to the Drop Bar and posted the written citation at issue on the door of the bar listing ten violations of the State Fire Code requiring ‘immediate’ abatement of the hazards. He took additional pictures of the establishment when he posted the citation.”

March 22, 2012 – heaters removed

“George further testified that once he received written notice of the violations, he

Immediately contacted Paul Mills, who handles all his building and maintenance jobs, to remove the heaters and Krupa to remove the patio structure. Mills testified that he removed the heaters and capped off the gas lines on March 22. Additionally, Krupa’s affidavit states that on March 22, he completed the removal of the remaining remnants of the patio structure.”

Civil Penalty - $65,000

“Thereafter, the city levied a civil penalty of $65,800 against the Drop Bar

for the violations that existed from McKenna’s first visit on March 8 through March 22, the date of the citation and abatement.”

Appeal to Ohio Board of Building Appeals – penalty reduced to $4,000 (one day’s fine)

“Following a hearing, the Board upheld the citation, but reduced the fine to

$4,000, which equated to approximately a one-day penalty for the violation.”

HOLDING:

“In this case, the Drop Bar argues that because the citation did not ‘fix a reasonable time for the abatement of the violation,’ the citation is void ab initio; thus, both the Board and trial court erred in upholding the citation as valid.

***

Under R.C. 3737.42, once it is believed that the state fire code or an associated order has been violated, the inspector shall with reasonable promptness, issue a citation to the responsible person. The citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the state fire code or associated order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation.

Our review of the relevant law and language of the citation reveals that if

the violations are abated within the time period provided for in the citation, a fine may still be assessed against the person or entity. A person or entity who is assessed a penalty may appeal the citation and penalty to the Board. Whether the citation and penalty are upheld or whether the penalty is waived or reduced is within the discretion of the Board. This is evidenced by the language contained in the citation that a ‘proposed civil penalty, if any, be assessed as indicated * * *’ and that the citation may be appealed. See R.C. 3737.43.

***

Based on the facts, the Board recognized and determined that it was unreasonable for the city to assess a fine from March 8 until March 22 because the city did not issue the written citation until March 22. R.C. 3737.42 clearly provides that written notice is required for serious violations, which according to the testimony and citation, is what some of these violations were considered. However, the Board determined that the Drop Bar was in violation of the fire code during this time period and therefore, the citation was upheld, but the penalty was reduced to $4,000 — approximately a one-day penalty for the violations.

Dissent:

“I respectfully dissent. I find that the citation issued by the city of Cleveland was facially defective in that it did not conform to the statutory requirements of R.C. 3737.42. The statute requires that a citation shall be in writing and it shall fix a reasonable time for abatement of the violation.”

Legal Lesson Learned: If verbal warning doesn’t result in prompt corrective action, promptly issue a written citation.


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