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City of Marion v. Cendol

Court of Appeals of Ohio, Third District

July 22, 2013

CITY OF MARION, PLAINTIFF-APPELLEE,
v.
ROBERT J. CENDOL, DEFENDANT-APPELLANT.

Appeal from Marion Municipal Court Trial Court No. CRB 12 231

Scott A. Winckowski for Appellant.

Steven E. Chaffin for Appellee.

OPINION

PRESTON, P.J.

{¶1} Defendant-appellant, Robert J. Cendol, appeals the Marion Municipal Court's October 3, 2012 judgment entry approving and adopting the magistrate's decision finding that the City of Marion ("City") proved beyond a reasonable doubt that Cendol committed the offense of "failure to comply with safety director specifications/regulations as to demolition permit" in violation of Marion Structure and Safety Code 1381.99 and recommending that the trial court impose a fine of $100.00.[1] Cendol argues that the evidence adduced at trial was insufficient to prove that he was the "owner" or "duly constituted agent" of the owner of the property, as those terms are found in Marion Structure and Safety Code 1381.01, and that he cannot be prosecuted for failing to comply with the demolition permit because it was invalid. For the reasons that follow, we affirm.

{¶2} On February 2, 2012, the City's Zoning Inspector filed a complaint in the Marion Municipal Court against Cendol, alleging that Cendol violated Marion Structure and Safety Code 1381.99 by "fail[ing] to comply with Safety Director specifications and/or regulations as to demolition of 333 Joseph St., permit #0675." (Doc. No. 1). Cendol entered a plea of not guilty on March 19, 2012. (Doc. No. 6). On July 26, 2012, the case proceeded to a bench trial before a magistrate. (July 26, 2012 Tr. at 1); (Doc. No. 25).

{¶3} On September 17, 2012, the magistrate held a disposition hearing and issued his decision finding that the City proved beyond a reasonable doubt that Cendol committed the offense of "failure to comply with safety director specifications/regulations as to demolition permit" and recommending that the trial court impose a fine of $100.00. (Sept. 17, 2012 Tr. at 1, 5, 7); (Doc. No. 25). The trial court issued its judgment entry on October 3, 2012, approving and adopting the magistrate's decision as the order of the trial court. (Doc. No. 25).

{¶4} Cendol filed his notice of appeal on October 16, 2012. (Doc. No. 32). He raises two assignments of error for our review, which we will address together.

Assignment of Error No. I
The Marion Municipal Court committed error by finding Appellant, Robert J. Cendol, was the property owner or their [sic] duly constituted agent. (Emphasis sic.)
Assignment of Error No. II
The Marion Municipal Court committed error by failing to grant the Motion for Acquittal, Rule 29, at the close of the City's case.

{¶5} In his first assignment of error, Cendol argues that under Marion Structure and Safety Code 1381.01, the City can issue demolition permits only to the "owner" or a "duly constituted agent" of the owner of the property to be demolished, and that the evidence at trial was insufficient to prove that Cendol was either the "owner" or the owner's "duly constituted agent." In his second assignment of error, Cendol argues that the trial court erred by denying his Crim.R. 29 motion for acquittal at the close of the City's case because the demolition permit had no expiration date and was invalid, the City's Zoning Inspector failed to identify Cendol at trial and to affirmatively testify that Cendol was given a copy of the permit requirements, the City failed to give notice of violations prior to filing the complaint, and the City failed to prove that Cendol had authority to act for the owner of the property.

{¶6} As an initial matter, we note that Cendol failed to file objections to the magistrate's September 17, 2012 decision. Under Crim.R. 19, a defendant's failure to object to a magistrate's decision amounts to a ...


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