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City of Hamilton v. Premier Auto Mart, Inc.

Court of Appeals of Ohio, Twelfth District, Butler

June 24, 2019

CITY OF HAMILTON, Appellee,
v.
PREMIER AUTO MART, INC., Appellant.

          CRIMINAL APPEAL FROM CITY OF HAMILTON MUNICIPAL COURT Case No. 18CRB03495

          Neal D. Schuett, City of Hamilton Prosecuting Attorney, for appellee.

          Law Offices of Krista Ray Cure, Krista Ray Cure, for appellant.

          OPINION

          S. POWELL, J.

         {¶ 1} Appellant, Premier Auto Mart, Inc. ("Premier Auto"), appeals its conviction in the Hamilton Municipal Court for operating a junkyard without proper authorization from the Hamilton City Council in violation of Section 1150.40 of the Hamilton Zoning Ordinance ("HZO").[1] For the reasons outlined below, we affirm.

         {¶ 2} Premier Auto is an automobile sale, service, and repair business that is owned and operated by Gregory S. Myers. Premier Auto is located in Hamilton at 816 South Erie Highway. Although opening its business in 1995, Premier Auto has conducted its business at the South Erie Highway location since 2001. There is no dispute that the property where Premier Auto is located is included within an I-2 Industrial Zoning District. There is also no dispute that automobile sales, service, and repair are permitted conditional uses in an I-2 Industrial Zoning District.

         {¶ 3} On May 30, 2018, Premier Auto received a notice of violation that it was in violation of Section 1150.40 of the HZO. Pursuant to that ordinance:

It shall be unlawful to use or occupy or permit the use or occupancy of any building or premises, or both, or part thereof hereafter created, erected, changed, converted or wholly or partly altered or enlarged in its use or structure until a Certificate of Zoning Compliance shall have been issued therefore by the City Manager or Designee stating that the proposed use of the building or land conforms to the requirements of this Ordinance.

         {¶ 4} The notice was sent to Premier Auto after an inspection of its property revealed it was operating an unauthorized junkyard. Specifically, the notice alleged:

There are multiple wrecked, disassembled and inoperable vehicle, auto body and engine parts that are being salvaged for parts to fix other autos. This office has no record of a conditional use approval for an auto salvage/junkyard at this location. Cease all salvage operations and remove all wrecked and [disassembled] vehicles, engine and auto body parts from the property by June 17, 2018.

         {¶ 5} Pursuant to Section 1108.00 of the HZO, a junkyard is defined as:

A place where waste, discarded or salvaged materials are bought, sold, exchanged, baled, packed, disassembled or handled; including auto wrecking yards, house wrecking yards, used material yards, but not including pawn shops, antique shops, and places for the sale, purchase, or storage of used furniture and household equipment, used cars in operable condition or salvaged materials incidental to manufacturing operations.

         {¶ 6} On August 22, 2018, a complaint was issued charging Premier Auto with violating Section 1150.40 of the HZO. The complaint alleged that Premier Auto - and by extension Myers - failed to discontinue operating the unauthorized junkyard on its property as instructed by the notice of violation. The complaint was based on allegations that Premier Auto had continued salvaging "wrecked automobile parts to repair other automobiles for sale" despite being told to cease those operations by June 17, 2018. A violation of Section 1150.40 constitutes an unclassified misdemeanor that carries a fine ranging between $250 to $500 for each offense.

         {¶ 7} On September 27, 2018, the matter was tried to the bench. During trial, the trial court heard testimony from two witnesses; Myers and Larry Bagford, a planning and zoning inspector with the city of Hamilton. Bagford testified that the notice of violation was sent to Premier Auto after he observed "multiple unlicensed vehicles" parked on the property that "looked like they wouldn't run because they were damaged in some way." Bagford also testified there were automobile parts laying "outside of his shop area" where "there's all kinds of body parts. Fenders, bumpers, hoods. That kind of thing." This, according to Bagford, created a problem of "salvaging," "disassembling," and "exchanging of ...


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