Court of Appeals of Ohio, Twelfth District, Butler
CRIMINAL APPEAL FROM CITY OF HAMILTON MUNICIPAL COURT Case
D. Schuett, City of Hamilton Prosecuting Attorney, for
Offices of Krista Ray Cure, Krista Ray Cure, for appellant.
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"). 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
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 ...