Ohio Civil Rights Comm'n v. Myers

2014 Ohio 144

OHIO CIVIL RIGHTS COMMISSION Plaintiff-Appellant v. PHILIP MYERS Defendant-Appellee

C.A. CASE NO. 25752

T.C. NO. 12CV1991

COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

Rendered: January 17, 2014

(Civil appeal from

Common Pleas Court)

OPINION

MEGAN M. HUDSON, Atty. Reg. No. 0086574, Assistant Attorney General, 30 East Broad Street, 15th Floor, Columbus, Ohio 43215

Attorney for Plaintiff-Appellant

NICHOLAS E. SUBASHI, Atty. Reg. No. 0033953 and LAUREN K. EPPERLEY, Atty. Reg. No. 0082924, The Greene Town Center, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440

Attorneys for Defendant-Appellee

FAIN, J.

{¶ 1} Plaintiff-appellant, the Ohio Civil Rights Commission, appeals from ajudgment of the Montgomery County Court of Common Pleas dismissing its complaint against defendant-appellee Philip Myers under Civ.R. 12(B)(6). The Commission contends that the trial court erred, because its complaint states a claim against Myers upon which relief can be granted. We agree with the Commission as to its claim under R.C. 4112.02(H)(12), but disagree as to its claims under R.C. 4112.02(H)(1), (15), and (16). Accordingly, that part of the judgment of the trial court dismissing the Commission's claims under R.C. 4112.02(H)(1), (15), and (16) is Affirmed; that part of the judgment of the trial court dismissing the Commission's claim under R.C. 4112.02(H)(12) is Reversed; and this cause is Remanded for further proceedings on the Commission's surviving claim.

I. Myers Is a Not-So-Good Neighbor

{¶ 2} As alleged in the complaint, Myers resides at 108 Nimitz Drive, which is part of a multi-unit housing structure in Riverside, Ohio. In June 2010, Dotty Podiak moved into the attached adjacent residence at 110 Nimitz Drive. The properties are managed by Overlook Mutual Homes.

{¶ 3} Podiak has a hearing impairment, and she has two animal assistant dogs, both of which are Labradors. One of the dogs, Brittany, is trained to respond to sign language commands and to alert Podiak to door bells, alarm clocks, smoke detectors, and other common noises within a home. The property manager for the housing units notified Myers that Podiak's dogs were animal assistants that she had for her disability.

{¶ 4} The Commission alleged that Myers "harassed and intimidated" Podiak and her animal assistants due to Podiak's disability. Myers mocked Podiak's use of signlanguage and repeatedly whistled on his front porch and hit a stick on his porch, which caused the dogs to alert Podiak to those noises. Myers complained to Overlook that Podiak had animal assistants; eleven days later, he "falsely complained that [Podiak] intentionally used her animal assistants to frighten him." About a month later, Myers called the Riverside police to falsely allege that Podiak brought her animal assistants out of her home to intimidate him. Myers also allegedly knocked over a flower pot on his property and falsely reported to Overlook that Podiak's animal assistants were responsible for the damage. The Commission alleged that Myers's behavior forced Podiak to have a friend care for her animal assistants when she was gone for the day and forced her (Podiak) to look for alternative housing.

{¶ 5} By late July 2010, Podiak felt she could no longer live at 110 Nimitz Drive and applied for an apartment in another area. A little less than a month later, Podiak moved out of 110 Nimitz Drive, allegedly due to Myers's conduct.

II. The Course of Proceedings

{¶ 6} Podiak filed a sworn housing discrimination charge with the Commission against Myers. The Commission conducted a preliminary investigation and determined that it is probable that Myers engaged in unlawful discriminatory practices. The Commission attempted, unsuccessfully, to achieve voluntary compliance. The Commission notified Myers and Podiak of their respective rights to elect to proceed with the administrative hearing process or to proceed in common pleas court. Myers elected to address the matter in a civil action. The Commission authorized the Office of the Attorney General to file acivil action in the trial court.

{¶ 7} The Commission brought this action against Myers, alleging that he violated Ohio's Fair Housing Act, specifically, R.C. 4112.02(H)(1), (12), (15), and (16). The Commission sought a determination that Myers committed unlawful discriminatory practices in violation of those provisions and sought an injunction permanently restraining him from engaging in unlawful discriminatory practices with regard to housing based on disability. The Commission also requested an order that Myers pay actual and punitive damages, as well as reasonable attorney fees, court costs, expert witness fees (if any), and all other litigation expenses.

{¶ 8} Myers moved to dismiss the complaint pursuant to Civ.R. 12(B)(6). He asserted that the Commission's claims must fail, as a matter of law, because Ohio's Fair Housing Act, R.C. 4112.02(H), "is limited to conduct related to housing transactions. The alleged dispute between these neighbors has absolutely nothing to do with a housing transaction." Myers relied on the statutory language and Graves v. Van Buskirk, 9th Dist. Summit No. 14785, 1991 WL 21545 (Feb. 20, 1991), which he asserts held that R.C. 4112.02(H) does not apply to harassment by a neighbor. The Ninth District stated that, "[b]y the plain terms of the statute, R.C. 4112.02(H) is limited in scope to housing transactions and related matters." Id. at *5. Myers further argued that Ohio does not recognize a "hostile housing environment" claim and that the allegations in the complaint do not rise to the level of actionable conduct.

{¶ 9} The trial court granted Myers's motion, and dismissed the Commission's complaint. After quoting the statutory provisions at issue, the trial court noted that theprovisions generally "are tailored to those individuals who are engaged in the negotiation and exchange of housing and/or real estate. * * * Thus, a quick reading of these statutes would imply that they do not cover interactions between neighbors." The trial court also discussed Graves, which applied the rule of ejusdem generis to "decline to extend R.C. 4112.02(H)(1) beyond discriminatory practices in the transfer of housing rights." Id., quoting Graves at *5. The trial court reasoned:

* * * Here, sections (H)(1), (H)(15), and (H)(16) all required the applicable individuals to be involved in some form of a sale, transfer, assignment, rental agreement, lease, sublease, or financial agreement. These requirements are then followed by, if at all, the phrases "or otherwise deny or make unavailable." According to the rule of ejusdem generis, this phrase is strictly defined and qualified by the string of clearly defined words that precede it. Therefore, it can only be used in the context of a transaction in which the transfer of real property is involved. In the immediate case, Defendant was not selling, leasing, or managing the home in which Plaintiff lived. He was simply a neighbor, and the law under R.C. 4112.02(H) does not apply to neighbors.

Since Defendant was just a neighbor, and R.C. 4112.02(H)(1), (15), or (16) does not apply to him, section (H)(12) is equally inapplicable since there has not been a violation of "any right granted or protected by division (H) of [R.C. § 4112.02]."

{¶ 10} The Commission appeals from the dismissal of its complaint, setting forththe following assignments of error:

THE LOWER COURT IMPROPERLY FOUND THAT R.C. 4112.02(H) DOES NOT APPLY TO CONDUCT BETWEEN NEIGHBORS.

THE LOWER COURT IMPROPERLY FOUND THAT R.C. 4112.02(H)(12) CANNOT BE ALLEGED ALONE.

III. Standard of Review

{¶ 11} In this case, the trial court dismissed the Commission's complaint pursuant to Civ.R. 12(B)(6). "A motion to dismiss a complaint for failure to state a claim upon which relief can be granted, pursuant to Civ.R.12(B)(6), tests the sufficiency of a complaint. In order to prevail, such a complaint must demonstrate that the plaintiff can prove no set of facts entitling him to relief. O'Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 327 N.E.2d 753, * * *, at syllabus. The court must construe the complaint in the light most favorable to the plaintiff, presume all of the factual allegations in the complaint as true, and make all reasonable inferences in favor of the plaintiff. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, * * *." Grover v. Bartsch, 170 Ohio App.3d 188, 2006-Ohio-6115, 866 N.E.2d 547, ¶ 16 (2d Dist.).

{¶ 12} A trial court's dismissal of an action pursuant to Civ.R. 12(B)(6) is subject to de novo review. Id.

IV. The Acts Myers Is Alleged to Have Committed Are Not Within

the Scope of the Acts Prohibited by R.C. 4112.02(H)(1) and (15) {¶ 13} Ohio's Fair Housing Act defines unlawful discriminatory practices related to housing accommodations. R.C. 4112.02(H). Under the Act, it is unlawful for "any person" to:

(1) Refuse to sell, transfer, assign, rent, lease, sublease, or finance housing accommodations, refuse to negotiate for the sale or rental of housing accommodations, or otherwise deny or make unavailable housing accommodations because of * * * disability * * *;

* * *

(15) Discriminate in the sale or rental of, or otherwise make unavailable or deny, housing accommodations to any buyer or renter because of a disability of any of the following: (a) The buyer or renter; (b) A person residing in or intending to reside in the housing accommodations after they are sold, rented, or made available; (c) Any individual associated with the person described in division (H)(15)(b) of this section.

(16) Discriminate in the terms, conditions, or privileges of the sale or rental of housing accommodations to any person or in the provision of services or facilities to any person in connection with the housing accommodations because of a disability of any of the following: (a) That person; (b) A person residing in or intending to reside in the housing accommodations after they are sold,

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