Pertsinides v. Canton Fair Hous. Comm. ( 2024 )


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  • [Cite as Pertsinides v. Canton Fair Hous. Comm., 
    2024-Ohio-2057
    .]
    COURT OF APPEALS
    STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    TOM PERTSINIDES, ET AL.                          :            JUDGES:
    :            Hon. Patricia A. Delaney, P.J.
    Appellants                               :            Hon. Craig R. Baldwin, J.
    :            Hon. Andrew J. King, J.
    -vs-                                             :
    :
    CITY OF CANTON FAIR HOUSING                      :
    COMMISSION, ET AL.                               :            Case No. 2023 CA 00086
    :
    Appellees                                :            OPINION
    CHARACTER OF PROCEEDING:                                      Appeal from the Court of Common
    Pleas, Case No. 2022 CV 01672
    JUDGMENT:                                                     Affirmed
    DATE OF JUDGMENT:                                             May 28, 2024
    APPEARANCES:
    For Appellants                                                For Appellees
    TONYA J. ROGERS                                               KEVIN R. L'HOMMEDIEU
    ANDREA K. ZIARKO                                              TYRONE D. HAURITZ
    400 South Main Street                                         CARRY T. D'ANDREA
    North Canton, OH 44720                                        218 Cleveland Avenue, SW
    Stark County, Case No. 2023 CA 00086                                                      2
    Canton, OH 44701-4218
    King, J.
    {¶ 1} Appellants, Tom Pertsinides and AKP Properties, LLC, appeal the July 11,
    2023 judgment entry of the Court of Common Pleas of Stark County, Ohio, affirming in
    part a September 15, 2022 decision of Appellee, City of Canton Fair Housing Commission
    ("commission"). We affirm the trial court.
    FACTS AND PROCEDURAL HISTORY
    {¶ 2} AKP Properties manages over 160 rental units. Mr. Pertsinides is the
    president of the company. On August 23, 2021, complainant, Lisa Davis, contacted
    appellants and inquired about renting housing. The next day, appellants responded and
    requested detailed information regarding income, occupants, past eviction history, and
    pets. She indicated she had a "service animal," a dog terrier, who was 5, registered,
    fixed, had shots, and passed a temperament test. She has the dog because she suffers
    from several mental health conditions. Mr. Pertsinides requested documentation for her
    need for the animal. On September 8, 2021, while looking at a rental unit on Yale Avenue,
    Ms. Davis indicated her animal was an emotional support dog and was a Pit Bull Terrier
    named Bella. She submitted the requested documentation, but Mr. Pertsinides testified
    the paper was crumpled and illegible. He asked for clearer documentation. Ms. Davis
    testified the paper she gave him was legible. She interpreted Mr. Pertsinides's actions
    as a refusal to rent to her. Later that day, Mrs. Pertsinides called Ms. Davis and discussed
    pet insurance with her. Ms. Davis had no further contact with appellants.
    {¶ 3} On October 19, 2021, Ms. Davis filed a complaint with the commission and
    the U.S. Department of Housing and Urban Development ("HUD"), claiming appellants
    violated the Canton Fair Housing laws. An investigation determined probable cause of
    Stark County, Case No. 2023 CA 00086                                                   3
    fair housing violations. A hearing before a hearing officer was held on May 24, 2022. By
    findings of fact, conclusions of law, and recommendations filed September 6, 2022, the
    hearing officer found appellants engaged in unlawful discriminatory housing practices
    under four sections of the City of Canton Housing Code, and recommended an award of
    $15,000 to Ms. Davis for her emotional distress and a civil penalty of $7,700. By order
    signed September 15, 2022, the commission adopted the hearing officer's decision.
    {¶ 4} Appellants filed an appeal to the Court of Common Pleas of Stark County.
    By judgment entry filed July 11, 2023, the trial court affirmed the commission's findings
    and the civil penalty, but reversed the emotional distress award.
    {¶ 5} Appellants filed an appeal with the following assignments of error:
    I
    {¶ 6} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY AFFIRMING
    THE   COMMISSION'S        DECISION     AWARDING         A    CIVIL   PENALTY   AGAINST
    APPELLANTS WHEN THE RECORD AS A WHOLE DOES NOT SUPPORT THE
    FINDING     THAT    APPELLANTS       REFUSED       TO       PROVIDE    A   REASONABLE
    ACCOMMODATION PURSUANT TO THE CANTON CITY FAIR HOUSING CODE AND
    THE FEDERAL FAIR HOUSING ACT."
    II
    {¶ 7} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY AFFIRMING
    THE   COMMISSION'S        DECISION     AWARDING         A    CIVIL   PENALTY   AGAINST
    APPELLANTS WHEN THE RECORD AS A WHOLE DOES NOT SUPPORT THE
    FINDING THAT APPELLANT'S CONDUCT WAS DISCRIMINATORY UNDER THE
    CANTON CITY FAIR HOUSING CODE AND THE FEDERAL FAIR HOUSING ACT."
    Stark County, Case No. 2023 CA 00086                                                    4
    STANDARD OF REVIEW
    {¶ 8} In reviewing an administrative appeal under R.C. 2506.04, a common pleas
    court considers the whole record and determines whether the administrative order is
    "unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
    preponderance of substantial, reliable, and probative evidence."
    {¶ 9} As an appellate court, our standard of review to be applied in an R.C.
    2506.04 appeal is "limited in scope." Kisil v. Sandusky, 
    12 Ohio St.3d 30
    , 34, 
    465 N.E.2d 848
     (1984). "This statute grants a more limited power to the court of appeals to review
    the judgment of the common pleas court only on 'questions of law,' which does not include
    the same extensive power to weigh 'the preponderance of the substantial, reliable, and
    probative evidence,' as is granted to the common pleas court." Id. at fn. 4. See also
    Henley v. Youngstown Board of Zoning Appeals, 
    90 Ohio St. 3d 142
    , 147, 2000-Ohio-
    493, 
    735 N.E.2d 433
    .
    {¶ 10} Although a court of appeals reviews a trial court's legal decisions de novo,
    a court of appeals applies the more deferential abuse of discretion standard to a trial
    court's factual determinations. See Willow Grove, Ltd. v. Olmsted Township Board of
    Zoning Appeals, 
    169 Ohio St. 3d 759
    , 764, 
    2022-Ohio-4364
    , 
    207 N.E.3d 779
    . See also
    Henley at 148 ("Accordingly, the court of appeals did not exceed the proper scope of
    review under that statute when it sought to determine whether Section 80 applied to the
    undisputed facts in the record, or whether the common pleas court abused its discretion
    by failing to apply Section 80").
    Stark County, Case No. 2023 CA 00086                                                        5
    {¶ 11} "[T]he standard of review for courts of appeals in administrative appeals is
    designed to strongly favor affirmance" and "permits reversal only when the common pleas
    court errs in its application or interpretation of the law or its decision is unsupported by a
    preponderance of the evidence as a matter of law." Cleveland Clinic Foundation v.
    Cleveland Board of Zoning Appeals, 
    141 Ohio St.3d 318
    , 
    2014-Ohio-4809
    , 
    23 N.E.3d 1161
    , ¶ 30.
    I, II
    {¶ 12} In their two assignments of error, appellants claim the trial court erred in
    affirming the commission's assessment of a civil penalty. Specifically, appellants claim
    the record does not support the finding that under the Canton City Fair Housing Code and
    the Federal Fair Housing Act, they refused to provide a reasonable accommodation and
    their conduct was discriminatory. We disagree.
    {¶ 13} Ms. Davis filed a complaint alleging several violations of the fair housing
    laws. In his September 6, 2022 decision, adopted by the commission on September 15,
    2022, the hearing officer found appellants engaged in unlawful discriminatory housing
    practices under four sections of the City of Canton Housing Code which incorporates the
    Fair Housing Act:
    {¶ 14} (1) Section 515.03(a)(1): It is unlawful to "[r]efuse to sell, or rent after the
    making of a bona fide offer, or refuse to negotiate for the sale or rental of, or to otherwise
    deny, withhold or make unavailable, housing accommodations, because of the race,
    color, religion, sex, ancestry, handicap, familial status, military status, national origin,
    sexual orientation or gender identity."
    Stark County, Case No. 2023 CA 00086                                                         6
    {¶ 15} (2) Section 515.03(b)(2): Discrimination includes "[a] refusal to make
    reasonable accommodations in rules, policies, practices or services, when such
    accommodations may be necessary to afford such person equal opportunity to use and
    enjoy a dwelling."
    {¶ 16} (3) Section 515.03(a)(4): It is unlawful to "[d]iscriminate against any person
    in the terms, conditions or privileges of selling, transferring, assigning, renting, leasing or
    subleasing any housing or in the furnishing of facilities, services or privileges in
    connection with the ownership, occupancy or use of any housing because of the race,
    color, religion, sex, ancestry, handicap, familial status, military status, national origin,
    sexual orientation or gender identity."
    {¶ 17} (4) Section 515.03(a)(6): It is unlawful to "[p]rint, publish, circulate or
    otherwise make or cause to be made any statement or advertisement relating to the sale,
    transfer, assignment, rental, lease, sublease or acquisition of any housing or the loan of
    money, whether or not secured by mortgage or otherwise, for the acquisition,
    construction, rehabilitation, repair or maintenance of housing which indicates any
    preference, limitation, specification or discrimination based upon race, color, religion, sex,
    ancestry, handicap, familial status, military status, national origin, sexual orientation or
    gender identity, or an intention to make any such preference, limitation or discrimination."
    {¶ 18} The parties agree federal case law applies to violations of Canton's Fair
    Housing Code. Eva v. Midwest National Mortgage Bank, Inc., 
    143 F.Supp.2d 862
    , 890-
    891 (N.D.Ohio 2001). As such, these cases follow a three-part burden shifting approach:
    a plaintiff must "first establish a prima facie case of discrimination. Then, in response,
    the defendant must offer a legitimate nondiscriminatory reason for the housing decision
    Stark County, Case No. 2023 CA 00086                                                     7
    made. Finally, the plaintiff must show that the proffered reason is a pretext that masks
    discrimination."   Mencer v. Princeton Square Apartments, 
    228 F.3d 631
    , 634 (6th
    Cir.2000), referencing McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 
    93 S.Ct. 1817
    ,
    
    36 L.Ed.2d 668
     (1973).
    REASONABLE ACCOMODATIONS
    {¶ 19} In order to show a failure to reasonably accommodate a disability claim, a
    plaintiff must prove: "(1) she suffers from a disability within the meaning of FHA; (2) the
    defendant knew or reasonably should have known of the disability; (3) the requested
    accommodation may be necessary to afford 'an equal opportunity to use and enjoy the
    dwelling;' (4) the accommodation is reasonable; and (5) the defendant refused to make
    the accommodation." Overlook Mutual Homes, Inc. v. Spencer, 
    415 Fed.Appx. 617
    , 621
    (6th Cir.2011).
    {¶ 20} Appellants argue there was not substantial or reliable evidence that they
    knew of Ms. Davis's disability or her need for an emotional support dog on September 8,
    2021. Appellants' Brief at 13. In their own "Statement of the Case," appellants state Ms.
    Davis contacted them on August 23, 2021, to inquire about housing and notified them "at
    that time" that she had an emotional support dog. Id. at 1. The notification prompted
    appellants to ask for documentation for her need for the animal. Appellants argue Ms.
    Davis "produced a crumpled, illegible piece of paper" which could not be deciphered. Id.
    at 13. But the trial court noted there was conflicting testimony. Ms. Davis testified she
    gave appellants a legible letter dated November 20, 2020, from Phoenix Rising
    Behavioral Healthcare and Recovery, Inc. indicating her need for the dog (Exhibit 1).
    Stark County, Case No. 2023 CA 00086                                                    8
    {¶ 21} The trial court noted the following:
    [T]he Court may question whether conflicting testimony can give rise
    to a preponderance of substantial, reliable, and probative evidence.
    However, "when the evidence before the court consists of conflicting
    testimony of approximately equal weight, the court should defer to the
    determination of the administrative body, which, as the fact-finder, had the
    opportunity to observe the demeanor of the witnesses and weigh their
    credibility." Appeal of Four Winds Nursing Facility, 4th Dist. Jackson No.
    448, 
    1982 WL 3510
    , *5. (Additional citations omitted.)
    {¶ 22} With the conflicting testimony, the trial court deferred to the commission's
    finding that appellants knew or reasonably should have known of the disability. Given
    that Ms. Davis gave notice of her need for her dog when she first contacted appellants,
    we do not find the trial court abused its discretion in doing so.
    DISCRIMINATORY CONDUCT
    {¶ 23} Appellants argue Ms. Davis did not show she was discriminated against
    because of her disability. They argue the reason she did not receive housing "was solely
    due to her failure to complete the application process with all the necessary paperwork."
    (Emphasis sic.) Appellants' Brief at 19. She was not refused housing, her request "was
    never processed because she never provided necessary documentation. Id. at 20.
    {¶ 24} But the commission found Ms. Davis did not submit her application after Mr.
    Pertsinides reviewed her letter and informed her that she could not have her emotional
    Stark County, Case No. 2023 CA 00086                                                       9
    support dog reside with her "because of the other tenants." She testified, "[a]nd when he
    told me I couldn't have her, I kept my application and told him, 'I guess there's no use in
    me giving this to you,' and I left." May 24, 2022 Commission Hearing T. at 17. She did
    not submit all of her paperwork because she was impliedly denied at the start. The trial
    court determined if Ms. Davis's testimony was in fact true, then it demonstrates that
    appellants refused to accommodate her.           Again, the trial court deferred to the
    commission's findings and we do not find it abused its discretion in doing so.
    {¶ 25} Appellants take issue with the commission's focus on the breed of dog, a
    Pit Bull Terrier. In support, appellants cite to a 2020 HUD notice that states housing
    providers cannot limit the breed or size of an emotional support dog, but "can, as noted,
    limit based on specific issues with the animal's conduct because it poses a direct threat
    or a fundamental alteration." Appellants' Brief at 20. But Mr. Pertsinides admits he never
    investigated whether the dog was vicious because it "never got that far" since Ms. Davis
    failed to provide proper documentation or submit an application, two issues already
    addressed and resolved. Id. at 21.
    {¶ 26} In order to establish discrimination, a plaintiff must show: (1) plaintiff is a
    member of a protected class; (2) plaintiff applied to and was qualified to rent certain
    housing; (3) plaintiff was rejected; and (4) the housing remained available thereafter.
    Groach Associates #33, L.P. v. Louisville/Jefferson County Mero Human Relations
    Commission, 
    508 F.3d 366
    , 371 (6th Cir.2007).
    {¶ 27} Appellants argue there was a lack of probative or reliable evidence to show
    Ms. Davis was qualified to rent the Yale Avenue unit and that she submitted an
    application. But appellants indicated to Ms. Davis that they would check to see if she
    Stark County, Case No. 2023 CA 00086                                                   10
    qualified and requested detailed information regarding income, occupants, past eviction
    history, and pets. Thereafter, she was notified of the application fee and was shown
    several rental units. Mr. Pertsinides testified "[w]e do pre-qualify people before we show
    the property." May 24, 2022 Commission Hearing T. at 57. The trial court could not find
    the commission's "reliance upon this information and determination in this regard was
    unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by a
    preponderance of substantial, reliable, and probative evidence." July 11, 2023 Judgment
    Entry at 8.
    {¶ 28} As for whether Ms. Davis was rejected, appellants argue the process never
    went that far because she never provided the proper documentation and an application.
    Again, that has already been reviewed. The Yale Avenue unit was available to rent as
    appellants rented it to another tenant. May 24, 2022 Commission Hearing T. at 63.
    {¶ 29} We do not find the trial court abused its discretion or erred in finding Ms.
    Davis established a prima facie case of discrimination.
    {¶ 30} The trial court went on to analyze appellants' burden to show a legitimate,
    nondiscriminatory reason for their decision. The reason being the continued argument of
    a lack of proper, legible documentation regarding the need for the animal. We've already
    determined the trial court did not abuse its discretion in deferring to the commission's
    decision on the conflicting testimony.
    DISCRIMINATORY ADVERTISING
    {¶ 31} Appellants argue the commission failed to show a discriminatory advertising
    violation. Appellants argue there is no evidence of a written advertisement or statement.
    Stark County, Case No. 2023 CA 00086                                                     11
    {¶ 32} A prima facie case for discriminatory advertising must show: (1) a statement
    within the meaning of section 3604(c); (2) that indicates any preference, limitation, or
    discrimination based on a protected class; and (3) made with respect to the sale or rental
    of a dwelling. Campbell v. Robb, 
    162 Fed.Appx. 460
    , 466 (6th Cir.2006).
    {¶ 33} The trial court determined the advertisement is not required to be written
    and noted section 3604(c) "applies to all written or oral notices or statements by a person
    engaged in the sale or rental of a dwelling." 
    Id.,
     quoting 24 C.F.R. 100.75(b). The trial
    court concluded a preponderance of substantial, reliable, and probative evidence
    demonstrated appellants committed discriminatory advertising. We do not find the trial
    court erred in its determination.
    {¶ 34} Appellants challenge the civil penalty imposed, arguing the amount of
    $7,700 was arbitrary. Canton Codified Ordinance 515.09(a)(2)(A) provides for a fine not
    to exceed $11,000 if a prior unlawful discriminatory housing practice has not occurred.
    The trial court affirmed the commission's finding of unlawful discriminatory housing
    practice and found the civil penalty imposed was authorized by the Canton Housing Code.
    The trial court did reverse the $15,000 award for emotional distress. We do not find the
    trial court erred in its decision.
    {¶ 35} Lastly, appellants argue they did not receive a fair administrative hearing in
    violation of their due process rights. Appellants argue Mr. Pertsinides was unaware the
    hearing was an evidentiary hearing, he was denied an attorney, and he was not permitted
    to introduce relevant evidence. The trial court noted the "prerequisites to a proper
    administrative hearing that ensures protection of due process rights are enumerated at
    R.C. 2506.03(A)(1)-(5)" and the parties agreed none of the factors applied.
    Stark County, Case No. 2023 CA 00086                                                      12
    {¶ 36} Upon review, we find the trial court did not abuse its discretion on its factual
    determinations and did not err in its application or interpretation of the law. We do not
    find the trial court's decision is unsupported by a preponderance of the evidence as a
    matter of law.
    {¶ 37} Assignments of Error I and II are denied.
    {¶ 38} The judgment of the Court of Common Pleas of Stark County, Ohio is
    hereby affirmed.
    By King, J.
    Delaney, P.J. and
    Baldwin, J. concur.
    

Document Info

Docket Number: 2023 CA 00086

Judges: King

Filed Date: 5/28/2024

Precedential Status: Precedential

Modified Date: 5/29/2024