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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

NUISANCE ABATEMENT ACTIONS (206)

Also see Forfeiture.

 

R.C. Chapter 3767 -- Nuisances.

R.C. 3719.10 -- Nuisance: "Premises or real estate, including vacant land, on which a felony violation of     

     Chapter 2925. or 3719. of the Revised Code occurs constitute a nuisance subject to abatement pursuant   

     to Chapter 3767. of the Revised Code."

Toledo v. O'Leary, Lucas App. Nos. L-03-1098, 1099, 2004-Ohio-2462 -- Tow vehicle and trailer carrying race car and tires not proven to be a public nuisance within the ambit of the Toledo ordinance.

State ex rel. Pizza v. Recallah (1998), 84 Ohio St. 3d 116 -- Syllabus: "(1) R.C. 3767.02 does not require proof of knowledge of, acquiescence to, or participation in the creation or perpetuation of a nuisance in order to find an owner of a nuisance guilty of the civil offense of 'maintaining a nuisance.' (2) To the extent that R.C. 3767.06(A) requires a trial court, upon finding of a nuisance, to issue an injunction closing a property against its use for any purpose for one year, and to the extent it allows release from such injunction only through the filing or renewal of a bond in the full value of the property, the statute violates the Fourteenth Amendment Due Process Clause and the Fifth Amendment Takings Clause of the United States Constitution, and Section 19, Article I of the Ohio Constitution, when applied to an owner who did not negligently or knowingly acquiesce to, and did not participate in the creation or perpetuation of the nuisance. (Lindsay v. Cincinnati [1961], 172 Ohio St. 127...overruled.)"

State ex rel. Miller v. Anthony (1995), 72 Ohio St. 3d 132 -- Syllabus: "(1) Section 5, Article I of the Ohio Constitution did not preserve the right to a jury trial in nuisance abatement actions. (2) The confiscation and sale of personal property used in maintaining a nuisance and the imposition of a one-year closing order pursuant to R.C. 3767.06 as well as the imposition of the tax required by R.C. 3767.08 are preventive measures, not penalties imposed for past criminal conduct. Inclusion of these provisions within the nuisance abatement framework does not transform nuisance abatement actions into legal actions to which the right to a jury trial attaches. (3) When the state offers clear and convincing evidence that felony violations of R.C. Chapter 2925 chronically occur on a parcel of property, such evidence is sufficient to establish that a nuisance exists on such property subject to abatement in accordance with R.C. 3719.10." Also see State ex rel. Freeman v. Pierce (1991), 61 Ohio App. 3d 663 involving a nuisance case initiated by a citizens' group.

State ex rel. Miller v. Star Struck, Inc. (1996), 112 Ohio App. 3d 49 -- It was appropriate to close the entire premises of an adult bookstore, and not merely the arcade area which was the immediate locus of the nuisance, since the arcade area was not operated as a separate entity.

State ex rel. Pizza v. Tom S.A. Inc. (1981), 68 Ohio Misc. 19 -- Nuisance statutes may not be used to enjoin a rock concert based on anticipated drug law violations by members of the audience.

Solly v. Toledo (1966), 2 Ohio St. 2d 16 -- Syllabus: "(1) A charter city may enact legislation, not in conflict with general laws, authorizing the summary abatement of public nuisances and the destruction of property used in maintaining such nuisances when reasonably necessary to effectuate their abatement. (2) No legislation can authorize the destruction of private property as a public nuisance unless such property comes within a reasonable legislative definition (by statute or ordinance) of a public nuisance or is expressly proscribed by valid legislation (i.e. by statute or ordinance). (3) Anyone who destroys or injures private property in abating what legislative or administrative officials have determined to be a public nuisance does so at his own peril, where there has been neither a previous judicial determination that such supposed nuisance is a public nuisance nor even an opportunity provided to the owner for an administrative hearing (with judicial review thereof) on the question as to whether there is a public nuisance. (4) In such an instance, when sued by the owner, the one destroying the property may be held liable for damages caused by its destruction unless he alleges and proves and the trier of the facts finds that what he has destroyed was a public nuisance and that its destruction was reasonably necessary for abatement of that nuisance. (6) The owner of property is under no duty to bring an action to enjoin its threatened wrongful destruction, and failure to do so will not prevent recovery for damages causing such destruction." Case involved demolition of two houses.

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