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0B301 wpranidin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
DAVID WILLIAMSON, :
SUPERINTENDENT, : CASE NO.
DIVISION OF INDUSTRIAL :
COMPLIANCE : JUDGE
6066 Tussing Road :
Reynoldsburg, Ohio 43068
Plaintiff, COMPLAINT FOR PRELIMINARY
AND PERMANENT INJUNCTION
v.
AFRAMIAN PARTNERSHIP LLC
719 Taylor Road, SW
Reynoldsburg, OH 43068
Defendant.
Now comes Plaintiff David Williamson, Superintendent, Division of Industrial
Compliance and Labor, Ohio Department of Commerce, by and through counsel, and for his
Complaint for Preliminary and Permanent Injunction against Aframian Partnership LLC, hereby
states:
PARTIES
1. Plaintiff, David Williamson, is the Superintendent of the Division of Industrial
Compliance and Labor, Ohio Department of Commerce, and is charged by R.C. 121.083
with administering and enforcing the general laws of this State pertaining to structures, as
such laws apply to plans review, inspection and code enforcement. Plaintiff has standing
to institute this proceeding under R.C. 4105.21.
2. Defendant Aframian Partnership LLC is the owner and/or occupier of real property
located at 1123 Goodale Boulevard, Columbus, Ohio 43212 that is an office and
warehouse.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653
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JURISDICTION AND VENUE
. The jurisdiction of this Court is invoked under the provisions of Civ. R. 65, R.C. 4105.11
and R.C. 3767.41.
. Venue is proper in this Court pursuant to Civ. R. 3(B)(1)-(3). Franklin County is the
county in which Defendant has conducted the activities that give rise to this cause of
action.
BACKGROUND INFORMATION
. The Ohio Elevator Code (hereinafter “OEC”) regulates the design, construction, repair,
alteration and maintenance of elevators in the state of Ohio and is codified at Ohio Adm.
Code 4101:5-01 to 4101:5-07, inclusive.
. An “elevator” means a hoisting and lowering apparatus equipped with a car, cage, or
platform which moves on or between permanent rails or guides and serves two or more
fixed landings in a building or structure to which section 3781.06 of the Revised Code
applies. R.C. 4105.01.
. On or about November 24, 2009, Chief Inspector Martin received notice that an elevator
located on Defendant’s premises at 1123 W. Goodale Blvd, Columbus, OH 43212 failed
inspection. Ex. B.
. Defendant received notice of the failed inspection via certified mail. Id.
. On or about December 15, 2009, Chief Inspector Martin mailed an Adjudication Order
for New or Altered Elevator Devices and a Notice of Opportunity for Hearing to
Defendant. Id.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653
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10.
11.
12.
14.
15
Chief Inspector Martin explained that, in order for Defendant to comply with the
requirements of Chapter 4105 of the Revised Code, Defendant was required to have the
elevator inspected and brought into compliance. Once in compliance, Defendant would
then obtain a valid certificate of operation for the elevator.
Chief Inspector Martin additionally explained that Defendant was notified that
Defendant’s failure to comply constituted grounds to declare the elevator a public
nuisance in accordance with R.C. 4501.11.
On or about January 5, 2010, Defendant responded to Chief Inspector Martin’s certified
letter and “request[ed] an additional 2 to 3 months to complete some repairs.”
Defendant’s response additionally stated that if an extension of 2 to 3 months was
allowed, “the contractor will have ample time to seal up the elevator shaft [and] therefore
eliminate future water problems.” Ex. A
. On or about August 21, 2012, Chairman Mulligan received a letter stating Defendant
waived its opportunity to request a hearing before the Board of Building Appeals as a
result of its failure to respond to the Adjudication Order sent by certified mail.
On or about August 29, 2012, Defendant received a letter from the Ohio Department of
Commerce stating that the Board of Building Appeals failed to receive a request for
hearing within the thirty day period mandated by R.C. 3781. 031 and R.C. 119. The
letter additionally stated that the hearing was scheduled for September 24, 2012, at 3pm,
at 6606 Tussing Road, Reynoldsburg, Ohio.
. On or about December 12, 2012, Defendant received a letter from the Division indicating
that the Division would present its case before the Board on January 29, 2013 at 9:00 am.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653
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16.
17.
18.
19.
20.
21.
22.
On or about January 9, 2013, Chief Inspector Martin received a letter from Defendant
requesting either that the hearing scheduled for January 29, 2013 be cancelled or
continued for a period of six (6) months.
On or about January 15, 2013, the Division objected to Defendant’s Motion to Continue.
QHIO ELEVATOR CODE REQUIREMENTS
Every elevator is required to be inspected twice every twelve months. R.C. 4105.10(A).
Before attempting to enforce, by any remedy, civil or criminal, the provisions with which
the inspected elevator does not comply, the chief shall issue an adjudication order within
the meaning of Chapter 119 of the Revised Code. R.C. 4105.11.
Ohio Adm. Code 4101:5-1-02 defines “elevator” as “a hoisting and lowering apparatus
equipped with a car, cage, or platform which moves on or between permanent rails or
guides and serves two or more fixed landings in a building or structure to which section
3781.06 of the Revised Code applies.
The Chief of the Division shall enforce all provisions of the “Ohio Elevator Code”
relating to the design, construction, repair, alteration, and maintenance of elevators and
moving walks. Ohio Adm. Code 4101:5-1-03.
The failure to comply with the requirements of any order issued pursuant to Chapter 4105
of the Revised Code or the continued operation of any elevator after it has been sealed
pursuant to section 4105.21 of the Revised is a public nuisance. R.C. 4105.11.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653
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23.
24,
25.
26.
27.
28.
29.
COUNT ONE
FAILURE TO COMPLY
Plaintiff realleges paragraphs 1 through 22 as if fully written herein.
. Defendant, after failing inspection in November 2009, has failed to comply with the
Division’s order regarding the elevator located at 1123 Goodale Blvd., Columbus, Ohio
43212.
Because the Defendant has failed to comply with the Division’s order, the elevator is a
public nuisance.
The acts or omissions alleged in this Complaint constitute violations of R.C. 4501.10, and
therefore, Defendant is liable to pay a civil penalty of not more than two hundred dollars.
COUNT TWO
PUBLIC NUISANCE
Plaintiff realleges paragraphs 1 through 26 as if fully written herein.
Based on Defendant’s failure to comply with the Division’s Adjudication Order
stemming from the failed inspection on November 24, 2009, Defendant’s elevator located
at 1123 Goodale Blvd. Columbus, Ohio 43212 constitutes a public nuisance.
The acts or omissions alleged in this Complaint constitute a violation of R.C. 4105.11
and therefore, Defendant should be temporarily and permanently enjoined from operating
a public nuisance under R.C. 3767.41.0B301 wh fanidin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653
COUNT THREE
COMMON LAW INJUNCTION
30. Plaintiff realleges paragraphs 1 through 29 as if fully written herein.
31. The Superintendent is substantially likely to prevail upon the merits of his claims against
Defendant.
32. Unless Defendant is immediately enjoined from operating the elevator, the building’s
tenants and the public are at risk of grave bodily injury.
33. Awarding temporary, preliminary, and permanent injunctive relief serves the public
interest.
34. The benefit of awarding the Superintendent temporary, preliminary, and permanent
injunctive relief outweighs and possible harm to third parties.
35. The Superintendent has no other adequate remedy at law.
PRAYER FOR RELIEF
WHEREFORE, the Plaintiff prays for the following:
(a) The issuance of an order setting an evidentiary hearing, at the earliest date possible, on the
Plaintiffs application for a preliminary injunction;
(b) The issuance of an order consolidating the hearing upon the application for preliminary
injunction with a trial on the merits;
(c) The issuance of a declaration that the elevator is a public nuisance and ordering the
abatement thereof;
(d) The issuance of an order requiring that immediately, or within a time as soon as possible, and
not to exceed thirty days, as applicable:0B301 wwpranidin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653
(i) Defendant be immediately enjoined from continuing to violate the rules and
regulations of the OEC and the order of the Plaintiff;
(ii) Defendant complies with the rules and regulations of the OEC and the order of the
Plaintiff;
(iii)Defendant grant Plaintiff or Plaintiff's inspectors access to the elevator and expose all
footer, foundation and framing systems as directed by Plaintiff or Plaintiffs designee,
for purposes of inspections;
(iv) Defendant obtains the appropriate certificates of inspections for the elevator;
(v) Defendant is permanently enjoined from maintaining and continuing a public
nuisance of the property located at 1123 Goodale Boulevard, Columbus, Franklin
County, Ohio 43212;
(vi)Defendant is permanently enjoined from occupying the elevator at the property
located at 1123 Goodale Boulevard, Columbus, Franklin County, Ohio 43212 until
such time as he has fully complied with the Court’s orders;
(e) The assessment of civil penalties against Defendant Mr. Aframian for violations of the OEC;
(f) The issuance of orders assessing all costs of this action — including but not limited to any
costs relating to the abatement of the public nuisance that is the subject of this action —
against the Defendant Mr. Aframian; and
(g) The issuance of orders granting Plaintiff additional legal and equitable relief found to be
warranted under the circumstances.0B301 wpranidin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653
Respectfully submitted,
MICHAEL DEWINE (0009181)
Ohio Attorney General
/s/ Rachel Huston
RACHEL HUSTON (0074934)
Assistant Attorney General
Executive Agencies
30 East Broad Street, 26" Floor
Columbus, Ohio 43215-3428
Phone: (614) 466-2980
rachel buston @ chicattornevgeneral. gov
Counsel for Plaintiff,
David Williamson, Superintendent
Division of Industrial Compliance and Labor,
Ohio Department of Commerce
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0B301 wpranidin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO DAVID WILLIAMSON, : SUPERINTENDENT, : CASE NO. DIVISION OF INDUSTRIAL : COMPLIANCE : JUDGE 6066 Tussing Road : Reynoldsburg, Ohio 43068 Plaintiff, COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTION v. AFRAMIAN PARTNERSHIP LLC 719 Taylor Road, SW Reynoldsburg, OH 43068 Defendant. Now comes Plaintiff David Williamson, Superintendent, Division of Industrial Compliance and Labor, Ohio Department of Commerce, by and through counsel, and for his Complaint for Preliminary and Permanent Injunction against Aframian Partnership LLC, hereby states: PARTIES 1. Plaintiff, David Williamson, is the Superintendent of the Division of Industrial Compliance and Labor, Ohio Department of Commerce, and is charged by R.C. 121.083 with administering and enforcing the general laws of this State pertaining to structures, as such laws apply to plans review, inspection and code enforcement. Plaintiff has standing to institute this proceeding under R.C. 4105.21. 2. Defendant Aframian Partnership LLC is the owner and/or occupier of real property located at 1123 Goodale Boulevard, Columbus, Ohio 43212 that is an office and warehouse.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653 0B301 - W3 JURISDICTION AND VENUE . The jurisdiction of this Court is invoked under the provisions of Civ. R. 65, R.C. 4105.11 and R.C. 3767.41. . Venue is proper in this Court pursuant to Civ. R. 3(B)(1)-(3). Franklin County is the county in which Defendant has conducted the activities that give rise to this cause of action. BACKGROUND INFORMATION . The Ohio Elevator Code (hereinafter “OEC”) regulates the design, construction, repair, alteration and maintenance of elevators in the state of Ohio and is codified at Ohio Adm. Code 4101:5-01 to 4101:5-07, inclusive. . An “elevator” means a hoisting and lowering apparatus equipped with a car, cage, or platform which moves on or between permanent rails or guides and serves two or more fixed landings in a building or structure to which section 3781.06 of the Revised Code applies. R.C. 4105.01. . On or about November 24, 2009, Chief Inspector Martin received notice that an elevator located on Defendant’s premises at 1123 W. Goodale Blvd, Columbus, OH 43212 failed inspection. Ex. B. . Defendant received notice of the failed inspection via certified mail. Id. . On or about December 15, 2009, Chief Inspector Martin mailed an Adjudication Order for New or Altered Elevator Devices and a Notice of Opportunity for Hearing to Defendant. Id.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653 0B301 - W4 10. 11. 12. 14. 15 Chief Inspector Martin explained that, in order for Defendant to comply with the requirements of Chapter 4105 of the Revised Code, Defendant was required to have the elevator inspected and brought into compliance. Once in compliance, Defendant would then obtain a valid certificate of operation for the elevator. Chief Inspector Martin additionally explained that Defendant was notified that Defendant’s failure to comply constituted grounds to declare the elevator a public nuisance in accordance with R.C. 4501.11. On or about January 5, 2010, Defendant responded to Chief Inspector Martin’s certified letter and “request[ed] an additional 2 to 3 months to complete some repairs.” Defendant’s response additionally stated that if an extension of 2 to 3 months was allowed, “the contractor will have ample time to seal up the elevator shaft [and] therefore eliminate future water problems.” Ex. A . On or about August 21, 2012, Chairman Mulligan received a letter stating Defendant waived its opportunity to request a hearing before the Board of Building Appeals as a result of its failure to respond to the Adjudication Order sent by certified mail. On or about August 29, 2012, Defendant received a letter from the Ohio Department of Commerce stating that the Board of Building Appeals failed to receive a request for hearing within the thirty day period mandated by R.C. 3781. 031 and R.C. 119. The letter additionally stated that the hearing was scheduled for September 24, 2012, at 3pm, at 6606 Tussing Road, Reynoldsburg, Ohio. . On or about December 12, 2012, Defendant received a letter from the Division indicating that the Division would present its case before the Board on January 29, 2013 at 9:00 am.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653 0B301 - W5 16. 17. 18. 19. 20. 21. 22. On or about January 9, 2013, Chief Inspector Martin received a letter from Defendant requesting either that the hearing scheduled for January 29, 2013 be cancelled or continued for a period of six (6) months. On or about January 15, 2013, the Division objected to Defendant’s Motion to Continue. QHIO ELEVATOR CODE REQUIREMENTS Every elevator is required to be inspected twice every twelve months. R.C. 4105.10(A). Before attempting to enforce, by any remedy, civil or criminal, the provisions with which the inspected elevator does not comply, the chief shall issue an adjudication order within the meaning of Chapter 119 of the Revised Code. R.C. 4105.11. Ohio Adm. Code 4101:5-1-02 defines “elevator” as “a hoisting and lowering apparatus equipped with a car, cage, or platform which moves on or between permanent rails or guides and serves two or more fixed landings in a building or structure to which section 3781.06 of the Revised Code applies. The Chief of the Division shall enforce all provisions of the “Ohio Elevator Code” relating to the design, construction, repair, alteration, and maintenance of elevators and moving walks. Ohio Adm. Code 4101:5-1-03. The failure to comply with the requirements of any order issued pursuant to Chapter 4105 of the Revised Code or the continued operation of any elevator after it has been sealed pursuant to section 4105.21 of the Revised is a public nuisance. R.C. 4105.11.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653 0B301 - W6 23. 24, 25. 26. 27. 28. 29. COUNT ONE FAILURE TO COMPLY Plaintiff realleges paragraphs 1 through 22 as if fully written herein. . Defendant, after failing inspection in November 2009, has failed to comply with the Division’s order regarding the elevator located at 1123 Goodale Blvd., Columbus, Ohio 43212. Because the Defendant has failed to comply with the Division’s order, the elevator is a public nuisance. The acts or omissions alleged in this Complaint constitute violations of R.C. 4501.10, and therefore, Defendant is liable to pay a civil penalty of not more than two hundred dollars. COUNT TWO PUBLIC NUISANCE Plaintiff realleges paragraphs 1 through 26 as if fully written herein. Based on Defendant’s failure to comply with the Division’s Adjudication Order stemming from the failed inspection on November 24, 2009, Defendant’s elevator located at 1123 Goodale Blvd. Columbus, Ohio 43212 constitutes a public nuisance. The acts or omissions alleged in this Complaint constitute a violation of R.C. 4105.11 and therefore, Defendant should be temporarily and permanently enjoined from operating a public nuisance under R.C. 3767.41.0B301 wh fanidin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653 COUNT THREE COMMON LAW INJUNCTION 30. Plaintiff realleges paragraphs 1 through 29 as if fully written herein. 31. The Superintendent is substantially likely to prevail upon the merits of his claims against Defendant. 32. Unless Defendant is immediately enjoined from operating the elevator, the building’s tenants and the public are at risk of grave bodily injury. 33. Awarding temporary, preliminary, and permanent injunctive relief serves the public interest. 34. The benefit of awarding the Superintendent temporary, preliminary, and permanent injunctive relief outweighs and possible harm to third parties. 35. The Superintendent has no other adequate remedy at law. PRAYER FOR RELIEF WHEREFORE, the Plaintiff prays for the following: (a) The issuance of an order setting an evidentiary hearing, at the earliest date possible, on the Plaintiffs application for a preliminary injunction; (b) The issuance of an order consolidating the hearing upon the application for preliminary injunction with a trial on the merits; (c) The issuance of a declaration that the elevator is a public nuisance and ordering the abatement thereof; (d) The issuance of an order requiring that immediately, or within a time as soon as possible, and not to exceed thirty days, as applicable:0B301 wwpranidin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653 (i) Defendant be immediately enjoined from continuing to violate the rules and regulations of the OEC and the order of the Plaintiff; (ii) Defendant complies with the rules and regulations of the OEC and the order of the Plaintiff; (iii)Defendant grant Plaintiff or Plaintiff's inspectors access to the elevator and expose all footer, foundation and framing systems as directed by Plaintiff or Plaintiffs designee, for purposes of inspections; (iv) Defendant obtains the appropriate certificates of inspections for the elevator; (v) Defendant is permanently enjoined from maintaining and continuing a public nuisance of the property located at 1123 Goodale Boulevard, Columbus, Franklin County, Ohio 43212; (vi)Defendant is permanently enjoined from occupying the elevator at the property located at 1123 Goodale Boulevard, Columbus, Franklin County, Ohio 43212 until such time as he has fully complied with the Court’s orders; (e) The assessment of civil penalties against Defendant Mr. Aframian for violations of the OEC; (f) The issuance of orders assessing all costs of this action — including but not limited to any costs relating to the abatement of the public nuisance that is the subject of this action — against the Defendant Mr. Aframian; and (g) The issuance of orders granting Plaintiff additional legal and equitable relief found to be warranted under the circumstances.0B301 wpranidin County Ohio Clerk of Courts of the Common Pleas- 2013 Aug 07 10:23 AM-13CV008653 Respectfully submitted, MICHAEL DEWINE (0009181) Ohio Attorney General /s/ Rachel Huston RACHEL HUSTON (0074934) Assistant Attorney General Executive Agencies 30 East Broad Street, 26" Floor Columbus, Ohio 43215-3428 Phone: (614) 466-2980 rachel buston @ chicattornevgeneral. gov Counsel for Plaintiff, David Williamson, Superintendent Division of Industrial Compliance and Labor, Ohio Department of Commerce