COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 67719 & 67722 CITY OF BRECKSVILLE : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION QUINTINO MARCHETTI : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Garfield Hts. Muni. Court Case No. 94 CRB 3964 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: ROGER WADSWORTH, ESQ. PAUL MANCINO, JR., ESQ. Brecksville City Prosecutor 75 Public Square, Suite #1016 8927 Brecksville Road Cleveland, Ohio 44113-2098 Brecksville, Ohio 44141 - 2 - DYKE, J.: Appellant was found guilty of two building code violations pursuant to the Codified Ordinances of the City of Brecksville. A city ordinance required appellant to obtain a building permit before constructing a detached garage in his front yard. On March 21, 1994 he applied for a permit. Appellant was denied the permit because the zoning regulations prohibited the building of detached structures in the front of his home. Appellant appealed to the Board of Zoning Appeals for a variance, which was also denied. Appellant then proceeded to pour a concrete slab in his front yard. The building inspector informed appellant that he would need a permit for the concrete slab. Appellant obtained the permit and paid the fine for beginning the work without a permit first. According to the testimony of the building inspector, the permit issued to appellant on May 26, 1994 was for the concrete pad only, not for any structure to be built on top of it. The inspector testified that the zoning ordinances allowed driveway extensions to be installed for parking purposes. Over the weekend of June 4th and 5th, appellant constructed the frame, walls and roof of the garage over the concrete slab he had poured. On June 6th the City issued a stop work order which included an order to dismantle the structure. A complaint was filed alleging two violations of the building codes of the City of Brecksville, failure to obtain a building permit and failure to stop work and dismantle. After a trial to a jury, appellant was - 3 - found guilty of both counts. The trial court sentenced appellant to a fine of $100 a day for each day the violation existed beginning on June 7, 1994 on the first count. On the second count appellant was sentenced to thirty days of incarceration plus a $250 fine. Appellant was granted a stay of execution. Appellant filed two timely appeals from each of his convictions and sentences. Appellant's motion to consolidate the appeals was granted by this Court. He asserts the following nine assignments of error. I DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF CRIMINAL OFFENSES BASED UPON A COMPLAINT WHICH FAILED TO ALLEGE OFFENSES. Appellant argues that the complaints were flawed in two respects. First, the complaints failed to allege culpable mental states. Secondly, the first complaint failed to allege that the administrative order was lawful. Appellant's arguments are not well taken. We note that no objection to the format of the complaints was raised at trial. Because an amendment of a complaint to conform to the evidence to be proved is allowed at any point in the trial, appellant should have raised these issues below in order to give the court an opportunity to rectify a problem, if one had existed. See, State v. Sweeney (1991), 72 Ohio App.3d 404. The first complaint reads as follows: Quintino Marchetti did fail to stop work on a garage construction site located at 8501 Riverview Road, - 4 - Brecksville, Ohio after receiving a "Stop Work order" and has failed to dismantle and remove said structure as required by the Brecksville Building Department. The second complaint reads as follows: Quintino Marchetti did commence construction of a detached garage on property owned by him and located 8501 Riverview Road, Brecksville, Ohio without first obtaining a building permit as required under Brecksville Codified ordinance 1301.01 which adopted the Regional Dwelling House Code in its entirety. A complaint is legally sufficient when it states all of the essential elements of the offense, such that the complaint provides the defendant with reasonable notice of the nature of the offense. State v. Sweeney (1991), 72 Ohio App.3d 404. We find that the complaints are both legally sufficient, each containing the essential elements of the charge. R.C. 2901.21(B) serves as an interpretative guideline for the criminal offenses defined in the Ohio Revised Code which do not state culpable mental states. It reads as follows: When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense. The first offense is a violation of Section 1191.13(a) and (d) of the Codified Ordinances of the City of Brecksville. The provision grants the building commissioner the authority to come onto one's property and issue written orders to remedy violations. The penalty provision, 1191.13(d) reads in pertinent part: - 5 - Any person... who violates or causes or knowingly permits to be violated, any provision of this Zoning Code, or fails to comply with any lawful requirement of any public authority made pursuant to this Zoning Code... shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be fined not less than ten dollars ($10.00) nor more than five hundred dollars ($500.00). Each day during which any such violation is permitted to exist shall constitute a separate offense. Portions of this offense specify "knowingly" as the culpable mental state, while the portions of the offense pertaining to appellant are silent as to the culpable mental state. In construing the appropriate mental state under R.C. 2915.02 and R.C. 2915.03, bookmaking and operating a gambling house, the Ohio Supreme Court used R.C. 2901.21(B) to determine that the legislature plainly indicated a purpose to impose strict liability. State v. Wac (1981), 68 Ohio St.2d 84. The Court held that: The General Assembly included recklessness as an element of permitting gambling on one's premises in subsection (2). Subsection (1), however, does not contain a comparable standard. This exclusion "plainly indicates a purpose to impose strict criminal liability * * *." R.C. 2901.21(B). State v. Wac (1981), 68 Ohio St.2d at 87. The Codified Ordinance 1191.13 is similarly worded, therefore we find that the legislative intent was to impose strict liability for the offense of failing to stop work and dismantle the structure, pursuant to the building inspector's order. The complaint is not rendered defective by the omission of a culpable mental state where strict liability obviates the requirement to prove a mental state. - 6 - The second offense, failure to obtain a building permit, references Brecksville Codified Ordinance 1301.01, which adopts the Regional Dwelling Housing Code. Section 1505.01 of the Housing Code requires that a building permit shall be obtained from the building official before proceeding with construction. No culpable mental state is specified. The City's brief properly cites State v. Cheraso (1988), 43 Ohio App.3d 221 for the proposition that the wording of the Housing Code provision renders the charge a strict liability offense. The court held that: It is well-established that when a statute reads, "No person shall * * *," absent any reference to the requisite mental state, the statute is clearly indicative of a legislative intent to impose strict liability. State v. Cheraso (1988), 43 Ohio App.3d at 223. See also, State v. Harr (1992), 81 Ohio App.3d 244, paragraph five of the syllabus. We also find that the failure to obtain a building permit prior to proceeding with construction is a strict liability offense. Therefore, the complaint is not defective due to the absence of a culpable mental state. The mental state is not an element of the offense. As to appellant's second argument, the fact that the order is a lawful requirement is not an element of the offense to be proved by the prosecution. The stop work order and order to dismantle are presumed to be valid orders unless appellant could prove otherwise as part of his defense. This language is not an element of the offense, necessary to include in the complaint to provide appellant with reasonable notice of the offense charged. - 7 - Appellant's first assignment of error is overruled. II DEFENDANT WAS DENIED DUE PROCESS OF LAW AND SUBJECTED TO DOUBLE JEOPARDY FOR THE ALLEGED VIOLATION OF BUILDING WITHOUT A PERMIT. Appellant argues that he already paid a double fee fine for failing to obtain a permit. He asserts that any further prosecution for failing to obtain a permit constitutes double jeopardy. Appellant's argument is not valid. Appellant paid a fine for failing to obtain a permit for the concrete slab he poured in his front yard. Prosecution in this case is not for the offense of pouring concrete without a permit, but for building a structure on top of the concrete. Any penalty he suffered for failing to obtain a permit for the concrete slab has no bearing on the proceedings herein. Appellant's second assignment of error is overruled. III DEFENDANT WAS DENIED DUE PROCESS OF LAW AND HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE. Appellant argues that the court erred in refusing to allow testimony from Tony Fazi, a former building inspector with Garfield Heights and a contractor on the Brecksville City Hall project. Appellant wished to include testimony from Fazi to the effect that the issuance of a permit for a concrete slab somehow implied permission to build a structure on top of it. The court properly disallowed the admission of this testimony. There was no evidence to support appellant's theory that the concrete slab was really a - 8 - foundation for a structure. Fazi was not an expert and could not testify to support appellant's theory. Appellant also claims that the court erred in refusing to admit testimony from the building commissioner on the issue of whether building a detached garage was a violation of the code. The court responded to appellant's argument at trial by correctly stating that whether the garage was a code violation or not was not an issue in the case. If appellant wanted to argue this issue, he should have appealed from the Board of Zoning Appeals' denial of his variance. An appeal would necessarily have to be before the Court of Common Pleas, not the Municipal Court. The issue before the court below was limited to whether appellant had a permit or not. Appellant's inability to present testimony from the building commissioner on the other issue was not a denial of due process. Appellant's third assignment of error is overruled. IV THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED A MOTION FOR JUDGMENT OF ACQUITTAL FOR THE OFFENSE OF FAILING TO STOP WORK ON A GARAGE CONSTRUCTION SITE. Appellant argues that his Crim.R. 29 motion for acquittal should have been granted because the City failed to prove that he did not stop work and did not dismantle; the stop work and dismantle orders were not lawfully issued; and, dismantling was not a proper remedy. None of the three arguments put forth by appellant have merit. - 9 - First, as to the offense of failure to stop work and dismantle, appellant asserts that the City had to prove both elements of the offense before obtaining a conviction. This is an illogical reading of the offense. Appellant was required by the order to both stop work and dismantle the offending structure. He does not comply by simply stopping work and leaving the structure standing. He must do both or be in violation of the order. The City proved that appellant did not dismantle the structure. Therefore, the court was not required to grant appellant's Crim.R. 29 motion on this basis. Secondly, appellant argues that the orders were not lawful. He asserts that the provision requires that the building commissioner sign the orders, not the inspector. The complaint states that the Brecksville Building Department required that the structure be dismantled and removed. Section 1191.13(a) authorizes the Building Commissioner to inspect premises and issue written orders. Under the rules of construction included in the Codified Ordinances, an interpretation of the provisions to include agents to act for principals is found at Section 101.03(d): Authority. When the law requires an act to be done which may by law as well be done by an agent as by the principal, such requirement shall be construed to include all such acts when done by an authorized agent. We find that the act of inspecting appellant's premises and issuing the stop work and dismantle order could have been performed as well by the building inspector as by the building commissioner. - 10 - Therefore, the orders were not defective, having been issued by an authorized agent of the commissioner. Appellant also asserts that the commissioner may not issue a dismantle order. Section 1191.13(a) authorizes the building commissioner to inspect and order "removal of violation." In some cases, correction of a violation may be a simple matter of changing a pipe under the sink. In this particular case the only way to correct the violation of constructing the garage against the zoning code provisions, after having been denied a variance, is to dismantle and remove the structure. The commissioner has the authority to issue such an order. Appellant's fourth assignment of error is overruled. V DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED A MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE OFFENSE OF CONSTRUCTING A DETACHED GARAGE WITHOUT A BUILDING PERMIT. Appellant again attempts to argue that once the permit for the concrete pad was issued, he then had implicit permission to build a structure on top of it. He asserts that his Crim.R. 29 motion for acquittal should have been granted because the City could not prosecute him for complying with its orders. The argument is again rejected. The permit issued in May of 1994 was for a concrete pad, in complete compliance with the zoning code which permits extensions to be built from a driveway for parking purposes. The permit does - 11 - not imply that a structure, in violation of the zoning code, is permitted to be built on top of the concrete pad. The court did not err in denying appellant's Crim.R. 29 motion as to the offense of constructing the garage without a permit. Appellant's fifth assignment of error is overruled. VI DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT PROPERLY AND FULLY INSTRUCT THE JURY ON ALL MATTERS NECESSARY IN GIVING ITS VERDICT. Appellant asserts that the court failed to properly instruct the jury on all the applicable law pertaining to the elements of the offense and possible defenses. Appellant's assertion is not well taken. Appellant argues once again that the culpable mental states and the fact of the orders being "lawful requirements" are material elements of the offenses. As such, appellant asserts, the court should have instructed the jury that the prosecution was required to prove these elements. We have already rejected appellant's contention that these issues are elements of the offenses. The court was under no obligation to instruct the jury that the prosecution had any burden as to these points of law. Appellant further argues under this assignment of error that the court erred in instructing the jury to disregard the irrelevant evidence of the issue of whether the garage was detached or attached. Appellant claims that this evidence went to his theory that the permit for the concrete slab was really a permit for a - 12 - foundation of a structure, implying permission to build the structure itself. We have also rejected this theory under a previous assignment of error. The trial court is empowered to determine which issues are properly before the jury to decide, and which issues are irrelevant and simply confusing to the real matters of the proceedings. Evid.R. 402. The court did not err in instructing the jury to disregard the evidence of whether the garage was attached or detached. Appellant further argues that the court erred in giving conflicting instructions to the jury about whether or not the prosecution was required to prove one or both of the acts included in the first offense. As we stated under the fourth assignment of error, appellant was required under the stop work and dismantle complaint to take action on both orders. The court instructed the jury that: Mr. Marchetti has been charged with failing to comply with a stop work order and failed to dismantle and remove the structure. * * * Failure to comply with such an order shall constitute the offense. (TR. 163). The attorneys both signified that they were satisfied with the instructions as read to the jury by the court. The jury submitted a question to the court regarding whether one or both of the acts had to be proven by the prosecution. The court responded: I will inform them that if they find one of those orders were violated they may enter a finding of guilty. (TR. 168). Appellant's counsel objected to the court's response to the jury's question. We do not find that the two instructions are in - 13 - conflict. The initial instruction did not specifically state that the jury must find only one of the orders violated to find appellant guilty. That instruction simply gave the text of the offense. The later response to the jury's query was merely a clarification of the earlier instruction and did not conflict. We can not find that the instructions taken as a whole were confusing to the jury nor do we find that appellant was in any way prejudiced by the instruction as given. The court did not err in instructing the jury as to the elements of the offenses or the proof necessary to be presented by the prosecution. Appellant's sixth assignment of error is overruled. VII DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT CHANGED INSTRUCTIONS CONCERNING THE ELEMENTS OF THE OFFENSE IN ANSWERING A QUESTION FROM THE JURY. Appellant continues his argument concerning the court's instructions as to whether one or both parts of the failure to stop work and failure to dismantle offense were required to be proved by the City. Appellant asserts that in instructing the jury that only one of the two actions was necessary to prove a violation, the court actually amended the complaint. We are not persuaded by this argument. The complaint states that appellant did fail to stop work on the garage and has failed to dismantle and remove the structure. The plain import of the complaint's language is that appellant had - 14 - a duty to both stop work on the garage and to dismantle it according to the orders of the building inspector. The court did not amend the complaint by instructing the jury that only one of the stated orders had to be violated before the jury could find appellant guilty. The instruction does not differ from the clear meaning of the complaint. Appellant's seventh assignment of error is overruled. VIII DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS SENTENCED FOR A CONTINUING VIOLATION FROM JUNE 7, 1994 UNTIL THE DATE OF SENTENCING AUGUST 2, 1994. Appellant argues that he suffered from the denial of due process when he was sentenced for a continuing violation when the date of the complaint only references one day. Appellant asserts that he was not on notice by the complaint that the violation was continuing and that he was subject to a fine for every day of the violation. Appellant's argument is not well taken. The City presented evidence in the form of testimony from the building inspector and appellant himself that the garage remained standing in violation of the dismantle order as of the date of trial. Appellant was not prejudiced by the fact that only one day was indicated on the complaint when he was well aware that he continued to be in violation of the order. The complaint is not deficient because it does not indicate each day the violation exists. Unless a date and time are material elements of the crime charged or the accused is unable to fairly defend - 15 - himself because of a lack of detail in the indictment, the absence of precise times and dates in the indictment is not prejudicial. [State v.] Sellards [(1985), 17 Ohio St.3d 169]; State v. Hill (1989), 59 Ohio App.3d 31, 570 N.E.2d 1138; State v. Barnecut (1988), 44 Ohio App.3d 149, 542 N.E.2d 353. City of Fairfield v. Courtney (June 14, 1993), Butler App. No. CA92-11-226, unreported. Appellant can not argue that he was unable to fairly defend himself against the charges because the complaint did not indicate that the violation was continuing. Appellant should have been on notice of the sentencing possibilities for violation of the offenses charged simply by checking the penalty provisions for the sections referenced in the complaint. Appellant's eighth assignment of error is overruled. IX DEFENDANT WAS SUBJECTED TO A CRUEL AND UNUSUAL PUNISHMENT AND AN UNLAWFUL PUNISHMENT WHEN HE WAS SENTENCED TO A TERM OF IMPRISONMENT BY THE COURT. Appellant asserts that the thirty days in jail was excessive, constituting cruel and unusual punishment. Appellant's argument is not well taken. The court clearly followed the sentencing guidelines set forth by the Regional Dwelling House Code at Chapter 9, Section 1509.03. According to this general penalty provision: Any person, firm or corporation violating any of the provisions of this Dwelling House Code shall be deemed guilty of a misdemeanor and upon the conviction of any such violation, such person shall be punishable by a fine of not more than $300.00 or by imprisonment of not more than three months or by both such fine and imprisonment. Such person, firm or corporation shall be deemed guilty - 16 - of a separate offense for each and every day or portions thereof during which any violation of any of the provisions of this Dwelling House Code is committed, continued or permitted. The sentence of thirty days and a $250.00 fine was well within the guidelines and therefore not excessive. Although we find that thirty days of jail time for a sixty-plus-year-old man is rather harsh, it does not amount to cruel and unusual punishment. Punishment does not violate constitutional prohibition against cruel and unusual punishment if it be not so greatly disproportionate to offense as to shock sense of justice of community. State v. Jarrells (1991), 72 Ohio App.3d 730, paragraph two of the syllabus. The transcript of the sentencing hearing indicates that some measures were proposed by the City whereby appellant could avoid having to dismantle his garage and thereby settle the case. However, rather than construct a simple breezeway from the garage to his home, appellant steadfastly maintained that he was entitled to a permit for the garage as he had built it. The court apparently took this into account when issuing the sentences. Appellant's ninth assignment of error is overruled. The jury's conviction on both offenses and the trial court's sentences are affirmed. Appellant's stay of execution is vacated. - 17 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Garfield Heights Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., AND DAVID T. MATIA, J., CONCUR. ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .