IN THE SUPREME COURT OF OHIO
STATE of OHIO, ex. rel.
MICHAEL DEWINE,
Attorney General of Ohio .
^
Plaintiff- Appellee Case No.
vs.
FRED'S PARTY CENTER, INC., et. al •
Defendants-Appellants
On Appeal From the Court of Appeals, Seventh Appellate District,
Belmont County, Case No. 13-BE-29
MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS
Fred's Party Centers, Inc. D/B/A Martins Ferry Party Center and Bridgeport Party
Center, Frederick P. Fryman, Individually and as Owner of Fred's Party Centers, Inc.
D!B/A Martins Ferry Party Center and Bridgeport Party Center, Frederick and Joyce
Fryman as Property Owners of Martins Ferry Party Center, Frederick Fryman as
Property Owner of Bridgeport Party Center, the Real Property at 819 Zane Highway,
Martins Ferry, Ohio and the Real Property at 895 National Road, Bridgeport Ohio
Michael DeWine (0009181) Dennis W. McNamara (0005114)
Charissa D. Payer (0064452) 88 East Broad Street - Suite 1350
Principal Assistant Attorney General Columbus, Ohio 43215
Health and Human Services Section Telephone: (614) 464-2770
30 East Broad Street, 26TH Floor Facsimile: (614) 464-0043
Columbus, Ohio 43215 Email: [email protected]
Telephone: (614) 466-8600 Attorney for Appellants
Facsimile: (614) 473-4885
Email: [email protected]
Melissa G. Wright (0077843)
Assistant Section Chief
Consumer Protection Section
30 East Broad Street, 14th Floor
Columbus, Ohio 43215
Tele-phone: (614) 466-8169
Facsimile: (614) 528-7423
Email: [email protected]
Attorneys for Appellee
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TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................... i
EXPLANATION OF WHY THIS CASE INVOLVES A QUESTION OF
PUBLIC OR GREAT GENERAL INTEREST . ........................................................................ 1
STATEMENT OF THE CASE .................................................................................................... 2
STATEMENT OF THE FACTS ................................................................................................. 2
ARGUMENT ..... ............................................................................................................................ 6
FIRST PROPOSITION OF LAW ................................................................................................ 6
THE ESTABLISHED PRINCIPLE THAT A RELATOR WHO
DOES NOT HAVE CLEAN HANDS CANOT OBTAIN
INJUNCITVE RELIEF APPLIES TO SUITS IN EQUITY
INSTITUTED BY A GOVERNEMENTAL AGENCY
PURSUANT TO STATUTORY AUTHORITY.
SECOND PROPOSITION OF LAW ........................................................................................... 9
THE ESTABLISHED PRINCIPLE THAT A TRIAL COURT IN
A NUISANCE ACTION SHOULD NOT ISSUE AN
ABATEMENT ORDER WHEN THE RESPONDENTS HAVE
PROMPTLY RECTIFIED THE ISSUE APPLIES TO SUITS IN
EQUITY INSTITUTED BY A GOVERNEMENTAL AGENCY
PURSUANT TO STATUTORY AUTHORITY.
CONCLUSION ............................................................................................................................ 1 I
CERTIFICATE OF SERVICE .................................................................................................. 12
APPENDIX
Trial Court's September 24, 2013, Judgment Entry .................................A-1
Court of Appeals' June 2, 2014 Judgment Entry ................................. A-10
Court of Appeals June 2, 2014 Opinion .............................................. A-11
i
EXPLANATION OF WHY THIS CASE INVOLVES
A QUESTION OF PUBLIC OR GREAT GENERAL INTEREST
The Court of Appeals held that the traditional principles of equity did not apply in this
case. More specifically it held that it did not matter whether the Relator had clean hands when it
instituted this litigation. State v. ex rel. DeWine v. Fred's Party Center, et. aL, 7th Dist. No. 13
BE 29, 2014-Ohio-2358, ¶1163-73. Furthermore, it held that that it did not matter that it was
uncontested that Appellants had ceased selling the substances in question prior to the evidentiary
hearing in this matter. Id. at ¶ 85.
This case is not about the shuttering of a, crack house whose only product was illegal and
which was a blight upon the community. Appellants have been good a good commercial citizen
for twenty-five years. [Tr. 94]. They have twenty-three employees. [Tr. 95]. Appellant owners
have a reputation for honesty and following the law. [Tr. 66, 69, 70]. They have not experienced
any legal issues or problems. [Tr. 44, 49, 60-61].
When the prosecutor served Appellants with a letter advising them that "most if not all of
these products contain illegal substances," [Joint Exhibit 10], Appellant Fred Fryman,
immediately consulted with his attorney James Nichelson. [Tr. 74, 78, 102]. Attorney Nichelson
wrote a letter to the prosecutor that provided:
The [Bridgeport and Martin Ferry] Party Centers have been
advised that nothing they sell contains any illegal substance.
The Party Centers do sell an incense product you can have
tested for content. The Party Centers would be very pleased to stop
selling this product if you advise there is something in it the Party
Centers are not aware of. The Party Centers would be pleased to
make this product available to you for testing.
[Respondent's Trial Exhibit B].
Neither the prosecutor nor any other member of the local law enforcement agencies
provided Attorney Nichelson with a copy of any report that indicated that the products contained
1
a controlled substance. [Tr. 82]. Appellants first saw a copy of the reports of Bureau of Criminal
Investigation concerning the contents of the potpourri and incense when they were served with
the complaint in this case. [Tr. 102-03].
For the reasons that will be set forth herein, the Court of Appeals erred when it found it
irrelevant that Appellants had sought guidance from both the Belmont County Prosecutor and
Appellant's own counsel concerning the sales of the product in question. It further erred when it
found irrelevant the prosecutor's failure to respond when asked concerning the legality of the
sale of the product in question. Both factual issues were extremely relevant in deciding whetlaer
the Appellants should be closed for a period of one year.
STATEMEMT OF THE CASE
On July 24, 2013, Appellee Ohio Attorney General Michael Dewine instituted suit
against Appellants Fred's Party Centers, Inc. D/B/A Martins Ferry Party Center and Bridgeport
Party Center, Frederick P. Fryman, individually and as owner of Fred's Party Centers, Inc..
D/B/A Martins Ferry Party Center and Bridgeport Party Center, Frederick and Joyce Fryman as
property owners of Martins Ferry Party Center, and Frederick Fryman as property owner of
Bridgeport Party Center. The complaint alleged that the Appellants had been selling incense and
potpourri which contained a Schedule I controlled substance, XLR 11.
On August 8, 2013, Appellees filed a motion for preliminary injunction. The trial court
did not rule on the motion. Appellants remained open for business throughout the course of the
litigation in the trial court.
On September 5, 2013, the trial court held an evidentiary hearing on Appellee's request
for a permanent injunction and or abatement, after which the court took the matter under
advisement.
2
On September 24, 2013, the trial court issued its judgment entry in which it: 1) found that
Appellants had participated in the commission of violations of R.C. 2925.03 and thereby
maintained a public nuisance, 2) granted a permanent injunction against Appellants from selling
controlled substances, i.e. incense and potpourri, 3) ordered that the personal property and
contents of Appellants' businesses used in maintaining the nuisance be forfeited, and 3) ordered
that the Martins Ferry Party Center and Bridgeport Party Center be closed for a period of one
year.
On September 30, 2013, Appellants filed a motion for stay of execution pending
Appellants' appeal. The trial court granted the motion.
On October 4, 2013, Appellants filed their notice of appeal to the Seventh Appellate
District, Belmont County Court of Appeals. On June 2, 2014, the Court of Appeals affirmed the
judgment of the trial court. State v. Fred's Party Center, et. al., 7th Dist. No. 13 BE 29, 2014Ohio-2358.
STATEMENT OF THE FACTS
Appellants Frederick and Joyce Fryman are the principal owners of Fred's Party Centers,
an Ohio corporation. [Tr. 93-94]. They operate the Martins Ferry and Bridgeport Party Centers.
[Tr. 94]. The Bridgeport store has been in business for approximately twenty-five years and the
Martin Ferry store approxiniately fourteen or fifteen years. [Tr. 94]. The two stores combined
have twenty-three employees. [Tr. 95]. Appellants Frederick and Joyce Fryman have a reputation
for honesty. [Tr. 66, 69]. Furthermore, they have a reputation for following the law. [Tr. 66, 70].
The two law enforcement officers who testified for the Relator indicated they had not
experienced any legal issues or problems with either party center. [Tr. 44, 49, 60-61].
3
In August 2011, the two Party Centers began to sell the potpourri and incense that is the
subject of this litigation. [Tr. 98]. An employee recommended selling the product. [Tr. 98]. In
addition, some of the customers had asked for the product. [Tr. 108]. The manager of one of the
stores found a distributor after checking on the internet. [Tr. 99]. With each shipment of product,
the distributor enclosed a laboratory report that verified that the incense and potpourri did not
contain any illegal substances. [Tr. 99-100]. No customers complained about the products. [Tr.
105]. Other businesses in the immediate area were also selling the products in question. [Tr. 43].
In December 2012, the Ohio legislature made it illegal to sell or offer to sell the Schedule
I controlled substance, XLR 11 [Tr. 92 J. Appellants were aware that the owner of another party
store in Shadyside had requested and were awaiting an opinion fTom the Shadyside Police
Department concerning the legality of the products at issue. [Tr. 82, 106].
On March 6, 2013, the elected Belmont County Prosecutor served on Appellants a letter
concerning the products in question. [Tr. 101]. The letter acknowledged that Appellants were
"honest business person[s]." [Joint Exhibit 10]. The letter continued that "you are an honest
business person and own a respectable business in our community." [Id. ]. The Prosecutor
advised Appellants that "most if not all of these products contain illegal substances." [Id.]. Prior
to receiving this letter, Appellants had no reason to believe that the products were illegal. [Tr.
101].
Appellant Fred Fryman, immediately consulted with his attorney James Nichelson. [Tr.
74, 78, 102]. Attorney Nichelson had represented Appellants for approximately twenty-six to
twenty-seven years. [Tr. 73,]. Appellants had a long history of frequently seeking the advice of
their counsel. [Tr. 73]. Attorney Nichelson had the distinct impression that Appellants wanted to
follow the law. [Tr. 85]. Attorney Nicholson advised Mr. Fryman to stop selling the product if it
4
was found to be illegal. [T. 85]. The Attorney did not advise him to quit selling the product. [Tr.
86].
After meeting with Appellant Fryman, Attorney Nichelson wrote a letter to the
prosecutor. [Tr. 77]. The letter provided:
The [Bridgeport and Martin Ferry] Party Centers have been
advised that nothing they sell contains any illegal substance.
The Party Centers do sell an incense product you can have
tested for content. The Party Centers would be very pleased to stop
selling this product if you advise there is something in it the Party
Centers are not aware of. The Party Centers would be pleased to
make this product available to you for testing.
[Respondent's Exhibit B].
The prosecutor did not respond to this letter. [Tr. 82]. Furthermore, no other member of
the local law enforcement agencies provided Attorney Nichelson with a copy of any report that
indicated that the products contained a controlled substance. [Tr. 82].
On February 20, 2013, an undercover agent purchased a package of "Platinum" from the
Bridgeport Party Center. [Tr. 21-24]. On March 22, 2013, the undercover purchased from the
same business an incense product labeled "Kush" and incense product labelled "Klimax." [Tr.
25]. Previously, Lieutenant Delman of the Bridgeport Police Department, while in uniform, had
asked a clerk from the Bridgeport Party Store to permit him to inspect the product. [Tr. 17]. The
Clerk readily complied with his request. [Id.]. The products were in plain sight behind the
counter. [Tr. 17, 34-35]. Most of the products were labelled "not for human consumption. [Tr.
36]. All of the packets stated that the product did not contain any "illegal ingredients." [Tr. 36].
On February 20, 2013, an undercover agent purchased some Diablo from the Martins Ferry Party
Center. [Tr. 51 ].
5
On April 13, 2013, the local law enforcement officials executed a search warrant for both
party centers and Appellants' residence. [Tr. 53]. Appellants cooperated fully with the search of
the businesses and their residence. [Tr. 103]. Prior to executing the search warrant, Appellants
had not been informed that the product contained a controlled substance. [Tr. 39, 102, 121].
Appellants first received a copy of the reports of Bureau of Criminal Investigation concerning
the contents of the potpourri and incense when they were served with the complaint in this case.
[Tr. 102-03].
Since the execution of the search warrant, Appellants have quit selling the products. [Tr.
103]. This is despite the fact that vendors have continued to attempt to market the product to
them. [Tr. 103]. Appellants have no intention of selling the products in the future. [Tr. 108]. It
has ceased to be an ongoing problem with respect to Appellants. [Id. ].
ARGUMENT
FIRST PROPOSITION OF LAW
THE ESTABLISHED PRINCIPLE THAT A RELATOR WHO DOES NOT
HAVE CLEAN HANDS CANOT OBTAIN INJUNCITVE RELIEF
APPLIES TO SUITS IN EQUITY INSTITUTED BY A
GOVERNEMENTAL AGENCY PURSUANT TO STATUTORY
AUTHORITY.
Appellants in the Court of Appeals asserted that the trial court erred in granting injunctive
relief because the law enforcement agencies investigating the offenses in question did not have
clean hands. The Court of Appeals rejected this assertion both on a legal and factual basis. State
v. ex rel. DeWine v. Fred's Party Center, et al., 7th Dist. No. 13 BE 26, 2014-Ohio-2358, ¶¶ 6384. That Court cited to this Court's holding in Ackerman v. Tri-City Geriatic & Health Care,
Inc., 55 Ohio St.2d 51, 378 N.E.2d 145 (1978), Id. at ¶¶ 64-68. The facts of the present case
illustrate the need for this Court to revisit and modify its holding in Ackerman.
6
Prior to the institution of this litigation, Stacey Heathcote, who operated the Shady Side
Party Center (a similar business as to the Fred's Party Center) had submitted samples of the
incense and potpourri to the Shadyside Police Department and Belmont County Drug Task for
testing to determine the legality of the products. [Tr. 82, 106]. Appellants' manager was good
friends with Ms. Heathcote and they communicated regularly. [Tr. 106]. From this it can be
assumed that Ms. Heathcote shared information concerning the ongoing testing.
Immediately after receiving a letter from the prosecutor stating the potpourri and incense
may contain a controlled substance, Appellant Fred Fryman consulted with his longtime attorney
James Nicholson. [Tr. 74, 78, 102]. Counsel received the impression that Appellants wanted. to
follow the law. [Tr. 85]. After meeting with Appellant Fryman, the Attorney wrote a letter to the
prosecutor. [Tr. 77]. The letter provided that "[t]he Party Centers would be very pleased to stop
selling this product if you advise there is something in it the Party Centers are not aware of. The
Party Centers would be pleased to make this product available to you for testing." [Respondent's
Exhibit B].
Neither the prosecutor not any other involved in the investigation respond to Attorney
Nicholson's letter or Ms. Heathcote's request for testing. [Tr. 82]. The Appellants did not receive
a copy of any of the test results until they were served with a copy of the complaint. [Tr. 102-03].
"He who seeks equity must do equity, and that he must come into court with clean
hands." State ex rel. Committee for the Referendum of the City of Lorrain Ordinance No. 77-01
v. Lorain County Board ofElections, 96 Ohio St.3d 308, 2002-Ohio-4194, 774 N.E.2d 239 ¶ 35
(citing Christman v. Christman, 171 Ohio St 152, 154, 168 N.E.2d 153 (1960)). The governing
principle is "that whenever a party, who seeks to set the jtidicial machinery in motion and obtain
some remedy has violated conscious, or other good faitll, or equitable principle, in his prior
7
conduct, then the doors of the court will be shut against him in limine; the court will refuse to
intervene on his behalf, to acknowledge his right, or to award him any remedy . .." Keystone
Driller Co. v, General Excavator Co., 290 U.S. 240, 244-45, 54 S. Ct. 146, 78 L. Ed. 293 (1934).
In Ackerman, this Court held that the State was not required to demonstrate that that it
had clean hands when it brought a suit in equity pursuant to a specific statute. Id. at 56. This
Court therein held that such actions "are not designed to primarily to do justice to the parties, but
to prevent harm to the general public." Id. at 57. However, it does not benefit the public if the
individual against whom relief is sought is treated unfairly, either procedurally or substantively.
The situation is analogous to a criminal case. The government, despite the fact that a defendant
committed a criminal offense, cannot obtain a criminal conviction if the government acted
unfairly in bringing the charges. For instance, the government cannot obtain the evidence against
the defendant in a manner that violates the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 81
S. Ct. 1684, 6 L. Ed.2d 1081 (1981). Similarly to the facts of this case, the governmerit cannot
entrap the defendant into committing the act, and then prevail at trial. Jacobson v. United States,
503 U.S. 540, 112 S.Ct. 1535, 118 L. Ed.2d 174 (1972). The public not only has an interest in
seeing that the illegal action ceases, but also that the suit has been fairly instituted. The public's
former interest must be balanced against the public's latter interest. The ends do not justify the
means. At some point a line must be drawn.
That line must be drawn in favor of the Appellants given the facts of this case. Appellants
most likely were aware that the owner of a similar business had sought guidance from both the
Shadyside Police Department and not received an answer. After meeting with Appellant Fryman,
Attorney Nichelson wrote a letter to the prosecutor. [Tr. 77]. The letter provided:
The [Bridgeport and Mar-tin Ferry] Party Centers have been
advised that nothing they sell contains any illegal substance.
8
The Party Centers do sell an incense product you can have
tested for content. The Party Centers would be very pleased to stop
selling this product if you advise there is something in it the Party
Centers are not aware of. The Party Centers would be pleased to
make this product available to you for testing.
[Respondent's Exhibit B].
The Court of Appeals faulted Appellants for not having conducted "discovery on the
matter or call[ed] others to testify as to whether those samples [that Appellant provided Officer
Doty] were tested and if why not." Fred's Party Center at ¶ 70. However, the Court of Appeals
focused on the wrong issue. The reasons that the Shady Side Police Department did not test the
samples were irrelevant. What was relevant was that a similar situated defendant had requested
assistance and the Department had failed to either conduct the testing or share the results.
This Court should exercise its discretionary authority and accept this matter for review.
SECOND PROPOSITION OF LAW
THE ESTABLISHED PRINCIPLE A TRIAL COURT IN A
NUISANCE ACTION SHOULD NOT ISSUE AN
ABATEMENT ORDER IF THE RESPONDENTS HAVE
PROMPTLY RECTIFIED THE ISSUE APPLIES TO SUITS
IN EQUITY INSTITUTED BY A GOVERNEMENTAL
AGENCY PURSUANT TO STATUTORY AUTHORITY.
Appellants in the Court of Appeals asserted that the trial court erred when it granted
injunctive relief because it was not disputed that Appellant had ceased the illegal activity in
question by the time the trial heard the matter on the merits. However, the Court of Appeals held
that this was irrelevant given the nature of this action. Fred's Party Center at ¶85. The Court of
Appeals erred when it reached this conclusion.
The Bridgeport store has been in business for approximately twenty-five years and the
Martin Ferry store approximately fourteen or fifteen years. [Tr. 94]. The two stores combined
have twenty-three employees. [Tr. 95]. Appellants Frederick and Joyce Fryman have a reputation
9
for honesty. [Tr. 66, 69]. Furthermore, they have a reputation for following the law. [Tr. 66, 70].
The two law enforcement officers who testified for the State indicated they had not experienced
any legal issues or problems with either party center. [Tr. 44, 49, 60-61.].
Since the execution of the search warrant, Appellants have quit selling the products in
question. [Tr. 103]. This is despite the vendors have continued to attempt to market the product
to them. [Tr. 103]. Appellants have no intention of selling the products in the future. [Tr. 108].
Appellee implicitly recognized this fact when he did not pursue the motion for preliminary
injunction that he filed and as a result Appellants open for business during the litigation in the
trial court. If Appellee had believed otherwise, he would have pursed his motion for a
preliminary injunction. See State of Ohio, ex rel. Rothal v. Smith, 151 Ohio App.3d 289, 2002Ohio-7328, 783 N.E.2d 1001, ¶ 93 (9th Dist.).
The relator in a nuisance action has the burden by clear and convincing evidence to
demonstrate that the respondents have been in bad faith and not rectified or eliminated the
nuisance. Pizza, 84 Ohio St.3d 116, 702 N.E2d. 81 (1998), paragraph 2 of the syllabus; State, ex
rel. Freeman, v. Pierce, 61 Ohio App.3d 663, 671, 573 N.E.2d 747 (2"d Dist. 1991).
The general rule in equity is that a court will not issue an injunction to solve a problem
that has ceased to exist. Atol v. Dayton, Malleable Iron Company, 38 N.E.2d 100, *8 (2"d Dist.
1941); State, ex. Yel Cheatwood v. Bidinger, 1979 Ohio App. LEXIS 10520, * 14 (6th Dist. Sept.
14, 1979). A court is not justified in granting a permanent injunction on the theory that the
respondent on some future date may resume the actions which caused the filing of the petition.
Sommer v. Mount Carmel Health, 10th Dist. No. 94APE07-1087, 1995 Ohio App. LEXIS 1300,
*7 (March 28, 1995). The conduct of a respondent subsequent to be served with a nuisance
complaint is relevant as to wllether a trial court should issue an abatement order that shuts down
10
the business. State of Ohio, ex. rel, Allen County Prosecutor Waldick v. Howard, 3`d Dist. No. 111-33, 2012-Ohio-404, ¶ 38.
There is no reason that this well established equitable principle that a court will not grant
injunctive relief when the problem has ceased to exist should not apply to this litigation. The
public has an interest in a business which is acting in a lawful manner not being shuttered for a
lengthy time period. The businesses have been an important part of the community for twentyfive years. [Tr. 94].Appellants employed twenty-three individuals. [Tr. 95 ]. Those individuals
will be without employment if the business is shuttered. In addition, the portion of the business
that was devoted to the selling of the substances in question can easily been separated from the
remainder of the business. The statutory remedy contained in R.C. 3767.01 et. seq. "with their
extreme nuisance abatement remedies" was "never intended by the legislature to apply to
defendants operating lawful businesses." State of f' Ohio, ex. rel. Cheatwood v. Bidinger, 6'h Dist.
No., 1979 Ohio App. LEXIS 10520, at *24 (Date) (Brown, J. concurring).
This Court should exercise its discretionary authority and accept this matter for review.
CONCLLrSION
This Court should accept for review both of the propositions of law contained herein. It
should summarily grant relief and vacate the order that Belmont and Matins Ferry Party Centers
be closed for one year. In the alternative, this Court, after permitting full briefing and oral
argument, should vacate the order that the Party Centers be closed for one year and remand the
case for further consideration consistent with this Court's decision.
Respectfully submitted, ol
,//^ 44_^)
Dennis W. McNamara (0005114)
11
88 East Broad Street - Suite 1350
Colurnbus, Ohio 43215
Tele phone: (614) 464-2770
Facsimile: (614) 464-0043
Email: [email protected]
Attorney for Appellants
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Memorandum In Support Of Jurisdiction Of
Appellants Fred's Party Centers, Inc. DIf3lA Martins Ferry Party Center And Bridgeport Party
Center, Frederick P. Fryman, Individually And As Owner Of Fred's Party Centers, Inc. D/B/A
Martins Ferry Party Center And Bridgeport Party Center, Frederick And Joyce Fryman As
Property Owners Of Martins Ferry Party Center, Frederick Fryman As Property Owner Of
Bridgeport Party Center, The Real Property At 819 Zane Highway, Martins Ferry, Ohio And
The Real Property At 895 National Road, Bridgeport Ohio was sent by first class mail, post
prepaid to Charissa D. Payer, Principal Attorney General, Health and Human Services Section,
30 East Broad Street, 26t' Floor, Columbus, Ohio 43215 and Melissa G. tiVright, Assistant
Section Chief, Consumer Protection Section, 30 East Broad. Street, 14t' Floor, Columbus, Ohio
43215, on this 9th day of July, 2014.
Dennis W. McNamara
Attorney for Appellants
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STATE OF OHIO, COUNTY OF ftELMOP+lTs FILF^
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Michael DeWine, Ohio Atlorney General
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Plaintiff Case No.: 13 CV 263
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.fhe Chuit, h'avirag cowddereci the facts of this case in light of RC §3y19 41,.
i(Xt.R1I Schedule I, Controlled Substance), RC §3729.10 ( Nuisance), Rc §4729.35 (Public Nuisance), and RC §2925.03 ( Sale of Controlled Substance), hereby finds by
clear and convincing evidence, that Defendants, Fred's Party Center, Inc., d/b/a
Meirtins i'erry Party Center and gridgeport Party Center; Frederick P. Fryman,
1Cnidividually and as Owner of Fred's Par^.^y Centers, Inc.; Frederick ^ Joyce Fryman,
as property owners of Martins Ferry Party Center, and Fraderic.k Fryrryan as. property
ov^ rner of Bridgeport Party Center, did commit and participate. in the commission of
felony violations of RC §2325.03, T rafficking; in t)rugs and are, therefore, liable for .
Bn€ointaining a nuisance under RC §3719.10.
In acldition, the Court finds by cleai°, and convincing evidence thaf said
Defendants have committed, arid/or partic'ipated in the commission of voolations of :
R.C. §2925.03, an Ohio law controlling the distribution of a drug of abuse, are also
lialbie for maintaindng a public nuisance pursuant to Rc §4729.35.
Such violations of law aire declared to be; inuruecal, harrnfui, and adverse to the
f^ ulblic welfare and they uoreasonably inter^ ere witb the public's right to iiealth;
safety, peace, and comfort, aind, as a result,i said parties are hereby perinanently
e:njjoined from engaging irr such acts.
The C.ourt further finds that, as the result of Defenciants' violations of RC
§2925.03, fZC §3719.10 and RC §4729.25,1 they have, in effect, maintained a
iliuisance and public nuisance subject to abatorneht pursuant to RC §3767.02
through §3767.11.
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A-1
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In accord with the Court's findings, it,is hereby Ordered that said Defendants,
#=red's Party Center, Inc., d/b/a Martins Ferry Party Center and Bridgeport Party
Center; Frederick P. Fryrnanr Individually and;as Owner.of Fred's Party Centers, Inc.;
1=rederick & Joyce Fryman, as property owners of Martins Fe.rry Party Center, andl
Frederick Fryman as property owner of I3ricigeporti Party Center, are permanentty.
enjoined froni selling any potpourri or incense and maintaining a nuisance (sale of
controlled substance disguised as "incense"! and °potpnurri" or otherwise) at any
. --------ioc.ation-in-the-State--oUahio.
It is further Ordered, in accordance inrith RC §3767.06, that alt personal
property and. contents-used in conducting or-:maintaining-the nuisance-(ail-personal,_._
_. . _.., .... . . _ - --._ ._.. _ _ ----property and ctin^ents confiscated by Maur enfrarcennent auttiarif'ids) §tialffie fnrfeited_
iinid disposed of in accord with law and that the t^rnro places wherein the public
nuisance has been found to exist, shail be closed for any ptirpose and rernain closed
for a period of one (1) year, beginning October 1, 2013 thru September 30, 2014,
unless sooner released, pursuant to RC §3767.06.
This is a final appealablie Order.
FINDINGS OF FACT
1. XLR1i is listed. in RC §3719.41 as a Schedule 1 controlled substance.
2. This synthetic compound has been identified as containeci in packets of products
that are often sold in convenient stores and gas stations as "potpourri" or "incense."
3. Defendants, Fredrick and Joyce Fryman. ("the Frymans"), own Defendants, Fred's
Party Centers, Inc. ("Fred's"), Bridgeport Party Center ("Bridgeport"), and Martins
Ferry Party Center ("Martins Ferry"}
4. The Frymans, Fred's, Bridgeport and Martins Ferry, became the subject of
undercover law enforcement investigations in early 2013 because the party centers
were suspected of seiling or offering to sell to consumers products that were
A-2
2_
represented as "incense" and/or "potpourri" that were found.to contain the synthetic
compound known as XLR11.
5, In late 2011, the Frymans learned that in Bridqeport and Martins Ferry "there was a
market" for products wii:h names like "Diablo", "Kush", and "Klimax."
6. Based on a°recornmenciation from an employee that was buying elsewhere, and
saici we should get into it," Mr. Fryman "had [his) manager get online" to find a
supplier for the products "to be able to try sorne:"
._
7.- After finding an online supplier who sold ihe proi^ucf5; Fred's began-placieig orders
and receiving weekly shipments to sell at;Brid_yeport and Martins Ferry.
8. Mr. Fryman testified thait a lab report came with each shipment that he purchased.
9. He testified that all of the lab reports that came with the products at issue in this
case indicated that the products did not contain any illegal substance.
10. The individual packets of the product were iabelecl with statements such as "Not for
Human Consumption." "100% legal" "It's Legal in 50 States." and "Contains no
Prohibited Chemicals or Materials."
11. According to Mr. Fryman's testimony, these products were only sold to customers
over 18, though he furt.her testified he knew the products did not contain tobacco.
12. On February 20, 2013, February 22, 2013, and March 22, 2013, officers from the
Belmont County Drug Task Force conducted controlled undercover buys of the
products at issue at Bridgeport and Martins Ferry. At each location, the undercover
officers purchased packets of products with names like "Diablo",."Kush", and
"Klimas.°
-3r
A-3!^
13. Although the labels. on the packets claimed. that.the contents.were free of illegal
substances; when the State crime lab te.sted the contents of the packets, XLR11 was
ideritified.
CdINCL1JSIO(VS OF LAlnl
i, This Court has jurisdiction over.thesubject matter, issues and parties
---------pur'suant to RC §1345.04; RC §3767.03; and RC §4729.53.
:
_.._, . --,
-------__
___(3-3__
^. The Couffh^s-venue
to hear this cas^; pui suant-to
Ohio-- - Civ-R;3(B)(1)
----- -----
in regard to the transactions complained of herein, which occurred in Belmont
County, Ohio.
3. The Ohio Attorney General is the proper party to commence these
proceedings under the authority of RC §1345.07 and RC §3767.02 thru
§3767, and by virtue of his statutory and common law authority to protect
the interests of the citizens of the State of Ohio.
4. Because XLR12 is a Schedule 1 Controlied Substance, the sale of this
controlled substance at Bridgeport arid Miirtiris Ferry constitutes trafficking in
drugs in violation of RC §2925.03(A)(1).
s. RC §3719.10 prouides that premises on which felony violations of Chapter
2925 occur are public nuisances subj;eet to abatement.
6. By controlling the distribution of a drug of abuse, the Frymans, Fred's,
Bridgeport and Martins Ferry, violated a state law and may be personally
enjoined pursuant to RC §4729.34.
-4o
A-4
7. The sale of a controlled substance by the Frymans and IFred's, on the
premises of Bridgep®rt and Martins Ferry unreasonably interferes with the
public right to health, safety, peace, and comfort, and thereby creates a
public nuisance subject to abatement.
8. RC §3719.10 states that "[p]remises or real estate ... on which a felony
-vi"otafion-af ^hapter-29371^Tt^Revi^ed=^d^o^^rr5
nuisance_.subject tc^abaterrientpursuant tc,Chapter 3767, of the Revised --- ____
Code." This section does not require a felony conviction, but simpiy _ a fe iony
- ------------
violation, which can be proven by clear and convincing evidence.
9. Evidence produced at the hearing reveaiecl that the Frymans sold certain
products labeled as "incense" or "potpourri" that was f(Dund to contain XLR11,
at their Fred's locations in Bridgeport and Martins Ferry. XLR11 became
illegal on December 20, 2012. Under RC §3719.41(C)(41), XLR11 is a
controiled substance listed in Schedule 1.
io. Based on the evidence produced at the hearing, the products. sold at Fred's in
Bridgeport and Martins Ferry were, in fact, iflegaL
ii. A mistake of fact can, in appropriate circumstances, negate the "knowingly"
element of a specific intent crime. However, a close examination of RC
§2925.03(A)(1) and pertinent Ohio law reveals that the "knowingly" element
only modifies "sell or offer to sell° not the words, "a controlled substance."
Wine, 0hi©
t2. This Court has already held in Nlichael L ^e-vShad sPa^i^fer et aL, Beirnont County, Ohio, Case No.
. -. _^^
A-5
13CV112: ( 2013) and.again con.cludes tht f.he culpable-mental state of
"knowingly° when Eipplied td the saie of drugs; is an adrrerb which modifies
the verb, "offer" and pertinent Ohio law, therefore, reve.als that the
"knowingly" element modifies the words °sell or offer to sell", but not the
words, a controlled substance."
_ _ ---- =--- ----=---- - - --- -^^Con-eqti-e ntly; sir^ ce the Fryr^ans-are
Ei^ing
is^tak^of fact a-to-^
whether..,the prociu^_ts were sold or offered ror sale,a mistake of fac" defense
is not applicable to this case.
14, Moreover, "a person acts knowingly, regarclless of his purpose, when he is
aware that his conduct will probably cause a certain result or will probably be
of a certain nature. A person has knowlec%e of circumstances wher^ he is
aware that such circumstahces probably exist. " RC 52901.22 (emphasis
added). As pointed out above; knowedge, that,the products were illegal is
not an elernent of the proof in this case; howevPr, based on the evicience
presented it is nevertheless clear that the Frymans.were in fact aware. that..
the products they were selling were illegal.
15, XLfZ1i became illegal December 20, 2012. C3efendants continued to sell the
sanne: Increased sales volume occurred. Compla i nts.. were received.
Requests for the items were made by asking,for "fake weed." A package of
the "fake weed" incense/potpourri was sold for $22.00 per package but an
incense stick sold for 25 cents. The Chief Law Enforcement Officer of the
County advised Defendants iri writing on March 6,2013 that Defendants could
A-6
not rely- upon the labels of these products because they did in fact contain-illegal substances and asked that the products "be 4-mediately rerrioved from
[their] shelves." Defendants continued to sell said products even after said
written notice by the Prosecuting Attorney. Defendants, interestingly enough,
however, despite claiming a lack of knowledge, chose (along with the
un^nown dis-trob-u iror not-tc^-s-efrthe-sarrre-t.u-mirrtrrs-(desptte-krrowing t
they contained. no..tobacca);. _Qefendant incre-dlbly._e.x_RldJed he wanted tov
make sure they [minors] had enough money to buy the product, meaning
Walmart apparently, according to Defendant, cannot sell an expensive bicycle
to a.seventeeri year old. Defendants' explanation was +qute telling.
16. Under RC §4729.35, a violation by a person controlling the "distribution of a
drug of abuse ...constitute(s) a public nuisance." A drug of abuse is defined
as "any controlled substance as deflned in §3719.01 of the Revised Code,
preparation, or substance included in Schedule I, II, II:C, IV, or V" XLR11 is
Schedule 1 Controlled Substance. RC §3719.41(C) (41). 17. Defendants sold XLR11 on the premises of Fred's in Bi•idgeport and Martins
Ferry, in violation of state law RC §2925.03(A)(1). This violation constitutes a
public nuisance on the premises pursuant to RC §4929.35. Injunctive relief is
proper.
A
7
7.
ORDER
18, In accord with the Court's fi3ndings, it is hereby. (Drdered that said
Defendants, Fred's Party Center, Tnc., d/b/a Martinis Ferry Party Center
and aridgeport Party Center; Frederick P. Fryman, Indiv iduaily and as
awrrerr-of -Fred's-pau'ty--Centers; ane.,-FreddCr ie!€= 8^-7oyFe+e-=r-^man,-as
;.,
,
. property
. _
owrsersof Martins Ferry Party Center, and IFrederick Fryman as_
_
property owner c^f I^ridgepor^ Party Cener, are permanentCy erija^tned rom:
selling any potpourri or incense and maintaining a nuisance (sale of
controlled substance, disguised as °incense°' and "potpourri" or otherwise)
at any location in the State of ahio.
19. It is further Ordered, in accord with RC §3767.06, t hat all personal
property and contents used in conducting or maintaining the
nuisance ( all personal property and contents confiscated by law
enforcement authorities) shall be forfeited. and di,sposed of in accord:
with law and that the Fred's Party Center, Inc. (i/b/a Martins Ferry
Party Center and Bridgeport Party Center, the places wherein the
public nuisance has been found to exist, shall be closed for any
purpose and remain closed for a period of one (1) year, beginning
October 1, 20131thru September 30, 2014, unless sooner released,
pursuant to RC §3767.06.
A-8
^^°
is a final appealable Order.
FR4WK A. REGTA t,..- ® E
A-9
FaLED
COEJf=1T OF AF'i=1=,^^LS
CYNTHIA K. MCUE`
CLEaK QF CfJURTS, BEL?VluNT COUNIrY
STATE OF OHIO
BELMONT COUNTY
IN THE COURT OF APPEALS OF OHIO
)
)
)
JUN 0 2 201
SS: SEVENTH DISTRICT
STATE ex rel. MICHAEL DeWINE,
ATTORNEY GENERAL OF OHIO,
CASE NO. 13BE29
PLAINTIFF-APPELLEE,
JUDGMENT ENTRY
VS.
FRED'S PARTY CENTER, INC., et al.,
D EFEN DANTS-APPELLANTS
For the reasons stated in the Opinion rendered herein, the assignments of
error are without merit and are overruled. It is the final judgment and order of this
Court that the judgment of the Common Pleas Court,. Belmont County, Ohio, is
affirmed. Costs taxed against appellants.
cit
JUDGES.
DEFENDANT'S
EXHIBIT
A-10
p .*
L Lt.::v
COl,1RT OF APPEAL-S
NO 13 /3e^ q
CYNTI-IiA K. MCGEE
STATE OF OHIO, BELMONT COUI4,4ff OF COURTS, BELMONT COUNTY
IN THE COURT OF APPEALS
JUN 4 2 2014
SEVENTH DISTRICT
STATE ex rel. MICHAEL DeWINE,
ATTORNEY GENERAL OF OHIO,
CASE NO. 13 BE 29
PLAINTIFF-APPELLEE,
OPINION
VS.
FRED'S PARTY CENTER, INC., et al.,
DEFENDANTS-APPELLANTS.
CHARACTER OF PROCEEDINGS:
Civil Appeal from Common Pleas Court,
Case No. 13CV263.
JUDGMENT:
Affirmed.
APPEARANCES:
For Plaintiff-Appellee:
Attorney Michael DeWine
Ohio Attorney General
Attorney Charissa Payer
Principal Assistant Attorney General
30 East Broad Street, 26th Floor
Columbus, Ohio 43215
Attorney Dennis McNamara
88 East Broad Street, Suite 1350
Columbus, Ohio 43215
For Defendants-Appellants:
JUDGES:
Hon, Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: June 2, 2014
EXHIBIT
A-11
'R
d
-1VUKOVICH, J.
{j'j1) Defendant-appeilant Fred's Party Center, Inc. et al. appeal the decision
of the Belmont County Common Pleas Court in the nuisance abatement action filed by
the Ohio Attorney General. Appellant first contends that the trial court erred in
admitting laboratory reports without testimony from the authors of the reports and
claims that there is no evidence of a controlled substance without those reports. The
attorney generai insists that the reports were admissible under a statute that clearly
only applies to criminal prosecutions. In any event, appelfant allowed testimony that
three packets from appellant's Bridgeport store tested positive. Thus, the only issue is
the report concerning the test results of one packet purchased from appellant's Martins
Ferry store. The admission of the results from that one packet is harmless under all of
the circumstances of this case.
{12} Appeflant alternatively argues that the court erred in ordering the closure
of the two stores for one year as a remedy, arguing that they were diligent in correcting
the nuisance, the nuisance ceased to exist after the search warrant was executed, the
government had unclean hands, and the order should have been narrowly tailored
regarding the closure and the forfeiture of personal property and contents. However,
traditional equity principles do not apply here as this is a statutory injunction action
with remedies mandated upon the finding of the nuisance. The Supreme Court has
created an exception if the case involves an "owner who did not negligently or
knowingly acquiesce to, and did not participate in the creation or perpetuation of the
nuisance." However, whether appellant fits within this exception is a matter of weight,
credibility, and rational inferences best left for the trial court. The judgment of the trial
court is affirmed.
STATEMENT OF THE CASE
{$3} On July 23, 2013, the State of Ohio'ex rel. Michael DeWine, Attorney
General of Ohio, filed a civil nuisance complaint against Fred's Party Center, Inc. dba
Martins Ferry Party Center and Bridgeport Party Center and owners Frederick and
Joyce Fryman due to the stores' selling of herbal incense containing XLR11, a
A-12
-2schedule I controlled substance. The attorney general filed a motion in limine asking
the court to accept the affidavits and lab reports of two BCI scientists as prima facie
evidence regarding the presence of XLR11 in four samples purchased from the stores.
The court granted the request to accept the reports in lieu of live testimony.
{¶4} The case was tried to Judge Fregiato of the Belmont County Common
Pleas Court on September 5, 2013. A lieutenant employed by the Bridgeport Police
Department, who was also a member of the Belmont County Drug Task Force,
testified that he noticed a change in the volume of traffic at the drive-thru of Bridgeport
Party Center, and he received complaints concerning sales of synthetic marijuana
from the store. (Tr. 10, 12, 14). On February 15, 2013, the lieutenant attended an
Ohio Afitorney General class on investigating synthetic cannabinoids.
{15} The next day, he entered Bridgeport Party Center while in uniform in
order to look for various indicators of illegality suggested in the class. He saw ten
boxes of different kinds of "herbal incense" packets in plain view on a shelf behind the
counter by the cigarettes. (Tr. 16-17, 34). He asked the clerk to see a packet, and she
showed him the "Diablo." When he asked why the label said the user must be over
eighteen, she responded that it was a tobacco product. (Tr. 18). The cheapest herbal
incense they sold was $22 for one packet.
(Tr. 19).
The lieutenant asked if they
carried any other incense, and she asked if he meant the kind used for aroma ancl
pointed to a shelf ( not behind the counter) containing sticks of regular incense selling
for 25 cents per stick. (Tr. 18).
{¶6} The Belmont County Drug Task Force then decided to make controlled
purchases. On February 20, 2013, an undercover officer entered Bridgeport Party
Center with a recording device and asked for recommendations on "fake weed." (Tr.
23). The clerk recommended "Mr. Happy" for $67, which the officer could not buy as
he was only provided $50 in buy money. (Tr. 24). Instead, he purchased "Piatinum"
and two cigar wraps for $23.97. (Tr. 24).
{¶7} That same day, an undercover officer with a recorder went through the
drive-thru of Martins Ferry Party Center, the other store owned by Fred's Party Center,
Inc. He asked if they had "any of that Diablo, the fake weed" and a pack of cigar
I
A-13
o r,
-3wraps. (Tr. 50). He made the purchase for $23.51 and requested a receipt but was
told they "don't do receipts." (Tr. 50-51). The packet claimed that it was sold as
incense only, it was not for human consumption, and "it's Legal in 50 States, 100%
Legal."
{¶8) The Belmont County Drug Task Force submitted the packets from the
two stores to BCI for testing. In the meantime, the Belmont County Prosecutor wrote a
letter to various businesses in the county that were selling suspicious incense. The
letter was hand-delivered to both Bridgeport Party Center and Martins Ferry Party
Center on March 7, 2013. In the letter, the prosecutor stated that the Belmont County
Drug Task Force informed him that "you may be selling synthetic marijuana, incense,
and/or bath salts that are being smoked or ingested by your patrons."
{$9} The prosecutor explained: "Despite what the labels on these packages
provide, that they do not contain illegal substances, most if not all of these products do
contain illegal substances." The prosecutor noted that the recipient was a respectable
business in the community and expressed desire to assist the recipient in avoiding
future problems by "urging you to cease selling -khese items immediately and remove
all of them from your store." The prosecutor warned: "Failure to remove these items
and immediately cease selling them could lead to criminal prosecution." It was
explained that the minimum offense would be fifth-degree felony drug trafficking under
R.C. 2925.03, and it was reiterated that the letter was sent: "So you will know that the
bath salts, incense and/or synthetic marijuana that you have in your store should not
be sold. That they should immediately be removed from your shelves with no further
sales occurring." The letter closed by noting a recent increase in crimes in the county
committed by those under the influence of these items and stating that the
prosecutor's office and the drug task force were counting on their help to combat the
problem.
(110) Instead of complying with the letter, Mr. Fryman consulted with his
attorney, who responded to the prosecutor's letter the next day by writing a ietter
stating:
"The Party Centers have been advised that nothing they sell contains any
illegal substance. They, however, are willing to test this assertion." The letter then
A-14
-4-
stated that they will provide some incense to the prosecutor who should test it after
which they would stop selling it "if you advise there is something in it the Party Centers
are not aware of. However, NIK or field testing would not be sufficient." The letter
concluded by instructing the prosecutor to call to arrange the testing.
{111} On March 22, 2013, an undercover officer entered Bridgeport Party
Center and asked for "fake weed" and papers. He purchased an eleven-gram packet
of "Kush" and a ten-gram packet of "Klimax" for a total of $127.
(Tr. 25-26). The
"Kush" packet stated that it contained no nicotine or tobacco, it was not intended for
human consumption, it was lab certified to contain no prohibited chemicals, and it was
legal for sale in all fifty states as of September 1, 2011. The other packet was covered
in pictures of marijuana leaves, claimed that it was not to be burned or smoked yet
stated that one must be eighteen to purchase, and proclaimed that it does not contain
cannabicyclohexanol. Thirty minutes later, the officer went through the drive-thru and
purchased " Diablo" and "OMO." (Tr. 28-19 31).
(112) The lieutenant from Bridgeport testified that the four packets purchased
from Bridgeport Party Center were submitted to BCI. He explained that the first packet
("Platinum") and the last packet ("OMG") tested negative for XLR11 but the packets
labeled "Kush" and "KFimax" and "Diablo" tested positive for XLR1 1. (Tr. 29, 31).
{¶13} A Belmont County Drug Task Force member from Martins Ferry Police
Department thereafter testified that the "Diablo" purchased from Martins Ferry Party
Center tested positive for XLR11. Defense counsel objected at this point. (Tr. 51).
The state presented the lab report regarding this test, and the courk ruled it admissible,
overruling the objection. (Tr. 52).
{114} After the positive test results came back, search warrants for the stores
and the Fryman residence were obtained. (Tr. 42-43, 53). The Martins Ferry officer
testified that they seized packets of incense and paraphernalia, such as smoking
bowls and pipes, frorn the residence. (Tr. 54). He also stated that the search of a
computer produced a sales report showing that the sales of "Herbal" from both stores
was over $4 million dollars in less than two years. (Tr. 55, 58).
A-15
-5{¶15} Both officers testified that they had experienced no issues with the stores
prior to this investigation. (Tr. 44, 49). An individual who distributes beer to the stores
opined that the Frymans were honest and would not knowingly violate the law. (Tr.
65-66). An individual who sells the stores advertising testified likewise. (Tr. 69-70).
(116) Mr. Fryman testified that he employs 21 mostly full-time employees and
sells beer, wine, lottery tickets, and food. (Tr. 94-95). He disclosed that he first
started selling the herbal incense in August of 2011, after he received customer
requests and discovered that an employee was buying his supply from a local
competitor. (Tr. 98, 108-109). He had his manager find a supplier online from whom
he received weekly shipments by a private mail carrier.
{117} He explained that each shipment arrived with a laboratory report. (Tr.
99). The lab reports that came with the shipment of "Diablo" and "Kush" and "Klimax"
were submitted as exhibits. The reports claimed that the samples were tested in April
2012. Various substances were listed, and the report stated that tests for those listed
substances were negative. No test had been run for XLR1 1. The "Diablo" report also
stated that the sample was found not to contain any synthetic cannabinoids as
designated in an Arizona law. Mr. Fryman said that his manager was a friend of the
owner of Shadyside Party Center and he was aware that said owner asked the
Shadyside police to test some samples. (Tr. 106).
{¶1 8} Upon receiving the prosecutor's letter on March 7, 2013, the two stores
owned by Fred's did not stop selling the incense. Instead, Mr. Fryman consulted with
his attorney. (Tr. 101). He said that this was not the first time he showed a supplier's
lab report to his attorney as he brought him a report each time he received a new item.
(Tr. 45). Mr. Fryman noted that his wife, who runs the Martins Ferry store, stopped
selling the products a few weeks before the April 12, 2013 search warrant was
executed, which defense counsel estimated to have been March 21, 2013 (the day
after other businesses were raided). (Tr. 104). However, they were still selling the
herbal incense at the Bridgeport store at the time of the April 12 search warrant.
{119} Mr. Fryman stated that if he had been made aware that the product was
illegal, he would have stopped seliing it. (Tr. 107). He said that his mark-up on the
A-16
-6product was 58%, higher than many other products, and that he arrived at this figure
by pricing according to his competition. (Tr. 109). When asked why he refused to sell
the incense to those under 18, he stated that they have less money and may not use it
correctly, noting that some people smoked it. (Tr, 111).
(120) Attorney Nichelson testified that he represented the Frymans for over
twenty-five years. He testified that Mr. Fryman showed him a laboratory report from
the suppliers of the incense for the first time in March 2013. (Tr, 81, 90). He said that
Mr, Fryman asked him about the substances that the suppliers claimed were not in the
packets and the attorney noted that there is an ever-changing list of drugs covered by
Ohio's statute. (Tr. 89). He advised Mr. Fryman, "if you ever find that there's anything
in anything, stop selling it immediately." The attorney also testified that Mr. Fryman
was very concerned about the prosecutor's letter. (Tr. 85).
{121} On September 24, 2013, the trial court found by clear and convincing
evidence that the defendants committed and participated in felony drug trafficking
violations of R.C. 2925.03 and were liable for maintaining a nuisance under R.C.
3719.10.1 The court found that they were aware the products they were selling were
illegal. The court found the nuisance was subject to abatement. The court
permanently enjoined the defendants from maintaining a nuisance by selling controlled
substances disguised as incense and potpourri or otherwise. The court ordered the
forfeiture of personal property and contents used in conducting or maintaining the
nuisance (said to be all personal property and contents confiscated by law
enforcement authorities). Finally, the court ordered the two stores to be closed for any
purpose and remain closed for a period of one year unless sooner released as per
R.C. 3767.06.
{122} Fred's Party Center, Inc. et al. [hereinafter appellant] filed a timely
appeal. The trial court granted a stay pending appeal upon the posting of a $50,000
'The court also found the maintaining of a public nuisance under R.C. 4729.35 due to violations
of R.C. 2925.03, described by the court as a law controlling the distribution of a drug of abuse. See
R.C. 472935 ("The violation by a pharmacist or other person of any laws of Ohio k** controlling the
distribution of a drug of abuse as * * * is hereby declared to be inimical, harmful, and adverse to the
A-17
_7_
bond. This appeal was originally consolidated with State of Ohio ex rel. DeVVine v.
Shadyside Party Center, 7th Dist. No. 13BE26. However, the appeals have been
deconsolidated as these were different trials before different judges with different facts
and Fred's presents evidentiary issues not present in Shadyside.
INTRODUCTION
{123} XLR11 is a synthetic cannabinoid laced on plant material and promoted
as an herbal incense product but which is smoked for psychoactive effects. XLR11
was specificaliy added to the schedule I controlled substance iist under the category
for hallucinogens on December 20, 2012.2 Trafficking in a schedule I controlled
substance or a controlled substance analog is a felony. See R.C. 2925.03.
{¶24} Premises or real estate on which a felony violation of Chapter 2925 or
3719 occt.trs constitutes a nuisance subject to abatement pursuant to Chapter 3767.
See R.C. 3719.10,
See also R.C. 3767.01(C)(1) (a nuisance includes that which is
defined and declared by statute to be a nuisance). Pursuant to R.C. 3767.02 (A), any
person who uses, occupies, establishes, or conducts a nuisance, or aids or abets in
the use, occupancy, establishment, or conduct of a nuisance; the owner, agent, or
lessee of an interest in any such nuisance; any person who is employed in that
nuisance by that owner, agent, or lessee; and any person who is in control of that
nuisance is guilty of maintaining a nuisance and shall be enjoined as provided in fR.C
3767.03 to 3767.11.
public welfare of the citizens of Ohio and to constitute a public nuisance."). The same procedure applies
to either nuisance. See R.C. 3767.01(C)(1),
2Before this, various synthetic substances had been added to the list that were being sold on
the streets as Spice, K2, or bath salts, and controlled substance analogs were defined and treated as
schedule I controlled substances. See R.C. 3719.01(HH)(1) with (a) (providing a"substantialiy similar"
chemical structure test for proving a controlled substance analog); R.C. 3719.013 (treated as a schedule
I substance if intended for human consumption); R.C. 3719.41(C)(35) (adding JWH-018). See also
Intent of these amendments, effective Oct. 17, 2011. A major p+.irpose of controlled substance analog
laws is to prohibit innovative drugs not yet scheduled as controlled substances. See U.S. v. Washam,
312 F.3d 926 (BthCir.2002), Manufacturers change a molecule in a substance and claim it is legal until
the government has the time to classify and schedule the new substance. It is considered difficult to
prosecute the sale of a substance until it is specifically scheduled because complex scientific testimony
is riecessary in order to prove an analog. It is being urged by the DEA in various federal cases that
XLR11 is a controlled substance analog of JWH-018.
A-18
_$_
{$25} When a nuisance exists, the attorney general can bring an action in
equity in the name of the state upon the relation of the attorney general.
See R.C.
3767.03. At the hearing, evidence on the general reputation of the place where the
nuisance is alleged to exist is prirna facie evidence of the nuisance and of knowledge
of and acquiescence and participation in the nuisance on the part of the person
charged with maintaining it. R.C. 3767.05(A).
If the existence of the nuisance is
established, a judgment shall be entered that perpetually enjoins the maintenance of
the nuisance at the place complained of. R.C. 3767.05(D) (and elsewhere by that
defendant).
{126} Pursuant to R.C. 3767.06(A), if the existence of a nuisance is
established, an order of abatement shall be included in the judgment entry under R.C.
3767.05(D). The order shall direct the removal from the place where the nuisance is
found to exist all personal property and contents used in conducting or maintaining the
nuisance and the sale of such property belonging to a defendant who was notified or
who appeared. R.C. 3767.06(A). If a closing order was not issued earlier, the court
shall include an order directing the effectual closing of the place where the nuisance is
found to exist against its use for any purpose and keeping it closed for a period of one
year unless sooner released. Id.
The owner of any place closed and not released
under bond rnay appear and obtain a release in the manner and upon fulfilling the
requirements provided in R.C. 3767.04 (which provides the ability to provide bond in
the full arnount of the property value to avoid closure if the court is satisfied of the
good faith of the owner on keeping the nuisance abated). Id.
ASSIGNMENT OF ERROR. NUMBER ONE
{127} Appellant sets forth two assignments of error, the first of which provides:
{T2$} "THE TRIAL COURT ERRED WHEN OVER OBJECTION IT ADMITTED
THE LABORATORY REPORTS OF THE OHIO BUREAU OF CRIMINAL
INVESTIGATION WITHOUT THE TESTIMONY OF THE AUTHORS OF THOSE
REPORT[S]."
(129) An April 8, 2013 report from a BCI scientist found that the packets of
"Kush" and "Klimax" and "Diablo" from Bridgeport Party Center contained XLR1 1 but
A-19
-9the °OMG" contained no controlled substance. An April 9, 2013 report from a BCI
scientist found that the "Diablo" purchased from Martins Ferry Party Center contained
XLR1'1. These lab reports were attached to the complaint as exhibits accompanied by
supporting BCI affidavits outlining the scientists' education, training, experience, and
duties and attesting that scientifically accepted tests were performed with due caution
and that evidence was handled in accordance with established procedures. The
affidavits contained a notice that they constitute prima facie evidence of the content,
weight, and identity and are admissible without further testimonial evidence and that
the accused has the right to demand the signer's testimony upon serving a demand on
the prosecutor within seven days, citing R.C. 2925.51.
{130} That statute provides that in any criminal prosecution for a violation of
Chapter 2925 or Chapter 3719, a laboratory report from the BCI can be used as prima
facie evidence of the content, identity, and weight of a controlled substance if a
notarized statement is attached to the report stating various information about the
signer and attesting various items regarding the testing. R.C. 2925.51(A). The statute
requires the prosecutor to serve a copy of the report on the defendant containing
notice of the defendant's right to demand the testimony, and then, within seven days of
that service, the defendant can serve on the prosecutor a demand for the signer's
testimony so that the report is no longer prima facie evidence. R.C. 2925.51(B)-(D).
This is considered a notice and demand statute utilized to show waiver of a criminal
defendant's confrontation rights.
{131} On August 19, 2013, the attorney general filed a motion in limine asking
the court to admit the BCI lab reports with the attached affidavits. The attorney
general urged that if such lab reports can be utilized as prima facie evidence under
R.C. 2925.51(A) in a criminal case (where the standard is beyond a reasonable
doubt), then such reports should be admissible in a civil case as well. The attorney
general claimed that unless the defendants intended to offer a legitimate challenge to
the qualification of either scientist or challenge the well-accepted scientific
methodology, in-person testimony would be unnecessary, noting the high caseload at
BCI.
A-20
-10{¶32} On August 21, 2013, the defense filed a memorandum in opposition,
describing the attorney general's argument as a request to amend a statute or to
create a new rule of evidence to allow proof of facts without testimony on the facts or
identification or authentication of the documents. The defense pointed out that R.C.
2925.51(A) is only applicable "in criminal prosecutions." The defense also pointed out
that even when the statute applies, the reports cannot be admitted as prima facie
evidence if the defendant objects under R.C. 2925.51(C).
{133} On August 23, 2013, the trial court granted the attorney general's motion
in limine, ruling that it would allow the reports as evidence under R.C 2925.51. At trial,
the court similarly ruled that the reports were admissible in this civil proceeding
because they were admissible in criminal proceedings. (Tr. 52)
{134) On appeal, appellant asserts that the court erred in accepting the state's
two exhibits because the pertinent portions of the statute only apply "in a criminal
prosecution for a violation" of Chapter 2925 or Chapter 3719. Appellant notes that it
was the attorney general's burden in this nuisance action to prove a violation of R.C.
2925.03 by showing the presence of XLR11 in the products tested. Appellant
concludes that without the test results, the attorney general only proved they sold
incense and potpourri with certain labels.
{135} The attorney general initially notes that appellant's attorney did not
protest the lab reports and stipulated to their admission in the earlier Shadyside case.
As appellant replies, this argument is improper as an attorney can stipulate for one
client and object for another depending on trial tactics and client r-equests.
{¶'36) The attorney general also states that because this was a civil case, the
defense should have obtained the testimoiiy of the scientists in discovery or through
subpoena. As appellant replies, the point was not that the defense wanted to question
the scientists. Rather, the issue was that the attorney general had the burden to prove
the products contained a controlled substance and appellant had the right to challenge
evidence as hearsay.
{¶37} Appellant cites some cases refusing to extend division (E) of R.C.
2925.51 to cases that do not involve violations of Chapter 2925 or 3719; division (E)
A-21
-11refers to a person accused of a violation of Chapter 2925 or 3719 and deals with
independent testing by the defense. See State v. Starcic, 8th Dist. No. 72742 (June 4,
1998) (holding that independent testing provision in division (E), does not apply to
probation violation); State v. Purdon, 24 Ohio App.3d 217, 218, 494 N.E.2d 1154 (12th
Dist.1986) (holding that legislature limited division (E) to violations of Chapter 2925
and 3719 and it does not apply to prosecution under Chapter 4511); State v. Starr, 8th
Dist. No. 56819 (Apr. 5, 1990) (division (E)'s statement that defense expert can be
present at test if sample is too small to preserve does not apply to blood evidence in
rape case and concluding that there is no authority for extending the statute).
See
also State v. Syx, 190 Ohio App.3d 845, 2010-Ohio-5880, 944 N.E.2d 722, % 31-32
(R.C. 2925.51 is inapplicable to prosecutions under 4511.19; cannot rewrite a similar
"notic(a and demand" statute in 4511 to include an offense not listed).
{138} The attorney general states that whether the statute can be used in a
civil case is a case of first impression, urging that the cases cited by appellants did not
preclude the application of the pertinent statutory procedure in civil cases. The
attorney general then insists that the trial court's acceptance of the lab reports under
R.C. 2925.51 was proper and posits that the statute deals with evidentiary procedure
and is not a true criminal statute.3
{139} Although this is not a "criminal prosecution" for a violation of chapter
2925 or 3719, it is worth noting that the complaint does rely upon such a violation as
the nuisance action is based upon the allegation of a felony violation of 2925.03 due to
the presence of a controlied substance listed in schedule I, which is contained in R.C.
3719.41(C)(41). However, the pertinent portions of R.C. 2925.21 establish the
procedure for certain defendants to waive criminal confrontation rights concerning lab
results. See State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d
3 The attorney general also urges that one should not read the defense's opposition to the
motion in limine as a demand for testimony under R.C. 2925.51(C) because a demand was not needed
as civil discovery was available. This is akin to arguing that division (A) should extend to civil cases but
the other divisions should not, even though the affidavits themselves cite divisions (C) and (D) and state
that the accused can file a demand within seven days. iri any event, appellant's brief does not argue
that a demand was made because it emphasizes that the statute is inapplicable.
A-22
-121 270, 11 15. See also Melendez-Diaz v. Mass., 557 U.S.305, 321, 326-327, 129 S.Ct.
2527, 174 L.Ed.2d 314 (2009) (discussing notice-and-demand statutes such as this).
(140) R.C. 2925.51(A) has plain language, "in criminal prosecutions," and this
is not a criminal prosecution. Thus, contrary to the attorney general's argument,
divisicin (A) of said statute is not applicable. Even though the statute is inapplicable
here, there are other paths to admissibility as test results can be admitted through
stipulations or waiver for failing to object or actual elicitation of the evidence.
{141} At the start of trial on September 5, the court was informed that the
parties were stipulating to the exhibits that each had to offer. (Tr. 4). They then
agreed to offer the exhibits as they went througli the applicable testimony. (Tr. 4-5).
Defense counsel said there was no dispute as to venue, jurisdiction, or the statutory
authority to bring the action. (Tr. 5). He then declared, "And even as to the two lab
reports, which I filed a memorandum objecting to on hearsay grounds, and based on
R.C. 2925.51 (C), we do not dispute their identification or authenticity." (Tr. 6).
{142} The Bridgeport lieutenant testified first. As aforementioned, he stated
that they sent the products from Bridgeport Party Center to BCI for analysis. Without
objection, he testified that the results were positive for ,>CLR-91. (Tr. 29). On crossexamination, defense counsel thrice elicited that the BCI results from the first
Bridgeport Party Center purchase ("Platinum") came back negative, which was
information from a third lab report not part of the state's case. (Tr. 30-31, 37-39).
Deferise counsel also elicited from the lieutenant that the last purchase ("OMC") tested
negative, which was additional information from the first lab report (which the state did
not present as the defense did not object to the lieutenant's testimony on the results).
(Tr. 31). [Defense counsel even inserted here a factual staternent that lab reports from
other local stores came back positive for the drug. (Tr. 38-39).
{¶43} Thus, as to the purchases from the Bridgeport Party Center, appellant
cannot now argue that there was no admissible evidence of XLR1 1 presented. The
exhibits were said to be stipulated at least as to identity and authenticity, and one
exhibit was a lab report and affidavit showing that three packets purchased from
Bridgeport Party Center tested positive for XLR11. And then, the lieutenant testified
A-23
-13without objection that these three packets tested positive for the drug.
See Evid.R,
103(A)(1) (error may not be predicated upon a ruling which admits evidence unless a
substantial right of the party is affected and a timely objection or motion to strike
appears oi' record).
{144} As defense counsel admitted, a pretrial motion in limine was only a
preliminaQl, anticipatory ruling. See State v. Grubb, 28 Ohio St.3d 199, 201-202, 503
N.E.2d 142 (1986) (a decision on a motion in limine is a tentative, interlocutory,
precautionary ruling by the trial court reflecting its anticipatory treatment of ari
evideritiary issue and not a final determination as the court can change its mind at trial
where the issue is presented in testimonial context). In order to preserve any
objection to a pretrial ruling, the defendant has to raise the issue again at the proper
place at trial. See State v. Hill, 75 Ohio St.3d 195, 202-203, 661 PJ.E.2d 1068 (1996)
(the denial of a motion in limine does not preserve a claimed error for review in the
absence of the defendant making a contemporaneous objection to the actual
admission of the evidence at trial), citing State v. Brown, 38 Ohio St.3d 305, 528
tq.E.2d 523 (1988).
{745} Furthermore, the ruling dealt with the lab reports, but no objection was
entered to the testimony as it was presented. In fact, it was evident that the defense
was employing trial strategy to elicit further testimony on a negative result in the report
now contested and to elicit a negative result fronl yet another report. The unobjected
to testimo.ny itself provided the evidence appellant now states is lacking (as to the
Bridgeport purchases). As the defense permitted the lieutenant to testify to the test
results, the lab report was not necessary, and appellarit's argument regarding the lack
of Bridgeport test results lacks merit.
{146} As for the Martins Ferry Party Center test result, an objection was
entered. The Martins Ferry police officer testified that the purchased packet was sent
to BCI for testing and that he received the test result back from BCI. The state asked
if it was correct that the packets were positive for XLR1 1, and the officer responded in
the affirmative. It was at this point that the defense objected. The court asked, "Aren't
those test results into evidence? Didn't you stipulate to all test results?" (-rr. 51). The
A-24
-14defense answered, "No, we do not. That's the part that you granted by the motion in
limine, which is, of course, a preliminary order. And when they're offered, I'll be
objecting to them here as hearsay, absent the lab person, and his is hearsay on
hearsay to say what the lab person said." The court then instructed the prosecutor to
preserit the report to the witness and reiterated the in limine ruling that if the reports
are acimissible in criminal proceedings, then they are admissible in civil proceedings.
(Tr. 52). (The court then mentioned that there was one positive test result for Martins
Ferry and three for Bridgeport.)
{147} In this case, the prior stipulation to the exhibits did not waive the ability to
object to hearsay thereafter. In proximity to this statement, counsel stated that he did
not object to the identity or autheriticity of the reports. He did not thus stipulate to both
the identification and the content of the exhibits, Compare State v. Kecl;, 137 Ohio
St.3d 550, 2013-Ohio-5160, 1 N.E.3d 403, ¶ 18 (when defendant stipulated to the
admissibility and content of a non-testifying analyst's scientific report, he waived any
later confrontation challenge to the use of the report by other witness).
{148} That said, the prior stipulation to the exhibits and the stipulation to the
identity and authenticity of the reports combined with the essential agreement to admit
the test result from the Bridgeport store and the further elicitation of testimony
regarding that lab report and another Bridgeport lab report (and lab reports regarding
other businesses even) raises a question as to whether courisel should be permitted to
thereafter object to testimony on the test results from the Martins Ferry store. That is,
it could be considered waiver where counsel makes such statements in opening and
then allows and elicits results from various BCI reports and then objects to the later
testimony on another test result gleaned from a report which does not contain
information favorable to the defense but is the same type of information allowed by the
defense earlier: lab reports from BCI (with affidavits attached) on products purchased
from Fred's.
{14.9} In any event, the Martins Ferry test can be considered harmless.
Contrary to the attorney general's suggestion, the availability of discovery or subpoena
power or lack of surprise does not eliminate a hearsay argument merely because this
A-25
-15is a civil case. Still, the fact that this is a civil case does make the harmless error
doctrine harder for appellant to overcome, especially considering that there is not a
constitutional confrontation issue applicable in criminal cases. Due to all of the
surrounding circumstances, including the fact that testimony was permitted that three
packets tested positive for XLR1 1, the issue regarding the lab report is harmless under
Civ.R 61, which provides:
{¶5q} "No error in either the admission or the exclusion of evidence and
no error or defect in any ruling or order or in anything done or omitted by the
court or by any of the parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the court inconsistent with
substantial justice. The court at every stage of the proceeding must disregard
any error or defect in the proceeding which does not affect the substantial rights
of the parties."
{151} An improper evidentiary ruling thus constitutes reversible error only when
the error affects the substantial rights of the adverse party or the ruling is inconsistent
with substantial justice.
Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-
Ohio-4787, 834 N.E.2d 323, ¶ 35, citing cJ'BrEert v. Angley, 63 Ohio St.2d 159, 164'165, 407 N.E.2d 490 (1980). To find that substantial justice has been done, the
reviewing court must review the prejudicial effect of the error and determine if the factfinder would probably have made the same decision without the error. Id.
{152} Appellant argues that the attorney general's burden was not met in the
abserice of positive test results. Since appellant wants all reports ruled inadmissible,
appellant does not address whether the burden was met if only the report concerning
the "Diablo" purchased from Martin Ferry is ruled inadmissible. As the test results
from Bridgeport were properly put in evidence, the issue would become whether the
trial judge would have declared the Martins Ferry Party Center a nuisance for selling
incense withoLrt a positive test resu(t for the "Diablo" packet, i.e. whether the trial judge
woulcl "probably" have rendered the same decision in the absence of the positive test
result from Martins Ferry. See Beard, 106 ®hio St.3d 237 at ¶ 35.
A-26
-16{153} Pursuant to R.C. 3719.10, premises on which a felony violation of
Chapter 2925 or 3719 occurs constitute a nuisance subject to abatement pursuant to
Chapter 3767. It has been stated that there is sufficient evidence of such nuisance
where the state provided clear and convincing evidence that felony violations of
Chapter 2925 chronically occur on the property (even if not still occurring at time of
complaint or time of hearing). State ex rel. Miller v. Anthony, 72 Ohio St.3d 132, 647
fq.E.2d 1368 (1995) The trial court found by clear and convincing evidence appellant
comrriitted and patficipated in the felony violations of the drug trafficking statute and
had knowledge of the illegal substance. As the court pointed out, knowledge of
circumstar7ces can be fourid when the persore is aware that such circumstances
probably exist. See R.C. 2901,22. (Moreover, the issue of the sellers' knowledge is
not raised in this assignment of error but is only asserted in the second assignment;
that is, this assignment deals only with whether XLR1 1 was sold on the premises.)
{154} The same people own both the Bridgeport and the Martins Ferry Party
Center. Three packets with different names 1'rom Bridgeport Party Center tested
positive for XLR11. One of those packets was "Diablo." In viewing the exhibits
depicting the packet of "Diabio" from the Bridgeport store and the packet of "Diablo"
from the Martins F'erry store, it can be seen that the labels on the two "Diablo" packets
are nearly ideritical if not completely identical (including design, UPC number, and
labeling). Mr. Fryman's testimony suggested that his company as a whole has one
supplier that they found online. It was admitted that both stores did a brisk business in
the selling of herbal incense received from the online supplier. The packets were sold
upon requests for "fake weed" and were often sold with rolling paper or wraps.
{¶55} The testimony established that some packets from Bridgeport Party
Center tested negative for the drug. The fact that some packets contain the drug and
others did not contain the drug does not mean that a positive result is absolutely
required for a specific purchase from Martins Ferry under the circumstances of this
case. The prosecutor's letter revealed that not every packet may test positive by using
the language, "most, if not all of these products do contain illegal substances." And,
the hit-or-miss drug presence can be seen ds attributable to the uneven nature of the
A-27
-17w
spraying of the chemical onto the vegetation, a process explained by defense counsel.
In any event, the packets that tested negative were not "Diablo."
{156} The attorney general demonstrated that some of the packets (ordered by
Fred's for both of its stores) contained XLR1 1. We cannot proclaim that the lack of a
test result for the "Diablo" purchased from the Martins Ferry Party Center would have
"probably" resulted in the dismissal of the nuisarice action against that store. This is
not a criminal action. In a nuisance action such as this, even mere reputation
evidence can result in a finding of a nuisance. See R.C. 3767.05(A) ("In the civil
action, evidence of the general reputation of the place where the nuisance is alleged to
exist * * * is admissible for the purpose of proving the existence of the nuisance and is
prima-facie evidence of the nuisance and of knowledge of and of acquiescence and
participation in the nuisance on the part of the person charged with maintaining it.")
Thus, the allegation of inadmissible testimony on test results concerning the one
packet of "Diablo" did not affect substantial rights or result in a judgment inconsistent
with substantial justice in the determination of whether a nuisance existed at Fred's
Martins Ferry location, which sold the same substances as Fred's Bridgeport location.
(157) In conclusion, the statute relied upon to adrnit the test results is not
applicable here. Still, the test results as to the purchases from Bridgeport Party Center
were properly in evidence as no objection was entered to the lieutenant's testimony on
those test results and defense counsel then elicited more testimony from the lieutenant
regarding those results and other results. An objection was later entered as to yet
another test result from Martins Ferry Party Center, but either the door was already
open andlor the admission of that result was harmless due to the fact that both stores
had the same owners and the same supplier, the stores did a thriving business of
selling these packets, and the "Diablo" from the Bridgeport store tested positive while
the Martins Ferry store sold a packet of "Diablo" with an identical label. This
assignmerit of error is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
{¶58} Appellant's second assignment of error provides:
A-28
f
_18_
{159} "THE TRIAL COURT ERRED WHEN [THE COURT] ORDERED THAT
FRED'S PARTY CENTERS BE CLOSED FOR A PERIOD OF ONE YEAR."
{1601 Appellant specifically does not contest the finding of a nuisance under
this assigriment of error. Rather, appellant contests the abatement order on various
grounds clealing with the application of R.C. 3767.06(A), which provides that if a
nuisaiice is established and if a closing order was not issued prior to the hearing, the
court shall include an order directing the effectual closing of the place where the
nuisance is found to exist against its use for any purpose and keeping it closed for a
period of one year unless sooner released. The owner may appear and obtain a
release in the manner and under the requirements in R.C. 3767.04 (full property value
bond; pay costs incurred; nuisance terminated; finding of good faith). R.C. 3767.06.
The application of this statute has been amended by Supreme Court ruling, however,
as to certain defendants.
{161} In Rezcallah, the owners had tenants or trespassers who committed drug
offenses. The Court pointed out that a nuisance had been established as defined in
P.C. 3719.10 (felony violation of Chapter 2925 occurs on premises) because there is
no requirement of knowledge, acquiescence, or participation on the part of the owner
of the property in order to deem the property a nuisance and find the owner guilty of
the civil offense of maintainirig a nuisance.
State ex rel. Pizza v. Rezcallah, 84 Ohio
St.3d 116, 122, 702 N.E.2d 31 (1998). The statute clearly provides that the closure
order in such case is mandatory. Id. at 123. The Court noted that even though the
nuisance action was an action in equity, statutory injunctions such as this are to issue
without regard to traditional equitable considerations and acknowledged that the law
leaves no discretion on the part of the trial judge as to the closure order.
Id. at 127.
{162} The Court held, however, that as applied to defendants who bear no
culpable responsibility in the nature of acquiescence or participation in the creation of
the nuisarice, the mandatory closure requirement (even with the opportunity for bond)
is unconst:itutional. Id. at 124. The Court's ruling dealt with those who lack culpability
in the creation or perpetuation of a nuisance.
Id. at 132. The Court concluded that if
the owner acted in good faith, was innocent of any acquiescence to or participation in
A-29
-19the conduct establishing the nuisance, and took prompt action to abate the nuisance,
then no closure order shall be issued. Id.
{%63} Before delving into the Rezcallah exception, appellant presses for the
appiication of the unclean hands maxim that one who seeks equity must do equity.
See Basil v. Vincello, 50 Ohio St.3d 185, 190, 553 N.E.2d 602 (1990). This doctrine
requires that the party invoking equity "not be guilty of reprehensible conduct"
regarding the subject matter of the suit. Id.
{164} The Ohio Supreme Court previously considered whether traditional
concepts for the issuance of equity injunctions apply in a statutory injunction action.
Ackerman v. Tri-City Geriatric & Health Care, Inc., 55 Ohio St.2d 51, 378 N.E.2d 145
(1978). The Court stated that where the statutory conditions exist, the traditional
equity principles are not also applicable. Id. at 56-57.
{¶65} The Court said it was established in Ohio that where a statute grants a
specific injunctive remedy, the party requestingi the injunction is not bound by the
traditional rules of equity to show that great or irreparable injury is about to be done for
which there is no adequate remedy at law. Id: at 56. The Court pointed out that
statutory aictions granting governmental agents the right to seek injunctive relief have a
history and purpose different from equitable actions for injunctive relief. Id. at 57 (such
statutes are designed by the legislature to benefit society by proscribing behavior
which the legislature has determined to be contra to the public interest).
{¶66} ThLis, the Court found it inappropriate to "require the Director of Health to
do equity" (have clean hands) in a statutory injunction action against a nursing home
operator as such injunctions "which authorize a governmental agent to sue to enjoin
activities deemed harmful by the General Assembly are not designed primarily to do
justice to the parties but to prevent harm to the general public." Id.
The Court stated
that permitting a party to operate an unlicensed home which violates essential
requirements for licensing merely "because the Director has been slow to grant or
deny appellee a license rriay balance the equities between the Director and appellee,
but it ignores the legislative purpose behind the granting of such relief to protect the
well being of those who reside in nursing homes." Id. at 57-58.
A-30
-2a
{167} Later, in a nuisance abatement action under the statutes at issue in this
case, the Supreme Court stated that a nuisance abatement action is an equitable
action and concluded: "Nuisance abatement actions seek injunctive relief and, as
such, are governed by the same equitable principles that apply to injunction actions
generally:" See State ex reL Miller v. Anthony, 72 Ohio St.3d 132, 136, 647 N.E2d
'1368 (1995). Appellant suggests that this means that he can raise the equitable
defense of unclean hands here. However, the Anthony holding was made in the
context of ruling that there is no right to a jury trial in this type of nuisance action. ld.
(168) More recently, in the context of the nuisance statutes at issue herein, the
Court reiterated its Ackerman holding that it is inappropriate to balance the equities or
reqtiire the state to do equity in a statutory injunction action, noting that the
authorization for the government agent to enjoin harmful activities is not designed to
ensure justice for the parties but to protect the public. Rezcallah, 84 Ohio St.3d 116
(applying the Ackerman holding, that the statutory injunction should issue if the
statutory requirements are fulfilled, to a nuisance abatement case). Thus, the unclean
hands doctrine is not applicable.
{169} In any event, appellant did not raise this defense in the answer, and
repreliensible conduct or unclean hands is lacking. For instance, appellant points to
his testimony that he was aware that a different store owner had submitted samples of
her products to an officer in Shadyside (and that the failure to test or report on those
products represented unclean hands). (Tr. 106). Appellant states that because Mr.
Fryman testified that his manager was a friend of the owner of Shadyside Party
Center, it can be assumed that he knew if the police reported back to her. If such fact
can be assumed, then it could also be assumed that he knew the products tested
positive for an illegal substance when a search warrant was executed at the other
owner's store (two weeks prior to the warrant executed at his store).
{170} Nevertheless, appellant cannot assert an alleged lack of equity as to a
different store owner as a defense in this case. Furthermore, there was no evidence
of unclean hands regarding that other owner presented in this trial. The defense did
not conduct discovery on the matter or call others to testify as to whether the samples
!I
A-31
I
-21_
were 1:ested and why they were not. In fact, a higher police official could rationally
realize that they should not rely on samples volunteered by the very person alleged to
have been selling illegal products. And, a police department need not use its
submission authority to have BCI conduct free testing for local businesses,
{17°1} In speaking of law enforcement's treatment of the stores owned by
Fred's, appellant states that if the drug task force had provided the test results on
Fred's products, the store would have stopped selling the products before the day the
search warrant was executed. However, police need not tell a business that they are
about to execute a search warrant based on test results that the products contained a
controlled substance. In fact, the prosecutor's letter hand-delivered to the businesses
a morith prior to the search warrant warned them to cease selling the products and
explained that most if not all of the packets contained illegal substances regardless of
what the labels claimed.
{172} Rather than comply, appellant had an attorney draft a letter stating that
they do not believe the product was illegal and would not stop selling it until the
prosecutor runs a test and advises that it contains an illegal substance. The response
stated that they would make the product available for testing but postulated that "NIK"
or field testing would not be sufficient to make them stop selling the products. There is
nothing reprehensible about the prosecutor refusing to bow to those demands and
instead merely allowing the investigatiori to proceed. Contrary to appellant's
argument, it cannot be said that law enforcerrient created the nuisance or permitted it
to exist. For all of these reasons, the unclean hands argument lacks merit, and this
equity argument is inapplicable in this statutory injunction action in any event.
{%73} Next, appellant argues that the closure order should not have issued
because they acted in good faith and promptly rectified the issue (after the search
warrant was issued). Appellant relies on paragraph two of the Rezcallah syllabus,
which states that R.C. 3767.06(A) requires a trial court, upon the finding of nuisance,
to issue an injunction closing the property against its use but that to the extent that it
allows release only through a bond in the amount of the full property value, the statute
violates the constitution when applied to an owner who did not negligently or
I
I
A-32
I
-22lrnow^ngl'l acquiesce to and did not participate in the creation or perpetuation of
the nuisance. Rezcallah. 84 Ohio St.3d 116 at % 2 of syllabus. Compare R.C.
3767.04 (different than good faith required for posting a bond to reopen, which deals
with court's belief that the nuisance will remain abated).
(¶741 The state urges that appellant did not act iri good faith but rather turned a
"blind--eye" to the illegality in order to make as much money as possible before a
positive test result was returned by a government lab. The state disparages the
reliance on odd lab reports from the supplier ancl statements of legality on the labels,
characterizing this as appellant's mere belief that they had "insurance" against liability
being imposed upon thern if law enforcement discovered any newly scheduled
controlled substances in the packets.
{175} Appellant compares the situation before us to State ex rel. Allen Cty.
Prosecutor v. Howard, 3d Dist, No. 1-11-33, 2012-Ohio-404. That case merely
refused to reverse a trial court's decision on the owners' lack of acquiescence and
refused to adopt the prosecutor's argument that acquiescence existed as a matter of
law. See id. at ^ 39-40 (owriers evicted sons upon discovering they were selling drugs
from apartment attached to the market, terminat:ed one son's employment, began to
work at the market all day themselves, closed the market earlier to dirninish drug
activity around the market, called police over fifty times to curb the drug activity near
the market, and told drug dealers to leave the area on multiple occasions.)
{1716} Appeilan't also compares the situation before us to State ex rel.
Cleveland Dir. of Law v. Alahmad, 8th Dist. No. 86447, 2006-Ohio-804, But, that case
also dealt with a court's refusal to reverse a trial court's decision that the city did not
demonstrate the owner acquiesced or participated in the drug law violations occurring
at the premises. See id, at ¶ 40 (owner hired a security guard to remove loiterers,
instructed his employees to ask loiterers to leave and to report drug trafficking to the
police, repeatedly called the police to report illegal drug activity, ordered a new lighted
canopy, and repositioned security cameras to photograph the parking lot).
{177} The trial court here found by clear and convincing evidence that
appellant committed and participated in the felony violations of the drug trafficking
1
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statute and had knowledge of the illegal substance. Knowledge of circumstances can
be found when one is aware that such circumstances probably exist. See R.C.
2901.22. This is not a case involving a property owner whose premises were
considered a nuisance due to trafficking by another. Appellant was the seller who did
a brisk trade in the substance at a highly inflated price. Appellant refused to sell the
packets to those under 18. The packets had suspicious labeling regarding their
legality and arrived with lab reports claiming that tests had been run for various
synthetic cannabinoids. The reports did not claim a test had been conducted for
)CLR11.
{%78} Appellant knew people smoked the substance and considered it "fake
weed" even though they were labeled as "not for human consumption." Appellant
knew there were laws on selling various synthetic drugs as Mr. Fryman testified that
i-ie checked the lab reports and asked about the substances that were claimed not to
be in the packets. They talked about the state's list of illegal substances, but then
ignored the fact that supplier's lab report did not test for the newly added substances.
{179} Moreover, after receiving a letter from the prosecutor, appellant
continued to sell the products. This letter was hand-delivered two and one-half
months after XLR1 1 was specifically added to the list of controlled substances. And,
there is no grace period (even in criminal cases). See, e.g., State v. Adams, 12th Dist.
No. CA2012-011-240, 2013-Ohio-4639, ¶14-15 (possession of bath salts three weeks
after added to list). The letter disclosed that the Belmont County Drug Task Force
informed the prosecutor " that you may be selling synthetic marijuana, incense, and/or
bath salts that are being smoked or ingested by your patrons. Despite what the labels
on these packages provide, that they do not contain illegal substances, most if not all
of these products do contain illegal substances."
{¶80} The prosecutor urged appellant "to cease selling these items
immediately and remove all of them from your store" and warned that the failure to
remove the product and immediately cease selling it could lead to criminal prosecution
for felony drug trafficking. The prosecutor agairi stated that the letter was sent °[s]o
you will know that the bath salts, incense and/or synthetic marijuana that you have in
A-34
-24-
your store should not be sold. That they should immediately be removed from your
shelves wii:h no furthersalesoccurring,"
{181} Appellarit did not reryiove and stop selling the products. As
aforementioned, Mr. Fryman had his attorney write a letter expressing that they do not
believe the product was illegal and would not stop selling it until the prosecutor runs a
test and discloses the illegality, also saying that they would make the product available
for testing but postulating field testing would not be sufficient to make them stop selling
the products. Thus, instead of complying with the prosecutor's request, appellant
decided to gamble on the supplier's assertions that none of the packets contained
illegal substances, assertions that could be considered highly suspect in any event.
Or, appellant decided to gamble that a seller would not be subjected to liability due to
the claimed reliance on the supplier's lab reports and willingness to have the product
tested, i.e. appellant wanted to keep selling and rnaking money pending an official lab
report assuming that ignorance of an actual positive test would offer protection.
{J82} But, a suggestion you will stop selling it if you are shown tests displaying
an illegal substance does not mean a crime was not committed in the meantime. And,
the continual race to stay ahead of controlled substance schedules reduces the
rationality of reliance on such a letter as well, i.e., the letter can be seen as an attempt
to entangle the prosecutor in a cycle of selling, demandirig a stoppage, requesting
testing, testing, stopping, selling a new formula, etc., etc.
{18:3} The ti-ial court concluded that the defendants participated in and
committed the felony violations and were aware that the products were illegal. Under
the circumstances here, the matter is orie of weight, credibility, and rational inferences.
Appellant's: argument on good faith in relation 'to the necessity of a closure order
essentially asks us to find that the trial court's decision was against the weight of the
evidence on the issue of whether this case involved an "owner who did not
negligently or knowingly acquiesce to, and did not participate in the creation or
perpetuation of the nuisance."
(emphasis added).
Rezcallah. 84 Ohio St.3d 116 at ¶ 2 of syllabus
See also id. at 94 (no closure if "owner acted in good faith, was
A-35
-25innocent of any acquiescence to or participation in the conduct establishing the
nuisance, and took prompt action to abate the nuisance.").
{18.4) A rational fact-finder could conclude that appeilant's situation was not
similar to the defendants' situation in Rezcallah and did not fit the test set forth therein.
Where the evidence is susceptible of more than one reasonable construction, the
reviewing court is bound to give it that interpretation which is consistent with the
verdict and judgment. See Eastley v. Volkman, '132 Ohio St.3d 328, 2012-Ohio-2179,
972 N.E.2d 517, If 21, citing Seasons Coal Co., Inc, v. Cleveland, 10 Ohio St.3d 77,
80, 461 N.E.2d 1273 (1984), fn. 3. The trial judge was in the best position to weigh the
credibility of those testifying, iricluding Mr. Fryman, and make rational inferences
regarding the evidence and the testimony. In conducting our review of that decision,
vve conclude that the trial judge did not clearly lose the way in resolving conflicts in the
evidence and create a manifest miscarriage of justice. See Eastley, 132 Ohio St.3d
328 ait V 17, 20.
{185} Appellant also asserts here that by not continuing to sell drugs after the
drug task force executed the search warrant, there was no nuisance to abate by the
time of the hearing, citing the general rule of equity that a court does not issue an
injunction to solve a problem that ceases to exist. As aforementioned, the traditional
equitable principles do not apply when a statutory injunction is required by its terms. If
appellant was not an owner that fit under the Rezcallah test, then the trial court had a
rnandatory statutory duty to order the closure after finding a nuisance regardless of
whether the drug sales were still occurring at the time of the complaint or the time of
trial. See State ex rel. Miller v. Anthony, 72 Ohio St.3d 132, 647 N.E.2d 1368 (1995)
(felony drug violations need not be occurring at time of complaint or time of hearing in
a case where owner was the seller). See also Rezcallah. 84 Ohio St.3d at 123-124.
{186} Appellant next states that a court issuing an abatement order must
narrowly tailor it to address only the nuisance. Appellant claims that the order was
overbroad because the court ordered the stores closed "for any purpose" for one year
unless sooner released, citing and distinguishing State ex rel. Rothal v. Smith, 151
I
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I
p
..
-26Ohio App.3d 289, 2002-Ohio-7328, 783 fV.E.2d 1001 (9th Dist.) and State ex rel.
Roszrnanri v. Lions Den, 89 Ohio App.3d 775, 627 N.f=.2d 629 (12th Dist.1993).
{187} In the latter case, the appellate court addressed an argument that the
trial court should have narrowly tailored the,ciosure order and found that the trial court
could close an adult bookstore because prohibiting only lewd behavior would not work
where the patrons only frequented the busiriess to engage in such behavior.
Roszrnanrr, 89 Ohio App.3d at 776. Appellant believes this means the permanent
injunction abatement order here must be narrowly tailored and points out that, contrary
to the situation in Roszmann, patrons did not only come to the premises for ttie
nuisance activity. However, the argument there was that the trial court was not
permitted to close the store "for any purpose" at the temporary injunction stage of the
proceedincis due to the following language of R.C. 3767.04(B)(3) dealing with that
stage: "the court or judge forthwith shall issue an order closing the place against its
use for any purpose of lewdness, assignation, prostitution, or other prohibited conduct
until a final decision is rendered on the complaint for the requested permanent
injunction." Id.
{¶88} Similarly, most of the pertinent portion of Rothal deals with this statutory
provision for the temporary injunction stage. Rothal v. Smith, 151 Ohio App.3d 289, %
100-106 (" we fail to understand how an order requiring the prohibited and lewd
conduct in the bar to cease yet allowing the bar to operate would effectuate the intent
of the temporary injunction."). I d. at ¶106. As one of the defendants seemed to be
applying his argument to the permanent closure order as well, the court then cited to
R.C. 3767.06(A), which states that the prior closr.rre order shall continue for one year.
Id. atN 102, 107.
{189} Here, a temporary order was not issued, and the provision in R.C.
3767.04(B)(3) never arose. Rather, as discussed above, the applicable statute
mandates the abatement order to "inciude an order directing the effectual closing of
the place where the nuisance is found to exist against its use for any purpose and
keeping it closed for a period of one year unless sooner released" ( unless the
exception created by Rezcallah applies). See R.C. 3767.06(A).
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As such, the
-27argument on riarrowly tailoring the order to delete the statutorily-required language "for
any purpose" is without merit as the trial court could not tailor the order to eliminate
that phrase. Appellant cannot avoid the statute (as modified by Rezcallah for certain
defendants) by this argument.
($910) Finally, appellant points to the language of R.C. 3767.06(A) providing
that "[t]he order shall direct the removal from the place where the nuisance is found to
exist of all personal property and contents used in conducting or maintaining the
nuisance and not already released" under R.C. 3767.04(C) and order the property
sold. In accordance, the trial court ordered: "all personal property and contents used
in conducting or maintaining the nuisance (all personal property and contents
confiscate(J by law enforcement authorities) shall be forfeited **"„
(19,1) In a brief argument, appellant contends that this order was too broad
because the statute only permits forfeiture of personal property and contents used in
conducting the nuisance, the stores "are large business establishments that sold many
products other than the incense and potpourri," and the court ordered all of the
personal property and contents of the party centers forfeited as opposed to only the
personal property and contents that was used in selling the illegal products.
Appel9ant's Brief at 21-22, citing Roszmann, 89 Ohio App.3d at 780-781.
{¶92} In the Tvvelfth District case appellant relies upon and distinguishes, the
trial court ordered the sale of "all personal property located at the Interstate Adult
Arcade including, but not limited to, all video cassette recorders, all television
rnonitors, all booths, all wiring and any and all other personal property used in the
conduct and maintenance of the nuisance." Roszmann, 89 Ohio App.3d at 780. The
defendant argued that the state failed to prove that the forfeited property was used in
the nuisance. fd. The appellate court disagreed because the equipment specifically
identified by the court was used in conducting the nuisance and the defendant failed to
identify any other items removed from the store which were not used in conducting amaintaining the nuisance. Id. at 780-781 (noting that soda, snack, and pinball
machines were returned to the appellant during the temporary stage).
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