
    Hirsch, Appellant, v. Board of Building Standards, Appellee.
    [Cite as Hirsch v. Board of Building Standards (1970), 23 Ohio Misc. 335.]
    (No. 880813
    Decided July 20, 1970.)
    Appeal : Common Pleas Court of Cuyahoga County.
    
      Mr. Milton Schulman, for appellant.
    
      Mr. Clarence L. James, Jr., director of law, and Mr. Robert 1. Zashin, for appellee.
   Winter, J.

(of Medina County sitting by assignment) This cause is before the court on appeal from a final order of the Board of Building Standards and Building Appeals of the City of Cleveland, Ohio.

The transcript of the proceedings before the board contains the record of two bearings, May 26, 1969, and June 9, 1969, at which times neither the appellant nor his counsel, Mr. Milton Schulman, were present. At the June 9, 1969, hearing the board affirmed the order of the Commissioner of the Division of Housing requiring the appellant, Sam Hirsch, to comply with the Codified Ordinances of the City of Cleveland in nine specific respects. The appeal to the board was based on the alleged fact that the commissioner’s order was arbitrary, capricious, discriminatory, unreasonable and had no basis in law or fact.

No evidence was offered during the proceedings before this court by either of the parties. Accordingly, as provided in ft. C. Chapter 2506, this matter is for consideration on the transcript of the proceedings before the board and upon the motion of the appellant for a directed verdict by reason of the fact that no evidence was adduced before the board to establish the fact that any alleged violations on the part of the property-owner-appellant Hirsch exist.

The form entitled “Appeal From Administration Decision,” filed with the Board of Building Standards and Building Appeals, dated January 31, 1969, denotes the appellant to be “Milt Schulman” and the form is signed by him. The evidence does not disclose that a letter of authorization was filed by the owner of record, Hirsch, granting authority to Mr. Schulman to make the appeal pursuant to rule of the board No. 54.

Examination of the transcript reveals that the May 26, 1969, hearing consisted of a statement by the chairman that the matter would be scheduled for open hearing one week from date and an exterior visual inspection would be ^ade by a member of the board and a staff member.

The next hearing, held June 9, 1969, was attended by the board members and Mr. Grill of the Division of Housing; the appellant did. not enter an appearance. At the hearing the secretary of the board read a letter from Mr. Schnlman, dated June 6, 1969, and reported a telephone call from Mr. Sehulman, which advised the board that he would be unable to attend because of a hearing in Boom 1 of the Common Pleas Court. Thereafter, without further proceeding, the board affirmed the order of the Commissioner of the Division of Housing.

The question for consideration, raised by appellant’s motion, is: Was the appellant afforded an opportunity to be heard such as is contemplated by the constitutional requirement of due process of law?

While the right to a fair and open hearing is one of the rudiments of fair play assured to every litigant by the Fourteenth Amendment as a minimal requirement of a full hearing (1 Ohio Jurisprudence 2d 505, Section 110), it must also be remembered that the rules of fair play should be observed by all the parties involved in the litigation. In the instant case the board was entitled to be apprised of the appellant’s request for a continuance of the hearing at a reasonable time prior to the hearing date.

As Judge McMonagle stated in his very scholarly opinion in the case of Levitt v. Cleveland, 22 Ohio Misc. 54, decided February 18, 1970, wherein the court said:

“Befusal of an administrative agency to grant a continuance of a hearing on the grounds of alleged conflict with an appearance of an attorney in a court is not an abuse of discretion where it is not shown that there was a direct conflict in the time of the appearance.”

Examination of the transcript in the case at bar reveals that Mr. Shulman’s letter was dated June 6, 1969. Since this was Friday, it may be assumed that the letter was not delivered until Monday morning, June 9, 1969, the date of the second hearing. Mr. Sehulman, as the various transcripts of hearings before the board indicate, is no stranger to the board or to its rules of procedure. From the date of the first hearing, namely May 26, 1969, to the date of the second hearing, June 9, 1969, ample time was available to arrange- for .continuance in the event of' conflict. Accordingly, in the opinion of this court, notice of inability to attend the Monday, June 9, 1969, hearing of the Board of Building Standards and Building Appeals, given by letter dated Friday, June 6, 1969, is not such a reasonable time. Appellant’s motion for a directed verdict is hereby. overruled.

Further, according to the transcript, no evidence was adduced to indicate that a letter of authorization was presented as .provided by rule of the board No. 54.

As pointed out by this court in the case of Rosenberg v. City of Cleveland, rule of the board No. 54 is a reasonable and proper requirement and is of ministerial and administrative character as related to the operation and procedures of the board.

Accordingly, the order of the Board of Building Standards and Appeals is hereby affirmed and motion of appel-lee taxing costs of the transcript herein pursuant to it. C. 2506.02, is hereby granted.

Order affirmed.  