Posted by: Patricia Salkin | April 24, 2018

OH Appeals Court Holds Firearms Dealer Qualifies as Permissible Home Occupation

This post was authored by Amy Lavine, Esq.

An Ohio appellate court decision issued in April held that a firearms dealership was lawfully operated in a residential district because it qualified as a permissible home occupation, rather than a prohibited “retail store.” Brobst v. City of Lyndhurst, 2018-Ohio-1518 (4/19/18).

The appellants owned a firearms dealership called “Gun Galaxy” that they began operating in out of their home in 2005. The met with city officials prior to opening the business and were informed that the use would be permitted as a home occupation as long as it complied with the applicable restrictions. In accordance with this guidance, they continued to run the business from their residential property without any complaints from the city until 2016, when they were notified that Gun Galaxy was an illegal commercial enterprise in violation of the residential zoning. They commenced this litigation in response, seeking injunctive relief and a declaratory judgment that their business was a lawful home occupation. The trial court ruled in the city’s favor and this appeal followed.

The central issue before the appellate court was whether the appellants’ firearms business constituted a permissible “home occupation” or was instead a “retail store,” which was prohibited in the residential district. The court began its analysis with the definition of a “home occupation,” which the ordinance defined as “an accessory use which is an activity, profession, occupation, service, craft or revenue-enhancing hobby clearly incidental and subordinate to the use of the premises as a dwelling and is conducted entirely within the dwelling unit.” Also relevant was another provision in the zoning code that listed the conditions for valid home occupations. At the time of the appellants’ alleged violations, the provision listed as requirements that:
A. No person is employed other than members of his or her immediate household;
B. The home occupation or professional office generates no outdoor storage of materials, equipment or vehicles;
C. Such home occupation or professional office occupies no more than twenty-five percent of the total ground floor area of the dwelling;
D. The home occupation or professional office is conducted wholly within the dwelling;
E. No equipment is used which will create objectionable disturbances beyond the premises;
F. No window display or signboard is used to advertise such occupation, other than a name plate attached to the dwelling…; and
G. The home occupation or professional office does not change the residential character of the dwelling exterior.

Although not specifically restricted under the enumerated conditions, the city’s enforcement action was based primarily on the ground that appellants were not permitted to engage in retail sales as part of their home occupation. After the trial court ruled in the city’s favor, the city then amended the home occupation ordinance and added a condition prohibiting sales of retail goods not produced on-site. The court found the timing of this amendment to be significant, as it indicated that there was no restriction on retail sales at the time the appellants’ case was decided. This interpretation was also supported by the plain meaning of the regulations, and the court concluded that at the time this case was decided, “the operation of Gun Galaxy can be reasonably construed as the appellants’ ‘profession’ or ‘occupation’ within the definition of a ‘home occupation’ under the ordinance.”
The court found further support for its conclusion by noting that the zoning code set out different conditions for home occupations located in the mixed-use overlay district, in particular prohibiting retail uses. Combined with the amendment regarding retail uses, the different standards imposed on home occupations in different zoning districts showed that the omission of any retail restriction from the restrictions applicable in residential districts had to be accepted at face value. As the court concluded:
“the failure to include such prohibitive language in the applicable ordinance may have been an oversight. Nevertheless, we must apply the ordinance as it was written at the time this case was before the trial court, and cannot enforce restrictions that are not included therein.”

Brobst v. City of Lyndhurst, 2018-Ohio-1518 (4/19/18)


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