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2 of 100 DOCUMENTS
STATE OF OHIO, Plaintiff-Appellee, v. ELI L. HERSHBERGER and DANIEL E.
YODER, Defendants-Appellants
C.A. NOS. 1904, 1905
COURT OF APPEALS, NINTH JUDICIAL DISTRICT OF OHIO
1984 Ohio App. LEXIS 10285

May 30, 1984
PRIOR HISTORY:
[*1] APPEALS FROM
JUDGMENTS ENTERED IN THE MUNICIPAL
COURT OF THE COUNTY OF WAYNE, OHIO CASE
NOS. B 82 8 91, B 82 12 151

in which defendants continued to violate the building
code constituted a separate offense for which they were
subject to the fine. The court held that the violation of
one of the defendants was limited to one day, so he
should not have been fined for two.

CASE SUMMARY:
PROCEDURAL POSTURE: Defendants appealed the
judgment of the Municipal Court of the County of Wayne
(Ohio), which convicted them of violations of the county
building code.
OVERVIEW: Defendants were Amish and separately
proceeded with the construction of residential dwellings
without obtaining building permits. They were found
guilty of violating the building code, and they appealed,
arguing that the trial court erred in failing to dismiss the
prosecutions as violating their rights to free exercise of
their religious beliefs. The court held that there was a
compelling interest in enforcing the building code by
requiring residential housing to meet minimum
construction standards and that the authority to do so was
within the police power of the State. The court also held
that the method used by the State to accomplish this
objective was the least obtrusive means available.
Defendants also argued that the trial court erred in
sentencing them to fines in excess of the statutory limit
and in sentencing them to multiple punishments for allied
offenses of similar import. The court found that every day

OUTCOME: The court affirmed the conviction of one of
the defendants, but modified the conviction of the other
to a single day and reduced the fine accordingly.
LexisNexis(R) Headnotes

Constitutional Law > Bill of Rights > Fundamental
Freedoms > Freedom of Religion > Free Exercise of
Religion
Governments > Legislation > Interpretation
[HN1] The three-part test for determining whether a state
regulation, as applied to an individual, was
unconstitutional based on the interference with the free
exercise of religion is: (a) upon the entire record of the
cause, the trier of facts concludes that the religious beliefs
of the defendants are "truly held;" (b) the defendants
adequately demonstrate the manner in which the
"minimum standards" are, or may be, applied to them in
such a way as to infringe upon their federal and Ohio
constitutional right to the free exercise of religion; and (c)
the State fails to establish an interest of sufficient

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1984 Ohio App. LEXIS 10285, *1

magnitude to override the claim of violation of the right
to freely exercise religious beliefs, and also fails to
demonstrate that its interest cannot otherwise be served.

The defendants, Eli L. Hershberger and Daniel E.
Yoder, appeal their convictions for violating the Wayne
County building code. This court modifies and affirms
the judgment of the trial court.

Constitutional Law > Bill of Rights > Fundamental
Freedoms > Freedom of Association
Constitutional Law > Bill of Rights > Fundamental
Freedoms > Freedom of Religion > Free Exercise of
Religion
Constitutional Law > Bill of Rights > Fundamental
Freedoms > Freedom of Speech > Free Press > General
Overview
[HN2] Freedoms of speech and of press, of assembly, and
of worship are susceptible of restriction only to prevent
grave and immediate danger to interests that the State
may lawfully protect.

Hershberger and Yoder are members of the
Swartzentruber group of the Old Order Amish Religion.
They live by codes or rules determined by their church
council. The defendants separately proceeded with the
construction of single family residential dwellings
without first obtaining building permits, in violation [*2]
of the building code. As a result, they were each fined
$600.

Governments > State & Territorial Governments >
Police Power
[HN3] Ohio Rev. Code Ann. § 307.37 provides, in part,
that no person shall violate any such regulation of the
board under Ohio Rev. Code Ann. § 307.37 to Ohio Rev.
Code Ann. § 307.40. Each day during which such illegal
location, erection, construction, floodproofing, repair,
alteration, or maintenance continues may be considered a
separate offense. Ohio Rev. Code Ann. § 307.99(C) states
provides that whoever violates Ohio Rev. Code Ann. §
307.37 shall be fined not more than $ 300.
COUNSEL: RONALD L. REHM, Asst. Prosecutor, 538
N. Market St., Wooster, OH 44691 for Plaintiff.
MARK W. BASERMAN, Attorney at Law, 449 N.
Market St., Wooster, OH 44691 for Defendants.
JUDGES: BAIRD,
OPINIONS HEREIN

P.J.

CONCURS

IN

BOTH

OPINION
DECISION AND JOURNAL ENTRY
These causes were heard February 9, 1984, upon the
record in the trial court, including the transcript of
proceedings, and the briefs. They were argued by
counsel for the parties and submitted to the court. We
have reviewed each assignment of error and make the
following disposition:
GEORGE, J.

ASSIGNMENT OF ERROR I
"The trial court erred in failing to dismiss these
prosecutions as violating defendants-appellants rights to
free exercise of their religious beliefs."
The defendants argue the trial court erred in failing
to dismiss the complaints. They contend that the building
code interfered with their exercise of religion, as
guaranteed under the First Amendment to the
Constitution of the United States, and by Section 7,
Article I, of the Ohio Constitution. The building code, as
it pertained to the defendants, required them to apply for
a building permit and to allow an inspection of the
dwelling. Inspection was required at the commencement
of the construction and a second time after the
construction was completed. The defendants contend that
complying with these requirements unconstitutionally
interfered with the free exercise of their religious beliefs.
In State v. Whisner (1976), 47 Ohio St. 2d 181, Syl.
1, the Ohio Supreme Court set forth [HN1] the following
three-part test for determining whether a state regulation,
as applied to an individual, was unconstitutional based on
the interference with [*3] the free exercise of religion:
"* * *.
"(a) Upon the entire record of the cause, the trier of
facts concludes that the religious beliefs of the defendants
are 'truly held';
"(b) The defendants adequately demonstrate the
manner in which the 'minimum standards' are, or may be,
applied to them in such a way as to infringe upon their
federal and Ohio constitutional right to the free exercise
of religion; and

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1984 Ohio App. LEXIS 10285, *3

"(c) The state fails to establish an interest of
sufficient magnitude to override the claim of violation of
the right to freely exercise religious beliefs, and also fails
to demonstrate that its interest cannot otherwise be
served."
Here, the parties stipulated that the first two portions
of this analysis have been met. At issue, therefore, is
whether the state established that there was a compelling
interest in enforcing its building code, and whether that
interest could not otherwise be served. In West Virginia
State Bd. of Edn. v. Barnette (1943), 319 U.S. 624, 639,
the United States Supreme Court defined a compelling
interest as follows:
"* * * The test of legislation which collides with the
Fourteenth Amendment, because it also collides with the
principles of the [*4] First, is much more definite than
the test when only the Fourteenth is involved. Much of
the vagueness of the due process clause disappears when
the specific prohibitions of the First become its standard.
The right of a State to regulate, for example, a public
utility may well include, so far as the due process test is
concerned, power to impose all of the restrictions which a
legislature may have a 'rational basis' for adopting. But
[HN2] freedoms of speech and of press, of assembly, and
of worship may not be infringed on such slender grounds.
They are susceptible of restriction only to prevent grave
and immediate danger to interests which the state may
lawfully protect.
The following cases provide examples of what
constitutes a compelling interest. In Gillette v. United
States (1971), 401 U.S. 437, the Supreme Court found
that the United States government had a compelling
interest in procurring the necessary manpower to serve in
the military. In Reynolds v. United States (1878), 98
U.S. 145, the Supreme Court found that the state had a
compelling interest in prohibiting polygamy. In Prince v.
Commonwealth (1944), 321 U.S. 158, the Supreme Court
found that the state had a compelling [*5] interest in
protecting the children within its jurisdiction. In Johnson
v. Motor Vehicles Division (Colo., 1979), 593 P. 2d
1363, the Colorado Supreme Court found that the state
had a compelling interest in requiring a driver's license to
bear the photograph of a licensee. In State, ex rel.
O'Sullivan, v. Heart Ministries, Inc. (1980), 227 Kan.
244, 607 P. 2d 1102, the Kansas Supreme Court found
that the state had a compelling interest in requiring a
children's home to obtain a state license before it could

lawfully operate.
In the instant case, there is a compelling interest in
enforcing the building code by requiring residential
housing to meet minimum construction standards. These
requirements are designed to protect the health, safety,
and welfare of the occupants. Further, this authority is
within the police power of the state. Bogen v. Clemmer
(1932), 125 Ohio St. 186; and 10 Ohio Jurisprudence 3d
224, Buildings, Etc., Section 42.
The requirement that the state be permitted to inspect
new construction at the start of the project as well as
upon completion is necessary in order to insure that
proper building materials are used, that the construction
is safe, and that [*6] sanitary facilities are provided for
disease prevention. Only by these means can the state
insure that the dwelling is safe.
Finally, the method used by the state to accomplish
this objective is the least obtrusive means available. The
requirement that the defendants first obtain a permit
before commencing construction serve the purpose of
notification, which is necessary to inform the inspectors
of the planned construction. On site inspections are the
only means available to determine whether the structure
is safe and the sanitary conditions are met.
Accordingly, this assignment of error is overruled.
ASSIGNMENTS OF ERROR
"II.
The trial court erred in sentencing
defendants-appellants to fines in excess of the statutory
limit set by Ohio Rev. Code Section 307.99(C) and/or the
Wayne County Building Code.
"III. The trial court erred in sentencing
defendants-appellants to multiple punishments for allied
offenses of similar import."
The defendants were found to have violated R.C.
307.37, [HN3] which provides in part:
"* * *.
"No person shall violate any such regulation of the
board under sections 307.37 to 307.40 of the Revised
Code.
"Each day during which such [*7] illegal location,
erection, construction, floodproofing, repair, alteration, or

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1984 Ohio App. LEXIS 10285, *7

maintenance continues may be considered a separate
offense." (Emphasis added.)
"* * *."
Further, R.C. 307.99 states:
"* * *.
"(C) Whoever violates section 307.37 of the Revised
Code, shall be fined not more than three hundred dollars."
"* * *."
The express meaning of these statutes is that a
violator could be fined up to $300 for each day he
violated the building code. Every day in which the
defendants continued to violate the building code
constitutes a separate offense for which they were subject
to the $300 fine.
Here, the trial court found that each defendant
violated the code on two separate days. Thus, the trial
court was justified in imposing a $600 fine on each
defendant. However, Yoder was charged with a violation
of the code on October 1, 1982. The violation was
limited to that one day. As such, he could be convicted
of only one offense, which carried a maximum fine of
$300.Accordingly, Hershberger's conviction is affirmed.
Yoder's conviction is modified to a single day and the
fine imposed is reduced to $300.
The court finds that there were reasonable grounds
for these [*8] appeals.
We order that a special mandate, directing the
Wayne County Municipal Court to carry this judgment
into execution, shall issue out of this court. A certified
copy of this journal entry shall constitute the mandate,
pursuant to App. R. 27.

Immediately upon the filing hereof, this document
shall constitute the journal entry of judgment, and it shall
be file stamped by the Clerk of the Court of Appeals at
which time the period for review shall begin to run. App.
R. 22(E).
Costs taxed to appellants.
Exceptions.
CONCUR BY: MAHONEY, J.
CONCUR
MAHONEY, J., CONCURS SAYING:
I concur in the majority's opinion but wish to issue a
caveat to the questionable practice of a trial court
accepting stipulations which are "conclusions of law" in
cases where the constitutionality and/or constitutional
application of a particular statute and/or ordinance is at
issue.
In my opinion, a trial court should not accept
stipulations which severely compromise the state's proof.
The stipulations in this case could well have forced this
court to a contrary result, had we not found that the state
had a compelling interest of sufficient magnitude to
override(Illegible Line)
The rights that others [*9] may have to equal
application, enforcement, and protection of laws of
general application are considerably chilled when persons
claiming infringement are not required to prove the
manner in which the minimum standards impinge their
right to the free exercise of religion. See United States v.
Lee (1982), 455 U.S. 252.