Kaim Properties, L.L.C. v. Mentor , 2013 Ohio 4291 ( 2013 )

[Cite as Kaim Properties, L.L.C. v. Mentor, 2013-Ohio-4291.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
KAIM PROPERTIES, LLC, : OPINION
Plaintiff-Appellant, :
CASE NO. 2012-L-055
- vs - :
CITY OF MENTOR, et al., :
Defendants-Appellees. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 11CV000352.
Judgment: Affirmed.
Joseph R. Klammer, The Klammer Law Office, Ltd., Lindsay II Professional Center,
6990 Lindsay Drive, #7, Mentor, OH 44060 (For Plaintiff-Appellant).
Stephen S. Zashin and Ami J. Patel, Zashin and Rich Co., LPA, 55 Public Square, 4th
Floor, Cleveland, OH 44113 (For Defendants-Appellees).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Kaim Properties, LLC, appeals the summary judgment of the
Lake County Court of Common Pleas in favor of Appellees, City of Mentor; City of
Mentor City Council; and John Alesci, Code Enforcement Officer, on Kaim’s complaint
challenging the constitutionality of Mentor’s Rental Housing Maintenance Code. We are
asked to decide whether Mentor’s Rental Code violates procedural due process;
whether Mentor’s failure to provide exceptions for pre-existing uses in its Rental Code
constitutes a taking; and whether an administrative warrant can lawfully issue for the
inspection of rental properties in the absence of the owner’s consent. For the reasons
that follow, we affirm.
{¶2} In February 2011, Kaim filed a complaint against appellees, alleging it
owns residential rental properties in the city of Mentor. Kaim alleged that the city
enacted certain ordinances requiring owners of residential rental properties to obtain a
certificate in order to lawfully continue renting such properties. Kaim alleged that these
ordinances are unconstitutional; that they violate both substantive and procedural due
process; that they are unconstitutionally vague; and that they are unconstitutional on
their face and as applied. Kaim sought declaratory and injunctive relief. Appellees filed
an answer denying the material allegations of the complaint.
{¶3} Appellees subsequently filed a motion for summary judgment. Kaim filed
a brief in opposition and its own summary-judgment motion. In support of appellees’
motion, they attached the affidavit of Mentor City Councilman, Edward R. Walsh, who
attested:
{¶4} In the early 1990s, Mentor City Council passed by ordinance a
program which required owners and operators of multi-family
dwelling units (i.e. apartment complexes) to apply for certificates of
occupancy. Prior to obtaining a certificate of occupancy, Mentor
inspected these multi-family dwellings for compliance with a variety
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of health, safety and welfare standards, such as proper ventilation,
fire safety, electrical and plumbing. * * *
{¶5} Because council desired to see safe, proper and reasonably
maintained rental housing in Mentor, City Council considered
expanding Mentor’s multi-family dwelling code to include all single-
family, duplex and three-family rental housing units in Mentor.
Time and experience have suggested that individuals are less likely
to maintain rental housing as opposed to their own residences.
Consequently, to avoid the potential of neighborhood blight and to
promote safe interior conditions, council took action. On October
16, 2007, Mentor City Council amended the existing Multi-Family
Dwellings Code to include all single-family, duplex and three-family
rental housing. Council passed * * * the Rental Housing
Maintenance Code * * *.
{¶6} Further, John Alesci, Mentor’s Code Enforcement Officer, stated in his
affidavit that in July 2008, he notified Kaim of the adoption of the Rental Housing
Maintenance Code and of the necessity of having its properties inspected in order to
obtain Rental Dwelling Unit Certificates. Kaim did not respond to the notice. Alesci sent
additional notices to Kaim.
{¶7} In July 2009, Alesci issued violation notices to Kaim for its failure to obtain
Rental Dwelling Unit Certificates for its seven properties located in Mentor, as required
by Mentor Codified Ordinances 1375.03.
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{¶8} Kaim did not respond to these violation notices.
{¶9} In November 2010, Alesci again issued violation notices to Kaim for its
failure to obtain certificates for these properties. Again, Kaim did not respond.
{¶10} The trial court granted summary judgment in favor of appellees; denied
Kaim’s motion for summary judgment; and dismissed Kaim’s complaint. The trial court
found that Mentor City Council was an improper party in that it is not an entity capable
of being sued. The court further found that Kaim failed to present any evidence in
support of its claims against Alesci. Accordingly, the court dismissed these defendants
from the action. With respect to the remaining claims against the city of Mentor, the trial
court found that Kaim did not have standing to challenge the constitutionality of the
Rental Code.
{¶11} Kaim appealed the trial court’s judgment, asserting the following for its
sole assignment of error:
{¶12} “The trial court erred in award[ing] summary judgment in favor of
defendants.”
{¶13} Summary judgment is proper when: (1) there is no genuine issue of
material fact; (2) the moving party is entitled to judgment as a matter of law; and (3)
reasonable minds can come to but one conclusion, and that conclusion is adverse to
the nonmoving party, that party being entitled to have the evidence construed most
strongly in his favor. Civ.R. 56(C); Frano v. Red Robin International, Inc., 181 Ohio
App.3d 13, 2009-Ohio-685, ¶12 (11th Dist.). Since a trial court’s judgment ruling on a
motion for summary judgment involves only questions of law, we conduct a de novo
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review of the judgment. DiSanto v. Safeco Ins. of Am., 168 Ohio App.3d 649, 2006-
Ohio-4940, ¶41 (11th Dist.).
{¶14} Under its assignment of error, Kaim asserts three arguments as to why it
believes Mentor’s Rental Housing Maintenance Code is unconstitutional: 1) the Code
violates procedural due process by not providing for a pre-deprivation hearing; 2) the
Code effects a taking; and 3) the Code attempts to coerce consent for the inspection of
rental property by means of an unlawful administrative warrant.
{¶15} As a preliminary matter, Mentor urges this court to adopt the trial court’s
finding that Kaim lacked standing to challenge the constitutionality of the Rental Code.
However, based on the analysis that follows, we hold that Kaim had standing to raise its
constitutional challenges to Mentor’s Rental Code.
{¶16} Kaim brought the present action pursuant to Ohio’s Declaratory Judgment
Act, Chapter 2721 of the Revised Code. The Act provides that “any person whose
rights, status, or other legal relations are affected by a * * * municipal ordinance * * *
may have determined any question of construction or validity arising under the * * *
ordinance and obtain a declaration of rights, status, or other legal relations under it.”
R.C. 2721.03.
{¶17} ‘“Persons whose property rights are directly affected by a statute or
ordinance are entitled to obtain a declaratory determination as to the validity of the
statute or ordinance.’” Wilson v. Cincinnati, 171 Ohio St. 104, 108 (1960) quoting 174
A.L.R., 561, Section 8. “Where a municipal ordinance imposing criminal penalties upon
a contemplated act will be enforced against a person if he proceeds with that act, such
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person has standing to test the validity, construction and application of such ordinance
by an action for declaratory judgment * * *.” Peltz v. South Euclid, 11 Ohio St.2d 128,
131 (1967), paragraph one of the syllabus.
{¶18} In the present case, Mentor’s Rental Housing Maintenance Code
provides, “it shall be unlawful for the owner, agent, or person in charge of any multi-
family apartment structure or single, duplex, or triplex dwelling unit to rent, lease, or
permit to be occupied any dwelling unit within said structure, without a current and valid
Rental Dwelling Unit Certificate issued by the Engineering and Building Department for
each such dwelling unit.” Mentor Codified Ordinances 1391.01. “Any person, firm, or
corporation who violates any provision of this code shall be guilty of a third degree
misdemeanor and, shall be subject to the penalties as set forth in Section 501.99 of the
General Offenses Code for third degree misdemeanors.” Mentor Codified Ordinances
1391.99.
{¶19} The trial court found that appellant lacked standing based on this court’s
holding in Kruppa v. Warren, 11th Dist. Trumbull No. 2009-T-0017, 2009-Ohio-4927.
However, that case is distinguishable. In Kruppa, the city had enacted an ordinance,
which required owners of non-owner-occupied rental dwellings to apply for a dwelling
permit. Kruppa challenged the constitutionality of the code, but the city had not taken
any action against him. In contrast, here, Mentor issued numerous notices of violation
to appellant, each of which stated that it was in violation of Sections 1375.03 and
1391.09 of the Rental Code. We therefore hold that Kaim had standing to file this
action.
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{¶20} Turning now to Kaim’s arguments under its assignment of error, first, it
argues that the Rental Code violates procedural due process by failing to provide for a
“pre-deprivation hearing.” Kaim cites the Ohio Supreme Court’s decision in State v.
Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, for the proposition that, “while the
legislature may elect not to confer a particular property right, it may not constitutionally
authorize the deprivation of a property interest, once conferred, without appropriate
procedural safeguards.” Id. at ¶8.
{¶21} Mentor’s Rental Code provides that, before a Rental Dwelling Unit
Certificate may be obtained, the rental property must be inspected by the Engineering
and Building Department to determine its compliance with the Code. Mentor Codified
Ordinances 1391.02. “Where a violation of this code is found to exist, a written notice
from the Administrator or his designee shall be served upon the person or persons
responsible for the correction thereof. Said notice shall specify the violation or
violations committed, what must be done to correct same, and a reasonable period of
time to correct or abate said violation.” Mentor Codified Ordinances 1391.07. Where
the owner of rental property “fails * * * to comply with any notice of the Property
Maintenance Officer * * *, said owner shall be considered to be in violation of this code
and the Property Maintenance Officer shall proceed at law to compel compliance and to
prosecute said violation.” Mentor Codified Ordinances 1391.09.
{¶22} Rental “[u]nits occupied at the time of adoption of this section[, i.e.
October 16, 2007,] may continue to be occupied until such time as an inspection has
been made by the property maintenance officer, after which all units shall comply with
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all of the provisions of this code.” Mentor Codified Ordinances 1391.03. Moreover, an
appeal may be taken to the Board of Building and Zoning Appeals “by any persons
aggrieved * * * by any order, requirement, [or] decision * * * made by a building
inspector or the Administrator in the enforcement or interpretation of the provisions of
the Building and/or Zoning Code.” Mentor Codified Ordinances 1131.05. “An appeal to
the Board shall stay all proceedings in furtherance of the action appealed from,” except
in cases of “imminent peril to life or property.” Mentor Codified Ordinances 1131.05.
{¶23} Based on our review of the pertinent provisions of Mentor’s Rental Code,
this legislation does not violate procedural due process. The Code expressly provides
for notice of violations and the right to appeal such determinations prior to initiation of
criminal prosecution, with proceedings stayed pending appeal. The Code also provides
for the continuation of existing tenancies at the time of its enactment until inspection.
{¶24} Kaim’s reliance on Mariemont Apt. Assn. v Mariemont, 1st Dist. Hamilton
No. C-050986, 2007-Ohio-173, is misplaced. The rental inspection program held to be
unconstitutional by the First District in Mariemont differed from Mentor’s program in
several respects. Under the Mariemont program, an owner of rental property had 30
days to correct violations upon inspection, at which time the owner was required to
cease renting the unit and cause it to be vacated. Mariemont, supra, at ¶6. Although
the Mariemont program provided for an appeal of the determination, it did not allow any
time for deciding the appeal or for a stay of the commissioner’s decision longer than 30
days. Id. at ¶ 46. If the appeal was not determined within the 30-day period, and there
was no guarantee that it would be, a property owner could incur substantial expense in
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making the repairs required by the commissioner or in ceasing to rent the property. Id.
In contrast, the Mentor program contains no provisions requiring owners to have the
premises vacated in the event of violation and provides for a stay of proceedings during
the pendency of an appeal.
{¶25} Additionally, the First District in Mariemont cited examples of rental
inspection programs found to be constitutional by other courts. In those cases, the
municipality was required to provide notice to the property owner of violations, and a
request for a hearing stayed all enforcement proceedings. Both of these constitutional
safeguards are present in Mentor’s inspection program. Id. at ¶ 47-48.
{¶26} Thus, we do not agree with Kaim’s contention that Mentor’s Rental Code
deprives rental property owners of an interest in their property without due process.
{¶27} Kaim’s second argument is that the Rental Code amounts to a taking.
Although described as a “takings” argument, Kaim, in effect, raises an alternative due
process argument. Kaim argues that neither zoning nor building ordinances may be
enforced against prior, nonconforming structures absent a declaration of a nuisance.
We do not agree.
{¶28} The Supreme Court of Ohio has held that “[b]oth conforming and
nonconforming uses are subject to ordinances * * * of a police nature predicated upon
protection of the public health, safety, welfare, and general good.” C.D.S., Inc. v. Gates
Mills, 26 Ohio St.3d 166, 169 (1986). A “nonconforming use” is a use of property that
was lawful prior to the enactment of an ordinance and which may be continued after the
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effective date of the ordinance, although it does not comply with the new restriction. Id.
at 168.
{¶29} Further, the Supreme Court in C.D.S. held that a landowner does not
acquire immunity from the city’s exercise of its police power because such owner began
his original use in compliance with existing laws. Id. at 169. “The police power is one of
the least limitable of governmental powers, and in its operation often cuts down property
rights.” Id. The Court held that municipalities may require “all building repairs and
construction” to conform to current building codes. Id.
{¶30} This court in Kramer v. Niles Housing Maintenance Board, 11th Dist.
Trumbull No. 2008-T-0004, 2008-Ohio-4978, held that building codes are recognized as
valid exercises of the police power. Id. at ¶19, citing Bogen v. Clemmer, 125 Ohio St.
186 (1932), syllabus. In support of this holding, this court in Kramer, supra, referenced
R.C. 715.26, which gives to municipalities the power to “[p]rovide for the inspection of
buildings * * * and for the removal and repair of insecure, unsafe, or structurally
defective buildings * * *.” Id. This court in Kramer held that the Niles Housing
Maintenance Code is a valid exercise of the city’s police power. Id. at ¶25.
{¶31} Further, in Mariemont, supra, the First District held that an ordinance
requiring landlords to obtain rental permits and to have their rental properties inspected
did not violate equal protection. The First District held that the purpose of the ordinance
was to protect the public from a threat or danger to the health, safety, or welfare of the
community and that this purpose was a valid subject of the village’s police power. Id. at
¶29.
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{¶32} Moreover, this court in Kruppa, supra, held that the “regulation of rental
property and the promotion of safe and habitable housing are proper subjects of the
city’s police power in that they promote the health, safety, or general welfare of the
public.” Id. at ¶41.
{¶33} Thus, an ordinance enacted pursuant to a municipality’s police power
applies to landowners whose use of their property began in compliance with existing
laws, but does not conform to the new law. An ordinance providing for the regulation of
rental properties and the promotion of safe and habitable housing is a valid exercise of
the police power. The purpose of Mentor’s Rental Code is “to protect the public health,
safety, and welfare.” Section 1375.01. Mentor’s Rental Code was thus enacted pursuant
to the city’s police power. We therefore hold the Rental Code is enforceable against
Kaim’s use of its properties.
{¶34} Kaim’s third and final argument challenging the constitutionality of
Mentor’s Rental Code is that the provision authorizing the issuance of administrative
search warrants to allow for the inspection of rental properties in lieu of the owner’s
consent violates the Fourth Amendment.
{¶35} The Rental Housing Maintenance Code provides:
{¶36} If any owner, occupant, or other person in charge of a structure
subject to the provisions of this code refuses, impedes, inhibits,
interferes with, restricts, or obstructs entry and free access to any
part of the structure or premises where inspection authorized by
this code is sought, the code official shall be permitted to seek, in a
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court of competent jurisdiction, a warrant for administrative
inspection. Any warrant for administrative inspection shall allow for
the inspection of the subject structure and premises, and any parts
thereof, pursuant to the provisions of this code and shall be so
limited in scope. Mentor Codified Ordinances 1391.06.
{¶37} As noted above, the failure to comply with any notice of the Property
Maintenance Officer within the time period specified in any notice of violation constitutes
a violation of the Code and subjects the owner of rental property to criminal penalties.
Mentor Codified Ordinances 1391.09.
{¶38} Kaim relies on State v. Finnell, 115 Ohio App.3d 583 (1st Dist.1996), for
the proposition that an ordinance, which makes an owner's refusal to consent to an
inspection of his property a crime, is unconstitutional. However, Finnell is inapposite
because, unlike the present case, the ordinances at issue in Finnell invoked no warrant
procedure. The First District in Finnell stated that, while a constitutionally permissible
procedure could be established whereby warrants may be obtained on proof that the
public need for the inspection outweighed the owner’s expectation of privacy, the
ordinances involved in Finnell did not provide any such procedure. In contrast, Mentor’s
Rental Code includes a procedure for obtaining a search warrant if the owner refuses to
consent to an inspection.
{¶39} Further, even if Section 1391.06, authorizing the city to seek a warrant
and/or Section 1391.99, making refusal to consent to an inspection a crime, were held
to be invalid, that would not affect the validity of the remainder of the Rental Code in
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light of the Code’s severability provision. Section 1375.04 of the Rental Code provides
that if any “section, paragraph, sentence, clause or phrase” of [the Rental Code] shall
be declared invalid for any reason whatsoever, such decision shall not affect the
remaining portions of the Code, which shall remain in full force and effect * * *.” Thus, if
these sections were held to be invalid, the remainder of the Rental Code, e.g., the
requirement that the owner apply for a dwelling certificate and the requirement of an
inspection, would still be valid and enforceable by way of injunction proceedings. See
generally Machnics v. Sloe, 11th Dist. Geauga No. 2004-G-2554, 2005-Ohio-935, ¶2-3.
{¶40} Finally, we disagree with Kaim’s suggestion that the Rental Code is
unconstitutional because it authorizes search warrants without probable cause. Section
1391.06 provides that if the property owner refuses consent to inspect, the “code official
shall be permitted to seek, in a court of competent jurisdiction, a warrant for
administrative inspection.” Contrary to Kaim’s suggestion, the Code does not authorize,
either expressly or by implication, a search warrant without probable cause. The fact
that the Code authorizes the inspector to seek a search warrant from an appropriate
court implies that the applicant must establish probable cause in order to obtain a
warrant. Further, it is well settled that the government can obtain a warrant for
administrative inspections. Marshall v. Barlow’s, Inc., 436 U.S. 307, 320 (1987). For
purposes of an administrative search, probable cause justifying the issuance of a
warrant may be based on evidence of an existing violation or on a showing that
reasonable legislative standards for conducting an inspection are satisfied. Id.13
{¶41} For the reasons stated in the opinion of this court, appellant’s assignment
of error is overruled. It is the judgment and order of this court that the judgment of the
Lake County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J., concurs,
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
______________________
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
{¶42} Thinkers as diverse as Thomas Jefferson, Ayn Rand, and Ludwig von
Mises have recognized that property rights are the foundation of free society.1 The
connection between private property rights and a democratic society was early
recognized in Ohio jurisprudence:
{¶43} The right of private property is an original and fundamental right,
existing anterior to the formation of the government itself; the civil
rights, privileges and immunities authorized by law, are derivative --
mere incidents to the political institutions of the country, conferred
with a view to the public welfare, and therefore trusts of civil power,
to be exercised for the public benefit. * * * Government is the
1. “The true foundation of republican government is the equal right of every citizen in his person and
property and in their management.” Thomas Jefferson to Samuel Kercheval (1816). “Without property
rights, no other rights are possible.” Ayn Rand, “Man’s Rights,” The Virtue of Selfishness (1963) 94. “All
the * * * principles of liberalism—democracy, personal freedom of the individual, freedom of speech and
of the press, religious tolerance, peace among the nations— * * * can be realized only within a society
based on private property.” Ludwig von Mises, Omnipotent Government (1944) 48.
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necessary burden imposed on man as the only means of securing
the protection of his rights. And this protection -- the primary and
only legitimate purpose of civil government, is accomplished by
protecting man in his rights of personal security, personal liberty,
and private property. The right of private property being, therefore,
an original right, which it was one of the primary and most sacred
objects of government to secure and protect, is widely and
essentially distinguished in its nature, from those exclusive political
rights and special privileges * * * which are created by law and
conferred upon a few * * *.
(Emphasis sic.) Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d
1115, ¶ 36, quoting Bank of Toledo v. Toledo & Bond, 1 Ohio St. 622, 632 (1853).
{¶44} To secure these rights, the Fifth and Fourteenth Amendments to the
United States Constitution provide that no person shall “be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for public use,
without just compensation.” The Ohio Constitution, Article I, Section 19, similarly affirms
that “[p]rivate property shall ever be held inviolate.” While subject to the public welfare,
property rights may not be constitutionally abridged unless the justification bears a real
and substantial relation to the public health, safety, morals, or general welfare of the
public. Yajnik v. Akron Dept. of Health, 101 Ohio St.3d 106, 2004-Ohio-357, 802
N.E.2d 632, ¶ 16. In the present case, Mentor’s Rental Housing Maintenance Code
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violates several fundamental limitations on the government’s ability to interfere with
private property rights. Accordingly, I dissent.
{¶45} Kaim Properties asserts that the Rental Code unconstitutionally infringes
upon its property rights, citing to the long-established line of cases holding that “neither
zoning nor building ordinances may be enforced against preexisting, otherwise lawful,
nonconforming structures absent a declaration of nuisance.” N. Ohio Sign Contrs.
Assn. v. Lakewood, 32 Ohio St.3d 316, 319, 513 N.E.2d 324 (1987); Akron v.
Chapman, 160 Ohio St. 382, 116 N.E.2d 697 (1953), paragraph two of the syllabus
(“[t]he right to continue to use one’s property in a lawful business and in a manner which
does not constitute a nuisance and which was lawful at the time such business was
established is within the protection of Section I, Article XIV, Amendments, United States
Constitution, and Section 16, Article I of the Ohio Constitution, providing that no person
shall be deprived of life, liberty or property without due process of law”) (emphasis sic).
{¶46} The majority concludes otherwise, merely stating that the Rental Code, as
“an ordinance enacted pursuant to [the] municipality’s police power,” may be “applie[d]
to landowners whose use of their property began in compliance with existing law, but
does not conform to the new law.” Supra at ¶ 33.
{¶47} Not only does the majority’s opinion disregard the constitutional strictures
on the government’s ability to enact a retroactive rental code, but it also ignores the
prohibition of such regulations contained in the Ohio Revised Code: “The lawful use of
any dwelling, building, or structure and of any land or premises, as existing and lawful at
the time of enacting a zoning ordinance or an amendment to the ordinance, may be
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continued, although such use does not conform with the provisions of such ordinance or
amendment.” R.C. 713.15. Thus, unless the condition of a particular rental property
prior to 2008 amounted to a nuisance, i.e., an unlawful use, the Mentor Rental Code
cannot be enforced against that property.
{¶48} The constitutional infirmity of Mentor’s Rental Code, as applied to pre-
existing structures, is demonstrated by Gates Co. v. Housing Appeals Bd. of Columbus,
10 Ohio St.2d 48, 225 N.E.2d 222 (1967). In Gates, the owner of a sixteen-unit
apartment building, in which several units had shared toilet facilities and none of the
units had bathtubs or showers, was cited for violating Columbus’ later-enacted Housing
Code. Id. The Ohio Supreme Court held that the Housing Code could not be
constitutionally enforced against the building’s owner. The court explained that, by
forcing the apartment owner to pay for improvements “not amounting to the correction of
a nuisance” under the threat of substantial monetary fines, the Code was “implicit with
confiscation” of the property. Id. at 51-52. “To hold otherwise would be to permit the
compulsive improvement of any real property merely upon a legislative finding that the
improvement is required to promote the public health, safety or morals, rather than upon
a factual determination that the continued use of the property without improvement
immediately and directly imperils the public health, safety or morals.” Id. at 52. The
same legal principle applies in this case.
{¶49} Kaim Properties further argues that Mentor’s Rental Code violates the
Fourth Amendment’s requirement of probable cause, by authorizing the issuance of
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administrative search warrants for the inspection of rental properties in lieu of the
owner’s consent.
{¶50} Kaim Properties relies on Wilson v. Cincinnati, 46 Ohio St.2d 138, 346
N.E.2d 666 (1976), and State v. Finnell, 115 Ohio App.3d 583, 685 N.E.2d 1267 (1st
Dist.1996), for the proposition that “the Fourth Amendment bars prosecution of a person
who refuses to permit a warrantless, code-enforcement inspection of his personal
residence.” Wilson at 144, citing Camara v. Municipal Court of San Francisco, 387 U.S.
523, 529, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Kaim Properties correctly construes
Mentor’s Rental Housing Maintenance Code as imposing criminal liability on the act of
refusing consent to inspection authorized by the Code.
{¶51} In order to legally rent property in Mentor under the Code, owners of rental
property must obtain a Rental Dwelling Unit Certificate by consenting to have their
property inspected. Mentor Codified Ordinances 1391.02. If they fail to consent to the
inspection, the “code official” is authorized to obtain an administrative search warrant.
Mentor Codified Ordinances 1391.06. The owner of rental property is finally required to
address Notices of Violation and the failure to do so subjects the owner to prosecution.
Mentor Codified Ordinances 1391.09. A person who violates “any provision of this
[Rental] code shall be guilty of a third degree misdemeanor.” (Emphasis added.)
Mentor Codified Ordinances 1391.99.
{¶52} In the present case, Kaim Properties violated the Rental Code, not only by
failing to obtain a Certificate, but by refusing to give its consent to the inspection of its
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properties to Mentor city officials. By refusing to give its consent, Kaim Properties’
owner is subject to criminal penalties.
{¶53} Mentor argues that Wilson and Finnell are distinguishable in that the
Mentor Rental Code provides for the issuance of administrative search warrants as an
alternative to a consensual search. The existence of an alternative means of accessing
private property does not render the fact that the Code imposes criminal liability for the
refusal to consent to a warrantless search any less odious to the Constitution. “The
threat of prosecution unless an owner submits to an inspection is not a permissible
method to gain entry into commercial premises.” Finnell, 115 Ohio App.3d at 589-590,
685 N.E.2d 1267. The city’s recourse to the warrant procedure only occurs after the
owner of the rental property has refused consent and, thus, subjected himself to
criminal prosecution. At the time Kaim Properties refused to give consent, no warrant
had been issued. Thus, Kaim Properties was being required to give its consent to a
warrantless search, which is expressly forbidden under Wilson.
{¶54} “The fundamental principles set forth in the bill of rights in our constitution,
declaring the inviolability of private property, * * * were evidently designed to protect the
right of private property as one of the primary and original objects of civil society.”
(Citation omitted.) Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, at ¶
36. The retroactive application of the Mentor Rental Code infringes upon that inviolable
private property right and, therefore, is unconstitutional. I respectfully dissent and would
reverse the judgment of the court below.
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