City of Cleveland v. Berger

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an appeal from a judgment of the Housing Division of the Cleveland Municipal Court, assessing a fine to Sanford J. Berger, defendant-appellant, for violations of C.C.O. 369.13 and 369.15. Berger challenges the judgment and assigns eight errors for our review.¹

After a review of the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow.

Berger owns an apartment building in Cleveland, Ohio. In 1983, Berger entered into a fifteen-year contract with the United States Department of Housing and Urban Development ("HUD") for participation in the Section 8 program which provides rental subsidies for selected tenants. To conduct its required interior and exterior building inspection, HUD appointed the Cuyahoga Metropolitan Housing Authority.

On June 18, 1991, a housing inspector arrived to inspect the building in response to an anonymous complaint. The exterior inspection revealed several maintenance violations. The building custodian escorted the inspector into the building and a resident allowed the inspector to examine her apartment.

The inspector notified Berger of the violations and gave him ten days to correct the problems. On July 23, 1991, a follow-up inspection revealed that the problems remained uncorrected. A ticket was issued listing violations of Cleveland Codified Ordinances 369.13 and 369.15.

On September 19, 1991, Berger filed unsuccessful motions for suppression of evidence and for dismissal of the complaint against him. He argued that the inspection constituted a warrantless search of his building and that C.C.O. 367.03 was unconstitutional since it allowed such searches. He also argued that, since his building was controlled by the federal government, the local housing code was preempted by federal law and the building was immune from inspection by city housing inspectors. He also argued that governmental immunity or governmental contractor immunity barred a trial.

Berger's motions were overruled by the trial court. After a hearing, Berger was found guilty of violating C.C.O. 369.13 and 369.15. He was fined $50 plus costs. Berger filed a notice of appeal and a motion to suspend execution of his sentence.

Berger argues that C.C.O. 367.03 and C.C.O. 367.99 are unconstitutional. C.C.O. 367.03 requires that housing inspectors may, at any reasonable time, enter any dwelling in the city of Cleveland in order to enforce the housing code. It also provides that no person shall prevent the inspector from entering the premises. C.C.O. 367.99 imposes fines for refusing to permit the housing inspector to enter the premises.

Berger was not convicted of violating C.C.O. 367.03 or 367.99. We find, therefore, that he lacks standing to challenge the constitutionality of these statutes. "The constitutionality of a state statute may not be brought into question by one who is not within the class against whom the operation of the statute is alleged to have been unconstitutionally applied and who has not been injured by its allegedly unconstitutional provisions." Palazzi v. Estate of Gardner (1987), 32 Ohio St.3d 169,175, 512 N.E.2d 971, 977. C.C.O. 367.03 and 367.99 apply to the rights of a housing inspector to enter property for inspection and to the penalties for refusing entry. In the casesub judice, the housing inspector was allowed to enter. Berger was not charged with, or convicted of, violating C.C.O. 367.03 or 367.99. He was not within the class of persons with respect to whom the statutes are allegedly unconstitutional. SeePalazzi at 174, 512 N.E.2d at 976-977. Berger's first assignment of error is without merit.

Berger also claims that the trial court erred in denying his motion to suppress evidence. He claims that the evidence of housing code violations was obtained through an illegal warrantless search of his property in violation of theFourth Amendment. We disagree.

The Fourth Amendment protects against unreasonable searches and seizures. It does not protect against all searches. Generally, warrantless searches of homes are unreasonable.Ridgeway v. Union Cty. Commrs. (S.D.Ohio 1991),775 F. Supp. 1105. The same protection extends to commercial buildings.State v. Penn (1991), 61 Ohio St.3d 720, 723, 576 N.E.2d 790,792. An exception to the general rule prohibiting warrantless searches is a search by consent. State ex rel. Holcomb v. Wurst (1989), 63 Ohio App.3d 629, 579 N.E.2d 746, motion to certify overruled (1989), 47 Ohio St.3d 711, 548 N.E.2d 242.

We find that the inspector obtained valid consent for the search. Upon approaching the building, she identified herself as a city housing inspector and asked to see the custodian or other responsible person. Several people sitting on the steps of the building directed her to Charles Bridget. Bridget identified himself as the custodian. The inspector presented him with her identification and asked for permission to inspect the property. Bridget allowed the inspection.

Berger argues that Bridget was not employed as a custodian in the building and was not authorized to consent to the inspection. However, several residents of the building identified Bridget as the custodian. Bridget escorted the inspector into the common areas of the building. We find that, under the circumstances, the inspector was reasonable in her belief that Bridget had the authority to consent to the inspection. Consent to search is valid if it is obtained from a person with sufficient authority over the property to give his consent, or at least from a person reasonably believed to have such authority. White Fabricating Co. v. United States (C.A.6, 1990), 903 F.2d 404. The inspector had a reasonable belief that Bridget was authorized to consent to the inspection; therefore, the search proceeded under valid consent. Finding no constitutional violation, we overrule Berger's second assignment of error.

Berger next argues that C.C.O. 367.04 denied him due process of law by improperly delegating the city's legislative authority to housing inspectors. He claims that it is improper to allow housing inspectors to decide the amount of time necessary to make repairs before criminal charges are filed against the property owner. We disagree.

The housing code covers many different structures within the city of Cleveland. Some code violations may be more extensive than others, requiring more time to complete repairs. The vast number of different violations necessitates that the time for repair be established on a case-by-case basis. Despite Berger's argument that this policy offers the potential for arbitrary and discriminatory treatment of property owners, he has presented us with absolutely no evidence that he was unfairly "targeted" by housing inspectors. The statute provides that a property owner may appeal a ticket within the time allowed for compliance. Although the owner must still appear at his arraignment, action to enforce the ticket is suspended during the pendency of the appeal. Berger had the right to appeal the ticket and could have delayed its enforcement by appealing it. We reject Berger's argument that the ordinance denies him his due process rights.

We also reject Berger's argument that he was improperly denied the opportunity to present evidence that the time allowed for him to make repairs was arbitrary and unreasonable. As discussed above, we find that the time for repairs is best decided on a case-by-case basis. The housing inspector testified that she based the repair time on the size of the building, the type of cited violations and the fact that there was a custodian on the property. She had more than ten years of experience as a housing inspector. We find nothing arbitrary about the inspector's actions. Berger's fourth assignment of error is without merit.

In his fifth assignment of error, Berger argues that the trial court erred in convicting him of charges that were not contained in the written warning notice issued by the housing inspector. He claims that criminally charging him with violations without prior notice denied him his due process rights. Our review of the record shows that Berger was notified of the violations he was convicted of. The warning notice issued to Berger included the following violations: rear porch fascia board deteriorated, rear porch system in need of paint, debris in rear stairwell of cellar, cellar retaining wall needs painting. The subsequent ticket listed the following: front and rear door locks are in need of repair in No. 9, gutter and downspouts are leaking south side, exterior wood trim is in need of paint, fascia is deteriorated. Berger argues that, since only the deteriorated fascia was listed in both notices, the court erred in convicting him of other violations.

In support of his argument, Berger cites C.C.O. 367.04(a), which states:

"Whenever the Commissioner of Building and Housing shall find any dwelling structure or premises, or any part thereof, to be in violation of the provisions of this Housing Code, he shall give or cause to be given to the owner or agent or person in charge of such structure or premises, and the mortgagee of record, a written notice stating the violations therein. Such notice shall order the owner within a stated reasonable time to repair, improve, demolish or effectively board the structure or premises concerned."

C.C.O. 367.05 provides that, upon an owner's failure to make the necessary repairs, the Commissioner of Building and Housing may order the building vacated or may pursue legal action to compel the owner to make the repairs. The ordinance requires only one notice of violations. The ticket issued by the inspector on July 23, 1991 fully complied with C.C.O. 367.04(a).

We reject Berger's argument that he was denied due process. We find that he had ample notice of the violations on his property. The inspector testified that, prior to issuing the ticket, she issued Berger a warning notice and spoke with Berger by telephone about the violations. Berger was fully advised of his right to appeal the ticket before the time of his arraignment. See C.C.O. 367.09. The ticket was issued July 23, 1991. Berger was ordered to appear in court on August 30, 1991. Berger had ample time to make the necessary repairs and/or appeal the ticket before enforcement action began. We find that the notice provisions of C.C.O. 367.04(a) were fully complied with. Berger's fifth assignment of error is without merit.

Berger next argues that the complaint against him was barred by federal preemption and that the trial constituted an improper regulation of a federal statutory program. We disagree.

State law may be preempted by federal law when a federal statute includes language that explicitly provides for preemption of state law, when the wording or legislative history of the federal statute shows Congress's intent to exclusively regulate the area, or where the state law conflicts with the federal regulatory scheme. Mowery v. Mercury Marine, Div. ofBrunswick Corp. (N.D. Ohio 1991), 773 F. Supp. 1012. Berger argues that the Supremacy Clause provides for the preemption of any law which conflicts with federal law. However, mere differences between federal and state law do not constitute a conflict sufficient to invoke preemption. It must be shown that compliance with both federal and state regulations is impossible or that the state law stands to impair achievement of the purposes and goals of the federal statute. Lever Bros. Co. v. Maurer (S.D.Ohio 1989),712 F. Supp. 645.

In the case sub judice, Berger has not shown that there is a conflict between state and federal law. We also find no evidence that the federal government explicitly preempted state law in the area of public housing or that Congress intended to exclusively regulate the area. Berger has not established the applicability of preemption in this case. We overrule his sixth assignment of error.

Berger also claims federal governmental immunity from prosecution. He claims that the operation of a Section 8 property made him a federal official and that, as such, he is immune from state regulation. There is no support for his argument that the contract made him a federal official. We disagree with the argument that Berger was performing a "uniquely federal interest" in operating his Section 8 property for the benefit of the tenants. Under the contract, Berger received rental subsidies for his Section 8 tenants. Berger clearly had a beneficial interest in the operation of the apartment building.

We also reject Berger's argument that the application of state law would disrupt the proper functioning of the federal Section 8 program. He has produced no evidence that the state housing code regulations are in conflict with federal legislation. As discussed above, differences in state and federal legislation do not indicate a conflict. We find no merit in Berger's seventh assignment of error.

Berger also argues that his conviction was against the manifest weight of the evidence. He claims that the court did not have enough evidence to convict him of violating C.C.O. 369.13. C.C.O. 369.13 provides:

"(a) All dwelling structures and all parts thereof, both exterior and interior, shall be maintained in good repair and shall be capable of performing the function for which such structure or part of any feature thereof was designed or intended to be used."

A judgment will be reversed as being against the manifest weight of the evidence only when a review of the evidence and all reasonable inferences determines that the trier of fact clearly lost its way and created a manifest miscarriage of justice sufficient to mandate the reversal of the conviction and the order of a new trial. See State v. Martin (1983), 20 Ohio App.3d 172,175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721. Berger argues that the fascia board was performing its function of holding up the gutters and that no violation was established. However, Berger ignores the language of the ordinance that requires structures to be maintained in good repair. It is reasonable to require an owner to perform basic maintenance on his property to avoid more serious damage. The inspector testified that the fascia board was deteriorated. This was enough evidence to establish a failure to keep the premises in good repair, which is a violation of C.C.O. 369.13. We cannot say that the trier of fact lost its way and created a manifest miscarriage of justice. Berger's eighth assignment of error is without merit.

Judgment affirmed.

NAHRA, P.J., concurs.

HARPER, J., dissents.

¹ See Appendix.