[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




                                            2
             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.




                                             3
       {¶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




                                             4
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




                                            5
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




                                             7
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




                                             8
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




                                            9
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.




                                            10
       {¶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




                                            11
             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




                                            12
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.




                                                   14
               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




                                             15
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




                                            16
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




                                             17
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




                                             18
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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