The following media release was issued by Ohio’s 1851 Center for Constitutional Lawregarding a recent decision in US District Court upholding the 4th Amendmentto the US Constitution – a big victory for rental property owners in Ohio!
Federal Court: Cities’ Rental Licensing and Inspection Requirements Unconstitutional
Columbus, OH – The Southern District of Ohio today ruled that the City of Portsmouth’s occupational licensing requirements imposed upon landlords – rental property inspections and licensing fees – violates the Fourth Amendment to the United State Constitution.
1851 Center for Constitutional Law’s victory on behalf of Portsmouth rental property owners Ron Baker, Nancy Ross, Thomas Howard, and Darren Oliver means that indiscriminate, warrantless forced-government inspections of rental properties are unconstitutional nationwide, and that unlawfully-extracted “rental inspection fees” must be returned to the rental property owners who paid them.
These property owners have long rented their property in Portsmouth without license or inspections, and their properties have never been the subject of complaint by tenants, neighbors, or others. However, the City has threatened to criminally prosecute and even imprison these landlords if they continued to rent their homes without first submitting to an unconstitutional warrantless search of the entire interior and exterior of these homes.
Judge Susan Dlott, of the Western Division of the Southern District of Ohio, held as follows:
- “[T]he Court finds that the Portsmouth [Rental Dwelling Code] violates the Fourth Amendment insofar as it authorizes warrantless administrative inspections. It is undisputed that the [Rental Dwelling Code] affords no warrant procedure or other mechanism for precompliance review . . . the owners and/or tenants of rental properties in Portsmouth are thus faced with the choice of consenting to the warrantless inspection or facing criminal charges, a result the Supreme Court has expressly disavowed under the Fourth Amendment.”
- “The inspections are also significantly intrusive. As the Supreme Court has noted, the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’”
- “The search inspection sheet details eighty items to be inspected throughout the entirety of the rental property. The Court thus concludes that the intrusion is significant.”
- “Taking into account the above factors – the significant expectation of privacy, the substantial intrusion into the home, and the inefficacy of the warrantless inspections on the proffered special need – the Court finds the warrantless inspections are unreasonable.”
- “Having determined that the Code is not saved by special needs or the closely regulated industry exceptions, the Court concludes that the Code’s failure to include a warrant provision violates the Fourth Amendment.”
Both the United States and Ohio Supreme Court have invalidated warrantless inspections of rental property, and repeatedly held that warrantless administrative inspections of business property are generally invalid, absent exigent circumstances.
Nevertheless, Ohio cities had vigorously sought to collect licensing fees from area landlords, and the warrantless searches have served as the lynchpin to each of these goals. Ordinances such as Portsmouth’s Rental Dwelling Code established an absolute prohibition on renting out property within a community, even though the landlord may have long done so and even though his or her property may be in pristine condition, without a government-approved license that cannot be acquired without first paying a $100 annual fee per rental home and submitting to an open-ended warrantless search of every area of the property, inside and out.
“The Federal Court’s ruling yesterday is a victory for all property owners and tenants. Local government agents do not have unlimited authority to force entry into Ohioans’ homes or businesses. To the contrary ‘houses’ are one of the types of property specifically mentioned by the Fourth Amendment; and Ohioans have a moral and constitutional right to exclude others, even government agents, from their property. Entry requires either a warrant or an emergency, and neither is present with respect to these suspicion-less rental inspections,” said Maurice Thompson, Executive Director of the 1851 Center.
“Government inspections of one’s home frequently results in arbitrary orders to makes thousands of dollars worth of untenable improvement to even the most well-maintained properties. These enactments were nothing more than a set of back-door tactics to collect revenue on the backs of Ohio property owners, while attempting to chase ‘the wrong type of owners’ out of town.”
To read the Federal Court’s Order, go to http://realestateinvestingtoday.com/wp-content/uploads/2015/10/Baker-Order-on-MSJ.pdf.
[AOA: Please note that our attorney has advised us that this does not yet apply to California. With all due respect, AOA requests a response from every elected official and especially the attorney of every city that has laws providing for these warrantless and request-less inspections. We will print your response and hopefully, your justifications for these inspections and how and when you plan to refund the millions of dollars that have been paid for these, what seem to be, illegal inspections.
The AOA Magazine reaches more apartment owners than any other industry publication so your response will be well read by those individuals who provide the much needed housing for your constituents.
If you are a housing provider, please forward this vital message to your favorite elected official. If they do not respond to your request, please email me at firstname.lastname@example.org with a copy of your request or a note verifying their non-response. We will print it in this magazine. Thank you.]
The 1851 Center for Constitutional Law is a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and search and seizures.