The original Portsmouth licensing fee declared unconstitutional


By Frank Lewis

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The United States District Court, Southern District of Ohio has ruled the City of Portsmouth’s Rental Licensing Program violates the Fourth Amendment to the United States Constitution.

The 1851 Center for Constitutional Law first filed the suit on behalf of Portsmouth rental property owners Ron Baker, Nancy Ross, Thomas Howard, and Darren Oliver. Documents showed those property owners had long rented their property in Portsmouth without license or inspections, and their properties had never been the subject of complaint by tenants, neighbors, or others.

According to released information the ruling means that “indiscriminate and warrantless 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.”

However, the 1851 Center for Constitutional Law stated – “the City 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, ruled “[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 1851 Center said 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.

Information from the 1851 Center for Constitutional Law states: “Nevertheless, Ohio cities had vigorously sought to collect licensing fees from area landlords, and the warrantless searches 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.”

Portsmouth City Solicitor John Haas read the official court ruling on Thursday

“The original ordinance, which has since been amended, was found to be unconstitutional,” Haas said. “The Court did not address the changes the city made to the Program (i.e. the current ordinance), but did go out of the way to describe what would be acceptable which appears to follow the amended ordinance.”

The amended ordinance made the inspections voluntary and Haas said his interpretation of the ruling is that an Administrative Warrant is not the same as a Criminal Warrant making the city’s requirement for the need for a warrant much lower.

Haas said the opinion is limited to the original ordinance that has not been in effect since shortly after the lawsuit was filed.

“I will need to discuss the decision with legal counsel provided by the City’s insurance carrier, the City Manager and Health Commissioner before any decision can be made about how the City will choose to proceed,” Haas said.

Maurice Thompson, Executive Director of the 1851 Center called the ruling a victory.

“The Federal Court’s ruling 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,” Thompson said. “Government inspections of one’s home frequently results in arbitrary orders to make thousands of dollars worth of untenable improvements 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.”

Reach Frank Lewis at 740-353-3101, ext. 1928, or on Twitter @franklewis.

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