Courtney

IN THE FEDERAL DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARK COURTNEY, et al., ) CASE NO. 4:25-CV-00989

)

Plaintiffs, ) JUDGE CHARLES E. FLEMING

)

vs. )

)

CITY OF SALEM, OHIO, et al., ) MEMORANDUM OPINION AND

) ORDER ENTERING PRELIMINARY

Defendants. ) INJUNCTION

On April 15, 2025, Plaintiffs Mark Courtney, 1717 State Street LLC, C&C Rental

Investments LLC, Salem Cedar Ridge Apartments Ltd., Wilson Street LLC, and Lexington Rentals

LLC (“Plaintiffs”) filed a Complaint in the Columbiana Court of Common Pleas alleging that

Defendants, City of Salem, Ohio (the “City”) and its Director of Housing, maintain

unconstitutional ordinances that govern rental properties within the City. (ECF No. 1-1). On April

23, 2025, Plaintiffs moved for a preliminary injunction to enjoin the city from enforcing these

ordinances against them. (ECF No. 1-5).

On May 14, 2025, Defendants filed an Answer (ECF No. 1-3), Amended Answer (ECF No.

1-4), and removed the case to this Court. (ECF No. 1). Pursuant to this Court’s May 16, 2025

non-document Order, Defendants responded to Plaintiffs’ motion for preliminary injunction on

May 30, 2025. (ECF No. 3). Plaintiffs filed their reply brief on June 6, 2025. (ECF No. 4). The

Court held an evidentiary hearing on Plaintiffs’ motion on September 18, 2025. (ECF No. 9, Tr.

of Hr’g on Mot. for Prelim. Inj.). For the following reasons, Plaintiffs’ motion for preliminary

injunction is GRANTED.

I. FACTUAL BACKGROUND

A. The City’s Housing Code and Occupancy License Requirements

The City maintains a housing code to preserve its residents’ health and safety by assuring

adequate housing conditions. Salem, Ohio, Rev. Ordinances ch. 1309, § 2 (2021).1 Prior to July

2024, § 1309.04, governing inspections and enforcement, read, in relevant part:

(b) The Enforcing Official2 is hereby authorized to make inspections to

determine the condition of dwellings, dwelling units, rooming units, and

premises located within the City, in order that he may perform the duty of

safeguarding the health and safety of the occupants of dwellings and the

general public. Any inspection report shall be sent to the owner, landlord

or agent of the property.

. . .

(d) Where no consent is obtained, the Enforcing Official shall inspect an

occupied or unoccupied dwelling, dwelling unit, rooming unit or premises

only after obtaining requisite legal authority through search warrants or

otherwise.

§ 1309.04[(b)] & [(d)]. The housing code also required landlords to obtain an occupancy license

to let their rental properties. In 2021, the code provided that “the initial issuance of an occupancy

license shall be contingent upon the inspection of each dwelling unit to assure said unit meets the

provisions of the Housing Code, the Zoning Code and applicable Fire Codes and amendments

thereto.” § 1309.10(a)[(7)]. Additionally, “[f]or the initial inspection and all reinspections

thereafter, the owner, operator or occupant of every dwelling, dwelling unit and rooming unit or

the person in charge thereof, shall give the Enforcing Official free access to such dwelling unit or

rooming unit, and its premises at all reasonable times for the purpose of such inspection(s),

examination(s), and survey.” Id. To obtain an occupancy license,

1 Unless further clarification is needed, references to the City’s housing code will be preceded by the section (§)

symbol.

2 “Enforcing Official” refers to “the Director of Public Service, the Director of Environmental Health, their duly

authorized representative(s), and the Housing Inspector(s) as the case may be, engaged in the enforcement of this

code.” § 1309.04(a) (2021).

the owner of the property occupied by a party other than the owner shall

apply to the office of the Housing Inspector. Property owners are required

to make application for an occupancy license within thirty days after the

effective date of this code. One (1) application shall be filed per rental unit.

The Office of Housing shall maintain application and inspection forms and

require the submission of such information as deemed necessary to properly

administer and implement the provisions of this code. An application must

be completed for each unit. An occupancy license may be issued by the

Housing Inspector if, upon inspection of the property, it is determined

that the property meets the requirements of applicable City Codes.

Id. (emphasis added). If a rental unit owner did not pay for or renew his occupancy license, the

City would assess the fee to the unit’s property taxes, along with an additional $60.00 fee, which

was meant to pay the City’s cost of certifying the fee to the Columbiana County Auditor.

§1309.10([b]).

On July 30, 2024, the City approved changes to its housing code, which included changes

to the inspection and occupancy license requirements. Salem, Ohio, Rev. Ordinances ch. 1309

(2024). The above-quoted inspection language was removed and replaced with the following:

(c) Except where an emergency as defined in Section 1309.03 exists, the

Health Officer, or their duly authorized representative, previous to

conducting an inspection of any occupied dwelling, dwelling unit, rooming

unit, or premises, shall obtain the consent of an occupant of same or the

consent of another individual possessing like authority over, or such other

relationship to, the premises or effects sought to be inspected.

(d) Except where an emergency as defined in Section 1309.03 exists, the

Health Officer, or their duly authorized representative, previous to

conducting an inspection of any occupied dwelling, dwelling unit, rooming

unit, or premises, shall obtain consent of an owner of same or the consent

of another individual possessing like authority over, or such other

relationship to, the premises or effects sought to be inspected.

(e) Where no emergency as defined in Section 1309.03 exists, and where

no consent is obtained, the Health Officer, or their duly authorized

representative, shall inspect an occupied or unoccupied dwelling,

dwelling unit, rooming unit, or premises only after obtaining requisite

legal authority through an administrative warrant or otherwise.

§ 1309.04(c)–(e) (emphasis added).

The occupancy-license requirements also changed in 2024. One notable addition includes

the imposition of criminal penalties for failure to comply with the occupancy license requirement:

(4) No person or firm shall rent, or lease property to another person or firm

without first obtaining an annual license as outlined in subsection (a) hereof.

(5) Whoever violates this section shall be guilty of an unclassified

misdemeanor of the third degree and subject to a fine of up to five hundred

dollars ($500.00); and if the offender was previously convicted of or plead

guilty to a violation of this section, the violator is subject to a fine of up to

five hundred dollars ($500.00) and/or a jail term of up to sixty days.

(6) Notwithstanding any other section of this Code, failure to renew an

occupancy license is a minor misdemeanor.

§ 1309.10(a)(4)–(6).

The provision describing how to apply for a property license (quoted above) remained

unchanged, except for three new provisions:

(A) New applicants shall provide any and all documentation as required

in this code, as well as a fee of $35 (thirty-five dollars) for initial application

and processing at the time of application.

(B) At the time of application, an inspection, as outlined in this Code

Section, shall be scheduled and completed. Failure to schedule an

inspection at the time of application will result in the denial of [sic]

application.

(C) Upon receiving written confirmation from a Housing Inspector or

Health Official that the dwelling unit meets the requirements set forth in this

code and any and all remaining fees associated shall be [sic] paid and an

occupancy license shall be issued in accordance with Section 1309.10. The

owner, landlord or agent of the property shall be responsible for making

arrangements for such inspection(s) and must be present during the

prescheduled inspection(s). Inspections will occur annually for any units

failing initial or any reinspection. For [sic] non-owner-occupied dwelling

passing reinspection, a reinspection will occur no later than three (3) years

from the date of passing such inspection.

§ 1309.10(a)(7)(A)–(C) (emphasis added). The 2024 amendment also removed the $60.00

additional fee to be charged when assessing an unpaid occupancy license fee to the unit’s property

taxes. § 1309.10(b). Instead, if a rental unit owner failed to pay or renew his occupancy license

fee, “the Director of Housing or Housing Inspector may revoke/suspend the occupancy license and

order the vacancy of such premises until all fees associated with it have been paid.” Id.

B. The Parties’ Dispute

Plaintiffs own numerous rental properties throughout the City. (ECF No 9, PageID #374–

75). Under the 2021 housing code requirements, the City would send annually, and Courtney

would pay annually, occupancy license invoices associated with each of Plaintiffs’ rental units.

(Id. at PageID #376–78). The invoices charged Plaintiffs $30.00 per unit for each occupancy

license. (Pl. Exs. 1–3). Despite the inspection language in the 2021 housing code, Courtney never

consented to any inspection related to occupancy license applications or renewals. (ECF No. 9,

PageID #396) (describing two incidents in which occupants consented to an inspection based on

complaints relating to property conditions); (Id. at PageID #398) (describing the City’s drive-by

inspections).

On January 24, 2025, Courtney received a certified letter from the City, dated November

1, 2024, concerning his occupancy licenses. (ECF No. 9, PageID #380; Pl. Ex. 9, P. 1). The letter

indicated that Plaintiffs had to reapply for their occupancy licenses, pay an application fee and

license fee for each unit, and schedule inspections of each unit. (Id.; Pl. Ex. 9, P. 1). The occupancy

license fee had increased to $72.00 per unit. (Id.; Pl. Ex. 9, P. 1). The application fee, which the

letter stated that the City would waive for existing license holders, amounted to $35.00 per

application. (Id.). Enclosed with the letter were occupancy license invoices at the new $72.00 rate

and new occupancy license applications for each of Plaintiffs’ rental units. (Pl. Ex. 5–9).

Regarding inspections, the new application stated, “After receiving an application for a rental

housing license, the Housing Inspector needs to set up an inspection of the property. (Inspection

is to be within 5 working days of this application.).” (Pl. Ex. 1, P. 4). The letter informed Plaintiffs

that their “failure to meet any of the criteria to obtain or maintain an occupancy license”—

including the scheduling of an inspection—“may result in your occupancy license being revoked.”

(Pl. Ex. 9, P. 1).

Since the conditions of occupancy license approval included purportedly unconstitutional

but nonetheless mandatory, agreed-to inspections, Plaintiffs did not submit occupancy applications

or pay the associated fees.3 (ECF No. 9, PageID #387). In July 2025, Plaintiffs began receiving

past-due notices that stated the City’s intent to levy the occupancy license fees against the rental

units’ property taxes if not paid by August 15, 2025, including an extra $60.00 fee per unit. (Id.;

Pl. Ex. 10). On August 21, 2025,4 Plaintiffs received a letter from the Defendant Kayla Crowl, the

City’s Director of Housing, informing them that their occupancy licenses had been revoked due to

Plaintiffs’ failures to consent to inspections of their rental units:

Consensual scheduled inspections are one of the criteria [sic] to obtain and

maintain occupancy licenses in the City of Salem. As a result of not meeting

the inspection criteria, your occupancy licenses are hereby revoked. The

occupancy licenses for the attached list of properties are now revoked and

will need to be vacated in accordance with the Salem City Code in a time

frame not to exceed 60 days.

(ECF No. 9, PageID #395; 420; ECF No. 1-4, PageID #127). Ms. Crowl testified that her August

21, 2025 letter, which skipped the administrative warrant provision and instead simply notified

Plaintiffs that their occupancy licenses were revoked, was contrary to the City’s housing code.

(ECF No. 9, PageID #422). Ms. Crowl never informed Plaintiffs that her letter was sent in error,

but testified that she never, in fact, revoked Plaintiffs’ licenses. (Id. at PageID #423). Following

3 Courtney testified that he is willing to place the occupancy license fee amount in escrow with the Clerk of Court

pending a final determination of this action. (ECF No. 9, PageID #388).

4 The letter is dated August 21, 2024; based on the timeline described in the evidence, the Court assumes that this is

a typographical error.

receipt of the letter, Plaintiffs filed notices of appeal regarding the City’s decision to revoke their

occupancy licenses. (Id. at PageID #421).

C. Plaintiffs’ Motion for Preliminary Injunction

Plaintiffs moved for a preliminary injunction on May 14, 2025, asking that the City be

enjoined from “requiring Plaintiffs to pay $72.00 per unit and arrange for warrantless inspections

of each rental unit.” (ECF No. 1-5, PageID #138). Regarding the $72.00 fee, Plaintiffs do not

advance any argument in support of enjoining payment of this fee; Plaintiffs’ arguments all concern

mandatory consent to warrantless inspections and the additional fees and criminal penalties

associated with their failure to consent. (Id. at PageID #139; ECF No. 4, PageID #163, 167).

Plaintiffs’ counsel also stated at the hearing, while objecting to the City’s questions to Courtney

about paying the occupancy license fees, that Plaintiffs are not seeking a preliminary injunction

regarding the $72.00 fee: “[T]here is a separate claim contesting the validity of that fee, but that’s

not an issue in the preliminary – in this motion.” (ECF No. 9, PageID #389). The Court therefore

considers only the warrantless-inspection issue and associated penalties.

Plaintiffs take issue with the occupancy license application process described in § 1309.10.

Although § 1309.04 provides for an administrative warrant procedure when a rental unit owner

does not consent to inspection, § 1309.10 does not. It states that an occupancy license applicant’s

failure to schedule an inspection “will result in denial of the application.” § 1309.10(a)(7)(B).

Plaintiffs argue that this procedure places unconstitutional conditions on occupancy license

applicants. (ECF No. 1-5, PageID #139; ECF No. 4, PageID #164).

Defendants deny the housing code coerces warrantless searches violative of the Fourth

Amendment. (ECF No. 3, PageID #153–56). Though Defendants acknowledge the mandatory

inspection language in §1309.10 (id. at PageID #151–52), they argue that § 1309.04’s

administrative warrant procedure applies to § 1309.10’s occupancy-license-application

inspections. They also cite case law in an effort to justify the $60.00 fee, but do not acknowledge

that the language permitting such fee in § 1309.10(b) was eliminated in the 2024 amendment.

Instead, Defendants point the Court to a later-enacted fee schedule which includes the line item,

“Occupancy License Late Fee $60.00 plus license fee (same).”

II. MOTION STANDARD

A preliminary injunction “is an extraordinary remedy never awarded as of right.” Winter v.

Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). The party moving for a preliminary injunction

must make a “clear showing” that “he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,

and that an injunction is in the public interest.” EOG Res., Inc. v. Lucky Land Mgmt., LLC, 134

F.4th 868, 874 (6th Cir. 2025) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 24

(2008)). The movant need not meet every factor; rather, the factors are meant to be balanced

against one another. Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th

Cir. 2002).

III. DISCUSSION

A. Likelihood of Success on the Merits

The City’s inspection requirement that includes obtaining an administrative warrant when

consent to the inspection is denied (§ 1309.04) is constitutional. Administrative searches like the

inspections required by the City violate the Fourth Amendment “when authorized and conducted

without a warrant procedure.” Camara v. Mun. Ct., 387 U.S. 523, 534 (1967). The City also may

not punish a landlord’s refusal to consent to such a search with criminal penalties. Id. at 540; see

Thompson v. City of Oakwood, 307 F. Supp. 3d 761, 772 (S.D. Ohio 2018) (“[A] municipality

violates the Fourth Amendment when it requires a property owner to consent to a warrantless

inspection of their property or face a criminal penalty, unless a valid exception to the warrant

requirement exists.”). Section 1309.04, concerning inspection and enforcement, stays within these

parameters: when a property requires inspection, the owner may either consent or decline.

§ 1309.04(c)–(e). When an owner declines, the City may nonetheless inspect the property “after

obtaining requisite legal authority through an administrative search warrant or otherwise.” §

1309.04(e). There is no criminal penalty attached to an owner’s refusal to consent.

The same cannot be said for the occupancy license application process delineated in

§ 1309.10. Section 1309.10(a)(7)(B) explains that a landlord cannot obtain an occupancy license

without scheduling an inspection, and there is no warrant option here; instead, “Failure to schedule

an inspection at the time of application[] will result in denial of application.” This inspection

cannot be the inspection outlined in § 1309.04 because § 1309.10(a)(7)(B) refers only to an

inspection “as outlined in this Code Section.” The only inspection outlined in 1309.10 is the one

to which landlords must consent to obtain an occupancy license.

Sections 1309.10(a)(4)–(6) provide that a landlord may not let his property without an

occupancy license, and if he does, he will be charged with a minor misdemeanor and fined up to

$500. It is apparent to the Court that Ms. Crowl sent her letter (informing Plaintiffs that their

failure to consent to inspections automatically resulted in revocation of their occupancy license)

pursuant to this provision. (ECF No. 9, PageID #395; 420; ECF No. 1-4, PageID #127). Crowl’s

testimony that her letter did not comply with the housing code and that Plaintiffs’ licenses were

not in fact revoked are not in keeping §§ 1309.10(a)(4)–(6) and 1309.10(a)(7)(B). These

provisions mandate denial of such license and imposition of criminal penalties. Such a scheme

violates the Supreme Court’s directive in Camera.

Moreover, the $60.00 penalty the City informed Plaintiffs it plans to assess due to their

nonpayment of occupancy license fees is without a basis in the housing code. The 2024

amendment eliminated the $60.00 additional fee to be charged when assessing an unpaid

occupancy license fee to the unit’s property taxes. § 1309.10(b). While the 2024 Fee Schedule

provides a line item for the imposition of an occupancy license late fee, the code contains no

provision triggering such fee. Even if the $60.00 were a valid part of the housing code, it operates

against Plaintiffs—and anyone else who objects to a warrantless inspection—as a penalty for their

refusal to waive their constitutional rights. Plaintiffs are therefore likely to succeed on the merits

of their claim that §§ 1309.10(a)(5)–(6) and 1309.10(a)(7)(B) violate the Fourth Amendment and

that the $60.00 fee should not be assessed against their properties as a penalty.

B. Irreparable Harm

Irreparable harm, in the context of a preliminary injunction, is harm that is not fully

compensable by money damages. Int’l Union of Painters & Allied Trades Dist. Council No. 6 v.

Smith, 148 F.4th 365, 371 (6th Cir. 2025) (quoting Overstreet v. Lexington-Fayette Urb. Cnty.

Gov’t, 305 F.3d 566, 578 (6th Cir. 2002)). Harm is presumed irreparable when it was caused by a

constitutional violation. Castillo v. Whitmer, 823 F. App’x 413, 417 (6th Cir. 2020). In particular,

a violation of one’s Fourth Amendment right against unreasonable searches and seizures has been

considered irreparable by this Court and others. See, e.g., Midwest Retailer Associated, Ltd. v. City

of Toledo, 563 F. Supp. 2d 796, 812 (N.D. Ohio 2008) (finding irreparable harm when officers

sought video recordings of inside a convenience store during closed hours in violation of the Fourth

Amendment right against unreasonable searches); Farm Lab. Org. Comm. v. Ohio State Hwy.

Patrol, 991 F. Supp. 895, 906 (N.D. Ohio 1997) (irreparable harm presumed when officer seized

and confiscated motorist’s immigration documents); Brown v. Greene Cnty. Vocational Sch. Dist.

Bd. of Educ., 717 F. Supp. 3d 689, 696 (S.D. Ohio 2024) (irreparable harm presumed when teacher

may have unreasonably seized a student when the teacher pinned the student to his chair and stood

over him while he was lying on the floor). Here, the Court has already determined that Plaintiffs

have a likelihood of success on the merits of their Fourth Amendment claim. The irreparable injury

prong is therefore also satisfied.

C. Likelihood of Substantial Harm to Others

When the court balances the equities on either side of a preliminary injunction, the Court

must assess “whether the preliminary injunction would harm the party enjoined or others, and if

so, whether such harm outweighs any irreparable harm established by the party seeking the

injunction.” Extracorporeal Alliance, L.L.C. v. Rosteck, 285 F. Supp. 2d 1028, 1045 (N.D. Ohio

2003). A limited injunction, enjoining enforcement of §§ 1309.10(a)(5)–(6) and 1309.10(a)(7)(B)

of the housing code and imposition of the $60.00 fee on Plaintiffs and others who refuse to consent

to an inspection, will not harm the City or others impacted by the housing code. Leaving

§ 1309.10(a)(4) in place means that all landlords must still apply for an obtain an occupancy

license in order to rent their properties. There will also be no concern that rental properties will

continue to meet the housing code’s requirements. That is because § 1309.10(a)(7)(C) conditions

issuance of an occupancy license on confirmation “that the dwelling unit meets the requirements

set forth in this code,” and § 1309.04(c)–(e) provide for a constitutional inspection process that

includes an administrative warrant procedure. Since there is no substantial harm to the City or

others affected by the housing codes by enjoining enforcement of §§ 1309.10(a)(5)–(6) and

1309.10(a)(7)(B), and since the Court has already determined that the harm caused to Plaintiffs by

the existing housing code is irreparable, the equities balance in Plaintiffs’ favor.

D. Public Interest

“The final factor to evaluate in deciding upon a motion for preliminary injunction is

‘whether the public interest would be served by the issuance of the injunction.’” Certified

Restoration Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535, 551 (6th Cir. 2007) (quoting

Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2005)). When a constitutional right is at

issue, whether an injunction would serve the public interest depends heavily on the movant’s

likelihood of success on the merits, since “it is always in the public interest to prevent the violation

of a party’s constitutional rights.” Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.

1998). The Court has already determined that §§ 1309.10(a)(S)-(6) and 1309.10(a)(7)(B) are

unconstitutional. It therefore serves the public interest to enjoin enforcement of §§ 1309.10(a)(5)—

(6) and 1309.10(a)(7)(B).

IV. CONCLUSION

Plaintiffs’ Motion for Preliminary Injunction (ECF No. 1-5) is GRANTED. Defendants

are hereby enjoined from enforcing §§ 1309.10(a)(5)-(6) and 1309.10(a)(7)(B) of the housing

code. Defendants are also enjoined from enforcing the $60.00 penalty for late payment of the

occupancy fee against Plaintiffs and others who refuse consent to a warrantless inspection. Since

Plaintiffs did not request an injunction related to the occupancy license fees, the Court will not

require Plaintiffs to place those moneys in escrow with the Clerk of Court.

IT IS SO ORDERED.

Date: October 20, 2025 ‘add Hue

CHARLESE.FLEMING —————C~—~—

U.S. DISTRICT COURT JUDGE

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