Petition for Writ of Certiorari — Term Auto Sales, Inc. v. City of Cleveland

tT) Supreme Court, U.g.

FILR&D

xo: BB+ 94.8 00T 10 1995

i OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UliTED STATES

October Term, 1995

TERM AUTO SALES INC., EKP INC., BROOKLYN SALAGE,

ERNEST BOZIKIS, KERIAKOS BOZIKIS,

Petitioners

Vs.

THE CITY OF CLEVELAND, HOWARD RUDOLPH

CHIEF OF POLICE

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BRIAN D. DUNBAR

1030 Euclid Avenue

Cleveland, Ohio 44115

(216) 621-0880

Attorney for the Petitioners

ee

QUESTION PRESENTED

I, WHETHER THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT CORRECTLYA?PLIED

ALL OF THE STANDARDS SET FORTH IN NEW YORK V.

BURGER TO DETERMIN®. THAT CODIFIED ORDIh ANCE

OF THE CITY OF CLEVELAND $601.15 IS

CONSTITUTIONAL.

Petiti -

Term Auto Sales, Incorporated

(no parent or subsidiaries)

E.K.P., Incorporated, dba Brooklyn Salvage

(no parent or subsidiaries)

Ernest Bozikis

Keriakos Bozikis

Respondents:

The City of Cleveland

Howard Rudolph, Chief of Police, Cleveland, Ohio

ii.

WHETHER THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT CORRECTLY

APPLIED ALL OF THE STANDARDS SET FORTH IN

NEW YORK V. BURGER TO DETERMINE THAT

CODIFIED ORDINANCE OF THE CITY OF

CLEVELAND §601.15 IS

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ill.

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT

New York v. Burger, 482 U.S. 689 (1987)

Donovan _v. Dewey, 452 U.S. 594 (1981)

Marshall _v. Barlow’s, Inc., 436 U.S. 307 (1978)

UNITED STATES COURTS OF APPEAL

Bionic Auto Parts & Sales v, Fahner, 721 F.2d

1072 (7th Cir. 1983)

UNITED STATES CODE

12 U.S.C. §1254(1)

28 U.S.C. §1331

28 U.S.C. §1343(3)

LOCAL ORDINANCES

Codified Ordinances of

the City of Cleveland §601.15

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Sixth Circuit

entered its Order in this case on May 18, 1995. On June 1, 1995,

the Petitioners herein filed their Petition for Rehearing. On July

12, 1995, the Petition for Rehearing was denied by the Court of

Appeals.

The jurisdiction of this Honorable Court is being invoked

pursuant to Title 28 of the United States Code §1254(1) that

provides for review by Writ of Certiorari of all cases decided by

the United States Courts of Appeals. This Court has jurisdiction

to hear this case pursuant to 28 U.S.C. §1343(3) which grants

jurisdiction for suits redressing violations of the federal laws that

provide for the equal rights of citizens.

CONSTITUTIONAL PROVISIONS, STATUTES, TREATIES,

ORDINANCES, AND REGULATIONS INVOLVED

UNITED STATES CONSTITUTION

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UNITED STATES CODE

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LOCAL ORDINANCES

Codified Ordinances of

the City of Cleveland §601.15 ................. App. C.

vi.

I, STATEMENT OF THE CASE

This case was brought pursuant to 42 U.S.C. §1983, 28

U.S.C. §1331 and 28 U.S.C. §1343(3) alleging, inter alia, that the

Respondents violated the Petitioners’ right to be free from

unreasonable searches pursuant to the Fourth Amendment to the

United States Constitution, as well as pursuant to the general

federal question jurisdiction statute.

On July 17, 1987, the Petitioners filed their Complaint in

this case in which they alleged that their civil rights were violated

by the Respondents when the Respondents conducted a

warrantless raid of the Petitioners business premises, seizing

items that lacked certain federal certification labels or vehicle

identification numbers. On May 4, 1988, The City of Cleveland

and Howard Rudolph, Chief of Police filed a Motion for

Summary Judgment on behalf of ten police officer Defendants.

This Motion was denied by the District Court without written

opinion on April 8, 1991.

An interlocutory appeal followed in which the United

States Court of Appeals for the Sixth Circuit vacated the District

Court’s order and remanded the case for further consideration

and the issuance of an opinion. On July 28, 1992, the District

Court issued a memorandum of opinion and order denying the

Defendant Police Officer’s Motion for Summary Judgment based

on the defense of qualified immunity. The Defendant Police

Officers again filed an interlocutory appeal of the District Court’s

order.

In a Per Curiam decision rendered on June 28, 1993, the

Sixth Circuit reversed the District Court’s denial of the

Defendant Police Officers Motion for Summary Judgment and

found that the Defendant Police Officers were entitled to assert

a defense of qualified immunity.

On August 10, 1993, the District Court granted judgment

in favor of all Defendants on the basis of qualified immunity.

Petitioners filed a Motion for Relief from Judgment

pursuant to Fed.R.Civ.P. 60(B) in the District Court on October

12, 1993. This motion was denied on December 14, 1993. On

December 20, 1993, the Petitioners filed a Motion for

Reconsideration of the denial of their Motion for Relief from

Judgment. This Motion was denied by the District Court on

January 18, 1993.

The Petitioners filed their Notice of Appeal on January

13, 1994. This appeal was stayed due to the Petitioners’ pending

Motion for Reconsideration. Following the denial by the District

Court of the Motion for Reconsideration, the Appellants filed

their Amended Notice of Appeal on February 16, 1994.

On May 18, 1995, the Court of Appeals ruled in favor of

the Respondents. The Petitioners then filed a Request for

Rehearing on June 1, 1995 that was denied on July 12, 1995.

Il. ARGUMENT

I, THE COURT OF APPEALS INCORRECTLY APPLIED

THE STANDARDS SET FORTH IN

TO DETERMINE THAT CODIFIED ORDINANCE OF THE

CITY OF CLEVELAND §601.15 IS CONSTITUTIONAL.

In it’s Opinion of May 18, 1995, the United States Court

of Appeals for the Sixth Circuit applied the standards set forth in

New York v. Burger, 482 U.S. 689 (1987) to determine that

Codified Ordinance, City of Cleveland §601.15 is constitutional.

In doing so, the Court, citing to Burger noted that there

is a substantial governmental interest in regulating the vehicle

dismantling iedutry because automobile junkyards and vehicle

dismantlers provide the major market for stolen vehicles and

vehicle parts. It then noted that authorization of warrantless

searches is necessary to further the regulatory scheme in

question. The Burger statute was then applied to the Cleveland

Ordinance in order to reach a finding of constitutionality.

The Court erred in so doing, however, because it only

addressed the time prong of the Burger test. In order to provide

the constitutionally adequate substitute for a warrant required for

warrantless searches of closely regulated industries, three

4

requirements must be met. First, there must be a substantial

government interest in regulating the industry in question.

Second, the warrantless inspections must be necessary to further

the regulatory scheme. Burger, 480 U.S. at 702; Donovan v.

Dewey, 452 U.S. 594 (1981). Finally, the statute’s inspection

program, in terms of the certainty and regularity of its application

must provide a constitutionally adequate substitute for a warrant.

Burger, 480 U.S. at 703; Donovan, 452 U.S. at 600.

In order to meet this final test, the statute must contain

limitations on the time, place, and scope of the warrantless

searches.

"[T]he regulatory statute must perform the two

basic functions of a warrant; it must advise the

owner of the commercial premises that the search

is being made pursuant to th law and has a

properly defined scope, and it must limit the

discretion of the inspecting officers." Burger, 480

U.S. at 703.

"To perform this first function, the statute must be

sufficiently comprehensive and defined that the

owner of the commercial property cannot help but

be aware that his property will be subject to

periodic inspections for specific purposes." Id;

Donovan, 452 U.S. at 600; Marshall v. Barlow’s,

Inc., 436 U.S. 307 (1978).

Finally, the statute must carefully limit the time, place, and

scope of the warrantless searches. Burger, 482 U.S. at 703;

United States v. Biswell, 406 U.S. 311 (1972).

To satisfy the certainty and regularity requirement, the

inspection program must define clearly what is to be searched,

who can be searched, and the frequency of such searches. Bionic

Auto Parts & Sales v. Fahner, 721 F.2d 1072 (7th Cir. 1983).

Even in the context of a pervasively regulated industry, the

provisions allowing warrantless searches must be tailored to the

States’s proper objectives and must minimize the dangers inherent

in the unbridled exercise of administrative discretion.

In Burger, the Court found that the automobile scrap

industry is a pervasively regulated industry that is subject to

warrantless administrative searches, and that such searches are

necessary to further the regulatory scheme. It then upheld the

New York statute that allowed warrantless searches of the

automobile scrap industry. In upholding the statute, it noted that

the statute in question was sufficiently narrow to provide a

constitutionally adequate substitute for a warrant. The owner of

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a vehicle dismantling business was informed that inspections of

all such industries would be made on a regular basis; the

searching official was allowed no discretion in deciding who to

search. Additionally, the statute set forth who was authorized to

conduct the inspection, the scope of the inspection, placed the

operator of the salvage yard on notice as to how to comply with

the statute and specifically delineated who was authorized to

conduct an inspection under the statute. Finally, the New York

Statute placed careful time, place, and scope limitations on the

inspections. The searches were allowed to be carried out only

during regular and usual business hours, could only ‘% made of

vehicle-dismantling and related industries, and only records,

vehicles, or parts of vehicles subject to certain record keeping

requirements, located on the premises, were subject to

warrantless searches.

Thus, in the present case, although finding that there is a

substantial governmental interest in regulating the vehicle

dismantling industry, and that the authorization of warrantless

searches is necessary to further that regulatory scheme, the Court

of Appeals failed to properly apply the constitutional standards

required of warrantless inspection schemes prior to finding the

Cleveland Ordinance constitutional.

Rather than apply all of the standards set forth in Burger,

the Court of Appeals looked only to the time prong of the

Burger test. The Court of Appeals overlooked the fact that the

Cleveland Ordinance contains no limits on the time or place of

the warrantless searches, and is so broad in scope that even

individuals who are not involved in the vehicle dismantling

industry, including Petitioner Term Auto Sales, a car dealer, are

subject to a warrantless search at the whim of the Cleveland

Police. The Court of Appeals similarly failed to address that fact

that the Cleveland Ordinance contains no delineation of what

may be searched, who may be searched, who may search, when

warrantless searches may take place, or how often warrantless

searches of a particular business may be performed.

Unlike the Burger statute, the owner of a vehicle

dismantling business in Cleveland, Ohio is not informed that

inspections of all such industries would be made on a regular

basis; the searching official was allowed broad discretion in

deciding who to search; the Ordinance fails to set forth who is

authorized to conduct the inspection, what the scope of the

inspection may be, does not place the operator of the salvage

yard on notice as to how to comply with the statute and does not

specifically delineate who is authorized to conduct the

inspections. Finally, the Cleveland Ordinance does not place

careful time, place, and scope limitations on the inspections. The

Ordinance does not require the searches to be carried out at only

specific times, does not limit the searches to the vehicle-

dismantling and related industries, and does not limit the

searches to records, vehicles, or parts thereof.

Clearly, the United States Court of Appeals for the Sixth

Circuit has decided this important federal question in a way that

conflicts with prior relevant decisions of this Court. Thus, it is

paramount that this Honorable Court grant this Petition for a

Writ of Certiorari.

Il. CONCLUSION

For all of the foregoing reasons, the Petitioners

respectfully request that this Honorable Court grant the Writ of

Certiorari and accept this case for review.

. DUNBAR (0055352)

The Truman Building, Suite 410

1030 Euclid Avenue

Cleveland, Ohio 44115

(216) 621-0880

Attorney for the Petitioners

10

INDEX TO APPENDICES

APPENDIX A: Opinions, orders, findings of fact, and conclusions

of law, whether written or orally given and transcribed, entered

in conjunction with the judgment sought to be reviewed.

sor 18. 1995 Onier of ih Cleat Com of Appeals

APPENDIX B: Any order on rehearing, including the caption

showing the name of the issuing court, the title and number of

the case, and the date of entry.

‘uly 12. 1995 Denial of Petition for Rehearing

APPENDIX C: Constitutional provisions, treaties, statutes,

ordinances and regulations involved in the case, set out verbatim

with appropriate citation.

A-1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Term Auto Sales, Inc., et al.

Plaintiffs-A ppellants

v.

The City of Cleveland, et al.,

Defendants-A ppellces.

Appeal from the United States District Court

for the Northern District of Ohio, Eastern Division

Case No: C87-1825

(Hon. John M. Manos, Trial Judge)

Before: Keith, Martin, and Guy, Circuit Judges

(Argued April 3, 1995 Decided May 18, 1995)

PER CURIAM, Section 601.15 of the codified ordinances

of the City of Cleveland provides for the inspection of vehicles

and vehicle parts at certain enumerated location for the purpose

of locating stolen motor vehicles or stolen vehicle parts. On July

21, 1986 members of the Cleveland Police Department’s auto

theft unit, acting pursuant to the

A-2

aforementioned ordinance, conducted a warrantless search of the

premises of Term Auto Sales and Brooklyn Salvage. Both

vehicles and parts suspected of being stolen were seized. Term

Auto and Brooklyn Salvage were ultimately prosecuted but at the

request of the county prosecutor the indictment was dismissed.

Subsequent to the dismissal of the indictment, plaintiffs

instituted this action pursuant to 42 U.S.C. §1983, naming the

City of Cleveland and a number of police officers as defendants.

The individual defendants sought summary judgment, relying

upon the defense of qualified immunity, but their motion for

summary judgment was denied. In an earlier appeal to this court

we ordered the case dismissed as to the defendants sued in their

individual capacities based upon the doctrine of qualified

immunity. Term Auto Sales, Inc. v,. City of Cleveland, No. 92-

3909, slip op. (6th Cir. June 28, 1993).

The case was then remanded to the district court for

further proceedings. At this time the only claims left in the case

were the claims against the City of Cleveland and the official

capacity claim against the chief of police. Since the official

A-3

capacity claim against the chief of police is essentially a claim

against the City, for all practical purposes the City of Cleveland

was the only defendant on remand. Kentucky vy. Graham, 473

U.S. 159 (1985); Leach v. Shelby County Sheriff, 891 F.2d 1241

(6th Cir. 1989), cert, denied, 495 U.S. 932 (1990).

The only claim involving the City of Cleveland was a facial

attack on the constitutionality of Section 601.15. On remand the

district judge once again granted summary judgment, holding that

the City of Cleveland also benefitted from our qualified immunity

decision, and, further, that the ordinance under attack was not

facially unconstitutional. ‘This timely appeal followed.

After reviewing the proceedings that occurred in the

district court following remand, we conclude that the district

court erroneously applied the doctrine of qualified immunity as

to the City of Cleveland; however, we further hold that the

district court correctly determined that the ordinance was not

facially unconstitutional.

It is well settled that while qualified immunity protects

A-4

officials, “the doctrine of qualified immunity is no defense to

municipal corporations which may otherwise be liable for federal

constitutional violations under [42 U.S.C. §1983]." Marsh v, Am,

937 F.2d 1056, 1071 (6th Cir. 1991); see also Owen vy, City of

Independence, 445 U.S. 622, 638 (1980) (“there is no tradition of

immunity for municipal corporations...We hold, therefore, that [a]

municipality may not assert the good faith of its officers or agents

as a defense to liability under §1983"); Barber_y. City of Salem,

953 F.2d 232, 238 (6th Cir. 1992) (“it is possible that city officials

may be entitled to qualified immunity for certain actions while

the municipality may nevertheless be held liable for the same

actions"). Therefore, the district court’s determination that, since

we had afforded qualified immunity to the individual defendants

on appeal, no liability remained as to the City was erroneous.

II.

The court rejected plaintiffs’ allegation that the ordinance

was unconstitutional on its face and therefore concluded that no

i

The City Concedes this point.

A-5

liability flowed from the enforcement of that ordinance. .

Defendants contend that the district court should be affirmed

because it claims that this court determined in its July 28, 1993,

opinion that the ordinance is constitutional. See Defendants’ br.

at 8 ("This Court has already held that the ordinance that is the

subject of this action is constitutional.") (Emphasis added.)

Defendants’ contention is in error. * In our earlier opinion, we

merely noted that an Ohio state court of appeals had upheld the

constitutionality of a prior version of the ordinance. Term Auto

Sales, No. 92-3909, slip op. at 6-7 ("[p]rior to the January

amendments, [expanding the scope of the ordinance to include

automotive parts] Ohio courts had upheld the Cleveland

ordinance against constitutional attack. State v, Zinmeister, 27

2

Plaintiffs do not raise a claim that the ordinance as

applied was unconstitutional.

3

Defendants further claim that in the June 28, 1993,

opinion we determined that the search itself was constitutional.

Defendants’ br. at 8 ("[TJhis court has held that the search itself,

under the authority of this ordinance, was constitutional.")

Again, defendants overstate the breadth of our holding in that

opinion which was limited to the qualified immunity issue.

A-6

Ohio App.3d 313 (1985)"). Our decision on the merits, however,

only addressed defendants’ interlocutory appeal: whether the

district court improperly denied the individual police officers’

motion for summary judgment based on the defense of qualified

immunity. Therefore we consider the facial validity of the

ordinance in this appeal for the first time.

The Supreme Court has recognized that the Fourth

Amendments’ prohibition on unreasonable searches applies to

commercial premises as well as to private homes. E,g., New

York y, Burger, 442 U.S. 691, 699 (1987). This prohibition exists

not only with respect to traditional police searches conducted for

the gathering of criminal evidence, but also with respect to

administrative inspections designed to enforce regulatory statutes.

See Marshall _v. Barlow’s, Inc,, 436 U.S. 307, 312-13 (1978); see

also See v.City of Seattle, 387 U.S. 541, 546 (1967)

(administrative search of commercial property generally must be

supported by a warrant) (“the basic component of a reasonable

search under the Fourth Amendment --that it not be enforced

without a suitable warrant procedure -- is applicable...to

A-7

business...premises"). The Court has recognized that as to

searches conducted of “closely regulated" industries, Burger, 482

U.S. at 700, a legislative scheme may serve as a substitute for a

warrant. See Donovan vy, Dewey, 452 U.S. 594, 603 (1981). The

Court observed in Marshall: “Certain industries have such a

history of government oversight that no reasonable expectation

of privacy...could exist for a proprietor over the stock of such an

enterprise." 436 U.S. at 313 (citation omitted), To date the

Court has identified four such closely regulated industries: the

liquor industry, Colonnade Catering Corp, v, United States, 397

U.S. 72 (1970); the firearms industry, United States v, Biswell,

406 U.S. 311 (1972); the mining industry, Donovan, 452 U.S. at

594; and the vehicle dismantling industry, Burger, 482 U.S. at

691.

The Supreme Court in Donoyan held that a legislative

scheme authorizing warrantless inspection of closely regulated

industries will not violate the Fourth Amendment ifthe following

three requirements are met: (1) there isa substantial government

interest underlying the regulatory scheme pursuant to which the

A-8

search is made; (2) the warrantless inspections are necessary to

further the regulatory scheme; and (3) the statute’s inspection

program, in terms of certainty and regularity of its application,

provides an adequate substitute for the warrant requirement. See

452 U.S. at 600-03. In this last regard, certainty and regularity

are shown when adequate notice is provided and individual

discretion by searching officers is curtailed. Burger, 482 U.S. at

703. Consistent with these requirements, the statute or ordinance

authorizing the inspection must contain time, place and scope

limitations. Id.

In this case, plaintiffs concede that they are involved with

"closely regulated" businesses and do not questions the substantial

governmental interest underlying the regulatory scheme. Thus,

the first two prongs of the Donovan test are satisfied. As to the

third Donovan inquiry, plaintiffs argue that the ordinance is

invalid because it arguably applies to more than just “closely

regulated" businesses and contains inadequate time, place and

scope limitations.

The ordinance at issue reads as follows:

A-9

601.15 Inspection of Vehicles for the Purpose of

Locating Stolen Motor Vehicles and/or Stolen

Parts.

(a) For the purpose of locating stolen motor

vehicles and/or stolen motor vehicle parts, the Chief of

Police or his authorized representative may inspect any

motor vehicle, as defined in Section 4501.01 of the

Revised Code and may inspect any motor vehicle part that

has been marked with an identifying number by the

manufacturer, situated in the City of Cleveland in any

public garage, community garage, storage garage, service

garage, repair shop, parking lot, auto sales lot, vehicle

leasing or rental lot, motor vehicle salvage facility, scrap

metal processing facility, auto wrecking yard, junk yard, or

other similar establishment, and may inspect the title,

registration, vehicle identification number, or license

plates of the vehicle in order to establish the rightful

ownership or possession of the vehicle or vehicle part.

(b) For the purpose of locating a stolen vehicle, the

Chief of Police, or his authorized representative, may

inspect implements of husbandry and _ construction

equipment in places described in division (a) of this

section.

(c) Whenever possible, inspections conducted

pursuant to division (a) or (b) of this section shall be

conducted at a time and in a manner so as to minimize

any interference with, or delay of business operations.

(d) No person, without privilege to do so and with

purpose to prevent, obstruct, or-delay the performance of

a police officer from inspecting any place described in

division (a), shall do any act which hampers or impedes a

police officer from making an inspection pursuant to this

Section.

A-10

Whoever ‘violates this Section is guilty of

obstructing vehicle inspections, a misdemeanor of the

second degree.

It appears clear that a case can be made that the

ordinance encompasses locations other than those under the

control of a “closely regulated" business. However, since the

plaintiffs concede that they are “closely regulated" businesses‘

and the ordinance is not being enforced against other than closely

regulated businesses, we elect to save for another day what might

be the result of an attempt to enforce the ordinance in a different

context. We conclude that plaintiffs lack standing to challenge

this ordinance on behalf of others not involved in a “closely

regulated" business. See, e.g., Basiardanes_vy, City of Galveston,

682 F.2d 1203, 1210 (Sth Cir. 1982) (ordinarily a litigant to whom

a statute applies lacks standing to argue that the statute is vague

as to others).

We turn now to the plaintiffs’ “time, place and scope"

4

In Frisby v. Schultz, 487 U.S. 474 (1988), the Court upheld

an arguably overbroad ordinance in the face of a claim of facial

invalidity by holding that the ordinance has not and would not be

enforced against those not properly within its purview.

argument.

In New York y, Burger, 482 U.S. 691 (1987), the Court

considered whether a warrantless search of a vehicle dismantler’s

business, conducted pursuant to a statute authorizing such a

search, fell under the exception to the warrant requirement for

administrative inspections of closely regulated industries. The

Court, construing the facial validity of a New York statute,°

*The statute provides as follows:

Records and identification. (a) Any records

required by this section shall apply only to vehicles

or parts of vehicles for which a certificate of title

has been issued by the commissioner [of the

Department of Motor Vehicles] or which would be

eligible to have such a certificate of title issued.

Every person required to be registered pursuant to

this section shall maintain a record of all motor

vehicles, trailers, and major component parts

thereof, coming into his possession together with a

record of the disposition of any such motor vehicle,

trailer, or part thereof and shall maintain proof of

ownership for any such motor vehicle, trailer or

part thereof and shall maintain proof of ownership

for any motor vehicle, trailer or major component

part thereof while in his possession. Such records

shall be maintained in a manner and for prescribed

by the commissioner, The commissioner may, by

regulation, exempt vehicles or major component

parts of vehicles from all or a portion of the record

keeping requirements based upon the age of the

A-12

found that the statute authorizing inspection of a vehicle

dismantlers premises during normal business hours for purposes

of reviewing inventory did not violate the Fourth Amendment.

The Burger Court found that there was a substantial government

interest in regulating the vehicle dismantling industry because

"[aJutomobile junkyards and vehicle dismantlers provide the

major market for stolen vehicles and vehicle parts." 482 U.S. at

709. Second, it found that the statute’s authorizing a warrantless

search was necessary to implement the regulatory scheme.

allowing frequent, unannounced inspections, Id,, at 710. Finally,

4

vehicle if he deems that such record keeping

requirements would serve no substantial value.

Upon request of an agent of the commissioner or

of any police officer and during his regular and

usual business hours, a vehicle dismantler shall

produce such records and permit said agent or

police officer to examine them and any vehicles or

parts of vehicles which are subject to the record

keeping requirements of this section and which are

on the premises...The failure to produce such

records or to permit such inspection on the part of

any person required to be registered pursuant to

this section as required by this paragraph shall be

a class A misdemeanor.

482 U.S. at 694 n.1 (quoting N.W. Veh & Traf.Law §415-a5

(McKinney 1986)).

A-13

the Court concluded that the statute provided certainty and

regularity sufficient to provide an adequate substitute for a

warrant.® Id,, at 711. In reaching this last conclusion, the Court

noted several factors: under the statue the owner of a vehicle

dismantling business was informed that inspections would be

made on a regular basis; the searching official was allowed no

discretion in deciding who to search; and the statute set forth

who would conduct the inspection, and placed time, place and

scope limitations on the inspections by allowing them to be

carried out only during regular and usual business hours. Id., at

711-712.

Although the New York statute and the Cleveland

ordinance are by no means identical, we conclude they are close

enough in their scope, intent, and purpose for us to rely on

Burger as support for finding that this ordinance is not facially

6

The Burger opinion references State v. Zinmeisier, 27

Ohio App.3d 313 (1985) as an example of a regulatory scheme

similar to the one under review in Burger that had been upheld

in the face of a constitutional attack. See 485 U.S. at 698 & n.11.

In Zinmeister, the same ordinance under attack here was held to

pass constitutional muster.

A-14

unconstitutional, It is true that the New York statue does

provide that any request for documents shall be made

"during...regular and usual business hours"; whereas, the

Cleveland ordinance provides that inspections "shall be

conducted at a time and in a manner so as to minimize any

interference with or delay of business operations.” We do not

consider this difference in approach to be of constitutional

significance. Both ordinances seek to minimize interference with

legitimate business operations. One can always construct an

argument that the language of either enactment might leave room

for abuses. For example, under the New York statue, if the

inspecting agent should choose the busiest time of the day to

make the inspection, this might be construed as a harassing

technique. Although the Cleveland ordinance tries to avoid this

problem of business interruption, one could argue that the

inspectors might come in the middle of the night.” We conclude

7

Indeed, plaintiffs’ counsel did make this contention at oral

argument. However, the ordinance does not provide for any type

of forcible entry and if the inspection occurred when the business

was closed, there simply would be nothing to inspect.

A-15

that such arguments are better addressed in a case in which the

argument is advanced that the ordinance is being enforced in an

unconstitutional manner.

Although there is little doubt that the ordinance could be

improved upon by narrowing its scope and providing further time,

place, and scope restrictions, we do not find the ordinance as

written to be facially unconstitutional.

The decision of the district court upholding the

constitutionality of the ordinance is AFFIRMED.

B-1

APPENDIX B

Case No: 94-3088

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDER

TERM AUTO SALES, INC.; E.K.P., INC., doing business as

Brooklyn Salvage; ERNEST BOZIKIS; KERIAKOS BOZIKIS

Plaintiffs - Appellants

v.

CITY OF CLEVELAND

Defendant - Appellice

BEFORE: KEITH, MARTIN, and GUY, Circuit Judges.

Upon consideration of the petition for rehearing filed by

the appellant,

It is ORDERED that the petition be, and it hereby is,

DENIED.

ENTERED BY ORDER OF THE COURT

/s/

Leonard Green, Clerk

Filed June 12, 1995, Leonard Green, Clerk

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APPENDIX C

U.S. Constitution, Amendment IV: The rights of the people to

be secure in their persons, houses, papers and effects, against

unreasonable searches and seizures shall not be violated, an no

warrants shall issue but upon probable cause, supported by oath

or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

U.S. Constitution, Amendment XIV, Section I: All persons born

or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the state wherein

they reside. No states shall make or enforce any law which shall

abridge the privileges or immunities of the citizens of the United

States; nor shall any state deprive any person of life, liberty, or

property with due process of law; nor deny to any person within

its jurisdiction the equal protection of the law.

28 U.S.C. §1254(1): Cases in the courts of appeals may be

reviewed by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition-of any

party to any civil or criminal case, before or after rendition of

judgment or decree;

42 U.S.C. §1983: Every person, who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or Territory

or the District of Columbia, subjects, or causes to be subjected,

any citizen of the United States or any other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other

proper proceeding for redress. For the purposes of this section,

any Acto of Congress applicable exclusively to the District of

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Columbia shall be considered to be a statute of the District of

Columbia.

Codified Ordinance of the City of Cleveland, §601.15:

(a) For the purpose of locating stolen motor vehicles

and/or stolen motor vehicle parts, the Chief of Police or his

authorized representative may inspect any motor vehicle, as

defined in Section 4501.01 of the Revised Code and may inspect

any motor vehicle part that has been marked with an identifying

number by the manufacturer, situated in the City of Cleveland in

any public garage, community garage, storage garage, service

garage, repair shop, parking lot, auto sales lot, vehicle leasing or

rental lot, motor vehicle salvage facility, scrap metal processing

facility, auto wrecking yard, junk yard, or other similar

establishment, and may inspect the title, registration, vehicle

identification number, or license plates of the vehicle in order to

establish the rightful ownership or possession of the vehicle or

vehicle part.

(b) For the purpose of locating a stolen vehicle, the Chief

of Police, or his authorized representative, may inspect

implements of husbandry and construction equipment in places

described in division (a) of this section.

(c) Whenever possible, inspections conducted pursuant to

division (a) or (b) of this section shall be conducted at a time and

in a manner so as to minimize any interference with, or delay of

business operations.

(d) No person, without privilege to do so and with purpose

to prevent, obstruct, or delay the performance of a police officer

from inspecting any place described in division (a), shall do any

act which hampers or impedes a police officer from making an

inspection pursuant to this Section. Whoever violates this

Section is guilty of obstructing vehicle inspections, a misdemeanor

of the second degree.