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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1171

## Text

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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CERTIFICATE OF SERVICE ................ 11

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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1 es.

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0945%3A1. Public record. Not legal advice.