Petition for Writ of Certiorari — Berger v. City of Cleveland

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tin’ FILED

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NO .OFFIGCE OF THE CLERK

Supreme Court of the United States

October Term, 1993

SANFORD J. BERGER

Petitioner

CITY OF CLEVELAND

Respondent

PETITION FOR A WRIT OF CERTIORARI

To The Supreme Court of Ohio

BERGER & FERTEL

SANFORD J. BERGER, Counsel of Record

ROBERT M. FERTEL

1836 Euclid Avenue, Room 305

Cleveland, Ohio 44115-2234

Phone: (216) 781-5950

Lawyers for the Petitioner

Ross Printing Co. - 1846 Euclid Ave.

QUESTIONS PRESENTED

1. Does a local ordinance violate the

Fourth and Fourteenth Amendments when it per-

mits warrantless searches of an owner's multi-

family apartment building, without valid con-

sent being given, due to the threat of his

being criminally prosecuted for fai lore to

permit a warrantless search?

Ze Does federal constitutional due process

afford a state criminal defendant implicit

"standing" to challenge the federal constitu-

tionality of a local ordinance, even though

he was not charged with a violation thereof,

when such determination is a necessary ele-

ment of a complete defense to the charges

against him?

k Does the sole fact that an individual is

the actual or believed custodian of a multi-

family apartment building suffice to provide

such individual with actual or “apparent au-

thority" that would legitimize his consent to

a search of the entire premises for Fourth

Amendment purposes?

4. Is the enforcement of a city's Housing

Code against federally regulated private prop-

erty preempted by federal constitutional and

statutory law when such enforcement is ex-

plicitly prohibited by duly promulgated fed-

eral Housing Standards regulations, which are

policed by federal inspectors, and which are

consistent with a federal statutory scheme?

» Is the owner of a federal "Sec.8-Mod.

Rehab." apartment building, who is peforming

a federally supervised statutory function of

providing federally subsidized low-income

housing pursuant to a 15 year contract with

H.U.D., entitled to federal offical immunity

and/or federal contractor immunity from a

criminal prosecution by a city for claimed

violations of its Housing Code?

6. Does a property owner have a "liberty"

interest, protected by the due process pro-

visions of the Fourteenth Amendment, when a

local ordinance uses mandatory language to

iii

create a presumption that criminal charges

will not be filed if the owner corrects spe-

cific violations contained in a preliminary

“Warning Notice?"

le Is a party denied due process of law, in

violation of the Fourteenth Amendment, when a

state Court of Appeals denies such party a

meaningful opportunity to respond to a claim

by the prosecution (raised for the first time

in its Answer Brief in that Court of Appeals)

when such claim was not raised or determined

in the first instance in the trial court?

8. Does an ordinance constitute an improper

delegation of a city's legislative function,

in violation of the Fourteenth Amendment,

when it vests local housing inspectors with

complete discretion to determine what consti-

tutes a reasonable time within which viola-

tions contained in a written "Warning Notice"

are to be corrected by a property owner?

Included Subsidiary Question:

Does federal constitutional due process

require that notice of appellate rights and

procedures (that might avoid the filing of

criminal charges) be given the affected party

within sufficient time to allow his filing of

an appeal?

PARTIES

From the outset of these proceedings in

1991, Sanford J. Berger has been the defen-

dant and appellant.

The City of Cleveland, from the outset,

has been the plaintiff and appellee.

TABLE OF CONTENTS

Questions Presented i

Parties to the Proceedings Below iv

Index of Authorities x

| Opinions Below 2

| Jurisdictional Statement 2

Constitutional, Statutory, Regulatory

and Municipal Ordinances Involved 2

Statement of the Case including 3

The Raising of the Federal Questions 8

Reasons for Granting the Writ 12

| 1. A local ordinance violates the Fourth

| and Fourteenth Amendments to the U.S.

Constitution when it permits warrantless

searches of an owner's multi-family apart-

ment building, without valid consent being

given, due to the threat of his being

criminally prosecuted for failure to per-

mit a warrantless search. 12

2. Federal constitutional due process

affords a state criminal defendant

implicit standing to challenge the federal

constitutionality of a local ordinance,

even though he was not charged with a

violation thereof, when such determina-

tion is a necessary element of a complete

defense to the charges against him. 13

3. The sole fact that an individual is

the actual or believed custodian of a

multifamily apartment building does not

suffice to provide such individual with

actual or “apparent authority” that would

legitimize his consent to a search of the

entire premises for Fourth Amendment

purposes. 16

4. The enforcement of a city's Housing

Code against federally regulated property

is preempted by federal constitutional

and statutory law when such enforcement

is explicitly prohibited by duly promul-

gated federal Housing Standards regula-

tions, which are policed by federal inspec-

tors, and which are consistent with a

federal statutory scheme. 20

5. The owner of a federal "Sec.8-Mod.

vii

Rehab." apartment building, who is per-

forming a federally supervised statutory

function of providing federally subsi-

dized low-income housing pursuant to a 15

year contract with a federal agency, is

entitled to federal official immunity

and/or federal contractor immunity from a

criminal prosecution by a city for claimed

violations of its Housing Code.

6. A property owner has a “liberty” in-

terest, protected by the due process pro-

visions of the Fourteenth Amendment, when

a local ordinance uses mandatory language

to create a presumption that criminal

charges will not be filed if an owner cor-

rects specific violations contained in a

prior “Warning Notice."

7. A party is denied due process of law,

in violation of the Fourteenth Amendment

to the U.S. Constitution, when a state

Court of Appeals denies such party a mean-

ingful opportunity to respond to a claim

viii

by the prosecution (raised for the first

time in its Answer Brief in the Court of

Appeals) when such claim was not raised

or determined in the first instance by

the trial court. 30

8. C.0. §367.04(a), (A52), constitutes an

improper delegation of a city's legisla-

tive function, in violation of the Four-

teenth Amendment, by vesting local housing

inspectors with complete discretion to

determine what constitutes a reasonable

time wthin which violations contained in

a written “Warning Notice" are to be cor-

rected by a property owner. 33

Included Subsidiary Question:

Federal constitutional due process requires

that notice of appellate rights and prnce-

dures (that might avoid the filing of crimi-

nal charges) be given the affected party

within sufficient time to allow his filing

of an appeal. 35

Conclusion 38

ee OOO

arent

Appendix:

ENTRY of The Supreme Court of Ohio

on March 2, 1994 Al

JOURNAL ENTRY AND OPINION of Court of

Appeals of Cuyahoga County, Ohio, 9/30/93

Majority Opinion A2-20

Dissenting Opinion A21-45

JUDGMENT ENTRY of Cleveland Municipal

Court of January 15, 1992 ; A46

42 U.S.C. §1437 A47

24 C.F.R. §882.109 A48

Cleveland Codified Ordinance §367.09 A49

Supremacy Clause, Art. VI, Cl. 2 A50

Fourteenth Amendment, U.S. Constitution A50

Fourth Amendment, U.S. Constitution A50

Cleveland Codified Ordinance § 367.04 A52

INDEX OF AUTHORITIES

CASES

Antoine v. Byers and Anderson, Inc.

508 U.S. _, 113 S.Ct. 2167 (1993)

Arizona v. California, 283 U.S. 423 (1931) 22

Armstrong v. Manzo, 380 U.S. 545 (1965) »

Board of Pardons v. Allen,

482 U.S. 369 (1987)

Boyle v. United Technologies, Inc.,

487 U.S. 500 (1988)

Brookpark Entertainment, Inc. v. Taft,

951 F.2d 710 (CA6,1991)

Buckley v. Fitzsimmons,

509 U.S. __, 113 S.Ct. 2606 (1993)

Bumper v. North Carolina,

391 U.S. 543 (1968)

Burns v. Reed,

500 U.S. __, 111 S.Ct. 1934 (1991)

California v. Trombetta,

467 U.S. 479 (1984)

Camara v. Municipal Court,

387 U.S. 523 (1967)

Capital Citizens Cable, Inc. v. Crisp,

467 U.S. 691 (1984)

Coolidge v. New Hampshire,

403 U.S. 443 (1971)

Davis v. Michigan Department of Treasury,

489 U.S. 803 (1989) 22

Elder v. Holloway,

U.S. » 114 S.Ct. 1019 (1994) 32

Evitts v. Lucey, 469 U.S. 387 (1985) 32

Fantozzi v. Sandusky Cement Co.,

64 Ohio St.3d 601 (1992) 29

Fidelity Federal Savings & Loan Ass'n'v.

De la Cuesta, 458 U.S. 141 (1982) 23

Florida v. Bostick,

901 U.S. 429, 111 S.Ct. 2382 (1991) 16

Florida v. Royer, 469 U.S. 491 (1983) 15

Forrester v. White, 484 U.S. 219 (1988) 25

Gade v. National Waste Management Ass'n,

_U.S.__, 112 S.Ct. 2374 (1992) 9,24

Goodyear Atomic Co. v Miller,

486 U.S. 174 (1988) ; 21

Gorsuch Homes, Inc. v. Wooten,

73 Ohio App.3d 426 (1992) 26

Hancock v. Train, 426 U.S. 167 (1976) 22

Hewitt v. Helms, 459 U.S. 460 (1983) 29

Huffman v. Pursue, Ltd.,

420 U.S. 592 (1975) 33

Illinois v. Rodriguez

497 U.S. 177 (19903 18,19

J.C. Flatford v. City of Monroe,

17 F.3d 162 (CA6,1994) 37

Xil

Katz v. United States, 389 U.S. 347 (1967) 13

Kentucky Department of Corrections v.

Thompson, 490 U.S. 454 (1989) 28,29

Lankford v. Idaho,

$01 U.S... gy. 144. $.C0s 2723 (1991) 32

Leslie Miller, Inc. v. Arkansas,

352 U.S. 187 (1956) 23

Marsh v. Alabama, 326 U.S. 501 (1945) - 26

Mayo v. Unied States, 319 U.S. 441 (1943) 22

McCarthy v. Madigan,

U.S. ¢ 238° S.664 2062 42992) 36

McCulloch v. Maryland,

17 U.S. (4 Wheat) 316 (1819) 27

Minnesota v. Dickerson,

U.S. s 243° Sst. 2430 (1993) 14,15

Minnesota v. Olson, 495 U.S. 91 (1990) 14

Morrisey v. Brewer, 408 U.S. 471 (1972) 37

New York v. Burger, 487 U.S. 691 (1987) 14

North Dakota v. United States,

495 U.S. 423 (1990) 27

Per.y v. Sindermann, 408 U.S. 593 (1972) 29

Rakas v. Illinois, 439 U.S. 128 (1978) 14

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) 15

See v. Seattle, 387 U.S. 541 (1967) 13

Sperry v. Florida, 373 U.S. 379 (1963) 23

bt Signa tho AWE gets Ohh av

DUE EE OH Roce NO am Ye *

xiii

Thompson v. Louisiana, 469 U.S. 17 (1984) 32

United States v. Boyd, 378 U.S. 39 (1964) 25

United States v. Karo, 468 U.S. 705 (1984) 18

United States v. Matlock,

415 U.S. 161 (1974) 17,18

United States v. Salinas-Cano,

959 F.2d 861 (CA10,1991) 19

United States v. Rosario,

962 F.2d 733 (CA7,1993) 19

United States v. Welch,

4 F.3d 761 (CA9,1993) 19

United States v. Whitfield,

939 F.2d 107 (CA,DC,1991) 19

West v. Atkins, 487 U.S. 42 (1988) 26

CONSTITUTIONAL PROVISIONS

Supremacy Clause, Art. VI, Cl. 2 21

Fourth Amendment 31

Fourteenth Amendment 33

FEDERAL STATUTES AND REGULATIONS

42 U.S.C. §1437 24

24 C.F.R. §882.109 4,6,20

CLEVELAND CODIFIED ORDINANCES

§367.03 /,9,11,12,13,16

§367.04(a) 8,29,30,33,34

xiv

§ 367.09 35, 36

§ 367.99 7,9,11,12,13,16

Supreme Court of the United States

October Term, 1993

SANFORD J. BERGER

Petitioner

~ ¥g «

CITY OF CLEVELAND

Respondent

PETITION FOR A WRIT OF CERTIORARI

[o the Supreme Court of Ohio

Sanford J. Berger petitions for a writ of

certiorari to review an Order of the Supreme

Court of Ohio filed on March 2, 1994, denying

review of a 9/30/1993 Order of the Court of

Appeals of Cuyahoga County, Ohio which, in a

2-1 decision, upheld the conviction of the

Petitioner by the Cleveland Municipal Court,

on 1/15/92, for violations of Cleveland's

Housing Code.

OPINIONS BELOW

The Order of the Supreme Court of Ohio was

filed on March 2, 1994 and appears at Al.

The Order of the Court of Appeals of Cuya-

hoga County, Ohio was entered on Sept. 30,

1993 and appears at A2-A45.

The Order of the Cleveland Municipal Court

was filed on Jan. 15, 1992 and appears at A46.

JURISDICTION

The jurisdiction of this Court is invoked

pursuant to 2€ U.S.C. §1257(3). The Opinion

below was entered on March 2, 1994.

CONSTITUTIONAL, STATUTORY, REGULATORY

AND MUNICIPAL ORDINANCES INVOLVED

(All appearing in Appendix)

The Supremacy Clause, Article VI, Clause 2,

of the United States Constitution. (A50)

Fourth, Amendment, U.S. Constitution. (A50)

Fourteenth Amendment, U.S. Constitution.

(A50)

42 U.S.C. §1437. (A47)

24 C.F.R. §882.109. (A48).

Cleveland Ordinance 367.03. (A25) ,

Shen A nc a OE eB 6 cl le a ad

Cleveland Ordinance 367.04. (A52)

Cleveland Ordinance 367.99. (A25)

Cleveland Ordinance 367.09. (A49)

STATEMENT OF THE CASE

INCLUDING

THE RAISING OF THE FEDERAL QUESTIONS

Petitioner had been the owner of an 18-suite

apartment building in Cleveland, Ohio since

May 23, 1982, having inherited from his

father.

Prior to that date, he had commenced

activity with the federal Department of Hous-

ing and Urban Development (HUD) through its

Cleveland agent, the Cuyahoga Metropolitan

Housing Authority (CMHA), which was also des-

ignated as HUD's Public Housing Authority

(PHA).

The purpose of such activity was to deter-

mine whether the above property could qualify

for the then existing "Section 8-Moderate

Rehabiliation" Program. Said Program provided

that if the property owner rehabilitated his

property in accordance with federal Housing

Quality Standards, established by HUD in 24

CFR §882.109 (A48), then HUD would enter into

a 15 year contract with the owner to provide

him with subsidized rent for low-income ten-

ants, conditioned upon the owner maintaining

his property during that 15 year period in

accordance with those federal Housing Quality

Standards. To assure that the property was in

constant compliance during that time, PHA

inspectors would conduct regular inspections.

In the event a violation of the federal Stan-

dards was found, the owner was given a reason-

able time to correct the violation, and if a

re-inspection disclosed that the violation

had not been corrected, the owner was subject

to rent forfeiture or having his HUD contract

permanently cancelled.

In early 1982, petitioner obtained condi-

tional site-approval of his property, but

subject to his totally rehabilitating the

property to comply with the federal Housing

Quality Standards (HQS). Thereafter, PHA in-

spectors made a total inspection of the prop-

erty; provided him with a Worksheet of what

work had tc be done, and the Worksheet was

put out to building contractors for bids. The

lowest bid was approximately $150,000; a con-

struction loan of $150,000 was obtained; a

contract was signed, and the rehabilitation

work commenced. During the course of that

rehabilitation work, the property was con-

Stantly subject to inspection by PHA inspec-

tors as well as bank inspectors.

Eventually, the work was completed and

final inspection approval given by the PHA,

and Petitioner signed a 15-year contract with

HUD under its "Section 8=-Moderate Rehabili-

tation" Program -- said contract commencing

March 1, 1983. Said contract further provided

that Petitioner was not allowed to rent to

tenants of his choice, but that pre-certified

tenants would be provided to him by the PHA.

Thereafter, the PHA regularly inspected

the property to determine if any HQS viola-

lations existed pursuant to §882.109. (A48).

§882.109 further provides that local Housing

Codes only apply if they are proposed by the

PHA and approved by HUD. In this instance,

the Cleveland Housing Code was never proposed

‘ by the PHA or approved by HUD as a variance

to the federal HQS.

On or about June 18, 1991, a Cleveland

Housing Inspector came upon the property,

without a warrant, to conduct a surprise

overall inspection to determine if any viola-

tions of Cleveland's Housing Code existed. At

that point in time, the property was in total

compliance with HUD's HQS.

Seeking some one in charge, bystanders

directed the City Inspector to talk to one of

Petitioner's tenants, Charles Bridget, and

the Inspector thereupon identifed herself and

asked Mr. Bridget if she could inspect the

property. In response, Mr. Bridget responded

that it was O.K. with him. However, the only

basis for the Inspector's belief that Mr.

OO a 1 Is bon = ar

ob 6 tet ne

Bridget had authority to consent to the in-

spection was her mistaken belief that he was

the custodian of the property; when, in fact,

he was not the custodian. Nor did Mr. Bridget

demonstrate any indicia that he had suffi-

cient control or authority over the property

in order to provide valid consent to a search

thereof OR did the Inspector make any fur-

ther inquiries of Mr. Bridget in order to

determine if he, in fact, possessed such au-

thority or control. Also, the Petitioner was

never contacted by the Inspector to seek his

consent to a warrantless inspection of his

property prior to the inspection.

By virtue of Cleveland Ordinance §367.03,

(A25), it is a criminal act, §367.99, (A25),

for a tenant or owner to refuse permission to

an Inspector to make a warrantless search for

violations of Cleveland's Housing Code.

Following an inspection of the entire prop-

erty, the Inspector issued a written Warning

Notice to Petitioner pursuant to Cleveland

Ordinance §367.04(a), (A52), naming certain

specific violations of Cleveland's Housing

Code, and advising him that he had ten (10)

days to make the necessary corrections.

Following a second warrantless and non-

consentual search, the Inspector issued a

"Ticket" criminally charging him with ealy

one of the three violations contained on the

Warning Notice, but now charging him with two

new additional violations that had not been

on the Warning Notice.

(THE RAISING OF THE FEDERAL QUESTIONS)

In the trial court, Petitioner filed Mo-

tions to iii chad Dismiss. The first Mo-

tion was based upon the two illegal warrant-

less and non-consentual inspections of his

property, while the second Motion was based

upon federal preemption. Nowhere in the

City's Opposition Brief to the Motion To Sup-

press, or in oral argument in the trial court,

did the City raise the claim of third-party

consent that might have justified the warrant-

ae eT eT eee rere

Fcc lt Suns AP Mi

Sink tana es,

less inspections of the property.

Both Motions were overruled by the trial

court, and following a trial, Petitioner was

found guilty on all three violation charges,

and then fined $50.00 plus costs. (A46).

The federal issues were then raised in the

state Court of Appeals by Petitioner, see

(A19-20) which is part of the Court of Ap-

peal's Opinion. In its Answer Brief in the

Court of Appeals; the City, for the first

time, presented its claims of third-party

consent and lack of standing to challenge the

federal constitutionality of C.0. $367.03 and

C.0. $367.99.

Petitioner then prepared a Reply Brief in

order to respond to these new claims by the

City, and therein he advised the Court of

Appeals of an intervening new decision by

this Court that was rendered after both

Briefs had been filed; Gade v. National Waste

Management Ass'n, _U.S._, 112 S.Ct.2374

(1992), which dealt with the preemption of

federal standards over state standards.

Petitioner then filed a Motion To File

Reply Brief Instanter and tendered his Reply

Brief therewith. Permission to file _ said

Reply Brief was then denied by the Court of

Appeals without an Opinion and without a

showing of prejudice to the City, even though

the City had not opposed that late filing.

On Sept. 30, 1993, the Court of Appeals

issued its 2-1 Opinion affirming the trial

court, and such Opinion was then journalized

on October 12, 1993. (A2-45).

The majority's Opinion was based upon the

legal argument contained in the City's Answer

Brief, all of which had been distinguished in

the unconsidered Reply Brief. Although the

Petitioner's Brief contained 41 citations in

support of his eight Assignments of Error,

whereas the City's Brief in answer thereto

only contained eleven citations, all of the

Assignments of Error were "without merit."

Moreover, the unaccepted Reply Brief con-

apices DER et Sala de We: Ate,

ee eee eee re

tained 78 citations that challenged the val-

idity of the City's legal position, but the

City's legal authority prevailed.

The majority's Opinion held that the Pet-

itioner did not have "standing" to contest

the federal constitutionality of C.0. §367.03

as he was riot charged and/or rl an

offense thereunder, whereas the dissent felt

that there was "standing" and that both C.0O.

§367.03 and C.0. $367.99 were violative of

the Fourth Amendment. (A43).

Petitioner then raised all of his federal

questions in his appeal to the Ohio Supreme

Court, and further claimed that there had

been a denial of federal constitutional Due

Process by the state Court of Appeal's deny-

ing the Petitioner the opportunity to respond

to the new claims by the City in the Court of

Appeals.

The Ohio Supreme Court dismissed the ap-

peal on March 2, 1994. (A1).

__—e—aasa

REASONS FOR GRANTING THE WRIT

1. A LOCAL ORDINANCE VIOLATES THE FOURTH AND

FOURTEENTH AMENDMENTS TO THE U.S. CONSTITU-

TION WHEN IT PERMITS WARRANTLESS SEARCHES OF

AN OWNER'S MULTI-FAMILY APARTMENT BUILDING,

WITHOUT VALID CONSENT BEING GIVEN, DUE TO THE

THREAT OF HIS BEING CRIMINALLY PROSECUTED FOR

FAILURE TO PERMIT A WARRANTLESS SEARCH.

Cleveland Ordinance §367.03 (A25) permits

the city Housing Inspector, or his represen-

tatives, to make warrantless inspections of

all properties in the City of Cleveland in

order to search for Housing Code violations,

while §367.99 (A25) provides that criminal

charges can be brought against anv individual

who refuses to permit such inspections.

As part of this argument, Petitioner in-

corporates the dissenting Opinion of Judge

Harper in the state Court of Appeals (A21-45)

as to the federal unconstitutionality of

§§367.03 and 367.99.

Said sections are similar to the local

Pe er ee ee ee ee

ordinance invalidated in Camara v. Municipal

Court, 387 U.S. 523 (1867). The principles of

Camara were then expanded to include commer-

cial premises by See v. Seattle, 38/7 U.S. 541

(1967). As such, §§367.03 and 367.99 cannot

be validated on the basis that the involved

building is a multifamily commercial property

with an absentee owner not on premises.

2. FEDERAL CONSTITUTIONAL DUE PROCESS AFFORDS

A STATE CRIMINAL DEFENDANT IMPLICIT STANDING

TO CHALLENGE THE FEDERAL CONSTITUTIONALITY OF

A LOCAL ORDINANCE, EVEN THOUGH HE WAS NOT

CHARGED WITH A VIOLATION THEREOF, WHEN SUCH

DETERMINATION IS A NECESSARY ELEMENT OF A

COMPLETE DEFENSE TO THE CHARGES AGAINST HIM.

Since this Court's decision in Katz v.

United States, 389 U.S. 347 (1967), it has

been the law that the "[clapacity to claim

the protection of the Fourth Amendment de-

pends ... upon whether the person who claims

the protection of the Améndment has a legiti-

mate expectation of privacy in the invaded

place." Minnesota v. Olson, 495 U.S. 91,95

(1990). Also, Rakas v. Illinois, 439 U.S.

128,143 (1978).

Petitioner had a legitimate claim of pri-

vacy against warrantless governmental intru-

sions on his property for general maintenance

inspections. The City of Cleveland (city) can-

not satisfy the second requirement in New

York v. Burger, 487 U.S. 691,702 (1987), for

permitting warrantless regulatory searches;

namely, that such searches are necessary to

further the regulatory scheme.

Due process requires that the state pro-

vide a criminal defendant with the right to

present a complete defense (and that would

include a Fourth Amendment defense). Calif-

ornia v. Trombetta, 467 U.S. 479,485 (1984).

This Court recently affirmed the principle

that warrantless searches are presumptively

unreasonable, absent a showing of the exis-

tence of a few specifically delineated excep-

tions. Minnesota v. Dickerson, _U.S._,_,

hati tA ot ON

L423: SiCe.* 24902139 (1998).

One such exception is that the search is

based upon valid consent, but such consent

must not be coerced by explicit or implicit

means, or by implied threat or covert force.

Schneckloth v. Bustamonte, 412 U.S. 218,228

(1973). The question is "[w]hether the [indi-

vidual's] will was overborne and the capacity

for self-determination is critically inm-

paired." Schneckloth, supra, 225.

Because of the threat of criminal prose-

cutions, encounters between City Inspectors

and owners and/or tenants in Cleveland are

instinct with coercion. Where such coercion

exists, consent to a search cannot be con-

sidered as voluntary. Bumper v. North Caro-

lina, 391 U.S. 543,550 (1968).

Herein, if the supposed custodian, Bridget

was figuratively "seized" by the Inspector,

his consent to a search of the Petitioner's

property cannot be considered as voluntary.

Florida v. Royer, 460 U.S. 491,501 (1983)

“

(plurality opinion). The question as_ to

whether or not Bridget was "seized" by the

Inspector is "[w]Jhether a reasonable person

would feel free to decline the officer's re-

quests or otherwise terminate the encounter."

Florida v. Bostick, 501 U.S. 429, >» 444

S.Ct. 2382,2387 (1991).

As such, the federal constitutionality of

§§367.03 and 367.99 is relevant to the City's

claim that the warrantless inspections were

justified on the basis of Bridget's consent

thereto.

Because the state Court of Appeals Opinion

(A2-18) failed to determine the constituion-

ality of §§367.03 and 367.99 (on the basis

that the Petitioner lacked standing to chal-

lenge those ordinances), a denial of federal

constitutional Due Process occurred.

3. THE SOLE FACT THAT AN INDIVIDUAL IS THE

ACTUAL OR BELIEVED CUSTODIAN OF A MULTIFAMILY

APARTMENT BUILDING DOES NOT SUFFICE TO PRO-

VIDE SUCH INDIVIDUAL WITH ACTUAL OR “APPARENT

AUTHORITY" THAT WOULD LEGITIMIZE HIS CONSENT

TO A SEARCH OF THE ENTIRE PREMISES FOR FOURTH

AMENDMENT PURPOSES.

The state Court of Appeals, at (A8-9),

held that Bridget's consent was valid solely

on the basis that the Inspector believed that

he was the custodian of the subject seupecty:

In United States v. Matlock, 415 U.S. 161,

171, n.7 (1974), it was held that a third-

party, with mutual use of or joint access or

control of a property for most purposes, can

validly consent to a search thereof. However,

such phrase has never been precisely defined

by this Court. Nor has it been expanded upon

to include a situation where the third-party

did not have equal authority with the absen-

tee owner.

The Matlock principle was based upon the

“assumption of risk" theory." But, a property

owner does not assume the risk that his real

or imagined custodian, appointed for limited

purposes only, could permit a search of such

property.

Moreover, consent to search is only effec-

tive when given by one with "[c]lommon author-

ity over or sufficient relationship to the

premises ... sought to be inspected." United

States v. Karo, 468 U.S. 705,725 (1984)

(O'Connor, J., concurring), and quoting from

United States v. Matlock, supra, 171.

The employment of a custodian, in and of

itself, does not confer such "[c]lommon auth-

ority over or sufficient relationship" to an

owner's property so as to confer upon him the

authority to consent to a search of such

property -- especially when any resultant

criminal consequences only befall the owner.

Illinois v. Rodriguez, 497 U.S. 177,185

(1990), established the principle of "appar-

ent authority;" that is, consent to a search

can be considered as valid if based upon fac-

tual determinations that are reasonable even

though incorrect.

However, the federal Circuit Courts that

have interpreted Illinois v. Rodriguez have

held that the "apparent authority" principle

is only applicable to reasonable mistakes of

fact, not to mistakes of law. In other words,

if the facts thought to be true are insuf-

ficient to support a reasonable belief of

actual authority, then the officer aia’ ob-

tain additional information. United States v.

Rosario, 962 F.2d 733,738 (CA7,1993); United

States _v. Salinas-Cano, 959 F.2d 861,865-866

(CA10,1991); United States v. Whitfield, 939

F.2d 1071,1074 (CA,DC,1991), and United

States v. Welch, 4 F.3d 761,764-65 (CA9,1993).

In the present case, the Inspector only

had limited information that would have posi-

tively identified Bridget as the actual cus-

todian, and no information that would have

supported a reasonable belief that Bridget

had any authority to permit a search. In fact

even if the authorizing person had been the

actual custodian; that fact, standing alone,

would not suffice to permit the assumption

that he had authority to agree to a warrant-

less search.

4. THE ENFORCEMENT OF A CITY'S HOUSING CODE

AGAINST FEDERALLY REGULATED PROPERTY IS PRE-

EMPTED BY FEDERAL CONSTITUTIONAL AND STATU-

TORY LAW WHEN SUCH ENFORCEMENT IS EXPLICITLY

PROHIBITED BY DULY PROMULGATED FEDERAL HOUS-

ING STANDARDS REGULATIONS, WHICH ARE POLICED

BY FEDERAL INSPECTORS, AND WHICH ARE CONSIS5-

TENT WITH A FEDERAL STATUTORY SCHEME.

24 C.F.R. §882.109 (A48) clearly provides

that the subject property had to conform to

federal housing standards, and that varia-

tions can only exist if they "[are] proposed

by the PHA and approved by HUD." In this case,

the Cleveland Housing Code was never proposed

as a variance by the local PHA or approved by

HUD.

On page Ai5 of the lower Opinion, it is

said that:

We also find no evidence that the federal

government explicitly preempted state law

in the area of public housing or that

ee ee Ae ee ee

ee ee

ee eee ae

Congress intended to exclusively regulate

the area.

However, a distinction exists between the

state regulation of state facilities and

state regulation of federal facilities. When

dealing with the former situation:

[a]nalysis under the Supremacy Clause cen-

ters on whether Congress has taken affir-

mative action to pre-empt the state regu-

lation in question ... On the other hand,

because the Supremacy Clause immunizes the

activities of the Federal Government from

state interference,..., direct state regu-

lation of federal facilities is allowed

only to the extent that Congress has

clearly authorized such regulation.

(Citations omitted)

Goodyear Atomic Co. v. Miller, 486 U.S.

174,180 n.1 (1988).

Goodyear involved a federally owned, but

privately operated facility. However, this

Court has never determined whether or not the

principle set down in Goodyear is applicable

to privately owned facilities that are per-

forming federal statutory functions under a

contract between the federal government and

the owner of the private facility.

It has been held, though, that the "[fJed-

elaine i,

eral function must be left free of (state)

regulation." Hancock v. Train, 426 U.S. 167,

179 (1976), quoting Mayo v. United States,

319 U.S. 441,447 (1947). Also see Arizona v.

California, 319 U.S. 423,451 (1931), holding

that the United States may perform its func-

tions without conforming to the policy of the

state.

By way of analogy, the federal govern-

ment's immunity from state taxation is to

protect the ability of the federal government

to perform its governmental functions. Davis

v. Michigan Department of Treeasury, 489 U.S.

803,814 (1989). That same logic should also

be applicable to the federal government's

immunity from state regulation.

Permitting conflicting local regulation of

the Petitioner's property results in local

housing authorities being allowed to review

federal determinations that his _ property

meets federal standards for the providing of

safe and sanitary housing for low-income in-

dividuals. Leslie Miller, Inc. v. Arkansas,

352 U.S. 187,189-90 (1956) and Sperry v.

Florida, 373 U.S. 379,385 (1963).

It is well established that federal regu-

lations issued by federal agencies have "[no]

less pre-emptive effect that federal stat-

utes." Capital Citizens Cable, Inc. v. Crisp

467 U.S. 691,699 (1984, quoting Fidelity

Federal Savings and Loan Association v. De la

Cuesta, 458 U.S.141,153 (1982).

Federal preemptive regulations are valid

so long as they represent a "[rJeasonable

accomodation of conflicting policies that are

within the agency's domain." Capital Citizens

supra, /00.

A court's role is to determine whether the

agency has exceeded its statutory authority

or acted arbitrarily. Fidelity Federal, 153,

which is not the situation in the present

case.

A purpose of the federal low-income hous-

ing programs was to provide the local PHA's

with the maximum responsibility to administer

such programs. See 42 U.S.C. §1437. (A47).

Consequently, federal approval of the

City's Housing Code, prior to the enforcement

thereof by the City, would have been neces-

sary for the proper enforcement of the fed-

eral statutory low-income housing seca.

Gade v. National Solid Wastes Management Assn

__U.S.__, 112 S.Ct. 2374 (1992). (plurality

opinion).

5. THE OWNER OF A FEDERAL "SEC.8-MOD. REHAB."

APARTMENT BUILDING, WHO IS PERFORMING A FED-

ERALLY SUPERVISED STATUTORY FUNCTION OF PRO-

VIDING FEDERALLY SUBSIDIZED LOW-INCOME HOUS-

ING PURSUANT TO A 15 YEAR CONTRACT WITH A

FEDERAL AGENCY, IS ENTITLED TO FEDERAL OFFI-

CIAL IMMUNITY AND/OR FEDERAL CONTRACTOR

IMMUNITY FROM A CRIMINAL PROSECUTION BY A

CITY FOR CLAIMED VIOLATIONS OF ITS HOUSING

CODE.

At A15-16, the lower court reasoned that

the Petitioner was not entitled to federal

official immunity because he was not perfor-

ming a “uniquely federal interests" because

he received federal rent subsidies for his

tenants.

This Court recently reaffirmed the prin-

ciple that the determination as to whether

immunity is applicable is to be inde 40 a

"functional approach" basis. Buckley v. Fitz-

simmons, 509 U.S. _, , 113 S.Ct. 2606,2613

(1993), citing Burns v. Reed, 500 U.S. :

111 S.Ct. 1934,1939 (1991). Also, Antoine v.

Byers and Anderson, Inc., 508 U.S. ,

antienatie #

113 S.Ct. 2167,2171 (1993).

Such an approach looks to the "[nJature of

the function performed, not the identity of

the actor who performed it." Forrester v.

White, 484 U.S. 219,229 (1988).

Unlike the individual in United States v.

Boyd, 378 U.S. 39,44 (1964), this Petitioner

is not claiming federal official immunity

merely because he is a governmental contrac-

tor; but rather, that he is performing a

acces

federal statutory function. This Court has

held that a private individual can be con-

sidered as a governmental actor when he is

performing a governmental function pursuant

to a contract with the government. West v.

Atkins, 487 U.S. 42,55-56 (1988).

Also, the "[m]Jore an owner, for his advan-

tage, opens up his property for use by the

public in general, the more do his rights

become circumscribed by the statutory and

constitutional rights of those who use it."

Marshall v. Alabama, 326 U.S. 501,506 (1945).

At issue is whether the Petitioner was a

private actor or the equivalent of a govern-

mental official, and an Ohio court has enter-

tained that question. In Gorsuch Homes, Inc.

v. Wooten, 73 Ohio App.3d 426,432 (1992), the

following was said:

The due process requirements of the Four-

teenth Amendment apply to private land-

lords who provide Section 8 federally sub-

sidized housing for low-income tenants.

The government action requirement for the

application of the requirement of consti-

tutional due process is satisfied by the

substantial governmental involvement in

financing new construction and rehabili-

tating housing, the rental assistance

pay-ments made directly to the owner by

HUD on behalf of the tenant, the regula-

tions imposed upon the owner by HUD, and

the public function served by providing

the housing. (Emphasis added)

Absent Congressional authorization, the

property and functions of the United States

are immune from state regulation or taxation.

McCulloch v. Maryland, 17 U.S. (4 Wheat) 316,

426 (1819).

Furthermore, state regulation against an

individual who deals with the government has

as much potential to obstruct the functions

of the federal government as do regulations

imposed against the government itself. North

Dakota v. United States, 495 U.S. 423,438

(1990).

Complying with federal regulations is a

burdensome task for the Petitioner, but then

having to simultaneously defend against local

criminal proceedings and having the badge of

"Slum Landlord" pinned upon you by local

authorites imposes a heavier burden that in-

trudes into his ability to perform his fed-

eral responsibilities.

Moreover, Petitioner would be entitled to

federal governmental contractor immunity if

the application of a local Housing Code would

frustrate the specific objectives of the

federal legislation. Boyle v. United Tech-

nologies, Inc., 487 U.S. 500,507 (1988).

6. A PROPERTY OWNER HAS A "LIBERTY" INTEREST,

PROTECTED BY THE DUE PROCESS PROVISIONS OF

THE FOURTEENTH AMENDMENT, WHEN A LOCAL ORDIN-

ANCE USES MANDATORY LANGUAGE TO CREATE A PRE-

SUMPTION THAT CRIMINAL CHARGES WILL NOT BE

FILED IF AN OWNER CORRECTS SPECIFIC VIOLA-

TIONS CONTAINED IN A PRIOR "WARNING NOTICE."

This Court has held that an individual has

a "liberty" interest, protected by the Due

Process Clause where explicit mandatory lan-

guage is used to create specific substantive

predicates to official decision-making.

Kentucky Department of Corrections v. Thomp-

son, 490 U.S. 454,463 (1989) and Hewitt v.

Helms, 459 U.S. 460,471-472 (1983).

C.0. §367.04(a) (A52) provides that a

"Warning Notice" shall be issued when a hous-

ing Inspector determines that a property has

violations of the local Housing Code. Such

section uses the mandatory word "shall." See

Fantozzi v. Sandusky Cement Co., 64 Ohio

St.3d 601,609 (1992).

At trial, page 22 of the Trial Transcript,

the City's housing Inspector testified that

the issuance of "Warning Notices" are part of

the procedures followed by City housing

Inspectors upon the finding of Housing Code

violations.

Consequently, the Petitioner had more than

a unilateral expectation that only those vio-

lations contained in a "Warning Notice" would

be contained in any subsequent Ticket. There

was, therefore, a legitimate claim of entitle-

ment to such procedures. Perry v. Sindermann,

408 U.S. 593,601 (1972).

C.0. §367.04(a) clearly creates a presump-

tion that any subsequent Ticket would only be

issued for violations contained in the prior

"Warning Notice" so as to create a "liberty"

interest protected by the federal constitu-

tional Due Process Clause. Board of Pardons

v. Allen, 482 U.S. 377 (1987).

7. A PARTY IS DENIED DUE PROCESS OF LAW, IN

VIOLATION OF THE FOURTEENTH AMENDMENT TO THE

U.S. CONSTITUTION, WHEN A STATE COURT OF

APPEALS DENIES SUCH PARTY A MEANINGFUL OPPOR-

TUNITY TO RESPOND TO A CLAIM BY THE PROSECU-

TION (RAISED FOR THE FIRST TIME IN ITS ANSWER

BRIEF IN THE COURT OF APPEALS) WHEN SUCH

CLAIM WAS NOT RAISED OR DETERMINED IN THE

FIRST INSTANCE BY THE TRIAL COURT.

As previously argued, federal constitu-

tional Due Process requires that a state cri-

minal defendant be provided a fair opportun-

ity to present a complete defense. California

v. Trombetta, supra, 485.

Herein, the City, for the first time,

raised the argument that it had the voluntary

consent of Bridget to conduct the search in

its Answer Brief in the Court of Appeals.

That defense by the City had never even been

mentioned by the City (by testimony or legal

argument) in the trial court.

First of all, the burden of proving that a

warrantless search is justified by an excep-

tion to the warrant requirement is on the

government. Coolidge v. New Hampshire, 403

U.S. 443,454-455 (1971), and that also in-

cludes the question as to the voluntariness

of consent to a search. Bumper v. North

Carolina, supra, 548.

However, in the present case, Petitioner

was denied his federal constitutional Due

Process right to have his Fourth Amendment

defense fully and fairly adjudicated when the

state Court of Appeals refused leave for him

to file his tendered, but slightly tardy,

Reply Brief in response to this new claim by

the City.

Also, the issue of the voluntariness of a

consent to search is a question of fact which

is inappropriate for determination, in the

first instance, by a court of appeals. See

Thompson v. Louisiana, 469 U.S. 17,23 (1984).

Further, a party forfeits facts on appeal

that were not presented to the trial court.

Elder _v. Holloway, _ U.S. _, , 114 S.Ct.

1019,1022 (1994), and notice of the issues

involved is an essential requirement of fed-

eral constitutional Due Process. Lankford v.

Idaho, 501 U.S.__, __, 111 S.Ct. 1723,1732 and

n.22 (1991).

In Evitts v. Lucey, 469 U.S. 387,401

(1985), it was held that federal constitu-

tional Due Process requirements are

applicable to state courts of appeals as of

right. Such Due Process is denied when the

state prevents a criminal defendant-appellant

from fully adjudicating his rights. 469 U.S.,

at 405, which is the case at hand.

It is typically a state's appellate courts,

which by their nature, are a litigant's most

appropriate forum for the resolution of fed-

eral constitutional questions. Huffman _v.

Pursue, Ltd., 420 U.S. 592,609 (1975).

The majority Opinion of the Court of

Appeals herein (A2-20) is what is referred to

by local appellate lawyers as a "Without

Merit" Opinion, whereas the scholarly Dissen-

ting Opinion (A21-45) is of a quality that

would limit the number of appeals to this

Court.

In essence, the Dissenting Opinion shows

the proper respect for the Opinions of this

Court, whereas the majority Opinion below

discloses an indifference to this Court's

decisions.

8. C.0. §367.04(a), (A52), CONSTITUTES AN

IMPROPER DELEGATION OF A CITY'S LEGISLATIVE

FUNCTION, IN VIOLATION OF THE FOURTEENTH

AMENDMENT, BY VESTING LOCAL HOUSING INSPEC-

TORS WITH COMPLETE DISCRETION TO DETERMINE

WHAT CONSTITUTES A REASONABLE TIME WITHIN

WHICH VIOLATIONS CONTAINED IN A WRITTEN "WAR-

NING NOTICE" ARE TO BE CORRECTED BY A PROP-

ERTY OWNER.

C.0. §367.04(a), (A52), clothes the Hous-

ing Inspector with complete discretion to

determine the amount of time necessary to

make repairs prior to the filing of criminal

charges against the warned property owner.

That is, by virtue of the time allowed by the

Inspector, he/she can control whether a prop-

erty owner will, or will not, be charged with

criminal activity.

In Brookpark Entertainment, Inc. v. Taft

951 F.2d 710,716-717 (CA6,1991), it was held

that it was a denial of federal constitution-

al Due Process for a municipality to imper-

missibly delegate its legislative function to

private parties who had the right to exercise

arbitrary and discriminatory discretion as to

who they will target, how often they will

target, and how hard they will hit the tar-

getted property owner.

INCLUDED SUBSIDIARY QUESTION:

FEDERAL CONSTITUTIONAL DUE PROCESS REQUIRES

THAT NOTICE OF APPELLATE RIGHTS AND PROCE-

DURES (THAT MIGHT AVOID THE FILING OF CRIMI-

NAL CHARGES) BE GIVEN THE AFFECTED PARTY WITH-

IN SUFFICIENT TIME TO ALLOW HIS FILING OF AN

whi

APPEAL.

This issue is raised pursuant to this

Court's Rule 14.1(a).

ee ee ea et

C.0. §367.09, (A49), provides for the

taking of an appeal within the time allowed

in the "Warning Notice" for correcting the

Pee ee ee ae ee ee

violations, or such appeal rights are waived.

However, the involved "Warning Notice” only

advises that one has the right to appeal from

the issuance of a Ticket, and does not men-

. tion that the appeal has to be taken within

the time allowed for repairs set down in the

"Warning Notice."

At A10 of the lower court's Opinion, it is

said that:

Berger had the right to appeal the ticket

and could have delayed its enforcement by

appealing it.

That statement, however, is contrary to

the appellate procedures that are set down in

C.0. $367.09, and is incorrect. Moreover, the

time period allowed for the required repairs

in the “Warning Notice" issued to the Peti-

tioner was only ten (10) days.

As such, a sufficiently short deadline for

filing an appeal existed; which, in turn,

created a high risk of forfeiture of the

right to appeal for the failure to perfect an

appeal within such short time period. See

McCarthy v. Madigan, _U.S._, , 112 S.Ct.

**81,1090 (1992).

Accordingly, the time to perfect an appeal

varies with the time allowed by the Inspector

to complete the repairs. But, a property

owner never knows of his appellate rights

until he is criminally charged.

This Court has held that "... due process

is flexible and calls for such procedural

ony en eee ee ea

ee ee es dia

protections as the particular situation

demands." Morrisey v. Brewer, 408 U.S. 4/1,

481 (1972).

In the recent case of J.C. Flatford v.

City of Monroe, Michigan, 17 F.3d 162,169

(CA6,1994), our Sixth Circuit held that the

fundamental fairness aspect of federal con-

stitutional Due Process requires notice of

available appellate procedures, but this

Court has yet to decide such issue.

However, this Court has held that federal

constitutional Due Process requires a "mean-

ingful opportunity to respond at a meaningful

time." Armstrong v. Manzo, 380 U.S. 545,552

(1965).

It would seem then, in all fairness, that

in order for an affected individual to have a

meaningful opportunity to respond, he must be

timely advised of the procedures for filing a

timely appeal prior to being criminally char-

ged. Appellate procedures that are waived by

the time you know they exist are meaningless.

CONCLUSION

During the past 15 years, the attorneys

below, at their own expense, have presented

an estimated 15 Petitions to this Court for

consideration. Cleveland Board of Education

v. Loudermill, 470 U.S. 532 (1985) has been

their one acceptance.

As always, they have endeavored to present

substantial constitutional questions’ that

they felt were of great public and general

interest, and this current Petition requests

answers to questions that have never been

addressed by this Court previously.

Respectfully submitted,

BERGER & FERTEL

SANFORD J. BERGER (Counsel of Record)

ROBERT M. FERTEL

1836 Euclid Ave., Room 305

Cleveland, Ohio 44115-2234

Phone: (216) 781-5950

Lawyers for the Petitioner

be PEE pie Bh CaS ER

The Supreme Court of Ohio

City of Cleveland () 1994 TERM

Appellee ()

‘ a Wit: March 2, 1994

Sanford J. Berger zi Case No. 93-2445

Appellant x ENTRY

Upon consideration of the motion for an

order directing the Court of Appeals for Cuy-

ahoga County to certify its record, and the

claimed appeal as of right from said court,

it is ordered by the Court that said motion

is overruled and the appeal is dismissed sua

sponte for the reason that no substantial

constitutional question exists therein.

COSTS:

Motion Fee, $40.00, paid by Sanford Berger.

(Court of Appeals No. 63089)

/s/ Thomas Moyer

THOMAS J. MOYER

Chief Justice

A2 |

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

COUNTY OF CUYAHOGA

NO. 63089

CITY OF CLEVELAND ()

Plaintiff-Appellee x JOURNAL ENTRY

-vs zi and

SANFORD J. BERGER () VRIEION

Defendant-Appellant t{

DATE OF ANNOUNCEMENT SEPTEMBER 30, 1993

OF DECISION

CHARACTER OF PROCEEDINGS: Criminal appeal

from Cleveland

Municipal Court

Case No. 91-CRB-

21611

JUDGMENT: Affirmed.

APPEARANCES:

For Appellee: For Appellant:

Danny R. Williams Robert M. Fertel

Director of Law Berger & Fertel

Martha R. McCorkle 1836 Euclid Ave, #305

Ass't Director of Law Cleveland, Ohio 44115

City Hall, Room 106

601 Lakeside Ave.

Cleveland, Ohio 44114

Ti aeieseitiaaeanamaemeceaeiaamauall

PATRICIA A. BLACKMON, J.:

This is an appeal from a judgment of the

Housing Division of the Cleveland Municipal

Court, assessing a fine to Sanford J. Berger,

defendant-appellant, for violation of C.C.O.

367.13 and 367.15. Berger challenges’ the

judgment and assigns eight errors for our

yarn |

review.

After a review of the record and the

arguments of the parties, we affirm the de-

cision of the trial court. The apposite facts

follow.

Berger owns an apartment building in

Cleveland, Ohio. In 1983, Berger entered into

a fifteen year contract with the United

States Department of Housing and Urban Devel-

opment (HUD) for participation in the Section

8 program which provides rental subsidies for

selected tenants. To conduct its required

interior and exterior building inspection,

HUD appointed the Cuyahoga Metropolitan

Housing Authority.

See Appendix.

On June 18, 1991, a housing inspector

arrived to inspect the building in response

to an anonymous complaint. The exterior in-

spection revealed several maintenance viola-

tions. The building custodian escorted the

inspector into the building and a resident

allowed the inspector to inspect her apart-

ment.

The inspector notified Berger of the vio-

lations and gave him 10 days to correct the

problems. On July 23, 1991, a follow-up

inspection revealed that the problems re-

mained uncorrected. A ticket was issued lis-

ting violations of Cleveland Codified Ordin-

ances 369.13 and 369.15.

On September 19, 1991, Berger filed un-

successful motions for suppression of evi-

dence and for dismissal of the complaint

against him. He argued that the inspection

constituted a warrantless search of the buil-

ding and that C.0O. 367.03 was unconstitu-

tional since it allowed such searches. He

also argued that, since his building was con-

trolled by the federal government, the local

housing code was preempted by federal law and

the building was immune from inspection by

city housing inspectors. He also argued that

governmental immunity or governmental con-

tractor immunity barred a trial. er

Berger's motions were overruled by the

trial court. After a hearing, Berger was

found guilty of violating C.C.0. 369.13 and

369.15. He was fined $50.00 plus costs.

Berger filed a notice of appeal and a motion

to suspend execution of his sentence.

Berger argues that C.0O. 367.03 and C.O.

367.99 are unconstitutional. C.0. 367.03

requires that housing inspectors may, at any

reasonable time, enter any dwelling in the

city of Cleveland in order to enforce the

Housing Code. It also provides that no person

shall prevent the inspector from entering the

premises. C.0. 367.99 imposes fines for re-

fusing to permit housing inspectors to enter

the premises.

Berger was not convicted of violating C.O.

367.03 or 367.99. We find, therefore, that he

lacks standing to challenge the constitution-

ality of these statutes. [sic.] "The consti-

tutionality of a state statute may not be

brought into question by one who is not with-

in the class against whom the operation of

the statute is alleged to have been unconsti-

tutionally applied and who has not been

injured by its allegedly unconstitutional

provisions." Palazzi_v. Estate of Gardner,

(1987) 32 Ohio St.3d 169,175. C.0. 367.03 and

367.99 apply to the rights of a housing in-

spector to enter property for inspection and

to the penalties for refusing entry. In the

case sub judice, the housing inspector was

allowed to enter. Berger was not charged

with, or convicted of, violating C.0. 367.03

or 367.99. He was not within the class of

persons with respect to whom the statutes are

allegedly unconstitutional. See Palazzi, at

174. Berger's first assignment of error .is

without merit.

Berger also claims that the trial court

erred in denying his motion to suppress evi-

dence. He claims that the evidence of housing

code violations was obtained through an il-

legal warrantless search of the property in

violation of the Fourth Amendment. We

disagree.

The Fourth Amendment protects against un-

reasonable searches and seizures. It does not

protect against all searches. Generally, war-

rantless searches of homes are unreasonable.

Ridgeway v. Union County Com'rs, (1991) 775

F. Supp. 1105. The same protection extends to

commercial buildings. State v. Penn, (1991),

61 Ohio St.3d 720,723. An exception to the

general rule prohibiting warrantless searches

is a search by consent. State ex rel. Holcomb

v. Wurst, (1989), 63 Ohio App.3d 629, dis-

missed 48 Ohio St.3d 711.

We find that the inspector obtained valid

consent for the search. Upon approaching the

building, she identified herself as a city

housing inspector and asked to see the cust-

odian or other responsible person. Several

people sitting on the steps of the building

directed her to Charles Biridget. Bridget

identified himself as the custodian. The in-

spector presented him with her identification

and asked for permission to inspect the prop-

erty. Bridget allowed the inspection.

Berger argues that Bridget was not employ-

ed as a custodian in the buiiding and was not

authorized to consent to the inspection. How-

ever, several residents of the building iden-

tified Bridget as the custodian. Bridget es-

corted the inspector into the common areas of

the building. We find that, under the circum-

stances, the inspector was reasonable in her

belief that Bridget had the authority to con-

sent to the inspection. Consent to search is

valid if it is obtained from a person with

sufficient authority over the property to

give his consent, or at least from a person

reasonably believed to have such authority.

White Fabricating Co. v. U.S., (1990), 903

F.2d 404. The inspector had a reasonable be-

lief that Bridget was authorized to consent

to the inspection, therefore the search pro-

ceeded under valid consent. Finding no cons

stitutional violation, we overrule Berger's

second assignment of error.

Berger next argues that C.0. 367.04 denied

him due process of law by improperly delega-

ting the city's legislative authority to

housing inspectors. He claims that it is im-

proper to allow housing inspectors to decide

the amount of time necessary to make repairs

before criminal charges are filed against the

property owner. We disagree.

The housing code covers many different

structures within the city of Cleveland. Some

code violations may be more extensive than

others, requiring more time to complete re-

pairs. The vast number of different viola-

A10

tions necessitates that the time for repair

be established on a case-by-case basis. Des-

pite Berger's argument that this policy of-

fers the potential for arbitrary and discrim-

inatory treatment of property owners, he has

presented us with absolutely no evidence that

he was unfairly “targeted” by housing inspec-

tors. The statute provides that a property

owner may appeal a ticket within the time

allowed for compliance. Although the owner

must still appear at his arraignment, action

to enforce the ticket is suspended during the

pendency of the appeal. Berger had the right

to appeal the ticket and could have delayed

its enforcement by appealing it. We reject

Berger's argument that the statute denies him

his due process rights.

We also reject Berger's argument that he

was improperly denied the opportunity to pre-

sent evidence that the time allowed for him

to make repairs was arbitrary and unreason-

able. As discussed above, we find that the

an i ta ee

Ce *

All

time for repairs is best decided on a case-hy

-case basis. The housing inspector testified

that she based the repair time on the size of

the building, the type of cited violations

and the fact that there was a custodian on

the property. She had more than ten years of

experience as a housing inspector. We find

nothing arbitrary about the inspector's ac-

tions. Berger's fourth assignment of error is

without merit.

argues that the trial court erred in convic-

ting him of charges that were not contained

in the written warning notice issued by the

housing inspector. He claims that criminally

charging him with violations without prior

notice denied him his due process rights. Our

review of the record snows that Berger was

notified of the violations he was convicted

of. The warning notice issued to Berger in-

cluded the following violations: rear porch

fascia board deteriorated, rear porch system

A12

in need of paint, debris in rear stairwell of

cellar, cellar retaining wall needs painting.

The subsequent ticket listed the following:

front and rear door locks in need of repair

in #9, gutter and downspouts leaking south

side, exterior wood trim is in need of paint,

fascia is deteriorated. Berger argues that,

since only the deteriorated fascia was listed

in both notices, the court erred in convic-

ting him of other violations.

In support of his argument, Berger cites

C.0. 367.04(a) which states:

Whenever the Commissioner of Building and

Housing shall find any dwelling structure

Or premises, or any part thereof, to be in

violation of the provisions of this Hous-

ing Code, he shall give or cause to be

given to the owner or agent cr person in

charge of such structure or premises and

the mortgagee of record, a written notice

stating the violations therein. Such no-

tice shall order the owner within a stated

reasonable time to repair, improve, demol-

ish or effectively board the structure or

premises concerned.

C.0. 367.05 provides that, upon his failure

to make the necessary repairs, the Commis-

sioner of Building and Housing may order the

oie seek Be

pene ee ee See hd Serene tes tt

A13

building vacated or may pursue legal action

to compel the owner to make the repairs. The

statute only requires one notice of viola-

tions. The ticket issued by the inspector on

July 23, 1991 fully complied with C.0.

367.04(a).

We reject Berger's argument that he was

denied due process. We find that he had ample

notice of the violations on his property. The

inspector testified that, prior to issuing

the ticket, she issued Berger a warning no-

tice and spoke with Berger by telephone about

the violations. Berger was fully advised of

his right to appeal the ticket before the

time of his arraignment. See C.0. 367.09. The

ticket was issued July 23, 1991. Berger was

ordered to appear in court on August 30,1991.

Berger had ample time to make the necessary

repairs and/or appeal \the ticket before en-

forcement action began. We find that the no-

tice provisions of C.0. 367.04(a) were fully

complied with. Berger's fifth assignment of

A14

error is without merit.

Berger next argues that the complaint

against him was barred by federal preemption

and that the trial constituted an improper

regulation of a federal statutory program. We

diagree.

State law may be preempted by federal law

when a federal statute includes language that

explicitly provides for preemption of state

law, when the wording or legislative history

of the federal statute shows Congress’ intent

to exclusively regulate the area, or where

the state law conflicts with the federal reg-

ulatory scheme. Mowery v. Mercury Marine Div.

of Brunswick Corp., (1991), 773 F. Supp. 1012.

Berger argues that the Supremacy Clause pro-

vides for the preemption of any law which

conflicts with federal law. However, mere

differences between federal and state law do

not constitute a conflict sufficient to in-

voke preemption. It must be shown that com-

pliance with both federal and state regula-

A15

tions is impossible or that the state law

stands to impair achievement of the purposes

and goals of the federal statute. Lever Bros.

Co. v. Maurer, (1989), 712 F. Supp. 645.

In the case sub judice, Berger has not

shown that there is a conflict between state

and federal law. We also find no evidence

that the federal government explicitly pre-

empted state law in the area of public hous-

ing or that Congress intended to exclusively

regulate the area. Berger has not established

the applicabilty of preemption in this case.

We overrule his sixth assignment of error.

Berger also claims federal governmental

immunity from prosecution. He claims that the

operation of a Section 8 property made him a

federal official and that, as such, he is im-

mune from state regulation. There is no sup-

port for his argument that the contract made

him a federal official. We disagree with the

argument that Berger was performing a

"uniquely federal interest" in operating his

A16

Section 8 property for the benefit of his

tenants. Under the contract, Berger received

rental subsidies for his Section 8 tenants.

Berger clearly had a beneficial interest in

the operation of the apartment building.

We also reject Beger's argument that the

application of state law would disrupt the

proper functioning of the federal Section 8

program. He has produced no evidence that the

state housing code regulations are in con-

flict with federal legislation. As discussed

above, differences in state and federal legis-

lation do not indicate a conflict. We find no

merit in Berger's seventh assignment of error.

Berger also argues that his conviction was

against the manifest weight of the evidence.

He claims that the court did not have enough

evidence to convict him of violating C.O.

369.13. C.0. 369.13 provides:

All dwelling structures and all parts

thereof, both exterior and interior, shall

be maintained in good repair and shall be

capable of performing the function for

which such structure or part of any fea-

ada hee nane AL REE Tile) ty SPE CA ah eH Ae CTI MEE, wR ae Ny

RR tae ot OR ie Al Sie, SE ete rm Ene tm

A17

ture thereof was designed or intended to

be used.

A judgment will be reversed as against the

manifest weight of the evidence only when a

review of the evidence and all reasonable

inferences determine that the trier of fact

clearly lost its way and created a manifest

miscarriage of justice sufficient to mandate

the reversal of the conviction and the order

of a new trial. See State v. Martin (1983),

20 Ohio App.3d 172,175. Berger argues that

the fascia board was performing its function

of holding up the gutters and that no viola-

tion was established. However, Berger ignores

the language of the statute that requires

structures to be maintained in good repair.

It is reasonable to require an owner to per-

form basic maintenance on his property to

avoid more serious damage. The inspector tes-

tified that the fascia board was deteriorated.

This was enough evidence to establish a fail-

ure to keep the premises in good repair which

A18

is a violation of C.0O. 369.13. We cannot say

that the trier of fact lost its way and cre-

ated a manifest miscarriage of justice.

Berger's eighth assignment of error is with-

out merit.

Judgment affirmed.

It is ordered that Appellee recover of

Appellant its costs her)in taxed.

The court finds that there were reasonable

grounds for this appeal.

It is ordered that a special mandate issue

out of this court directing the Cleveland

Municipal Court to carry this judgment into

execution. The defendant's conviction having

been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall con-

stitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

NAHRA, P.J., CONCUR. /s/ Patricia Blackmon

HARPER, J., DISSENTS PATRICIA BLACKMON

JUDGE

A19

ASSIGNMENTS OF ERROR

Ly I. C.0O. 367.03, OF THE CLEVELAND HOUSING CODE,

| VIOLATES THE FOURTH AND FOURTEENTH AMEND-

MENTS TO THE UNITED STATES CONSTITUTION,

AND ARTICLE I, SECTION 14 OF THE OHIO CON-

STITUTION, INASMUCH AS IT MAKES THE EXER-

CISE OF A CONSTITUTIONAL RIGHT A CRIMINAL

OFFENSE.

; II. THE TRIAL COURT ERRED IN DENYING BERGER'S

MOTION TO SUPPRESS EVIDENCE, SINCE ALL OF

THE EVIDENCE PRESENTED AGAINST HIM WAS

THE DIRECT RESULT OF WARRANTLESS SEARCHES

; OF HIS PROPERTY WHICH VIOLATED THE FOURTH

AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION, AND ARTICLE I, SEC. 14

OF THE OHIO CONSTITUTION.

III. BERGER WAS DENIED DUE PROCESS OF LAW, IN

4 VIOLATION OF THE FOURTEENTH AMENDMENT TO

THE U.S. CONSTITUTION, AND ART. I, SEC. 16

OF THE OHIO CONSTITUTION, AS C.0. 367.04

CONSTITUTES AN IMPROPER DELEGATION OF THE

CITY'S LEGISLATIVE AUTHORITY TO ITS HOUSING

INSPECTORS.

IV. THE TRIAL COURT ERRED IN NOT PERMITTING

BERGER TO PRESENT EVIDENCE THAT THE TIME

PROVIDED HIM BY THE CITY INSPECTOR TO MAKE

THE DEMANDED REPAIRS WAS ARBITRARY AND

UNREASONABLE, SO AS TO CONSTITUTE A

DENIAL OF FEDERAL CONSTITUTIONAL DUE PRO-

CESS.

V. THE TRIAL COURT ERRED IN CONDUCTING A TRIAL

AND CONVICTING BERGER ON CHARGES THAT WERE

NOT CONTAINED IN THE WRITTEN "WARNING

NOTICE," AS REQUIRED BY C.0O. 367.04(a), SO

THAT BERGER WAS DEPRIVED OF A FEDERAL CON-

STITUTIONALLY PROTECTED "LIBERTY INTEREST"

WITHOUT DUE PROCESS OF LAW.

VI. THE TRIAL COURT ERRED IN OVERRULING BERCER'S

MOTION TO DISMISS COMPLAINT, AS ITS ACTIONS

WERE BARRED BY FEDERAL PREEMPTION, AS THE

A20

TRIAL PROCEEDING CONSTITUTED AN IMPROPER

REGULATION OF A FEDERAL STATUTORY PROGRAM,

WHICH IS GOVERNED BY FEDERALLY ESTABLISHED

STANDARDS.

VII.THE TRIAL COURT'S ACTIONS WERE BARRED UNDER

THE DOCTRINES OF FEDERAL GOVERNMENTAL

OFFICIAL IMMUNITY AND/OR FEDERAL GOVERN-

MENTAL CONTRACTOR IMMUNITY,

VIIILBERGER'S CONVICTION WAS AGAINST THE MANI-

FEST WEIGHT OF THE EVIDENCE CONCERNING THE

ONLY CHARGE THAT WAS PROPERLY BEFORE THE

TRIAL COURT FOR DETERMINATION.

eee Pk ee

ta dilate Pe

sh iictealanas) ctw it ER kot

A21

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

COUNTY OF CUYAHOGA

NO. 63089

CITY OF CLEVELAND

(

io (

Plaintiff-Appellee DISSENTING

(

ai. ane OPINION

SANFORD J. BERGER

Defendant-Appellant

“o_

ae ce ee ee ee ee ee ee”

DATE OF ANNOUNCEMENT SEPTEMBER 30, 1993

OF DECISION

HARPER, J., DISSENTING:

I respectfully dissent from the majority's

resolution of this case. Specifically, I dis-

agree with the finding that appellant lacks

standing to challenge the constitutionality

of Cleveland Codified Ordinance 367.03 and

367.99. I would this have sustained his first

assignment of error.

In his first assignment of error, appel-

lant asserts that Cleveland Codified Ordin-

ance 367.03 and the penalty which flows from

a violation thereof, violates the Fourth and

A22

Fourteenth Amendments to the United States

Constitution and Section 14, Article I of the

Ohio Constitution. He argues that the viola-

tion occurs because the building's tenants

must agree to a warrantless inspection of the

building or face criminal charges. Appellant

cites the cases of Wyman v. James (1971), 400

U.S. 309; Camara v. Municipal Court (1967),

38/7 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930;

Wilson v. Cincinnati (1976), 46 Ohio St.2d

138 and State ex rel. Holcomb v. Wurst (1989)

63 Ohio App.3d 639 in support of his position.

Tre city responds to appellant's argument

by attacking his standing to challenge the

constitutionality of the ordinance. It avers

that since appellant was not "injured by some

governmental action" resulting from the ap-

plication of the ordinance and citd for any

violation of it, this court is without juris-

diction to entertain appellant's first assign-

ment of error. The majority accepts this

argument.

A23

Generally, a person only has standing to

challenge the constitutionality of rules and

regulations that affected his interest and

those rules and regulations applied to him.

McNea v. Gary (N.D. Ohio 1976), 434 F. Supp.

95,103; see, also, Akron Bd. of Edn. v. State

Bd. of Edn. of Ohio (C.A.6,1974), 490 F.2d

1285,1289; State v. Brooks (Jan. 10, 1991),

Cuyahoga App. No. 57034, unreported. ‘The

constitutionality of a state statute may not

be brought into question by one who is not

within the class against whom the operation

of the statute is alleged to have been uncon-

stitutionally applied and who was not injured

by its alleged unconstitutional provision."

Palazzi v. Estate of Gardner (1987), 32 Ohio

St.3d 169, syllabus.

Contrary to the city's stance in the pre-

sent case that we have no “logical reason" to

consider appellant's constitutional argument,

this court does have jurisdiction and a very

important “logical reason" to consider it.

A24

Appellant was indeed within the class against

whom the ordinance was applied, being the

owner of a building in which a city housing

inspector could enter without a warrant under

Cleveland Codified Ordinance 367.03. Moreover,

the ordinance is the only authorization that

a city housing inspector can rely on to make

these inspections and specifcically the only

authorization by which Inspector Thomas could

possibly enter appellant's property on June

18, 1991. Appellant thus is within the class

against whom a criminal charge could be

brought pursuant to Cleveland Codified Ordin-

ance 367.99 if he did not allow the inspector

to enter the building without a warrant. Even

though appellant was not charged criminally

under that ordinance, the fact remains that

Cleveland Codified Ordinance 367.03 was en-

forced against him through the inspection of

his building and the inspection resulted in a

criminal complaint being issued against him

for a violation of the city's housing code.

ee eee ee es

A25

He was thereby inevitably injured by the ap-

plication of this allegedly unconstitutional

provision.

The ordinance at issue provide in relevant

part:

"367.03 Right of Entry

"Upon presentation of proper credentials

the Commissioner of Housing and his duly

authorized agents or inspectors may enter

at reasonable times, or at such other

times as may be necessary in an emergency,

any dwelling building, structure or pre-

mises in the City to perform any duty im-

posed on him by this Housing Code. No

person shall in any way obstruct, hinder,

delay or otherwise interfere with the

housing inspector in such entrance.

"367.99 Penalty

"(a) wie

"wee whoever refuses to permit entry by

the Housing Inspector at a reasonable hour

and whoever interferes with, obstructs,

hinders or delays such housing inspector

while attempting to make such inspection

shall be fined not less than fifty dollars

($50.00) for the first offense, and for a

second or subsequent offense shail be

fined not less than one hundred dollars

($100.00), or imprisoned for not more than

six months or both. A separate offense

shall be deemed committed each day during

or on which an offense occurs or continues.

Section 14, Article I, of the Ohio Consti-

tution provides as follows:

A26

"The right of the people to be secure in

their persons, houses, papers, and pos-

sessions, against unreasonable’ searches

and seizures shall not be violated; and no

warrant shall issue, but upon probable

cause, supported by oath or affirmation,

particularly describing the place to be

searched, and the person or things to be

seized."

The Fourth Amendment to the United States

Constitution likewise protects a citizen's

right to be free from all unreasonable

searches. Whether the government's intrusion

on an individual's property is motivated by

criminal violations or by breaches of other

statutory or regulatory standards, the indi-

vidual's privacy interests will suffer.

Marshall v. Barlow's, Inc. (1978), 436 U.S.

307,312-313, 90 S.Ct. 1816,1820-1821, 56 L.

Ed.2d 305,311-312; Camara. Warrantless

searches of residences are thus considered

"per se unreasonable under the Fourth Amend-

ment -- subject only to a few specifically

established and well-delineated exceptions."

Katz v. United States (1967), 389 U.S. 347,

357, 88 S.Ct. 507, 19 L.Ed.2d 576,585.

A27

In Camara, a lessee refused to allow a

warrantless inspection of his residence. He

was arrested and charged with a violation of

the San Francisco Housing Code, specifically:

"Authorized employees of the city depart-

ments or city agencies, so far as may be

necessary for the performance of their

duties, shall upon presentation of proper

credentials, have the right to enter, at

reasonable times, any building, structure,

Or premises in the city to perform any

duty imposed upon them by the Municipal

Code.

Camara, 38/ U.S. at 326, 8/7 S.Ct. at 1/730.

The United States Supreme Court, concerned

with the increasing use of housing and health

inspections and in light of its endeavor to

more clearly define Fourth Amendment protec-

tions, re-examined "whether administrative

inspection programs, as presently authorized

and conducted, violate Fourth Amendment

rights as those rights are enforced against

the States through the Fourteenth Amendment."

Id., 387 U.S. at 325, 8/7 S.Ct. at 1/729, 18

L.Ed.2d at 933. Moreover, the review was

prompted by marginal decisions in Frank v.

A28

Maryland (1959), 359 U.S. 360, 79 S.Ct. 804,

3 L.Ed.2d 877 and Ohio ex rel. Eaton v. Price

(1960), 364 U.S. 263, 80 S.Ct. 1463, 4 L.Ed2d

1708, wherein criminal convictions were af-

firmed based upon an individual's refusal to

allow a warrantless entrance and inspection

of his premises.

In Frank, a health inspector discovered

evidence of a rat infestation in a private

residence. He requested the owner's permis-

sion to inspect the basement of the house

without having a warrant. The owner refused

to cooperate and was later convicted for not

allowing the inspection. The Frank court

found the statute which punished this prop-

erty owner for refusing to cooperate with a

warrantless inspection to be constitutional.

The Frank decision was thereafter gener-

ally interpreted and cited as carving out an

additional exception to the warrant require-

ment. This exception was applied even though

Frank was distinguishable based upon language

A29

in the ordinance at issue which required

"inspection for cause."

The Frank majority came to its conclusion

by characterizing municipal fire, health and

housing inspection programs as only touching

upon "the periphery of the important inter-

ests safeguarded by the Fourteenth Amend-

ment's protection against official intrusion

xxx." Frank, 359 U.S. at 367, 79 S.Ct. at 809

3 L.Ed.2d at 882. The programs only touch

upon constitutional guarantees because they

are regulatory in nature and are not meant to

secure evidence of criminal activity. There-

fore, "historic interests of ‘self-protection

jointly protected by the Fourth and Fifth

Amendments are said not to be involved, but

only the less intense ‘right to be secure

from intrusion into personal privacy.’ "

Camara, 387 U.S. at 530, 87 S.Ct. at 1731, 18

L.Ed.2d at 1936.

The Camara court recognized, in reviewing

Frank, that these types of inspection pro-

A30

grams were less hostile than "criminal"

searches. It nonetheless found the Frank

majority's characterization of the housing

inspections as less deserving of Fourth Amend-

ment protection to be abnormal because the

codes are enforced through criminal processes,

includinf the issuance of a criminal com-

plaint and as in the present case, criminal

penalties for a refusal to permit the inspec-

tion. Id., 387 U.S. at 530, 87 S.Ct. at 1732,

18 L.Ed.2d 936.

Tne Camara court further discredited the

remaining justifications, suggested by the

Frank majority, for allowing warrantless in-

spections: (1) the inspections are minimally

demanding as they require a certain amount of

reasonableness; and (2) the warrant require-

ment would not be effective under these cir-

cumstances becuae it would lead to "rubber

stamping" of warrants. These justifications

undercut the purpose behind the Fourth Amend-

ment warrant requirement. The court explained:

A31

"xk* Under the present system, when the

inspector demands entry, the occupant has

no way of knowing whether enforcement of

the municipal code involved requires in-

spection of his premises, no way of know-

ing the lawful limits of the inspector's

power to search, and no way of knowing

whether the inspector himself is acting

under proper authorization. These are

questions which may be reviewed by a neu-

tral magistrate without any reassessment

of the basic agency decision to canvas an

area. Yet, only by refusing entry and

risking a criminal conviction can the oc-

cupant at present challenge the inspectors

decision to search. And even if the occu-

pant possesses sufficient fortitude to

take this risk, as appellant did here, he

may never learn any more about the reason

for the inspection than the law generally

allows housing inspectors to gain entry.

The practical effect of this system is to

leave the occupant subject to the discre-

tion of the official in the field. This is

precisely the discretion to invade private

property which we have consistently cir-

cumscribed by a requirement that a disin-

terested party warrant the need to search.

*xk* We simply cannot say that the protec-

tions provided by the warrant procedures

are not needed in this context; broad sta-

tutory safeguards are no substitute for

individualized review, particularly when

those safeguards may only be invoked at

the risk of a criminal penalty.’

Id., 387 U.S. 532-533, 87 S.Ct. at 1732-1733,

18 L.Ed.2d at 937-938.

Finally, the court discounted the justifi-

cation that public welfare commands that the

A32

inspections not be subjected to a warrant re-

quirzment. After all, a warrant requirement

does not destroy a municipality's right to

inspect pursuant to its fire, health and

housing standards. It merely sets forth con-

fines of reasonableness without frustrating

the government's purpose in conducting the

search. Id., 387 U.S. at 533, 8/7 S.Ct. at

1733, 18 Li&d.2Zd at 938.

In applying these concepts to the facts

before it, the Camara court, in overruling

Frank, held this:

"In summary, we hold that administrative

searches of the kind at issue here are

Significant intrusions upon the interests

protected by the Fourth Amendment, that

such searches when authorized and conduc-

ted without a warrant procedure lack the

traditional safeguards which the Fourth

Amendment guarantees to the individual,

and that the reasons set forth in Frank v.

State of Maryland and in other cases for

upholding these warrantless searches are

insufficient to justify so substantial a

weakening of the Fourth Amendment's pro-

tections."

Id., 387 U.S. at 534, 87 S.Ct. at 1733, 18

L.Ed.2d at 938.

A33

The court adopted the following language

from Johnson v. United States (1948), 333

U.S. 10,14, 68 S.Ct. 367,369, 92 L.Ed2d 436,

440 with regard to its holding:

" 'The right of officers to thrust them-

selves into a home is also a grave concern,

not only to the individual but to a so-

ciety which chooses to dwell in reasonable

security and freedom from surveillance.

When the right of privacy must reasonably

yield to the right of search is, as a rule

to be decided by a judicial officer, not

by a policeman or government enforcement

agent.’ “ (Emphasis added)

However, a concept which constitutionally

attaches to the warrant requirement is prob-

able cause. The Camara court, therefore, con-

tinued its analysis to determine whether

probable cause is a necessary predicate to

inspections of this type.

The court initially discussed the purpose

behind the programs, i.e., obtaining compli-

ance with minimal regulatory standards to

safeguard the public from health and safety

hazards. In determining whether there is

probable cause to issue a warrant for an in-

A34

spection and thereby determing its reasonable-

ness, "the need for the inspection must be

weighed in terms of these reasonable goals of

code enforcement." Camara, 387 U.S. at 535,

87 S.Ct. at 1734, 18 L.Ed2d at 939.

It was then clearly recognized that the

only means to secure complaince with ee

regulatory standards of a municipality is

through routine periodic inspections. Such

periodic inspections were deemed reasonable

as a result of long-term judicial and public

acceptance and because not only are they a

limited invasion of a citizen's privacy, they

are the only means to adequately achieve

compliance. Id.

The linchpin for determining whether prob-

able cause exists to inspect a premises is

not the inspector's belief that a certain

dwelling is in violation of the code, but the

reasonableness of the appraisal of the con-

ditions of the area to be searched as a whole.

If a reasonable belief exists that a condi-

A35

tion is present or could develop which would

threaten the safety of the public, probable

cause is demonstrated to inspect a certain

dwelling even though there is no parcicular

cause to search that dwelling. Thus, the

court stated that probable cause can be based

e.g., upon the passage of time, the type of

building, or the condition of the general

neighborhood. Id., 387 U.S. at 538, 87 S.Ct.

at 1735, 18 L.Ed.2d at 941.

This is the point at which it become ap-

parent that the level of probable cause re-

quired for one of these inspections is less

than that required for searches conducted in

the normal criminal context. For the latter,

the items to be recovered need to be speci-

fied as well as their location. The Camara

court thus relaxed the standard of probable

cause required for warrants in the routine

administrative search area.

Whether the relaxed standard applies to

searches which are induced by citizen com-

A36

plaints is questionable, considering that the

Camara court focused on the necessity of

periodic and routine inspections in formula-

ting the standard. See, Note, Administrative

Search Warrants (1974), 58 Minn.L.Rev. 607,

655. The court accepted the diluted probable

cause equation for periodic inspections be-

cause it guards against singling out a par-

ticular dwelling rather than conducting area

wide searches. Therefore, conducting searches

premised upon anonymous tips, without using

the traditional probable cause analysis, may

produce "the danger that local officials

might harass unpopular individuals." Id. ,639.

The Camara court moreover recognized two

traditional exceptions when search warrants

were not required for periodic and area in-

spections. First, the holding in Camara was

not “intended to foreclose prompt inspection

even without a warrant, *** in emergency

situations." Second, since most citizens

would allow inspections of their property

A37

without a warrant, the court suspected that a

majority of inspections would occur by con-

sent. Moreover, these "consent inspections"

were apparently given select status. After

all, "as a practical matter and in light of

the Fourth Amendment's requirement that a

warrant specify the property to be searched,

it seems likely that warrants should normally

be sought only after entry is refused ***,."

Camara, 387 U.S. at 539,540, 87 S.Ct. at 1736

18 L.Ed.2d at 941.

Although the Camara court recognized that

consent could justify a warrantless inspec-

tion, it failed to provide any guidelines to

be followed in determining valid consent. An

issue that naturally arises, therefore, is

whether, considering the court's relaxation

of the standard for probable cause for an

administrative search, did it likewise alter

the standard for reviewing consent. However,

one need not address this issue in Ohio.

The Camara decision's contribution to a

A38

municipality's inspection programs, i.e.,

consent searches, was taken away by the

Supreme Court of Ohio in Wilson. In Wilson,

the city of cincinnati enacted two ordinances

which modified and amended its building code.

The ordinances required a homeowner to tender

to a prospective buyer a Certificate of

Housing Inspection prior to entering into a

sales contract. The homeowner seller, however,

could only obtain a certificate by permitting

an inspector to enter his property at an

agreed to time. The failure to obtain the

certificate subjected the seller to criminal

penalty. Wilson, 139-140.

The Supreme Court of Ohio, in reviewing

the appellant's claim that the ordinances

were an unconstitutional exercise of police

power, first noted that “the seller is faced

with a serious dilemna" in that he must

either consent to a warrantless search or

face the possibility of a criminal penalty.

Id., 143. It then noted, however, that "*** a

A39

valid consent involves a waiver of constitu-

tional rights and cannot be lightly inferred;

hence, it must be ‘voluntary and uncoerced,

either physically or psychologically.’

Wilson, 143-144, citing United States v. Fike

(CA5,1972), 449 F.2d 191,193; Phelper v.

Decker, (CA5,1968), 401 F.2d 232; Cipres v.

United States, (CA9,1965), 343 F.2d 95. Based

upon these principles, the court concluded

that the coercion wich flows from the sole

alternative of criminal penalty "negates any

‘consent’ which may be inferred from the al-

lowance of the inspection and, therefore, the

validity of such searches upon the basis of

consent is not sustainable." Id., 144.

The Wilson court reached this decision

without reference to Camara's "consent" lan-

guage, thereby completely ignoring the lat-

ter's recognition of the consent exception.

Ironically, the court then cited Camara

thereafter as further support for its holding

which states:

A40

"xxx where a municipal ordinance requires

the owner of real property to tender a

certificate of housing inspection to a

prospective buyer, and such certificate

may be obtained only by allowing a warrant-

less inspection of the property, the impo-

sition of a criminal penalty upon the

owner's failure to tender the certificate

violates the owner's rights under’ the

Fourth Amendment to the U.S. Constitution."

Wilson, 145. To allow the ordinance to

stand would place an individual in a po-

sition not tolerated by the Camara court,

being that the individual must agree to a

warrantless inspection or face criminal

penalty. Id.

The Wilson court thus adopted that portion of

Camara which signifies that the Fourth Amend-

ment prohibits the prosecution of a person

who refuses to permit a warrantless code-

enforced inspection of his personal residence.

See, also, United States v. Biswell (1972),

406 U.S. 311, 92 S.Ct. 595, 32 L.Ed2d 87

(warrantless search of a locked firearms

storeroom during business hours did not vio-

late Fourth Amendment when authorized by Gun

A41

Control Act of 1986); See v. Seattle (1967),

387 U.S. 541, 8/7 S.Ct. 1737, 18 L.Ed.2d 943

(where the Camara personal residence warrant

requirement under the Fourth Amendment was

extended to inspections of private commercial

premises). It remains clear, therefore, that

the Wilson court would have found the search

which occurred therein to be unreasonable

based upon lack of consent even without

Camara's review of administrative seerches.

This court's analysis must, therefore,

necessarily cease here without further review

with regard to consent. Cleveland Codified

Ordinance 36/7.03 places a citizen in a dil-

emna by offering only two choices, either

agreement to the search or criminal penalty.

The majority's venture into the "consent"

arena and how it relates to the ordinance

opposes Wilson's mandate that "consent" is

not a viable justification of an administra-

tive search when a criminal penalty is the

only alternative to agreeing to the search.

A42

The language of Cleveland Codified Ordin-

ance 367.03 nearly mimics the language of the

San Francisco Codified Ordinance in Camara.

As already stated, supra, warrantless sear-

ches of residences are presumptively in vio-

lation of the Fourth Amendment. Cleveland

Codified Ordinance 367.03 transposes ‘this

concept by making warrantless searches the

rule and searches justified by warrants the

exception. Thomas herself testified that,

"the only time that I, as an inspector, would

obtain a warrant is if we were not permitted

entry." Albeit the enactment of housing codes

and their enforcement are generally valid

exercises of the powers of local self-govern-

ment, they cannot be exercised by

steamrolling an individual's protected ccn-

stitutional right to be free from unlawful

searches.

I thus allude to Justice Celebrezze's con-

curring opinion in Wilson, where he states:

"Insertion of a clause within the ordin-

A43

ance at issue herein requiring the offi-

cials charged with conducting the housing

inspections pursuant to the aforesaid or-

dinance to obtain a search warrant when-

ever a homeowner refuses to permit a war-

rantless inspection of his premises, after

advising such person that he or she had a

constitutional right to refuse entry of

the officials without a warrant, would

save the constitutionality of the criminal

penalties provided in the ordinance for

the refusal of a homeowner to permit in-

spection of his premises."

Wilson, 147.

The ordinance in the present case does not

contain such a requirement. Hence, I find

that Cleveland Codified Ordinances 367.03 and

367.99, authorizing the imposition of crim:-

nal penalties against a property owner who

refuses to permit a warrantless search by a

housing inspector, are in violation of the

Fourth Amendment to the United States Consti-

tution and Section 14, Article I, of the Ohio

Constitution. Camara; Wilson.

It is true that in State ex rel. Holcomb,

the Butler County Court of Appeals held that

a county auditor's plan for interior inspec-

tion of homes to reappraise property values

A44

for taxation purposes was constitutional.

State ex rel. Holcomb, 636. It was initially

noted that administrative searches are intru-

sions upon Fourth Amendment interests but

that consent searches are a recognized excep-

tion to the warrant requirement. Id., 633,

citing Schneckloth v. Bustamonte (1973), 412

U.S. 218, 93 S.Ct. 2061, 36 Li Ed.ae 854%

Camara. The court, however, clarified that

its decision to find the plan constitutional

was based on the many features of the plan

which indicated that consent would be volun-

tary. Specifically, the plan provided for: 1)

consent to be requested at the person's home;

2) all individuals to be giving consent to be

adult property owners; 3) daylight inspec-

tions; 4) data collectors to not be in uni-

form, armed or wearing badges; 5) posssession

of standardized identification cards; 6) data

collectors to not have any discretion, rather

homeowners were to be given an opportunity to

have interior inspections; 7) and "[flinally,

A45

and most importantly, the inspections are for

administrative, not criminal purposes. There

i o penalty for refusing to consent and no

criminal consequence involved in consenting

to an inspection." (Emphasis added.) Id., 625.

The plan found to be constitutional in State

ex rel. Holcomb is an entirely different

creature than the ordinance at issue in the

present case based upon these factors alone.

Accordingly, I dissent.

A46

Cleveland Municipal Court

State of Ohio ()WM. CORRIGAN 12/13/91

City of Cleveland} }wM. CORRIGAN 12/17/91

Plaintiff ()

VS. (2

Sandford Berger () JUDGMENT ENTRY

Defendant )

NO. 91CRB21611

CASE CALLED; DEFENDANT PLEADS "PNG"

(not guilty)/guilty/no contest

TO THE CHARGE OF "H.C. Ticket" ...M.C./0.R.C.

DEFENDANT (BTH) "FG"

found not guilty/discharged/(found guilty)

oc: cain SENTENCED AS FOLLOWS (Bench Trial

Held

"Motion to Suppress Denied." "(Began 12/13/91;

CON'T TO 12/17/91 1:30)"

$50 + COSTS

TTP Jan 31,92

/s/ Wm. H. Corrigan

Judge

Filed: January 15, 1992

A47

42 U.S.C. Sec. 1437

GENERAL PROGRAM OF ASSISTED HOUSING

Sec. 1437. Declaration of policy

It is the policy of the United States to pro-

mote the general welfare of the Nation by

employing its funds and credit, as provided

in this Act, to assist the several States and

their political subdivisions to remedy the

unsafe and unsanitary housing conditions and

the acute shortage of decent, safe, and sani-

tary dwellings for families of lower income

and, consistent with the objectives of this

Act [42 USCS 191437 et seq.], to vest in pub-

lic housing agencies the maximum~amount of

responsibility in the administration of their

housing programs. ****

A48

24 C.F.R. Sec. 882.109

§882.109 Housing quality standards.

Housing used in this program shall meet the

Performance Requirements set forth in this

section. In addition, the housing shall meet

the Acceptability Criteria set forth in this

section except for such variations as are

proposed by the PHA and approved by HUD.

Local climatic or geological conditions or

local codes are examples which may justify

such variations.

A49

CLEVELAND CODIFIED ORDINANCE 367.09

367.09 Right of Appeal.

The owner, agent or person in charge of any

dwelling structure shall have the right to

appeal from any notice issued by the Commis-

sioner of Housing, within the time specified

in such notice for compliance therewith,

to show cause why he should not comply with

such notice ... Failure to file an appeal

within the time prescribed shall constitute a

waiver of the right to appeal. Filing of an

appeal from any notice of the Commissioner

shall suspend action on enforcement of such

notice until the appeal is acted upon by the

Board of Building Standards. .....

A50

UNITED STATES CONSTITUTION

Supremacy Clause, Article VI, Clause 2

This Constitution and the Laws of the

United States which shall be made in pursu-

ance thereof; ..., shall be the Supreme Law

of the Land; and the Judges in every State

shall be bound thereby, and any Thing in the

Constitution or Laws of any State to the

Contrary notwithstanding.

Amendment 14, Section 1

All persons born or naturalized in the

United States, and subject to the jurisdic-

tion thereof, are citizens of the United

States and the State wherein they reside. No

State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property without due process of law; nor deny

to any person within its jurisdiction the

equal protection of the laws.

Amendment 4

The right of the people to be secure in

A51

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by

Oath or affirmation, and particularly descri-

bing the place to be searched, and the per-

sons or things to be seized.

A52

CLEVELAND CODIFIED ORDINANCE 367.04

367.04 Notice of Violation

(a) Whenever the Commissioner of Building

and Housing shall find any dwelling structure

Or premises, or any part thereof, to be in

violation of the provisions of this Housing

Code, he shall give or cause to be given to

the owner or agent or person in charge of

such structure or premises, and the mortgagee

of record, a written notice stating the vio-

lations therein. Such notice shall order the

owner within a stated reasonable time to

repair, improve, demolish or effectively

board the structure or premises concerned.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.