# Petition for Writ of Certiorari — Harris v. Akron Department of Public Health

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1054

## Text

(1) pram us
No. 011275 vu <1: 20

~~ ORFICE OF THE ClgnK
In The ,

Supreme Court of the United States

+

CHARLIE HARRIS; JOHN H. HARRIS, ET AL.,

Petitioners,

AKRON DEPARTMENT OF PUBLIC HEALTH;
C. WILLIAM KECK, DIRECTOR OF HEALTH ET AL.,

Respondents.

7

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI

s

CHARLIE Harris AND
JACQUELINE Harris

1310 East Avenue
Akron, Ohio 44307

(330) 434-1027

(330) 434-1028 (facsimile)

JoHN H. Harris

1040 Cordova Avenue
Akron, Ohio 44320
(330) 253-6048

Pro Se Petitioners

ace

QUESTION(S) PRESENTED

1. Did the United States Court of Appeals depart from
the accepted and usual course of judicial proceedings
in striking affidavits from the petitioners’ brief as
new evidence when the same affidavits were used
repeatedly in motions in the lower district court and
then make the statement that the petitioners lacked
that same evidence?

2. Did the United States Court of Appeals sanction
departure from the accepted and usual course of judi-
cial proceedings by the lower district court granting

summary judgment after almost five (5) years of pro-

ceedings, no oral argument, and no bona fide trial?

| 3. Did the United States Court of Appeals enter a deci-
sion that is in conflict with the decision of the Court
of Appeals of the Ninth Appellate District that man-
datory inspections, twice a year for four years of
every rental unit an owner owns when he had been
| convicted of failing to register, is unconstitutional and
violates due process? Also is the Housing Appeals
board a remedy when there is a constitutional ques-
tion?

4. Did the United States Court of Appeals depart from
accepted judicial proceedings in stating that the peti-
tioners were unreasonable to be convinced that a
judge can be biased?

5. Did the United States Court of Appeals depart from
the accepted and usual judicial proceedings when it
did not recognize the defendants’ failure to comply
with discovery or the district courts’ failure to note
any of the affidavits presented in the petitioners’
behalf?

QUESTION(S) PRESENTED - Continued

6. Did the United States Court of Appeals depart from
usual judicial proceedings in their failure to recognize
that the respondents provided no evidence to prove
an emergency to health, safety and welfare of its
citizens, and a threat to new development?

7. Did the United States Court of Appeals sanction the
departure of the usual and accepted judicial proceed-
ings in the district court when it held a plaintiff
accountable for a bogus invisible tape?

8. Were the pro se litigants given less stringency than
attorneys in the United States Court of Appeals and
the district court or were they given due respect?

SE ee ee ee

11]

LIST OF PARTIES

Petitioners:
Charlie Harris, pro se
Jacqueline Harris, pro se
John H. Harris, pro se

Respondents:
Akron Department of Public Health
Akron City Council
John Valley, President of City Council
City of Akron
William Keck, MD, MPH, Director of Health
Robert Rommel!
Jodie Forester
Jon Apati
Michele Williams
Laura Smart
Kevin Ragle
Steven Nome
John Doe

Attorneys for Respondents:
Assistant Directors of Law:
Deborah Forfia
Stephanie York

Others:
Attorney Avery Friedman

lV

TABLE OF CONTENTS

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Constitutional and Statutory Provision............. 1
NE DS a nec esnnesacnsuuseusdesnenes 1
Reasons for Granting the Petition.................. 8
RO EET TTS TE TEE PITT EU ET ENCE CECE 10
INDEX OF APPENDICES
Appendix A
Decision of the United States Court of Appeals
ee Te Te I so icc wow eccccanscsaaknns App. 1

Appendix B
Decision of the United States District Court,
Northern District of Ohio, Eastern Division ..App. 10

Appendix C
United States Court of Appeals for the Sixth
Circuit Denying Rehearing................... App. 29

Appendix D
| SO, rr eee eeamaS App. 31

TABLE OF AUTHORITIES
Page
CASES
Camara v. Municipal Court of the City and County of
San Francisco, 387 U.S. 523, 18 L.Ed. 2d 930
bp PEPER EEOCTP ERECT TT e CET eT ey eer TCL eL eT . 8
;
CONSTITUTIONS
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STATUTES AND ORDINANCES
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Akron City Environmental Housing Code, Ordi-

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OPINIONS BELOW

Petitioners do not believe the opinions of the lower
courts in this case have been published yet.

.

JURISDICTION

The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISION
1. 42 US.C. § 1983

2. Akron City Environmental Housing Code, Ordinance
#769-1996

3. The Constitution of the United States, Fourth, Fifth,
Seventh, Fourteenth Amendments.

4. The Ohio Constitution
+

STATEMENT OF THE CASE

On October 18, 1996 and October 22, 1996 the City of
Akron passed and approved Ordinance No. 769 amend-
ing and/or supplementing Title 15, Chapter 150 of the
Code of Ordinances. The ordinance mandates the yearly
registration of all the property an owner owns, whether a
trust or land contract, individual owners, banks or real
estate companies, any housing property that is not
owner-occupied. The implementation of that ordinance
singled out owners of rental units only. The ordinance
also mandates inspection of all the property an owner

owns twice a year for four years if he/she is convicted for
not complying with just one of the orders of any one of
the properties. This includes the fact that registering your
property is listed as an order and, if convicted of that one
thing, the owner is subjected to mandatory inspections
and reinspections twice a year for four years of all the
property he owns. Also inspection and re-inspection fees
are imposed along with annual registration fees. The fact
that time and fines may have been served and paid or
that the property was complied with and/or is empty is
not an issue. This ordinance was declared an emergency
measure necessary to preserve public safety, health and
welfare yet there was no legitimate government interest.
In fact the City of Akron had several programs that were
so successful that they were able to raise over 250 homes
and rebuild about the same amount or more as well as
much modern rehabilitation projects.

Charlie and Jacqueline Harris filed a pro se complaint
in the federal court on December 18, 1996 within one
month after the ordinance was approved and only after
receiving a notice of prosecution from the Akron Health
Department based on orders they have not received and
failure to attend a hearing of which they were never
given notice of concerning a commercial building and not
a rental unit. The notice was indeed based on false and
misleading information.

The Honorable Judge Sam Bell granted them leave to
file an amended complaint. The pro se amended com-
plaint was filed on January 17, 1997 along with an
amended motion for preliminary injunction. For the sake
of time on June 9, 1997 Charlie and Jacqueline Harris filed

te

a motion to bifurcate all issues except the issues concern-
ing the constitutionality of the ordinance. The bifurcation
was granted January 6, 1998 after many motions were
filed between the parties. Also at that same date their
motions for preliminary injunctions were denied. All
were marginal entries.

On May 18, 1998 a status conference with Judge Sam
Bell was held. Charlie and Jacqueline were able to see and
read another amended complaint that was presented to
them for the first time by Attorney Avery Friedman
whom they retained along with ten others who were
joined into the case. Immediately after reading his
amended complaint they realized that it was not what
they wanted to have filed. Not only did it totally make
their bifurcation motion null and void but it did not
address the constitutional issues that were addressed in
the amended complaint that they filed pro se. They ver-
bally spoke out and let Avery Friedman know that they
did not want him to file his amended complaint. Avery
Friedman filed his amended complaint after knowing full
well they did not approve. After sending written notice to
Attorney Friedman and not receiving any response, the
Harrises informed the attorney that they no longer
wanted his representation, and on May 26, 1998 filed a
pro se motion to reinstate their bifurcation motion. It was
denied on July 9, 1998 for failure to have attorney signa-
ture. Judge Bell retired and the case was reassigned to
Judge Dan A. Polster.

During this time Avery Friedman was trying to con-
vince the other parties that they needed to hire a demo-
graphic expert and to pay Attorney Friedman extra funds

to go to Washington, D.C. to find that so-called demo-
graphic expert witness. Also during this time Charlie and
Jacqueline Harris repeatedly notified Avery Friedman
that he was not representing them.

Then on October 13, 1998, a status conference with
Judge Polster was held for the first time. The first thing
he said was that he was not reinstating any bifurcation
motion and the second thing he said was that this case
would not.go forward without an expert witness. In fact
the judge designated January 5, 1999 to obtain an expert
witness. This was the beginning of pains of distress from
a biased judge. Why was he so insistent on an expert
witness on constitutional issues if he had not spoken to
anyone. It was obvious to the Harrises that something
was not right, for it was only at that time on October 13,
1998 that Avery Friedman finally responded to their
demands and filed the motion to resign, and for the
Harrises to proceed pro se, and to reinstate the bifurcation
motion. After that conference the other parties funded
Attorney Friedman’s trip to Washington, D.C. In fact he
used the judge’s words as a convincing argument. He
went to Washington, D.C. and nothing was ever accom-
plished.

On December 3, 1998 the Harrises filed a motion for
Judge Polster to recuse himself from the case. Then Avery
Friedman withdrew as attorney for the other parties on
December 10 and it was granted on December 11, 1998.
The recusal was denied on December 10, 1998 with a
marginal entry and no explanation. Then on February 3,
1999 the Harrises filed for preliminary injunction. Then
on March 31, April 7 and April 23, 1999 the Harrises
attempted to proceed pro se after new counsel was not

able to represent their case according to the written
agreement.

At a hearing before Judge Polster the Harrises
requested that they be granted permission to go back to
their pro se amended complaint, and it was at this time
that the defendants’ attorney stated that they would only
need the discovery they requested only if the Harrises
would be granted permission to go back to their pro se
amended complaint. Pro se motions to return to the pro se
amended complaint were filed on August 30, 1999 and
September 7, 1999. After those were denied they filed a
pro se interlocutory appeal for the right to return to their
pro se amended complaint and that appeal lacked jurisdic-
tion. Also it was very obvious that all of the affidavits
attached to the preliminary injunctions proving warrant-
less search and forced entry were ignored; consequently
washing away any claims of the Fourth Amendment con-
stitutional issues.

During all of this time the City of Akron Health
Department continued to try and prosecute the Harrises.
In September of 1997 they were sent a prosecution notice
for a property of which the repairs were complied; in turn
an injunction was filed with affidavits attached. Then on
April 17, 1997 two policemen and a health department
inspector came to another property without a warrant
and forced their way in after being told not to enter.
Therefore the Harrises filed another pro se motion for
preliminary injunction with affidavits of the tenants
attached. Then on May 23, 1998, at the same property,
only different tenants, two policement and a health
department inspector forced their way into the property

again after being told not to enter. A preliminary injunc-
tion was filed again after this incident with affidavits in
support. That particular property was also on a Metro-
politan Housing Authority Section 8 program. In fact that
property was inspected by the Akron Health Department
five times in one year based on anonymous complaints.
This does not include the three times it was inspected by
the Section 8 program. Legal documents were filed with |
the court proving forced warrantless entry and search
which supported the Fourth Amendment issues. Also
proof of falsified documentation and bogus anonymous
complaints were ignored.

During all this time a hearing was never held for any
of the preliminary injunction motions and the fact that
the affidavits supported the Fourth Amendment issues
were never addressed. In fact Judge Polster ignored this
evidence in a biased manner. Then to top this all off they
received notices of prosecution for two additional proper-
ties and it was after receiving those notices that they were
forced to file suit in the Summit County Common Pleas
Court. Then one of those cases was transferred to the
district court. After filing motions attaching the notices
showing that they filed the suits, only after being threat-
ened of prosecution and the implementation of Ordinance
769, the district court judge declared that they only filed
the suits because he did not grant their motion to file
their previous pro se ameided complaint. Judge Polster
ignored real documentation and, with bias, sided with
the defendants. Polster ignored all of the legal affidavits
that plaintiffs filed and held a hearing based on a bogus
invisible tape that the affidavits were proved not to exist.

Important hearings were never held; affidavits and
other legal documents were never addressed; pro se status
was never respected; and major constitutional issues
were ignored. The entire experience was one-sided and
biased. Attorneys filed absolutely no motions that would
legally benefit their clients. In fact the statements that
Judge Polster made that the case was a procedural night-
mare was only the tip of the iceberg. The district court
departed far from the accepted and usual course of judi-
cial proceedings

Then the Court of Appeals sanctioned the actions of
the lower court. The Court of Appeals did not mention
the fact that numerous motions to compel were also filed
by the Harrises. Much of their request for discovery was
based on the City of Akron providing documentation to
support or prpve an emergency for the health and welfare
of its citizens. Also no proof was ever supplied with a list
of individuals who were harmed due to rental unit
neglect or jabsentee landlords. In fact, the Court of
Appeals granted a motion to strike the legal affidavits
used in the lower court as new evidence and it was
obvious that the information was not new. The docu-
ments stricken from the Harris’ brief were all that were
needed to |support their Fourth Amendment issues on
warrantles$ search and entry. The stricken documents
were the same affidavits used in the many preliminary
injunction$ filed in the district court. The Court of
Appeals also supported some of the same misleading and
false statements invented in the lower court. It was
totally unreal that the Court of Appeals made that state-
ment that it was unreasonable to be convinced that
judges can be biased. That would mean in essence that all

judges can never become biased or that they were all
perfect and incapable of being biased.

And what about the so-called remedy at the adminis-
trative level or the Common Pleas Court? The City of
Akron Housing Appeals Board is not only a rubber stamp
but it is not a remedy to mandatory inspections. The
Board has already admitted that they are not equipped to
handle the legal issues that Ordinance 769 has created. It
has been proven with this case that the Common Pleas
Court obviously lacks jurisdiction for the Harris’ case and
was transferred to the district court within days not even
giving them time to object.

¢

REASONS FOR GRANTING THE PETITION

The courts did not work for these citizens and did
not contend with two strong constitutional issues: The
Fourth Amendment prohibition against unreasonable
searches and the Fourteenth Amendment of substantive
due process that prohibits the unreasonable means of
advancing questionable governmental interests.

Here citizens are downtrodden and at the whim of
housing inspectors. Here big government is caught over-
reaching. Here an unfair Judge has managed to “LOSE”
valuable constitutional issues.

It has been the law in the United States since 1967
that a warrant must issue prior to an administrative
search to determine compliance with municipal safety
codes. Camara v. Municipal Court of the City and County of
San Francisco, 387 .U.S. 523, 18 L.Ed. 2d 930 (1967).

Likewise wholesale mandatory inspection of every
rental property owned by an individual or entity, when
that party has been convicted of failing to register only
one or two of its units, is unreasonable. This Court holds,
therefore, that A.C.O. 150.40, as applied in this instance,
violates appellants’ substantive due process rights under
the Ohio Constitution beyond any reasonable doubt.
(Urban Imperial Building & Rental Corporation, Appellant v.
City of Akron, et al. Appellees, C.A. No. 19933, Court of
Appeals of Ohio, Ninth Appellant District, Summit
County, Medina County, Ohio. Stanford Williams, et al.,
Appellants v. City of Louis, et al., Appellees, No. 85-1083,
United States Court of Appeals Eighth Circuit, 783 F.2d
114).

Persons who provide rental homes for people provide
a valuable service for our country and deserve this
court’s protection.

10

CONCLUSION

We urge this Court to grant the petition in this case
and to resolve the constitutional questions that involve all
rental unit providers nationwide.

Respectfully submitted,

CHARLIE AND JACQUELINE Harris,
Pro se

1310 East Ave.

Akron, Ohio 44307

(330) 434-1027

JoHN Harris, Pro se
1040 Cordova Ave.
Akron, Ohio 44320
(330) 253-6048

Pro se Petitioners

App. 1

APPENDIX A
Nos. 00-3497 /3511/3528 /3540/3544

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Case No. 00-3497 ) ORDER
CHARLIE HARRIS; (Filed May 8, 2001)
JACQUELINE HARRIS, ‘ wei

Plaintiffs-Appellants, ) RECOMMENDED
) FOR FULL-TEXT
) PUBLICATION

Sixth Circuit Rule
28(g) limits citation
to specific situa-
tions. Please see
Rule 28(g) before
citing in a proceed-
ing in a court in the

Vv.

AKRON DEPARTMENT OF
PUBLIC HEALTH; AKRON CITY
COUNCIL; JOHN VALLE,
President of Akron City Council;
C. WILLIAM KECK, MD, MPH,
Director of Health; ROBERT
REMMEL; JODIE FORESTER;

JON APATI, Sixth Circuit. If

Defendants-Appellees. cited, a copy must

be served on other

Case No. 00-3511 parties and the
RAYMOND. L. BOROM, Court.

This notice is to be
prominently dis-
played if this deci-
sion is reproduced.

Plaintiff-Appellant,

V.

AKRON DEPARTMENT OF
PUBLIC HEALTH; JOHN
VALLE, President of Akron City
Council; AKRON CITY
COUNCIL,

Defendants-Appellees.

ee ee eee i ie ie eae eS

App. 2

Case No. 00-3528
JOHN H. HARRIS,
Plaintiff-Appellant,
v.
AKRON DEPARTMENT OF

PUBLIC HEALTH; AKRON CITY

COUNCIL; JOHN VALLE;
President of Akron City Council;
JOHN DOE; CITY OF AKRON,

Defendants-Appellees.
Case No. 00-3540
JOHN H. HARRIS,
Plaintiff-Appellant,
v.

C. WILLIAM KECK, Director of
Health; MICHELE WILLIAMS,
LAURA SMART, DWAYNE
GROEGOR, KEVIN RAGLE,
Sanitarian/Inspectors; STEVEN
R. NOME, Supervisor; ROBERT
REMMEL, Special Projects
Coordinator; AKRON HEALTH
DEPARTMENT INSPECTORS/
SANITARIANS, a

Defendants-Appellees.

i a a a a a a oe a a a

App. 3

Case No. 00-3544

ANTHONY C. MAURO,
individually and as President of
Urban Imperial Building and
Rental Corporation,

Plaintiff-Appellant,
v.
CITY OF AKRON,
Defendant-Appellee.

Nee eee eee ee eee”

Before: SILER and GILMAN, Circuit Judges; DUG-
GAN, District Judge.*

Pro se plaintiffs Charlie and Jacqueline Harris, Ray-
mond L. Borom, John H. Harris, Harold Harris, and
Anthony C. Mauro (proceeding individually and as Presi-
dent of Urban Imperial Building and Rental Corporation)
appeal a district court judgment dismissing their consoli-
dated civil rights actions filed pursuant to 42 U.S.C.
§ 1983. This case has been referred to a panel of the court
pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon
examination, this panel unanimously agrees that oral
argument is not needed. Fed. R. App. P. 34(a).

In 1996, the City of Akron, Ohio (“City”) enacted
Ordinance No. 769-1996 (“Ordinance”) (codified at Akron
City Envtl. Health Housing Code, Ch. 150 (“Code”)),
which provides for, inter alia, the registration and inspec-
tion of residential rental property. The plaintiffs all own

* The Honorable Patrick J. Duggan, United States District
Judge for the Eastern District of Michigan, sitting by
designation.

App. 4

rental units governed by the Ordinance. Accordingly,
Charlie and Jacqueline Harris (Case No. 00-3497) and
John Harris and L. Ruth Works (Case No. 00-3528) filed
separate pro se suits in federal court in 1996, challenging
the constitutionality of the Ordinance; Borom and others
(Case No. 00-3511) did likewise in 1997; and Mauro (Case
No. 00-3544) did as well in 1998. In May 1998, the afore-
mentioned plaintiffs filed separate amended complaints
through counsel, specifically asserting that the Ordinance
violated the Fourteenth Amendment.

In December 1998, counsel moved to withdraw upon
learning that John Harris possibly had made a personal
tape of a court hearing. The district judge held a hearing
on the matter and found that Harris had clearly intended
to convey the impression that a tape had been made,
although it could not be determined whether a tape did
exist. The district court thus granted counsel’s motion to
withdraw, and denied Charlie Harris’s request for
recusal.

During 1999, the district court denied several
requests by Charlie and Jacqueline Harris to amend their
complaint. Undeterred, the Harrises filed a pro se com-
plaint with the desired changes in state court. The com-
plaint named various city employees as defendants
(Keck, Remmel, Forester, and Apati) and raised claims
under the Fourth, Fifth, Seventh, Eighth, and Fourteenth
Amendments, as well as state law. The defendants
removed the action to federal court and the district court
consolidated it with the Harrises’ other action (Case No.
00-3497). At about the same titne, John Harris and Harold
Harris filed a similar state court complaint against some
of the same city employees (Keck, Remmel, Williams,

App. 5

Smart, Groegor, Ragle, and Nome). The complaint also
raised claims under the Fourth, Fifth, Seventh, Eighth,
and Fourteenth Amendments, and state law. The defen-
dants likewise removed this action to federal court (Case
No. 00-3540).

Because the plaintiffs had not properly responded to
discovery requests in the face of numerous motions to
compel, the City filed a Fed. R. Civ. P. 37(c)(1) motion to
exclude any additional evidence presented by the plain-
tiffs from motions practice and trial. The district court
granted the motion and thereafter granted summary
judgment in favor of all defendants on March 22, 2000.

The plaintiffs have filed timely appeals and separate
briefs; this court granted the defendants leave to file a
consolidated brief. In their briefs, the plaintiffs reassert
that the Ordinance is unconstitutional because it violates
the Fourth Amendment (Case Nos. 00-3497/3511/3528/
3540), the Double Jeopardy Clause (Case No. 00-3540), the
Sixth Amendment (Case No. 00-3540), the Due Process
Clause (Case Nos. 00-3497/3511/3544), and the Equal
Protection Clause (Case Nos. 00-3497/3511). Charlie and
Jacqueline Harris further contend that the district court
erred by granting the City’s motion to exclude evidence;
Borom argues that the City’s implementation of the Ordi-
nance violates the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1951 et seq.; and
John Harris raises the issue of judicial bias (Case No.
00-3528). The plaintiffs request oral argument and move
for miscellaneous relief.

Initially, we note that the sole appellants properly
before the court consist of Charlie and Jacqueline Harris,

App. 6

Raymond L. Borom, John H. Harris, and Anthony C.
Mauro (proceeding individually). L. Ruth Works and
Harold Harris failed to sign their respective notices of
appeal. See Mattingly v. Farmers State Bank, 153 F.3d 336,
337 (6th Cir. 1998). Jacqueline Harris is a proper appellant
because her spouse signed on her behalf. See Fed. R. App.
P. 3(c)(1)(A). Mauro may not proceed on behalf of Urban
Imperial Building and Rental Corporation, as a corpora-
tion must be represented in court by an attorney and may
not be represented by an officer. See Doherty v. Am. Motors
Corp., 728 F.2d 334, 340 (6th Cir. 1984); Ginger v. Cohn, 426
F.2d 1385, 1386 (6th Cir. 1970).

We decline to consider Borom’s argument that the
City’s implementation of the Ordinance violates RICO.
Borom did not raise this claim in his complaint, and no
exceptional circumstances are present which merit its
consideration. See Enertech Elec., Inc. v. Mahoning County
Comm'rs, 85 F.3d 257, 261 (6th Cir. 1996).

Upon de novo review, we conclude that the district
court properly granted summary judgment to the defen-
dants for the reasons stated in its opinion. See Harrow
Prods., Inc. v. Liberty Mut. Ins. Co., 64 F.3d 1015, 1019 (6th
Cir. 1995).

The Ordinance does not violate the Fourth Amend-
ment as it expressly provides that if entry is refused, an
inspection may only be conducted as provided by law,
and that the Ordinance shall not be construed to require
an owner to consent to a warrantless inspection. See Code
§ 150.02(A); Camara v. Mun. Ct. of San Francisco, 387 U.S.
523, 540 (1967). Furthermore, the plaintiffs have provided

_ ee ee ee ee

App. 7

no evidence of any warrantless inspection carried out in
the absence of both consent and emergency conditions.

The requirement of mandatory inspections following
a criminal conviction does not violate the Double Jeop-
ardy Clause as it is a civil sanction which serves the
legitimate nonpunitive governmental objective of main-
taining safe rental housing. See Hudson v. United States,
522 U.S. 93, 98-99 (1997).

The plaintiffs’ allegations that the Ordinance has
been applied in violation of the Sixth Amendment are too
vague and conclusory to state a claim. See Morgan v.
Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).

The Ordinance does not violate substantive due pro-
cess as it is a reasonable means of advancing legitimate
governmental interests. See Mansfield Apt. Owners Ass’n v.
City of Mansfield, 988 F.2d 1469, 1477-78 (6th Cir. 1993). In
the preamble to the Ordinance, the City Council declared
that the Ordinance was necessary because deteriorated
rental dwellings with code violations were a threat to
new development, housing stock, property values, public
health, safety, welfare, and aesthetics. These concerns
include legitimate governmental interests. See, e.g.,
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S.
520, 538 (1993) (public health); Barnes v. Glen Theatre, 501
U.S. 560, 569 (1991) (safety); Metromedia v. City of San
Diego, 453 U.S. 490, 507 (1981) (aesthetics). Furthermore,
the Ordinance does not shock the conscience as it does
not involve physical force. See Mansfield Apt. Owners
Ass’n, 988 F.2d at 1478.

The plaintiffs failed to state a procedural due process
claim because the Ordinance provides for a state remedy

App. 8

that comports with procedural due process. See id. at
1475. No administrative penalty is assessed until after a
notice and Housing Code Order is served on the owner/
operator. See Code § 150.03(F). An owner/operator may
contest a Housing Code Order by, in turn, seeking a
hearing and an appeal as of right with the City of Akron
Housing Appeals Board, and thereafter by seeking judi-
cial review. See Code § 150.05; Ohio Rev. Code § 2506.01.

The Ordinance does not violate the Equal Protection
Clause as a rational basis exists for singling out rental
property for regulation. See Marshall v. United States, 414
U.S. 417, 422 (1974). In the City of Akron, 45% of rental
units have code violations as opposed to 17% of owner-
occupied units. We note that the plaintiffs provided no
evidence that a rational basis did not exist or that the
Ordinance was enforced more often against owner/oper-
ators who provide low income housing.

The remaining arguments on appeal lack merit as
well. The district court did not abuse its discretion by
excluding any further evidence from Charlie and Jac-
queline Harris as a Rule 37 sanction after they repeatedly
failed to provide complete and appropriate responses to
discovery requests. See Beil v. Lakewood Eng’g & Mfg. Co.,
15 F.3d 546, 551 (6th Cir. 1994).

Likewise, the district judge did not abuse his discre-
tion by failing to recuse himself. The plaintiffs were not
entitled to recusal under 28 U.S.C. § 144 because they did
not file an affidavit alleging judicial bias in the district
court. See United States v. Sammons, 918 F.2d 592, 598-99
(6th Cir. 1990). Furthermore, the judge was not obligated
to recuse himself pursuant to 28 U.S.C. § 455(a) because

App. 9

no reasonable person would be convinced that the judge
was biased against the plaintiffs. See id. at 599. All of the
plaintiffs’ allegations referred to the judge’s participation
in the proceedings and do not support recusal. See id.

Accordingly, all pending motions are denied, and the
district court’s judgment is affirmed. Rule 34(j)(2)(C),
Rules of the Sixth Circuit.

ENTERED BY ORDER
OF THE COURT

/s/Leonard Green
Clerk

App. 10

APPENDIX B

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Charlie Harris, et al., ) CASE NOS.
Rape 5:96 CV 2711
sineemnnes 5:96 CV 2735
5:97 CV 1703
5:98 CV 592
5:99 CV 2501
5:99 CV 2836

JUDGE DAN AARON POLSTER

MEMORANDUM OF
OPINION
AND ORDER

(Filed Mar. 22, 2000)

vs.

Akron Dept. of
Public Health, et al.

Defendants.

ee ee ee i

The above-numbered cases, which have been consoli-
- dated for pretrial purposes, are before the Court on the
following dispositive motions:

1. Motion for Summary Judgment of Defen- ;
dant City of Akron, filed on October 4, 1999
(“Defts’ First Motion”);

2. Motion for Summary Judgment of Defen-
dant City of Akron, filed on December 14, 1999
(“Defts’ Second Motion”);

3. Motion for Summary Judgment filed by
plaintiffs on December 6, 1999; and

4. Motion to Dismiss and for Summary Judg-
ment filed by defendants on March 2, 2000.

App. 11

Plaintiffs Charlie Harris, Jacqueline Harris, John H.
Harris, W. Ruth| Works, Raymond L. Barom, Sheila Criner,
Fatima Rida, Anthony C. Mauro, individually and as
President of Urban Imperial Building and Rental Corpo-
ration, and Harold Harris are owners of rental property
in the City of Akron. They allege, under 42 U.S.C. § 1983,
that the City enacted an ordinance amending Akron’s
Housing Code that is unconstitutional.! Plaintiffs Charlie
and Jacqueline Harris also allege that the enactment of
the ordinance inflicted mental distress upon them.

Il. SUMMARY JUDGMENT STANDARD

Summary judgment “shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, ‘if
any, show that there is no genuine issue as to any mate-
rial fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c). All facts and
inferences drawn therefrom must be viewed in a light
most favorable to the nonmoving party. See LaPointe v.
United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.
1993). If, after reviewing the record as a whole, a rational
factfinder could not find for the nonmoving party, sum-
mary judgment is appropriate since there is no genuine
issue for trial. See Matsushita Elec. Indus. Co. v. Zenith

1 The defendants named in the various complaints are the
City of Akron and/or its employees, the City Council and/or its
members, and the Akron Department of Public Health and/or
its employees. All defendants will be referenced as the
“defendants” or the “City.”

App. 12

Radio Corp., 475 U.S. 574, 587 (1986). The undisputed facts
follow.

II. FACTS

In 1996, the City of Akron enacted Ordinance No.
769-1996, amending the Environmental Health Housing
Code, Chapter 150 et seq. (the “Ordinance”).? Prior to this
amendment, the Housing Code was enforced in a reac-
tionary manner; i.e., with after-the-fact penalties for Code
violations. The amendment to the Code is Akron’s
attempt to foster a more proactive manner of enforcing
the Housing Code and ensuring minimum standards of
repair and maintenance, with a particular eye toward
rental properties.

The Ordinance requires all owners or operators of
rental property in the City of Akron to register annually,
on one registration form, all rental units that they own in
the city, and to pay a registration fee based on the total
number of units registered.3 See § 150.30 generally. The fee
begins at $15 for one rental unit, and is capped at $250 for
100 or more rental units. § 150.30(G). The registration fees
are based on a calculated budget of $151,000 to staff and
run the registration program. Defts’ First Motion, Exhibit
C, Affidavit of Gregory A. Ervin (hereafter “Ervin Aff.) { 4.
All registration fees that are collected are deposited in a

2 The Ordinance is located in its entirety at Exhibit D of
Defts’ First Motion.

3 For simplicity, rental property “owners or operators” will
hereafter be referenced collectively as “owners.”

App. 13

“segregated account that may only be used to administer
the registration program. § 150.30(I); Ervin Aff. 4.

Section 150.40 of the Ordinance authorizes manda-
tory inspections for violations of the Housing Code under
limited circumstances. If two or more Housing Code
Orders (notices to comply) have been issued to a rental
property owner concerning the same premises within a
two-year period and the owner fails to comply with the
code within the time provided in the notices, the city is
required to conduct semi-annual inspections of that par-
ticular property for a period of four years. § 150.40(A)(1).
If the owner of a rental unit has been criminally convicted
of a Code violation, the City is authorized to conduct
semi-annual inspections of all that owner’s registered
rental units for a period of four years. § 150.40(A)(2).

Service of a Housing Code Order is mandated to
provide notice of any Housing Code violations and the
need for compliance within a reasonable period of time.
§ 150.03. If an owner disagrees with any portion of a
Housing Code Order, he or she can file an administrative
appeal from the order to the City of Akron Housing
Appeals Board and request a hearing to modify or dis-
miss the order, or to grant an extension of time to comply.
§ 150.05. If an owner is not satisfied with the decision of
the Appeals Board, he or she may bring a claim against
the City in the Summit County Court of Common Pleas,
with appeal rights to the Ninth District Court of Appeals,
and discretionary appeals to the Ohio and United States
Supreme Courts. Id.

One criminally charged with a Housing Code viola-
tion for the first time who has failed to attain compliance

App. 14

may avoid criminal prosecution through a Code Enforce-
ment Diversion Program in Akron Municipal Court. Sec-
tion 150.99(A)-(C) authorizes administrative penalties as
an option to criminal prosecution for Code violations that
have not been corrected as ordered. Funds generated by
the administrative fines are deposited in a segregated
account for Housing Code enforcement purposes only.
Ervin Aff. { 8.

The City’s Housing Inspector is authorized make the
mandatory § 150.40 inspections. § 150.40. Under
§ 150.02(A), the owner or occupant of a dwelling may give
the Housing Inspector free access to that dwelling. If
access is not obtained or refused, the housing inspector
may conduct the inspection “only as provided by law.”
§ 150.02(A). “This chapter shall not be construed to
require an occupant, operator or owner to consent to a
warrantless inspection of a dwelling, rooming house or
premises except as provided by law.” Id. The Housing
Division of Akron’s Department of Public Health has
adopted the Department’s Enforcement Policy Training
Guidelines and Procedures, which provides a comprehen-
sive, written enforcement policy “that is in accord with
the provisions of the United States and Ohio Constitu-
tions.” See Deft’s First Motion, Exhibit A, Affidavit of
Michael G. Smiley (hereafter “Smiley Aff.”), Attachment 2.

The Ordinance charges a fee for the § 150.40 manda-
tory inspections that is based on the number of units
subject to inspection. § 150.40(E). For example, a fee of
$125 is charged for inspecting a premise with one unit,
while a fee of $265 is charged for the first rental unit on a
premises with five or more units plus $15 per unit for
each additional unit on the premises over the first five.

\

LL i —

App. 15

See Id. If an owner subject to mandatory inspections
under § 150.40 is still found to be in noncompliance after
the first two semi-annual inspections, the owner will be
charged $50 for re-inspection of those units until compli-
ance is achieved. § 150.40(F). Based on calculations pro-
vided by Akron’s Deputy Director of Health, the fees
only partially offset the cost of running the inspection
program, with the remainder being taken from the gen-
eral revenues of the City of Akron. Ervin Aff. J 6. Inspec-
tion fees that are collected are deposited in a segregated
account that may only be used to administer the inspec-
tion program. § 150.40(G); Ervin Aff. ¥ 6.

* * *

These cases have been a procedural nightmare for
two federal judges. The plaintiffs in Case Nos.
5:96CV2711, 5:96CV2735, 5:97CV1703, and 5:98CV592
initially filed separate pro se cases alleging that the
Ordinance violated the Fourth, Fifth, Sixth, Eighth and/
or Fourteenth Amendments of the United States Constitu-
tion. Because all plaintiffs were owners of rental property
in Akron who challenged the constitutionality of the
Ordinance in question, Judge Bell consolidated the cases
for pretrial purposes. Due to the complexity of the issues,
Judge Bell instructed the plaintiffs to obtain counsel.
Counsel filed an amended complaint in each of the cases
alleging, under 42 U.S.C. § 1983, that the Ordinance
violated-only the Fourteenth Amendment. Counsel there-
after withdrew its representation of plaintiffs in circum-
stances requiring a hearing. All plaintiffs retained new
counsel except for Charlie and Jacqueline Harris, who
were permitted to proceed pro se. Charlie and Jacqueline
Harris thereafter made several requests to amend the

App. 16

complaint, all of which were denied. The rulings were
upheld by the Sixth Circuit in an interlocutory appeal.

Charlie and Jacqueline Harris subsequently
attempted to subvert these rulings by filing a multi-count
complaint in the Summit County Court of Common Pleas,
under Case No. CV 1999-09-3674. John and Harold Harris
followed suit by filing a virtually identical complaint in
the Summit County Court of Common Pleas, under Case
No. CV 1999-10-4214. The complaints alleged one federal
constitutional claim and three state law claims. Based on
subject matter jurisdiction over only one of the four
claims (the federal claim), the defendants removed both
cases case to this Court, under Case Nos. 5:99CV2501
(Charlie and Jacqueline Harris) and 5:99CV2836 (John
and Harold Harris). The removed cases were assigned to
Judge James S. Gwin and were later transferred to me as
related to the earlier-filed consolidated cases. The
removed cases, which targeted unconstitutional conduct
dating back to 1991, were consolidated with the earlier
cases because they were no more than an attempt to -
avoid the Court’s prohibition against filing an amended
complaint with new claims. Accordingly, these removed
cases are also before the Court in this Motion.

The only constitutional claim properly before the
Court at this time is the Fourteenth Amendment claim.
However, through an abundance of caution or confusion
over what claims are in this case, the defendants filed a
summary judgment motion addressing numerous consti-
tutional issues. Plaintiffs represented by counsel filed a
summary judgment motion arguing only that the Ordi-
nance violates the Fourth Amendment of the U.S.

App. 17

Constitution. Charlie and Jacqueline Harris filed a mem-
orandum in opposition to the defendants’ summary judg-
ment motion alleging that the Ordinance also violates the
Fifth, Seventh and Eighth Amendments with mention of
the mental distress they have suffered. Defendants filed a
second summary judgment motion dealing with the Har-
rises’ mental distress allegation and request for attorney
fees.

The Court will address the Fourteenth Amendment
claim, the Fourth Amendment claim argued in plaintiffs’
summary judgment brief, and Charlie and Jacqueline
Harris’s mental distress claim addressed in the defen-
dants’ second summary judgment motion. Charlie and
Jacqueline Harris’s Fifth, Seventh and Eighth Amend-
ment allegations, which are echoed in the removed cases,
are not properly before the court. Even if they were, they
would be dismissed as a matter of law because there is no
legal basis for such allegations. The Fifth Amendment
requires that a person who is deprived of property by the
government must be justly compensated. None of the
Harrises allege that their rental properties were con-
demned, demolished, or ordered vacated. Furthermore, it
is well-settled that in a “takings” case, a plaintiff must
show that it has exhausted state remedies before resort-
ing to a 42 U.S.C. § 1983 action. See Williamson County
Regional Planning Commission v. Hamilton Bank, 473 U.S.
172 (1985); Four Seasons Apartment v. City of Mayfield
Heights, 775 F.2d 150 (6th Cir.1985). Plaintiffs herein have
failed to allege or demonstrate the unsuccessful pursuit
of an inverse condemnation proceeding in the Ohio
courts. The Seventh Amendment, which addresses the
right to jury trials,is irrelevant. The Eighth Amendment

App. 18

prohibits monetary punishments that are grossly dispro-
portional to the gravity of the offense they are designed
to punish. Plaintiffs Charlie and Jacqueline Harris have
failed to articulate in specific terms how the particular
administrative fines established in the Ordinance are con-
stitutionally excessive. Nonetheless, having reviewed the
administrative penalties, the Court finds that they are not
constitutionally excessive.

III LAW AND ANALYSIS
A. Fourteenth Amendment Claim

The Fourteenth Amendment provides that no State
shall “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.”
There are two components to this Amendment: (1) the
Due Process Clause which consists of substantive due
process and procedural due process, and (2) the Equal
Protection Clause.*

1. Equal Protection

In order to determine whether the Ordinance violates
the Equal Protection Clause of the Fourteenth Amend-
ment, the Court must decide whether it “operates to the
disadvantage of some suspect class or impinges upon a
fundamental right explicitly or implicitly protected by the

* Defendants argue that the claims are not ripe and that the
plaintiffs lack standing. The Court will assume for purposes of
this Memorandum of Opinion and Order that the plaintiffs do
have standing and the claims are ripe.

App. 19

Constitution.” San Antonio Independent School Dist. V. [sic]
Rodriguez, 411 U.S. 1, 17 (1973). If it does, then the Ordi-
nance must be examined with strict scrutiny. Id. If not,
then the Court must determine whether the Ordinance
rationally furthers some legitimate, articulated state pur-
pose. Id. Legislation is presumed to be valid, and where
“social or economic legislation is at issue, the Equal Pro-
tection Clause allows the States wide latitude and the
Constitution presumes that even improvident decisions
will eventually be rectified by the democratic processes.”
City of Cleburne, Texas v. Cleburne Living Center, Inc., 473
U.S. 432 (1985).

The regulation of rental properties does not impact a
fundamental right, and neither rental property owners
nor low income housing owners are a suspect class.°
Berry v. City of Little Rock, 904 F.Supp. 940, 948 (E.D.
Arkansas 1995) citing Pennell v. City of San Jose, 485 U.S. 1,
14 (1988). Affecting neither a fundamental right nor a
suspect class, the Ordinance shall be presumed valid and

5 The distinction drawn by the Ordinance between owner-
occupied dwellings and rental dwellings is not uncommon.
Federal courts have long recognized that residential rental
properties require greater governmental health and safety
regulations than other types of property, and that such
distinctions are rational. Berry v. City of Little Rock, 904 F.Supp.
940, 949 (E.D. Arkansas 1995); Lock Haven Property Owners’
Ass’n, 911 F.Supp. 155, 161 (M.D. Pa. 1995); Chicago Bd of Realtors
v. City of Chicago, 819 F.2d 732, 740 (7th Cir. 1987). Moreover,
defendants have provided undisputed evidence that,
historically, rental dwellings are in noncompliance with the
Code in far greater numbers than owner-occupied dwellings.
See Defts’ First Motion, Exhibit B, Affidavit of Nancy S. Cook and
attachments.

App. 20

sustained if it rationally furthers some legitimate, articu-
lated governmental purpose. The defendants’ espoused
purpose in enacting the Ordinance is to provide for active
enforcement of the Housing Code, to recoup a substantial
portion of the costs of enforcement from the sector that is
directly affected by it, and to decriminalize Housing
Code violations. Smiley Aff. J] 6, 8. The Court finds that
this purpose is legitimate and that the Ordinance ratio-
nally furthers that purpose for the following reasons.

The Ohio Constitution authorizes municipalities to
exercise all powers of local self-government and to adopt
and enforce within limits such local police, sanitary and
other regulations as are not in conflict with general laws.
Oh. Const. Art. XVIII § 3; Wilson v. City of Cincinnati, 46
Ohio St.2d 138, 141 (1976). Municipalities are expressly
empowered to regulate housing for the protection of the
health and safety of the occupants. O.®.C. § 715.29. The
police power may be constitutionally exercised even
where it impairs certain property rights or requires that
new costs or burdens be associated with the ownership of
property. Goldblatt v. Town of Hempstead, 369 U.S. 590,
592-93 (1962). Regulations frequently and necessarily
interfere with the enjoyment, use, acquisition or posses-
sion of property. State v. Thompkins, 75 Ohio St.3d 558
(1996); Wilson, 46 Ohio St.2d at 142. A regulation having
this effect is valid and complies with due process, if it
bears a real and substantial relation to the public health,
safety and welfare, and is not arbitrary or unreasonable.
Envirosafe Serv. Of Ohio, Inc. v. City of Oregon, 80 Ohio
App.3d 516, 521 (1992).

The Ordinance in question embodies a comprehen-
sive scheme for enforcing Akron’s Housing Code. The

App. 21

registration of rental property is not unique, nor is the
requirement of a registration fee. See Cook Aff. and attach-
ments. The requirement of mandatory inspections for
repeated Code Offenders is not unreasonable nor are the
fees and, based upon the impassioned outcry of the plain-
tiffs, will more likely motivate compliance with the code
in the future than occurred in the past. The administra-
tive penalties for noncompliance are not unreasonable
and come into play only when the offender has failed to
comply after sufficient notice (including the available
opportunities for variances, dismissals and extensions of
time to comply). While this scheme is more demanding
than the previous Ordinance, that alone does not make
the Ordinance unconstitutional. Goldblatt, 369 U.S. at
592-93.

Plaintiffs argue that the Ordinance unfairly discrimi-
nates against low income housing and/or owners of low
income housing. This argument has no merit. The Ordi-
nance applies uniformly to all rental units and their
owners. Low income housing has not been singled out for
registration or inspection. All rental property owners
must register their units, and only those owners who are
in derogation of the Housing Code in the manner
described under §§ 150.40(A)(1) and (2) are subject to
mandatory inspections. The apparent purpose of this
Ordinance is to encourage the enforcement of minimal
standards of maintenance and repair of all dwellings by
persons who do not live there but are responsible for
maintenance and repair.

The fees established under the Ordinance do not
discriminate against low income rental units and/or
owners of low income housing. All rental property

App. 22

owners are subject to the same fees, and the cost of
registration is not onerous. See supra, at 2; § 150.30(G).
Responsible property owners need only be concerned
with the annual registration fee. It is only certain rental
property owners under § 150.40 who fail to comply with
the Housing Code (after availing themselves of a plethora
of administrative procedures) who are required to pay
the mandatory inspection fees. And those fees only par-
tially offset the cost of enforcing the Code.®

The Court finds as a matter of law that the Ordinance
serves the legitimate purpose of ensuring that rental
housing [sic] Akron is being maintained in compliance
with the Housing Code in order to protect the health,
safety and welfare of Akron’s tenants. Berry, 904 F.Supp.
at 948-49; Lock Haven Property Owners’ Ass’n v. City of Lock
Haven, 911 F.Supp. 155, 161 (M.D. Pa. 1995).

2. Due Process
a. Substantive Due Process

An ordinance or regulation violates substantive due
process if it rails to advance a legitimate governmental
interest or if it is an unreasonable means of advancing a

6 Plaintiffs argue that the re-inspection fee of $50 is
unreasonable. However, as explained supra, p.5, that fee only
comes into play after the owner fails to comply with the Code
after the first two § 150.40 semi-annual inspections. The $50 fee is
minor in comparison with such flagrant violation of the
Housing Code. Plaintiffs also argue that it is unconstitutional to
use the unpaid fees as a basis for putting a lien on the property
of the owners; yet they provide no legal support for this
allegation.

App. 23

legitimate governmental interest. Mansfield Apartment
Owners Assn v. City of Mansfield, 988-F.2d 1469, 1477 (6th
Cir. 1993) citing Williamson v. Lee Optical, 348 U.S. 483,
487-88 (1955) (stating that the constitutionality of a law
will be upheld if “there is an evil at hand for correction,
and that it might be thought that the particular legislative
measure was a rational way to correct it”). Defendants
have shown, and the Court has previously concluded,
that the enforcement scheme embodied in the Ordinance
is rationally related to Akron’s interest in enforcing and
decriminalizing its Housing Code. See Minnesota v. Clover
Leaf Creamery Co., 449 U.S. 456, 470 n. 12 (1981) citing
Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-25
(1978) (holding that a statute which bore a rational rela-
tionship to its stated interest under the Equal Protection
Clause withstood a substantive due process attack).

Under substantive due process analysis, the validity
of the defendants’ actions also necessitate a determina-
tion of whether the defendants’ conduct in enacting the
Ordinance “shocks the conscience.” Mansfield Apartment
Owners Ass’n, 988 F.2d at 1477. Applying this standard to
legislation is problematic since it is traditionally applied
to the conduct of individual government actors. Id. Nev-
ertheless, the Court finds that the Ordinance does not
shock the conscience because the Ordinance is a legiti-
mate use of legislative authority and it is rationally
related to a valid governmental interest. For these rea-
sons, the Court concludes that the Ordinance does not
violate substantive due process.

App. 24

b. Procedural Due Process

The Due Process Clause prohibits the City of Akron
from depriving the plaintiffs of their property without
due process of law. However, none of the plaintiffs has
alleged that it was deprived of its rental property (i.e., that
the property was condemned, vacated or demolished) or
that the available pre-deprivation procedures were con-
stitutionally inadequate. Rather, the plaintiffs allege that
the enforcement of the Code, through registration and
inspections fees and administrative fines, places addi-
tional financial burdens on them. This is insufficient to
sustain a procedural due process claim as a matter of law.

Notwithstanding the simple fact that ordering com-
pliance with the Code, requiring registration or manda-
tory inspections, and implementing administrative fines
does not deprive the plaintiffs of their property, the Court
finds that there is adequate process provided before the
Code is actually enforced. Prior to ordering repairs,
inspections, fines or demolition of rental property, the
Ordinance requires that a Housing Code Order be served
to the affected party notifying it of its noncompliance
with a reasonable time to comply, with an administrative
appeal of right to the Housing Appeals Board, the Sum-
mit County Court of Common Pleas, and the Ninth Dis-
trict Court of Appeals, and discretionary appeals to the
Ohio Supreme Court and the United States Supreme
Court. See §§ 150.03, 150.031, 150.04, 150.05, 150.051,
150.06; O.R.C. Chapter 2505. Based on the procedures
afforded rental property owners, one could conceivably
delay the enforcement of a Housing Code Order for a
very long time. Plaintiffs have failed to explain how the
procedures set forth in the Ordinance are constitutionally

App. 25

inadequate facially or as applied. Thus, the Court finds
that the procedural due process claim cannot survive
summary judgment as a matter of law.

B. Fourth Amendment Claim

Plaintiffs claim that the mandatory inspection of the
Ordinance, § 150.40, violates the Fourth Amendment pro-
hibition against unreasonable searches. Searches of a
premises without a warrant presumptively violate the
Fourth Amendment. O’Brien v. City of Grand Rapids Mich.,
23 F.3d 990, 997 (6th Cir. 1994) citing Coolidge v. New
Hampshire, 403 U.S. 443, 474-75 (1971). However, nothing -
in the Ordinance permits warrantless searches or the
presumption of consent to a warrantless search. Indeed,
the opposite is true. Section 150.02(A) of the Housing
Code expressly provides that an owner or occupant may
consent to a warrantless inspection, but that consent shall
not be presumed. § 150.02(A). When consent is denied,
the housing inspector may conduct an inspection “only as
provided by law.” Id. The Housing Department’s Enforce-
ment Policy Training Guidelines and Procedures provide
explicit, comprehensive instructions for ensuring that
enforcement of the Housing Code comports with the
Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments
of the U.S. Constitution. See Smiley Aff., Attachment 2,
§§ IV(A)-(E).

In short, there is nothing on the face of the Ordinance
- or the guidelines for enforcement of the Ordinance -
that violates the Fourth Amendment prohibition against
unreasonable searches. Plaintiffs have provided no evi-
dence that the Ordinance has been applied to them in

App. 26

violation of the Fourth Amendment. Thus, summary
judgment is granted with respect to the Fourth Amend-
ment claim.

3. Intentional Infliction of Emotional Distress

To recover for intentional infliction of emotional dis-
tress, a plaintiff must establish all of the following four
elements: (1) that the actor either intended to cause emo-
tional distress or knew or should have known that the
actions taken would result in serious emotional distress;
(2) that the actor’s conduct was so extreme and outra-
geous as to go beyond all possible bounds of decency and
was such that it can be considered utterly intolerable in a
civilized society; (3) that the actor’s actions were the
proximate cause of plaintiff’s psychic injury; and (4) that
the mental anguish suffered by plaintiff is serious and of
a nature that no reasonable man could be expected to
endure it. Tschantz v. Ferguson, 97 Ohio App.3d 693, 702
(1994) citing Pyle v. Pyle, 11 Ohio App.3d 31, 34 (1991).

This claim cannot survive summary judgment
because Charlie and Jacqueline Harris cannot show that
the City of Akron enacted the Ordinance for the purpose
of inflicting emotional distress on them. Given the
Court’s conclusion that the Ordinance is reasonably
related to a legitimate state interest, the Harrises cannot
show that the enactment of the Ordinance was so extreme
and outrageous as to go beyond all possible bounds of
decency. Moreover, the Harrises have provided abso-
lutely no evidence that they suffered severe mental dis-
tress. Summary judgment is, therefore, granted with
respect to this claim.

App. 27

4. Negligent Infliction of Emotional Distress

In order to recover for negligent infliction of emo-
tional distress, the plaintiff must prove that he (1) was a
bystander to an accident, (2) reasonably appreciated the
peril thereof, and (3) suffered serious and foreseeable
emotional distress as a result of his cognizance or fear of
the peril. Tschantz, 97 Ohio App.3d at 714. Because Char-
lie and Jacqueline Harris have not alleged any one of
these elements, this claim must also fail.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that
Ordinance 769-1996 does not violate the U.S. Constitution
on its face or as applied here. The Court also concludes
that Charlie and Jacqueline Harris’s claim for mental
distress due to enactment of the Ordinance has no merit.
Accordingly, summary judgment is granted in favor of
the defendants, and the cases are dismissed in their
entirety.

IT IS SO ORDERED.

/s/ Dan Aaron Polster
Dan Aaron Polster
United States District Judge

App. 28

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Charlie Harris, et al., ) CASE NOS. 5:96 CV 2711
+ gs ) 5:96 CV 2735
Plaintiffs,
or ) 5:97 CV 1763
_ ) 5:98 CV 592
Akron Dept. of ) 5:99 CV 2501
Public Health, et al. 5:99 CV 2836
Defendants. ) JUDGE
) DAN AARON POLSTER
) JUDGMENT ENTRY
; (Filed Mar. 22, 2000)

For the reasons stated in the Memorandum of Opin-
ion and Order filed contemporaneously with this Judg-
ment Entry, and pursuant to Federal Rule of Civil
Procedure 58, it is hereby ORDERED, ADJUDGED AND
DECREED that the above-captioned cases are hereby ter-
minated and dismissed as final.

IT IS SO ORDERED.

/s/ Dan Aaron Polster
Dan Aaron Polster
United States District Judge

App. 29

APPENDIX C
00-3497 /3528/3540
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CHARLIE HARRIS, ET AL.
(00-3497); JOHN H. HARRIS
(00-3528/3540),

Plaintiff-Appellant,

ORDER

(Filed Jul. 25, 2001)
v.

)

)

)

)

)

)
AKRON DEPARTMENT OF ?
PUBLIC HEALTH, ET AL.
(00-3497/3528); C. WILLIAM?
KECK, DIRECTOR OF )
HEALTH, ET AL. (00-3540),
)

Defendants-Appellees.

BEFORE: SILER and GILMAN, Circuit Judges; and
DUGGAN,’ District Judge.

The court having received a petition for rehearing en
banc, and the petition having been circulated not only to
the original panel members but also to all other active
judges of this court, and no judge of this court having
requested a vote on the suggestion for rehearing en banc,
the petition for rehearing has been referred to the original
panel.

The panel has further reviewed the petition for
rehearing and concludes that the issues raised in the

* Hon. Patrick J. Duggan, United States District Judge for
the Eastern District of Michigan, sitting by designation.

App. 30

petition were fully considered upon the original submis-
sion and decision of the cases. Accordingly, the petition is
denied.

ENTERED BY ORDER
OF THE COURT

Leonard Green
Leonard Green, Clerk

App. 31

APPENDIX D
Housing & Health and Social Service

SECOND
SUBSTITUTE OFFERED
AS AN AMENDMENT

(Filed Nov. 15, 1996)

MR/BDK/bdk
November 14, 1996

Offered by Valle and Fusco, Mittiga, Portis, Conti,
Bolden, Sommerville, & Williams

ORDINANCE NO. 769-1996 amending and/or sup-
plementing Title 15, Chapter 150 of the Code of Ordi-
nances to clarify and supplement provisions establishing
minimum standards for the maintenance and condition of
dwelling premises in the city, establishing a mandatory
rental unit registration program, establishing a manda-
tory rental unit mandatory inspection program, and
directing City departments to take action as is necessary
to implement the programs; and declaring an emergency.

WHEREAS, there currently are dwelling premises in
the City that are deteriorated due to lack of maintenance;
and

WHEREAS, there currently are dwelling premises in
the City that are in violation of the City Health, Safety,
and Sanitation Code, Litter Code, Housing Code, and
Zoning Code; and

WHEREAS, these dwelling premises in the City that
are deteriorated due to a lack of maintenance and- in
violation of the City Health, Safety, and Sanitation Code,

App. 32

Litter Code, Housing Code, and Zoning Code are a threat
to new development, the housing stock, property values
and the public health, safety, welfare and aesthetics; and

WHEREAS, improvement of the condition of dwell-
ing premises that are deteriorated will be in the highest
and best interest of the citizens of the City in stimulating
new development, maintaining the housing stock,
increasing property values and promoting the public
health, safety, welfare and aesthetics; and

WHEREAS, the majority of these dwelling premises
in the City that are deteriorated due to a lack of mainte-
nance and in violation of the City Health, Safety, and
Sanitation Code, Litter Code, Housing Code, and Zoning
Code are rental units; and

WHEREAS, the condition of rental units the City that
are deteriorated due to a lack of maintenance and in
violation of the City Health, Safety, and Sanitation Code,
Litter Code, Housing Code, and Zoning Code demand a
more proactive means of Code Enforcement; and

WHEREAS, the Council of the City deems that dwell-
ing premises that are deteriorated are nuisances and
harmful to the public health, safety, general welfare and
aesthetics.

NOW, THEREFORE, BE IT ENACTED by the Council
of the city:

Section 1. That Title 15 “Land Usage”, Chapter 150

“Environmental Health Housing Code” of the Code of
Ordinances of the city, 1985 be and is hereby amended
and/or supplemented to read as follows:

App. 33

Chapter 150: ENVIRONMENTAL HEALTH HOUSING

CODE

Section
150.01
150.011
150.02
150.03
150.031
150.04
150.05
150.051

150.06
150.07
150.08
150.09
150.10
150.11
150.12
150.13
150.14
150.15
150.16
150.17
150.18
150.20
150.201

150.21
150.22
150.23
150.24
150.25
150.30
150.31

Definitions.

APPLICATION OF OTHER CODES.
Entry and Inspection.

Notice of Violation.

Notice of Violation Requiring Demolition.
Housing Appeals Board.

Hearings.

REPAIR, VACATION AND DEMOLI-
TION; PROCEDURE; REMEDY OF CITY
FOR NONCOMPLIANCE.

Director of Health.

Dwellings; Requirements.

Equipment and Facilities.

Light, Ventilation, Electricity, and Heating.
General Maintenance.

Space, Use, and Location Requirements.
Responsibility of Owners and Occupants.
Rooming Houses; Equipment and Facilities.
Hotels.

Unfit Dwellings or Premises.

Vacating Unfit Dwellings or Premises.
Public Nuisance.

CONDEMNATION Placard.

Reoccupation.

ENTERING A CONDEMNED DWELL-
ING.

Discontinuance of Utilities.

Vacant Dwelling

Removal of Placard.

Conflict and Invalidity.

WARRANTIES AND LIABILITY.
REGISTRATION REQUIRED.
TRANSFER OF REGISTRATION.

App. 34

150.40 RENTAL UNIT MANDATORY INSPEC-
TION REQUIRED.

150.50 OPERATOR REQUIRED.

150.99 Penalty.

§150.01 DEFINITIONS.

(A) For the purpose of this Chapter, the following
definitions shall apply, unless the context clearly indi-
cates or requires a different meaning.

“BASEMENT.” A portion of a building located
partly OR WHOLLY underground.

“DWELLING.” Any dwelling, dwelling unit, build-
ing, structure, rooming house, rooming unit, hotel, or
other living quarters used or DESIGNED to be used, in
whole or in part, for living or sleeping by human occu-
pants, except that temporary housing, as hereinafter
defined, shall not be regarded as a dwelling.

“DWELLING UNIT.” Any room or group of rooms
located within < dwelling and forming a single habitable
unit with facilities which are used or DESIGNED to be
used for living, sleeping, cooking, and eating.

“EXTERMINATION.” The control and elimination
of insects, rodents, or other pests by eliminating their
harborage places: by removing or making inaccessible
materials that may serve as their food; by poisoning,
spraying, fumigating, or trapping; or by any other recog-
nized and legal pest elimination methods approved by
the Department of Public Health.

“FIRE PREVENTION.” CHAPTER 93 OF THIS

CODE.

App. 35

“FIRE STAIRS.” An exterior stairway 22" wide with
handrails, and guardrails with intermediate balusters
with access from either a 30" wide exterior or an emer-
gency escape window with a 44" interior sill height, 20"
minimum width, 24" minimum height with a total of 5.7
square foot minimum and with wired-glass opening pro-
tection provided for all windows both above and below
the path of the stairway.

“GARBAGE.” The animal and vegetable waste
resulting from the handling, preparation, cooking, and
consumption of food.

“HABITABLE ROOM.” A room or enclosed floor
space used or DESIGNED to be used for living, sleeping,
cooking, or eating purposes, excluding bathrooms, water
closet compartments, laundries, pantries, foyers, or com-
munication corridors, closets, and storage spaces.

“HEALTH, SAFETY AND SANITATION
CODE.” CHAPTER 94 OF THIS CODE.

“HOUSING CODE.” The Environmental Health
Housing Code.

“HOUSING INSPECTOR.” The Director of Health
of the City or his authorized representative.

“INFESTATION.” The presence, within or around a
dwelling, of any insects, rodents, or other pests.

“LITTER CODE.” CHAPTER 95 OF THIS CODE.

“MULTIPLE DWELLING.” Any dwelling contain-

ing more than two dwelling units.

App. 36

“OCCUPANT.” Any person over one year of age
living, sleeping, cooking, OR eating in, or having actual
possession of, a dwelling unit or rooming unit.

“OPERATOR.” Any person who, ALONE OR
JOINTLY OR SEVERALLY WITH OTHERS, has charge,
care, or control of ANY PREMISES, or part thereof, in
which THERE ARE ONE OR MORE dwelling units or
rooming units, WHETHER AS OWNER, MANAGER,
AGENT OF THE OWNER, OR DUE TO CONDUCT
THAT DEMONSTRATES THE PERSON’S POSITION
OF RESPONSIBILITY CONCERNING THE DWELL-
ING OR ROOMING UNIT.

“Owner.” Any person who, alone or jointly or sev-
erally with others:

Has legal title to any dwelling or dwelling unit, with
or without accompanying actua! possession thereof, or

IS THE VENDOR OR VENDEE under A land con-
tract, WHETHER RECORDED OR NOT, IS THE execu-
tor, executrix, administrator, administiatrix, trustee, or
guardian of the estate of the EITHER THE PERSON
WITH LEGAL TITLE OR THE LAND CONTRACT
VENDOR OR VENDEE. Any such person shall be bound
to comply with the provisions of this Chapter and WITH
THE rules and regulations adopted pursuant thereto.

“PERSON.” An individual, partnership, association,
syndicate, company, firm, trust, corporation, government
corporation, department, bureau, agency, or any entity
recognized by law.

“PLUMBING.” All of the following supplied facili-
ties and equipment: gas pipes, gas-burning equipment,

App. 37

water pipes, garbage disposal units, waste pipes, water
closets, sinks, installed dishwashers, lavatories, bathtubs,
shower baths, installed clothes-washing machines, catch
basins, drains, vents, and any other similar supplied fix-
tures, together with all connections installed or connected
to water, sewer, or gas lines.

“PREMISES.” Not only the dwelling and any other
building of any kind or nature located on the lot, but also
the entire parcel of land surrounding THE buildings,
including, but not limited to, fences, walkways, walls,
and appurtenances.

“PURCHASER.” ANY PERSON WHO, ALONE
OR JOINTLY OR SEVERALLY WITH OTHERS, HAS A
[sic] ENTERED INTO A CONTRACT TO BECOME THE
OWNER OF ANY DWELLING OR DWELLING UNIT,
WITH OR WITHOUT ACCOMPANYING ACTUAL
POSSESSION THEREOF.

“RENTAL UNIT.” A DWELLING UNIT NOT

OCCUPIED BY THE PERSON WITH LEGAL TITLE. —

“ROOMING HOUSE.” Any dwelling, or that part of
any dwelling, containing one or more rooming units,
including hotels, in which space is let by the owner or
operator to three or more persons who are not husband,
wife, son, daughter, mother, father, sister, or brother of
the owner or operator.

“ROOMING UNIT.” Any room or group of rooms
forming a single habitable unit used or DESIGNED to be
used for living and sleeping but not for cooking or eating
purposes.

App. 38

“RUBBISH.” Combustible and noncombustible
waste materials, except garbage, including the residue
from the burning of wood, coal, coke, and other combus-
tible material, paper, rags, cartons, boxes, wood excelsior,
rubber, leather, tree branches, yard trimmings, tin cans,
metals, mineral matter, glass, crockery, plastics, dust, and
other like materials.

“SUPPLIED.” paid for, furnished, or provided by, or
under the control of, the owner or operator.

“TEMPORARY HOUSING.” Any tent, trailer, or
other structure used for human shelter which is designed
to be transportable and which is not attached to the
ground, to another structure or to any utilities system on
the same premises for more than 30 consecutive days.

“ZONING CODE.” CHAPTER 153 OF THIS
CODE.

(B) Whenever the words “DWELLING,” “DWELL-
ING UNIT,” “ROOMING UNIT,” or “PREMISES” are
used in this Chapter, they shall be construed as though
they were followed by the words “OR ANY PART
THEREOF.”

§150.011 APPLICATION OF OTHER CODES.

(A) THERE IS HEREBY ADOPTED AS PART OF
THE REQUIREMENTS OF THIS CHAPTER, FOR THE
PURPOSE OF PROVIDING GUIDANCE AND STAN-
DARDS IN THE APPLICATION AND ENFORCEMENT
OF THIS CHAPTER, AND IN THE APPROVAL OF
CONDITIONS OF PREMISES, THE PROVISIONS OF
THE BOCA NATIONAL PROPERTY MAINTENANCE

App. 39

CODE, 1993 EDITION, OR AS MAY BE AMENDED
FROM TIME TO TIME, THE CITY OF AKRON FIRE
PREVENTION CODE, CHAPTER 93, THE BOCA
NATIONAL BUILDING CODE, 1993 EDITION, OR AS
MAY BE AMENDED FROM TIME TO TIME, THE CITY
OF AKRON BUILDING CODE, CHAPTER 190, AND
THE BOCA NATIONAL FIRE CODE, 1993 EDITION,
OR AS MAY BE AMENDED FROM TIME TO TIME.

(B) WHERE DIFFERENCES OCCUR BETWEEN
THE PROVISIONS IN THIS CHAPTER AND THE
PROVISIONS THAT THIS SECTION ADOPTS, THE
PROVISIONS THAT IMPOSE THE HIGHER STAN-
DARDS SHALL CONTROL.

§150.02 ENTRY AND INSPECTION

(A) The Housing Inspector is authorized and
directed to make inspections to determine the conditions
of dwellings, rooming houses and premises located
within the City. For the purpose of making THE inspec-
tions, the Housing Inspector is authorized to enter, exam-
ine, and survey, at all reasonable times, all dwellings,
dwelling units, rooming units, and premises. The owner
or occupant of every dwelling or rooming house or the
person in charge thereof, on request of the Housing
Inspector, may give the Housing Inspector free access to
THE dwelling or rooming house and its premises, at all
reasonable times, for the purpose of THE inspection,
examination, and survey. IF ENTRY IS REFUSED OR
NOT OBTAINED, THE HOUSING INSPECTOR SHALL
CONDUCT THE INSPECTION ONLY AS PROVIDED

App. 40

BY LAW. THIS CHAPTER SHALL NOT BE CON-
STRUED TO REQUIRE AN OCCUPANT, OPERATOR
OR OWNER TO CONSENT TO A WARRANTLESS
INSPECTION OF A DWELLING, ROOMING HOUSE
OR PREMISES EXCEPT AS PROVIDED BY LAW.

(B) Every occupant of a dwelling or rooming house
shall give the owner thereof, or his agent or employee,
access to any part of THE building or its premises, at all
reasonable times, for the purpose of making THE repairs
or alterations as are necessary to effect compliance with
the provisions of this Chapter, or with any lawful rule or
regulation adopted or any lawful order issued pursuant
thereto.

§150.03 NOTICE OF VIOLATION

Whenever the Housing InspectOR determines that
there has been a violation of any of the provisions of this
Chapter, he shall give notice of THE violation to the
person responsible therefor and order compliance, as
herein provided. THE notice and order shall:

(A) Be put in writing on an appropriate form AS
THE DEPARTMENT OF PUBLIC HEALTH SHALL
DETERMINE;

(B)- Include a list of violations, refer to the sectionS
AND DIVISIONS violated and order remedial action
which will effect compliance with the provisions of this
Chapter;

(C) Specify a reasonable time within which to com-
ply; and.

App. 41

(D) Be served on the OPERATOR, owner, OR occu-
pant, PERSONALLY. However, THE notice and order TO
COMPLY shall be deemed to be properly served on THE
OPERATOR, owner, OR occupant, if a copy is sent by
certified mail AND REGULAR MAIL TO THE PER-
SON’S RESIDENCE, REGULAR PLACE OF BUSINESS
OR last known address, AND a copy is posted in a
conspicuous place in or on THE PERSON’S RESI-
DENCE, REGULAR PLACE OF BUSINESS, LAST
KNOWN ADDRESS, OR the building affected.

WHENEVER A PERSON VIOLATES OR FAILS TO
COMPLY WITH ANY OF THE PROVISIONS OF THIS
CHAPTER, THE HOUSING INSPECTOR SHALL HAVE
THE AUTHORITY TO IMPOSE AN ADMINISTRA-
TIVE PENALTY. THE HOUSING INSPECTOR SHALL
CONSIDER THE FOLLOWING CRITERIA IN ASSESS-
ING AN ADMINISTRATIVE PENALTY:

(1) THE EXTENT TO WHICH THE PERSON HAS
BENEFITED BY THE VIOLATION OF THIS CHAPTER;

(2) THE DEGREE OF HARM TO THE PUBLIC
HEALTH, SAFETY, WELFARE AND AESTHETICS AS A
RESULT OF THE VIOLATION OF THIS CHAPTER;

(3) THE RECIDIVISM OF THE PERSON,
INCLUDING PREVIOUS NOTICE AND ORDERS TO
COMPLY AND PREVIOUS ENFORCEMENT ACTION;

(4) GOOD FAITH EFFORTS OF THE PERSON TO
REMEDY THE VIOLATION OF THIS CHAPTER; AND

(5) THE DURATION OF THE VIOLATION AFTER
A NOTICE AND ORDER TO COMPLY WAS SERVED
PURSUANT TO THIS SECTION OR SECTION 150.031.

App. 42

(F) THE IMPOSITION OF AN ADMINISTRA-
TIVE FINE SHALL BE ACCOMPLISHED ONLY AFTER
A NOTICE AND ORDER IS PROVIDED TO THE
OCCUPANT, OPERATOR OR OWNER. NOTICE OF A
DECISION IMPOSING AN ADMINISTRATIVE FINE
SHALL:

(1) BE PUT IN WRITING ON AN APPROPRIATE
FORM AS THE DEPARTMENT OF PUBLIC HEALTH
SHALL DETERMINE;

(2) STATE THE BASIS FOR THE ADMINISTRA-
TIVE PENALTY, INCLUDING THE SECTION OF THIS
CHAPTER THAT HAS BEEN VIOLATED;

(3) SPECIFY THE DATE AND MANNER BY
WHICH THE PENALTY MUST BE PAID; AND

(4) BE SERVED ON THE OCCUPANT, OPERA-
TOR OR OWNER PERSONALLY. HOWEVER, THE
NOTICE AND ORDER TO COMPLY SHALL BE
DEEMED TO BE PROPERLY SERVED ON THE PER-
SON, OCCUPANT, OPERATOR OR OWNER IF A
COPY IS SENT BY CERTIFIED MAIL AND REGULAR
MAIL TO THE PERSON’S RESIDENCE, REGULAR
PLACE OF BUSINESS OR LAST KNOWN ADDRESS,
AND A COPY IS POSTED IN A CONSPICUOUS
PLACE IN OR ON THE PERSON’S RESIDENCE, REG-
ULAR PLACE OF BUSINESS, LAST KNOWN
ADDRESS, OR THE DWELLING AFFECTED.

App. 43

§150.031 NOTICE OF VIOLATION REQUIRING DEMO-
LITION.

Whenever the Housing Inspector determines that the
violations of this Chapter are so extensive that the City
will demolish or repair the dwelling and premises due to
the dwelling OR PREMISES being insecure, unsafe, or
structurally defective, the notice and order shali:

(A) Be written on an appropriate form AS THE
DEPARTMENT OF PUBLIC HEALTH SHALL DETER-
MINE;

(B) Include a list of violations, refer to the sectionS
AND DIVISIONS violated, and order remedial action
which will affect compliance with the provisions of this
Chapter;

(C) Specify a reasonable time within which to com-
ply;

(D) Be served upon all persons listed in the Summit
County Recorder’s Office and the Summit County Clerk
of Courts having an interest or holding a lien on the
dwelling or premiseS; and

(E) Contain notice that the City intends to demolish
or repair the dwelling and premises and assess costs to
the owners of record, and that persons notified under this
section may request a hearing before the Housing
Appeals Board pursuant to § 150.05(A) OF THIS CHAP-
TER.

App. 44

§150.04 HOUSING APPEALS BOARD.

(A) THE BOARD. There is created a Housing
Appeals Board. The words the Board or Board, as used in
this Chapter, mean the Housing Appeals Board. The
Board shall consist of five regular members, who shall be

appointed by the Mayor, by and with the consent of -

Council, for overlapping terms of three years, and they
shall serve until a successor is appointed. The Mayor
shall also appoint two alternate members of the Board, by
and with the consent of Council, the alternates who shall
be from the same classifications as set forth in division
(B) hereof, to serve terms of three years.

(B) Members. Members of the Board shall be citi-
zens of the United States and residents of the City. Mem-
bership shall constitute a representative group composed
of the following: a homemaker, a member of the labor
force, a businessperson, and a member of the medical
profession or another profession. In the event of the
inability of a member to atte»« a forthcoming meeting,
either alternate member of the Board may serve in the
place and stead of the member of the Board who are
absent with the same power and authority as a regular
member until THE member has resumed his duties. THE
SALARY OF EACH MEMBER OF THE BOARD SHALL
BE $75.00 PER MEETING ATTENDED.

(C) Rules of procedure; quorum. The Board shall
adopt rules of procedure consistent with this Chapter and
elect THE officers as the Board deems necessary. No
member of the Board shall take part in any hearing or
determination in which he has a personal or financial

‘App. 45

_interest. Three members of the Board in attendance at any
meeting shall constitute a quorum.

(D) FREQUENCY OF MEETINGS. THE BOARD
SHALL MEET AT LEAST ONCE DURING EVERY
MONTH OF THE YEAR.

§ 150.05 HEARINGS.

(A) APPEALS. For the purpose of this section,
“PERSON” shall include any entity which owns, leases,
holds or has any interest in a dwelling or premises in the
City. Any person affected by any notice and order which
has been issued in connection with the enforcement of
any of the provisions of this Chapter may request and
shall be granted a hearing on the matter before the Board.
THE person shall file, in the office of the Director of
Health, a written request for THE hearing and shall set
forth the name, address, and phone number of the appel-
lant and a brief statement of the grounds for THE hearing
and appeal from any order of the Director of Health.
Requests shall be filed within ten days after the day the
notice and order is served and shall be accompanied by a
deposit of $15.00, which deposit shall be non-refundable.
On receipt of THE request, the Director OF HEALTH
shall set a time and place for a hearing before the Board.
The hearing shall be held within a reasonable time after a
request has been filed. At THE hearing, the appellant
shall be given an opportunity to be heard and to show
cause why THE notice and order should be modified or
dismissed, OR WHY A VARIANCE SHOULD BE

App. 46

GRANTED. The failure of the appellant or his represen-
tative to appear and present his position at THE hearing
shall be grounds for dismissal of THE request.

(B) VARIANCES. THE BOARD SHALL INTER-
PRET THE INTENT OF THIS CHAPTER IN SPECIFIC
CASES WHERE, ON APPEAL, IT CLEARLY APPEARS
THAT, BY REASON OF SPECIAL CONDITIONS,
UNDUE HARDSHIP WOULD RESULT FROM A LIT-
ERAL APPLICATION OF ANY SECTION OF THIS
CHAPTER, WHERE UNDUE HARDSHIP IS CLEARLY
DEMONSTRATED, THE BOARD MAY PERMIT A
VARIANCE FROM THE APPLICABLE SECTION IF
THE DWELLING WILL VARY ONLY A REASONABLE
MINIMUM FROM THE LITERAL PROVISIONS OF
THIS CHAPTER BUT WILL COMPLY WITH THE
SPIRIT AND INTENT OF THIS CHAPTER WITH
RESPECT TO SANITATION, SAFETY, AND REHA-
BILITATION.

(C) NOTICE. Written notice of the meeting of the
Board shall be given by the Director OF HEALTH to the
appellant and the citizen complainant. THE notice shall
be sent by ordinary U.S. mail at least five days prior to
the date of the hearing before the Board. Notice of the
agenda to be heard by the Board shall be published in a
newspaper of general circulation in the City at least ten
days prior to the meeting of the Board. The Law Depart-
ment of the City shall be notified of the hearing.

(D) DECISIONS. On hearing, the Board may
affirm, disaffirm, modify, or dismiss THE notice and
order, OR GRANT A VARIANCE FROM THE NOTICE
AND ORDER, (by a majority vote of the members of the

App. 47

Board WHO ARE present). The APPELLANT AND THE
Director OF HEALTH shall be notified in writing of THE
findings.

“(E) RECORDS. The proceedings at THE hearings,
including the findings and decision of the Board and
reasons therefor, shall be summarized in writing and
entered as a matter of public record in the office of the
Director OF HEALTH. THE record shall also include a
copy of every notice and order issued in connection with
the matter. Records which pertain to the citizen complain-
ant shall not be considered public records. Any person
aggrieved by the decision of the Board may seek relief
therefrom in any court of competent jurisdiction as pro-
vided by the laws of the state.

§ 150.051 REPAIR, VACATION AND DEMOLITION;

PROCEDURE; REMEDY OF CITY FOR NONCOM-
PLIANCE.

(A) ON RECEIPT OF A REPORT OF THE HOUS-
ING INSPECTOR THAT A PREMISES IS IN VIOLA-
TION OF THIS CHAPTER, THE BOARD SHALL:

(1) GIVE WRITTEN NOTICE TO THE OWNER
AND ALL OTHER PERSONS HAVING AN INTEREST
IN THE PREMISES, AS SHOWN BY THE LAND
RECORDS OF THE SUMMIT COUNTY RECORDER’S
OFFICE, TO APPEAR BEFORE THE BOARD ON THE
DATE SPECIFIED IN THE NOTICE;

(2) HOLD A HEARING AND HEAR TESTIMONY
AS THE HOUSING INSPECTOR, CITIZENS OR THE
OWNER OF THE DWELLING OR PREMISES AND
ALL OTHER PERSONS HAVING AN INTEREST IN

App. 48

THE PREMISES, AS SHOWN BY THE LAND
RECORDS OF THE SUMMIT COUNTY RECORDER’S
OFFICE, OFFER RELATIVE TO THE FITNESS OF THE
BUILDING FOR HUMAN HABITATION OR USE;

(3) MAKE WRITTEN FINDINGS OF FACT FROM
THE TESTIMONY OFFERED AS TO WHETHER THE
DWELLING OR PREMISES IS UNFIT FOR HUMAN
HABITATION OR USE; AND

(4) ISSUE AN ORDER BASED UPON THE FIND-
INGS OF FACT MADE, COMMANDING, IF PROPER,
THAT THE DWELLING OR PREMISES IN VIOLA-
TION MUST BE DEMOLISHED WITHIN 30 DAYS.
THIS ORDER SHALL BE SERVED ON ALL PERSONS
SPECIFIED IN DIVISION (1) OF THIS SECTION. THE
ORDER SHALL STATE THAT THE DWELLING OR
PREMISES WILL BE DEMOLISHED BY THE CITY,
AND THAT THERE IS A RIGHT TO APPEAL THE
BOARD’S ORDER PURSUANT TO REVISED CODE
CHAPTER 2506.

.(B) THE BOARD MAY GRANT A 30 TO 90 DAY
EXTENSION TO A PROPERTY OWNER OR INTER-
ESTED PARTY FOR COMPLIANCE WITH THE PROVI-
SIONS OF THIS CHAPTER ONLY UPON A SHOWING
OF SATISFACTORY ASSURANCE TO THE BOARD
THAT THE PROPERTY OWNER OR INTERESTED
PARTY HAS THE FINANCIAL AND PRACTICAL
CAPABILITY OF INITIATING AND COMPLETING
THE REQUIRED REPAIRS TO THE PREMISES
WITHIN THE TIME EXTENDED. AFTER ONE 30 TO 90
DAY EXTENSION HAS BEEN GRANTED, ADDI-
TIONAL 30 TO 90 DAY EXTENSIONS FOR REPAIRS

App. 49

MAY BE GRANTED ONLY UPON A SHOWING TO
THE-BOARD OF SUBSTANTIAL PROGRESS
TOWARD COMPLETION OF REPAIRS AT THE
OWNER’S PREMISES. IN THE EVENT OF NONCOM-
PLIANCE, TO ANY EXTENT, OR PARTIAL REPAIRS
TO THE PREMISES BY THE OWNER, THE BOARD
MAY AT ANY TIME DECLARE THE PREMISES TO BE
A PUBLIC NUISANCE AND DECLARE THAT THE
PREMISES BE RAZED.

(C) IF THERE IS NO COMPLIANCE WITH THE
BOARD’S ORDER PROVIDED FOR IN THIS SECTION
AFTER 30 DAYS, THE BOARD SHALL CAUSE THE
DWELLING OR PREMISES TO BE REPAIRED,
VACATED, OR DEMOLISHED, AS THE FACTS MAY
WARRANT UNDER THE STANDARDS PROVIDED
FOR IN THE SECTION AND § 150.15 OF THIS CHAP-
TER. THE BOARD SHALL ADVISE THE DIRECTOR
OF PLANNING AND URBAN DEVELOPMENT AS TO
THE PARTICULARS INVOLVED, SO THE APPROPRI-
ATE ACTION MAY BE INSTITUTED TO CAUSE THE
DWELLING OR PREMISES TO BE DEMOLISHED.
SHOULD THE OWNER FAIL, NEGLECT, OR REFUSE
TO PAY THE COSTS SO INCURRED, THE COSTS
SHALL BE PAID OUT OF THE CITY TREASURY ON
THE CERTIFICATE OF THE DIRECTOR OF PLAN-
NING AND URBAN DEVELOPMENT, AND THE
DIRECTOR OF FINANCE SHALL THEN CERTIFY THE
AMOUNT SO PAID TO THE AUDITOR OF SUMMIT
COUNTY. THE AUDITOR SHALL ENTER THE
AMOUNT ON THE TAX DUPLICATE OF THE
COUNTY AS A SPECIAL ASSESSMENT AGAINST
THE REAL ESTATE ON WHICH THE DWELLING OR

App. 50

PREMISES REQUIRING THE WORK IS OR WAS SIT-
UATED, AND THE ASSESSMENT SHALL BE COL-
LECTED AS OTHER TAXES AND ASSESSMENTS
AND, WHEN COLLECTED, SHALL BE REFUNDED TO
THE CITY. ;

§ 150.06 DIRECTOR OF HEALTH.

(A) Rules and regulations. The Director of Health is
authorized to make and adopt rules and regulations and
fix reasonable standards as may be necessary for the
proper enforcement of the provisions of this Chapter and
to carry out the intent thereof.

(B) Emergency situation. Whenever the Director OF
HEALTH finds that an emergency exists which requires
immediate action to protect the public health, he may,
without notice or hearing, issue an order stating the
existence of THE emergency and requiring that action be
taken as he deems necessary to meet the emergency. THE
order shall be effective immediately. Any person to whom
THE order is directed shall comply therewith imme-
diately, but on petition to the Director OF HEALTH, shall
be afforded a hearing as soon as possible. After THE
hearing, depending on his finding as to whether or not
the emergency condition has been abated, the Director
OF HEALTH shall continue THE order in effect or mod-
ify or revoke it.

(C)° FAILURE TO OBEY ORDER. In the event that
the person to whom the order is directed neglects or
refuses to obey THE order, the Director of Health or a
properly authorized employee of the Department of

App. 51

Health is hereby authorized to abate the emergency situa-
tion at the expense of THE person in noncompliance with
the order, AND TO COLLECT ANY COSTS SO
INCURRED AS AUTHORIZED BY LAW.

§ 150.07 DWELLINGS; REQUIREMENTS.

No person shall occupy, or let to another for occu-
pancy, any dwelling for the purpose of living, sleeping,
cooking, or eating therein, which does not comply with
all of the requirements of THIS CHAPTER.

§ 150.08 EQUIPMENT AND F CILITIES.

(A) Kitchen sink. Each dwelling unit shall contain a
kitchen sink in good working condition and connected to
a water and sewer system in an approved manner.

(B) Water closet; lavatory. Each dwelling unit shall
contain a room affording privacy and equipped with a
flush water closet and a lavatory basin in good working
condition and connected to a water and sewer system in
an approved manner.

(C) Bathrooms. Each dwelling unit shall contain a
bathroom affording privacy and equipped with a bathtub
or shower in good working condition and connected to a
water and sewer system in an approved manner. The
rooms mentioned in this division and division (B) of this
section may be the same room.

(D) Water lines. Each kitchen sink, lavatory basin
and bathtub or shower required under divisions (A), (B),
and (C) of this section shall be connected with both hot
and cold water lines in an approved manner.

App. 52

(E) Rubbish storage. Each dwelling unit shall be
supplied with adequate rubbish storage facilities in accor-
dance with standards approved by the Housing Inspec-
tor.

(F) Garbage disposal. Each dwelling unit shall have
adequate garbage disposal facilities in accordance with
standards approved by the Housing Inspector.

(G) Water heating. Each dwelling until shall be sup-
plied with water-heating facilities installed in an
approved manner, in safe working condition, connected
with the hot water lines required under the provisions of
§ 150.09(D) OF THIS CHAPTER, and capable of heating
water to such a temperature as to supply water to every
connected kitchen sink, lavatory basin, bathtub}_or
shower at a temperature of not less than 120F. THE
water-heating facilities shall be capable of meeting the
requirements of this section when the dwelling or dwell-
ing unit heating facilities, required under the provisions
of § 150.09(E), are not in operation.

(H) Means of egress. Each dwelling unit shall h>ve
safe, unobstructed means of egress leading to safe and
open space at ground level.

(I) Smoke detectors. Every multiple dwelling shall
be equipped with audible smoke detector devices that are
properly installed and maintained in an approved man-
ner.

(J) Fire extinguishers. Every multiple dwelling shall
be provided with fire extinguishers of a minimum classi-
fication and shall be maintained in a safe and approved
operating condition. -

App. 53

(K) Fire stairs/sprinkler system. Every multiple
dwelling having habitable rooms located on floors
exceeding two stories in height above grade, not counting
basements, shall be provided with not less than two
approved independent exits or exterior fire stairs from
each floor above the second floor, fully accessible from
each DWELLING UNIT on the floor, or as an alternative,
the entire dwelling shall be provided with a residential
sprinkler system installed in accordance with
NATIONAL FIRE PROTECTION ASSOCIATION
STANDARD #13R.

§ 150.09 LIGHT, VENTILATION, ELECTRICITY, AND
HEATING.

(A) Window areas. Every habitable room shall have
at least one window or ventilating skylight facing directly
to the outdoors. The minimum total window area, mea-
sured between stops, for every habitable room shall be
8% of the floor area of THE room. Whenever walls or
other portions of structures face a window of any such
room and THESE light obstruction structures are located
less than four feet from the window and extend to a level
above that of the ceiling of the room, THE window shall
not be deemed to face directly to the outdoors and shall
not be included as contributing to the required minimum
total window area. Whenever the only window in the
room is a skylight window in the ceiling of THE room,
the total window area of THE skylight shall equal at least
8% of the total floor area of THE room.

(B) Ventilation. Every habitable room shall have at
least one window or skylight which can easily be opened

}

App. 54

or such other device as will adequately ventilate the
room. The total of openable window area in every habit-
able room shall be equal to at least 45% of the minimum
window area size or minimum skylight window size, as
required in division (A) hereof, except where there is
supplied some other device affording adequate ventila-
tion according to standards approved by the Housing
Inspector. |

(C) Bathroom ventilation. Every bathroom and
water closet compartment shall comply with the light and
ventilation requirements for habitable rooms contained in
divisions (A) and (B) hereof, except that no window or
skylight shall be required in bathrooms and water closet
compartments equipped with a ventilation system kept in
operation and complying with standards approved by the
Housing Inspector.

(D) Electric requirements. Where there is electric
service available from power lines, every habitable room
shall contain at least two separate wall-type electric out-
lets and such additional outlets as may be necessary to
supply appliances used therein. Multiple converter plugs
permitting two or more appliances to be plugged into the
same outlet shall not be used. At least one receptacle of
the grounding type shall be installed for connection of
laundry appliances. Receptacles installed in or on open
porches, breezeways, garages, and the like, which may
supply electricity to equipment to be used by persons
standing on the ground, shall be of the grounding type.
Receptacle outlets in floors shall not be counted as part of
the required number of receptacle outlets, unless they are
located close to the wall. Every water closet compart-
ment, bathroom, laundry room, furnace room, and public

App. 55

hall shall contain at least one supplied ceiling or wall-
type electric light fixture. EVERY WATER CLOSET
COMPARTMENT AND BATHROOM SHALL CON-
TAIN AT LEAST ONE SUPPLIED OUTLET. ALL WIR-
ING SYSTEMS, outlets and fixtures shall be properly
installed, shall be maintained in good and safe working
condition, and shall be connected to the source of electric
power in a safe approved manner.

(E) Heating facilities.

(1) Every dwelling unit shall be provided with
approved heating facilities capable of maintaining an aver-
age temperature of 70F. in all habitable rooms, kitchens,
bathrooms, and water closet compartments when the out-
door temperature is -5F., without forcing THE facilities to
operate in excess of their design capacity.

(2) (a) The owner or operator in charge of a dwell-
ing, who rents or leases any dwelling unit therein under
an agreement, express or implied, to supply or furnish
heat to the occupants thereof, shall supply heat adequate
to maintain an inside temperature of not less than 70F. for
each hour of the entire 24-hour period of each day in all
habitable rooms, bathrooms, water closet compartments,
and kitchens, whenever the outside temperature falls
below 50F. THE inside temperature shall be measured in
the approximate center of each room, approximately
three feet above the floor, with the following exceptions:

(b) The owner of a hotel or apartment building s{all
furnish heat sufficient to maintain the following mini-
mum temperatures: between the hours of 6:00 a.m. and
11:00 p.m., 70F.; between the hours of 11:00 p.m. and 6:00
a.m., 65F.

App. 56

(c) The requirements of this section do not apply to
any lobby, corridor, stairway, or other similar area, nor to
any room or suite of rooms not occupied by guests or
tenants for pay, nor to any room or suite of rooms pro-
vided with a separate heating plant under the care and
control of the tenant or occupant thereof.

(F) Lighting of halls and stairways. All common
halls and stairways in all multiple dwellings containing
more that [sic] two dwelling units shall be adequately
lighted at all times.

(G) Screening. During that portion of each year
when protection is necessary against mosquitoes, flies, or
other insects, all doorways opening directly from a dwell-
ing unit to outdoor space shall be supplied with screens
and self-closing devices, and all windows or other
devices with openings to outdoor space, used or
DESIGNED to be used for ventilation, shall also be sup-
plied with screens.

(H) Rodent protection. Every basement or cellar
window, used or DESIGNED to be used for ventilation,
and every other opening which might provide an entry
for rodents, shall be supplied with a screen or such other
device as will effectively prevent entry by rodents into
the building.

§ 150.10 GENERAL MAINTENANCE.

(A) Foundation, floor, wall, ceiling, roof, chimney,
window, door, and premises.

(1) Every foundation, floor, wall ceiling, roof, AND
EAVE shall be reasonably weathertight, watertight and

App. 57

rodent-proof and shall be kept in sound working condi-
tion and good repair.

(2) ALL Downspouts and gutters shall be properly
installed and kept in sound working condition and good
repair.

(3) Every window, door, and basement hatchway
shall be reasonably weathertight, watertight, and rodent-
proof, SHALL BE CAPABLE OF AFFORDING PRIVACY
AND SECURITY, and shall be kept in sound working
‘ condition and good repair.

(4) All exterior surfaces OF BUILDINGS ON A
PREMISES shall be CLEAN AND maintained in good
repair so as to provide sufficient covering and protection
of the structural surface, underneath against deteriora-
tion, WITH PAINT, STUCCO, ALUMINUM, VINYL
SIDING OR OTHER APPROVED EXTERIOR GRADE
WATERPROOFING MATERIALS, APPLIED IN AN
APPROVED MANNER, AND OF A UNIFORM COLOR
AND APPEARANCE TO MATCH OR COMPLEMENT
THE OTHER STRUCTURAL SURFACES ON THE
PREMISES. Without limiting the generality of this sec-
tion, aN EXTERIOR surface of a building shall be
deemed to be out of repair if THE surface is blistered,
cracked, flaked, scaled, or chalked away, or is loose or has
fallen.

(5) Every chimney, ANTENNA and all parts
thereof, both exterior and interior, shall be properly
installed and maintained IN a safe condition and in good
repair.

App. 58

(6) EVERY RETAINING WALL, WALKWAY, SIDE-
WALK AND DRIVEWAY SHALL BE PROPERLY
INSTALLED, MAINTAINED IN A SAFE CONDITION
AND IN GOOD REPAIR.

(7) The premises shall be free from hazards and
conditions which might create a nuisance.

(B) Stairs and porches. Every inside and outside
stair, every porch, and every appurtenance thereto shall
be so constructed as to be safe for use and capable of
supporting the load that normal use may cause to be
placed thereon and shall be kept in sound condition and
good repair. Where the absence of handrails creates a .
hazard, they shall be installed in an approved manner.

(C) Plumbing pipes. Every plumbing fixture and

water and waste pipe shall be installed in an approved

_ manner and maintained in good sanitary working condi-
tion, free from defects, leaks, and obstructions.

(D) KITCHEN AND Bathroom floors. Every
KITCHEN FLOOR SURFACE, water closet compartment

floor surface and bathroom floor surface shall be con- .

structed and maintained so as to be reasonably imper-
vious to water and so as to permit THE floor to be easily
kept in a clean and sanitary condition.

(E) Functioning of equipment. Every supplied facil-
ity, piece of equipment, or utility required under the
provisions of this Chapter shall be installed in an
approved manner and shall be maintained in satisfactory
working condition.

App. 59

§ 150.11 SPACE USE AND LOCATION REQUIREMENTS.

(A) Floor space. Every dwelling unit shall contain at
least 150 square feet of floor space for the first occupant
thereof and at least 100 additional square feet of floor
space for every additional occupant thereof, the floor
space to be calculated on the basis of total habitable room
area.

(B) Sleeping areas. In every dwelling unit of two or
more rooms, every room occupied for sleeping purposes
by one occupant shall contain at least 70 additional
square feet of floor space and every room occupied for
sleeping purposes by more than one occupant shall con-
tain at least 50 additional square feet of floor space for
each additional occupant thereof.

(C) Bathroom access. No dwelling or dwelling unit
containing two or more sleeping rooms shall have such
THE rooms arranged such that access to a bathroom or
water closet compartment, intended for use by occupants
of more than one sleeping room, can be had only by
going through another sleeping room, nor shall room
arrangements be such that access to a sleeping room can
be had only by going through another sleeping room,
bathroom, or water closet compartment.

(D) Ceiling height. At least one-half of the floor
area of every habitable room shall have a ceiling height of
at least seven feet six inches and the floor area of that
part of any room where the ceiling height is less than five
feet shall not be considered as part of the floor area in
computing the total floor area of the room for the pur-
pose of determining the maximum permissible occupancy
thereof.

App. 60

(E) Basements. No basement space shall be used as
a habitable room or dwelling unit unless:

(1) The floor and walls are impervious to leakage of
underground and surface runoff water and are insulated
against dampness;

(2) The total window area in each room is equal to
at least the minimum window area sizes as required in
§ 150.09(A) OF THIS CHAPTER;

(3) THE required minimum window area is located
entirely above the grade of the ground adjoining THE
window aera;

(4) The total of openable window area in each room
is equal to at least the minimum as required under
§ 150.09(B) OF THIS CHAPTER, except where some
other device IS SUPPLIED affording adequate ventila-
tion and approved by the Housing Inspector; and

(5) Basement space, when occupied for living,
meets all other requirements of a dwelling unit.

§ 150.12 RESPONSIBILITY OF OWNERS AND OCCU-
PANTS.

(A) Owner to maintain sanitary conditions. Every
owner of a dwelling containing two or more dwelling
units shall be responsible for maintaining, in a clean and
sanitary condition, the common or public areas of the
dwelling and premises thereof.

(B) Occupant to maintain sanitary conditions. Every
occupant of a dwelling or dwelling unit shall keep in a
clean and sanitary condition and in good repair that part

App. 61
ees

of the dwelling, dwelling unit, and premises thereof
which he occupies and controls.

(C) Disposal of garbage and rubbish. Every occu-
pant of a dwelling or dwelling unit shall dispose of all his
garbage, rubbish, and any other organic waste which
might provide food for rodents, in a clean and sanitary
manner, by placing it in the garbage or rubbish disposal
facilities or garbage storage containers required by
§ 150.08(F) OF THIS CHAPTER. It shall be the respon-
sibility of the owner to supply such THE facilities or
containers for all dwelling units in a dwelling containing
more than two dwelling units and for all dwelling units
located on premises where more than two dwelling units
share the same premises. In all other cases, it shall be the
responsibility of the occupant to furnish THE facilities or
containers.

(D) Screens and storm windows. Every occupant of
a dwelling or dwelling unit shall be responsible for hang-
ing all screens, double or storm doors, and windows,
whenever the same are required under the provisions of
this Chapter or of any rule or regulation adopted pur-
suant thereto, except where the owner has agreed to
supply THE service.

(E) Rodent extermination. Every occupant of a

dwelling containing a single dwelling unit shall be
responsible for the extermination of any insects, rodents,
or other pests therein or on the premises and every
occupant of a dwelling unit in a dwelling containing
more than one dwelling unit shall be responsible for THE
extermination whenever his dwelling unit is the only one
infested. Notwithstanding the foregoing provisions of

App. 62

this section, whenever infestation is caused by failure of
the owner to maintain a dwelling in a rat-proof or reason-
ably insect-proof condition, extermination shall be the
responsibility of the owner. Whenever infestation exists
in two or more of the dwelling units in any dwelling, or
in the common or public parts of any dwelling containing
two or more dwelling units, extermination thereof shall
be the responsibility of the owner.

(F) Plumbing fixtures. Every occupant of a dwelling
unit shall keep all plumbing fixtures therein in a clean
and sanitary condition and shall be responsible for the
exercise ‘of reasonable care in the proper use and opera-
tion thereof.

§ 150.13 ROOMING HOUSES; EQUIPMENT AND FACIL-
ITIES.

No person shall operate a rooming house, or occupy
or let to another for occupancy, any rooming unit in any
house, except in compliance with the provisions of THIS
CHAPTER.

(A) Bathroom facilities. At least one flush water
closet, lavatory basin, and bathtub or shower, properly
connected to a water and sewer. system, meeting stan-
dards approved by the Housing Inspector and in good
working condition, shall be supplied for each six persons
or fraction thereof residing within a rooming house,
including members of the operator’s family whenever
they share the use of the facilities. In a rooming house
where rooms are let to males, flush urinals may be substi-
tuted for not more than one-half of the required number
of water closets. All rooming units and water closets shall
be so located within the dwelling as to be accessible from

————<

App. 63

a common hall or passageway to all persons sharing such
THE facilities. Every lavatory basin and bathtub or
shower shall be adequately supplied with hot water at all
times. THE facilities shall NOT be located in a basement
except by written approval of the Housing Inspector.

(B) Bedding and towels. The operator of every
rooming house shall change supplied bed linen and
towels therein at least once each week and prior to the
letting of any room to any occupant. The operator shall
be responsible for the maintenance of all supplied bed-
ding in a clean and sanitary manner.

(C) Sleeping room area. Every room occupied for
sleeping purposes by one person shall contain at least 80
square feet of floor space and every room occupied for
sleeping purposes by more than one person shall contain
at least 60 square feet of floor space for each additional
occupant thereof.

(D) Means of egress. Every rooming unit shall have
safe, unobstructed means of egress leading to safe and
open space at ground level, as required by the laws of the
state and the City.

(E) Sanitary maintenance. The operator of every

rooming house shall be responsible for the sanitary main-
tenance of all walls, floors, and ceilings and for mainte-
nance of a sanitary condition in every other part of the
rooming house. He shall be responsible for the sanitary
maintenance of the entire premises where the entire
structure or building is leased or occupied by the opera-
tor.

App. 64

(F) Cooking. Cooking in dormitory rooms and
rooming units shall be prohibited.

G) Access. Access doors to rooming units shall
have operating locks to insure privacy.

(H) Heating requirements. the operator of every
rooming house shall furnish heat sufficient to maintain an
inside temperature of not less than 70F. for each hour of
the entire 24-hour period of each day in all habitable
rooms, bathrooms, water closet compartments, and
kitchens, and be able to maintain this temperature when
the outside temperature falls to 50F. or below, except that
the operator shall furnish heat sufficient to maintain the
following minimum temperatures at the following hours
of the day: between the hours of 11:00 p.m. and 6:00 a.m.,
65F. -

(I) Smoke detectors. Every rooming house shall be
equipped with audible smoke detector devices that are
properly installed and maintained in an approved man-
ner.

(J) Fire extinguishers. Every rooming house shall be
provided with fire extinguishers of a minimum classifica-
tion and shall be maintained in a safe and approved
operating condition.

(K) Fire stairs/sprinkler system. Every rooming
house having habitable rooms located on floors exceeding
two stories in height’ above grade, not counting base-
ments, shall be provided with not less than two indepen-
dent exists or exterior fire stairs from each floor above the
second floor, fully accessible from each DWELLING

App. 65

UNIT on the floor, or as an alternative, the entire dwell-
ing shall be provided with a residential sprinkler system
installed in accordance with NATIONAL FIRE PROTEC-
TION ASSOCIATION STANDARD #13R.

§ 150.14 HOTELS. ee

~
7

Every provision of this Chapter which applies to
rooming houses shall also apply to hotels, except to the
extent that any provision may be found in conflict with
the laws of the state or with the lawful regulations af any
state board or agency.

§ 150.15 UNFIT DWELLINGS OR PREMISES.

(A) Any dwelling or premises that are at any time
unfit for human habitation or use, unless made habitable,
shall be taken down and removed when so ordered by
the Housing Inspector.

(B) Any dwelling or premises declared unfit for
human habitation or use may be restored to a habitable
condition.

(C) Any dwelling or premises which has any of the
following defects shall be deemed unfit for human habi-
tation or use:

(1) Those which have improperly distributed loads
upon the floors or roofs or in which the same are over-
loaded or have insufficient strength to be reasonably safe
for the purpose used;

(2) Those which have been damaged by fire, wind

_ or other causes so as to have become dangerous to life,

safety, morals, or the general health and welfare of the
occupants or other residents of the City;

App. 66 -

(3) Those which have become so dilapidated,
decayed, unsafe, unsanitary, or vermin infested or which
so utterly fail to provide the amenities essential to decent
living that they are unfit for human-habitation or use or
are so likely to cause sickness or disease that their condi-
tion constitutes a serious hazard to the health, morals,
safety, or general welfare of the occupants or other resi-
dents of the City;

(4) Those having light, air, and sanitation facilities
which are inadequate to protect the health, morals, safety,
or general welfare of human beings who live or may live
therein;

(5) Those having inadequate facilities for ingress
and egress in case of fire, panic, or other emergencies, or
those having insufficient stairways, elevators, fire
escapes, or other means of communication; ;

(6) Those which have parts thereof which are so
attached that THE parts may fall and injure occupants, -
other residents or other property;

(7) Those which, because of their general condition
or location, are unsafe, unsanitary or otherwise dan-
gerous to the health, morals, safety, or general welfare of
occupants or other residents of the City; or

(8) Those existing in violation of any of the provi-
sions of the building code, the Fire Prevention Code, or
other ordinances of the City.

(D) The Housing Inspector shall use the following
standards in ordering a dwelling or premises to be
repaired, vacated, or demolished:

App. 67

(1) When it can reasonably be repaired so that it
will no longer exist in violation of any of the provisions
of this Chapter, it shall be ordered repaired;

(2) When it is in such condition as to make it dan-
gerous to the health, morals, safety, or general welfare of
its occupants, it shall be ordered vacated;

(3) When it is 60% damaged, decayed, or deterio-
rated from its original value or structure, it shall be
demolished, and in all cases where it cannot be repaired,
or where the owner refuses or fails to repair THE dwell-
ing so that it will no longer be in violation of any of the
terms of this Chapter, it shall be demolished. In all cases
where it is a fire hazard, existing or erected in violation of
any of the terms of this Chapter or any ordinances of the
City, it shall be demolished.

§ 150.16 VACATING UNFIT DWELLINGS OR PREMISES.

Any dwelling or premises condemned as unfit for
human habitation or use, and so designated and
placarded by the Housing Inspector, shall be vacated
within a reasonable time as ordered by the Housing
Inspector.

§ 150.17 PUBLIC NUISANCE.

Any dwelling or premises condemned as unfit for
human habitation or use, within the terms of this Chap-
ter, is declared to be a public nuisance, and shall be
repaired, vacated, or demolished as provided in this
Chapter.

App. 68

§ 150.18 CONDEMNATION PLACARD.

The Housing Inspector shall place a notice on all.
CONDEMNED dwellings or premises by placing a
placard thereon, or in a location which is readily notice-
able, reading as follows:

CONDEMNED

This building is unfit for human habitation or
use and has been condemned by order of the
Director. of Health of the City of Akron. All
persons are herewith warned to stay away from
this building, except those who are employed to
repair or raze the same in accordance with the
notice which has been given the owner of this
building and all other persons having an inter-
est in said premises as shown by the land
records of the Summit County Recorder’s
Office. It is unlawful for any person to remove
this sign without written permission from the
Director of Health of The City of Akron.

§ 150.20 REOCCUPATION.

Any dwelling or premises which has been con-
demned and placarded as unfit for human habitation or
use shall not again be so used until written approval is
secured from, and THE placard removed by, the Housing
Inspector. The Housing Inspector shall remove THE
placard and give THE written approval whenever the
defect from which THE condemnation and placarding
action resulted has been eliminated.

§ 150.201 ENTERING A CONDEMNED DWELLING.

(A) NO PERSON SHALL ENTER ANY DWELL-
ING THAT HAS BEEN CONDEMNED AS UNFIT FOR

App. 69

HUMAN HABITATION OR USE, AND SO DESIG-
NATED AND PLACARDED BY THE HOUSING
INSPECTOR, AND THAT HAS BEEN VACATED,
EXCEPT BETWEEN THE HOURS OF 7:00 A.M. AND
7;00 P.M. FOR THE SPECIFIC PURPOSE OF REPAIR-
ING THE DWELLING, OR SUCH OTHER LAWFUL
PURPOSE AS AUTHORIZED BY THE HOUSING
INSPECTOR.

(B) ENFORCEMENT OF THIS SECTION SHALL
NOT REQUIRE A NOTICE AND ORDER TO COMPLY
AS A PREREQUISITE.

§ 150.21 DISCONTINUANCE OF UTILITIES.

No owner, operator, or occupant shall cause any ser-
vice, facility, equipment, or utility which is required
under §§ 150.09(D) and (E) and 150.08(A), (B), (C), (D),
and (G), of this code to be removed from, shut off from,
or discontinued from any occupied dwelling let or occu-
pied by THE owner, operator, or occupant, including by
reason of nonpayment, except for such temporary inter-
ruption as may be necessary while actual repairs or alter-
ations are in process, or during temporary emergencies
when discontinuance of service is approved by the Hous-
ing Inspector.

§ 150.22 VACANT DWELLING.

No person shall occupy, or let to another for occu-
pancy, any vacant dwelling unless the same is clean,
sanitary, and fit for human occupancy.

§ 150.23 REMOVAL OF PLACARD.

No person shall deface or remove the placard pro-
vided for in § 150.18 OF THIS CHAPTER from any
building or premises.

—

App. 70

§ 150.24 CONFLICT AND INVALIDITY.

In any case where a provision of this Chapter is
found to be in conflict with a provision of any zoning,
building, fire, safety or health ordinance or code of the
City existing on the effective date of this Chapter, the
provision which establishes the higher standard for the
promotion of the health and safety of the people shall
prevail. In any case, where a provision of this Chapter IS
found to be in conflict with a provision of any other
ordinance or code of the City existing on the effective
date of this Chapter, which establishes a lower standard
for the promotion and protection of the health and safety
of the people, the provisions of this Chapter shall prevail,
and THE other ordinance or code shall be repealed to the
extent that IT may be found in conflict with this Chapter.

§ 150.25 WARRANTIES AND LIABILITY.

THE PROVISIONS OF THIS CHAPTER SHALL
NOT BE CONSTRUED TO WARRANT, INSURE OR
GUARANTEE THAT THERE ARE NO VIOLATIONS
OF THE-HEALTH, SAFETY AND SANITATION CODE,
LITTER CODE, HOUSING CODE, OR ZONING CODE
AT A PREMISES, OR THAT THE PREMISES IS IN A
CLEAN, SANITARY, SAFE OR FIT CONDITION.
INSPECTIONS OF THE DEPARTMENT OF PUBLIC
HEALTH ARE MADE ON BEHALF OF THE CITY AND
THE DEPARTMENT OF PUBLIC HEALTH FOR THE
PURPOSE OF PRESERVING AND IMPROVING THE
HOUSING STOCK AND ENFORCING THE HEALTH,
SAFETY AND SANITATION CODE, LITTER CODE,
HOUSING CODE, AND ZONING CODE. INSPEC-
TIONS OF THE DEPARTMENT OF PUBLIC HEALTH

App. 71

ARE NOT MADE ON BEHALF OF THE OCCUPANT,
OPERATOR, OWNER, OR PURCHASER OF A PREM-
ISES, OR ANY OTHER PERSON.

§ 150.30 REGISTRATION REQUIRED. -

(A) AN OWNER OR OPERATOR SHALL REGIS-
TER, ON A REGISTRATION FORM THAT THE
DEPARTMENT OF PUBLIC HEALTH SHALL PRO-
VIDE, ALL RENTAL UNITS THAT THE OWNER
OWNS, OR THAT THE OPERATOR OPERATES, NO -
LATER THAN JANUARY 1 OF EACH YEAR, AND
UPON THE COMPLETION OF TRANSFER OF TITLE
TO A PREMISES OR STRUCTURE WITH A RENTAL
UNIT.

(B) THE REGISTRATION FORM SHALL
INCLUDE INFORMATION AS THE DEPARTMENT OF
PUBLIC HEALTH SHALL DETERMINE, INCLUDING
THE TOTAL NUMBER OF RENTAL UNITS THAT THE
OWNER OWNS, OR THAT THE OPERATOR OPER-
ATES, THE NUMBER OF PREMISES AND STRUC-
TURES WITH A RENTAL UNIT, THE ADDRESS OF
EACH PREMISES AND STRUCTURE, THE NUMBER
OF RENTAL UNITS ON EACH PREMISES AND IN
EACH STRUCTURE, THE IDENTIFICATION NUMBER
OR LETTER OF ALL RENTAL UNITS ON EACH
PREMISES AND IN EACH STRUCTURE, THE DATE,
BOOK AND PAGE WHERE THE OWNER’S INTEREST
IN EACH PREMISES AND STRUCTURE IS -
RECORDED WITH THE SUMMIT COUNTY
RECORDER’S OFFICE, AND INFORMATION CON-
CERNING THE OWNER, WHICH SHALL INCLUDE:

App. 72

(1) IF THE OWNER IS ONE OR MORE INDIVID-
UALS OR A SOLE PROPRIETORSHIP, THE OWNER’S
NAME, ADDRESS, DATE OF BIRTH AND PHONE
NUMBER;

(2) IF THE OWNER IS A PARTNERSHIP, THE
NAME, ADDRESS, TAX IDENTIFICATION NUMBER
AND PHONE NUMBER OF THE PARTNERSHIP, AND
THE NAME, ADDRESS, DATE OF BIRTH AND
PHONE NUMBER OF ONE OF THE PARTNERS;

(3) IF THE OWNER IS A CORPORATION, THE
NAME, ADDRESS AND PHONE NUMBER OF THE
CORPORATION, THE NAME, ADDRESS AND PHONE
NUMBER OF THE CORPORATION’S STATUTORY
AGENT, AND THE NAME, ADDRESS, DATE OF
BIRTH, AND PHONE NUMBER OF ONE OF THE
OFFICERS; AND

(4) IF THE OWNER IS A TRUST, THE NAME,
ADDRESS AND PHONE NUMBER OF THE TRUST,
AND THE NAME, ADDRESS, DATE OF BIRTH, AND
PHONE NUMBER OF ONE OF THE TRUSTEES.

(C) IF THE OWNER OF A RENTAL UNIT IS
REQUIRED TO HAVE AN OPERATOR PURSUANT TO
SECTION 150.50 OF THIS CHAPTER, OR IF THE
OWNER OTHERWISE HAS AN OPERATOR THAT IS
NOT THE OWNER, THEN THE REGISTRATION
FORM SHALL INCLUDE, IN ADDITION TO THE
INFORMATION REQUIRED BY DIVISION (B) OF
THIS SECTION, ADDITIONAL INFORMATION CON-
CERNING THE OPERATOR, AS THE DEPARTMENT
OF PUBLIC HEALTH SHALL DETERMINE, WHICH
SHALL INCLUDE:

App. 73

(1) IF THE OPERATOR IS ONE OR MORE INDI-
VIDUALS OR A SOLE PROPRIETORSHIP, THE OPER-
ATOR’S NAME, ADDRESS, DATE OF BIRTH AND
PHONE NUMBER;

(2) IF THE OPERATOR IS A PARTNERSHIP, THE
NAME, ADDRESS AND PHONE NUMBER OF THE
PARTNERSHIP, AND THE NAME, ADDRESS, DATE
OF BIRTH AND PHONE NUMBER OF ONE OF THE
PARTNERS; AND

(3) IF THE OPERATOR IS A CORPORATION,
THE NAME, ADDRESS AND PHONE NUMBER OF
THE CORPORATION, THE NAME AND ADDRESS OF
THE CORPORATION’S STATUTORY AGENT, AND
THE NAME, ADDRESS, DATE OF BIRTH, AND
PHONE NUMBER OF ONE OF THE OFFICERS; AND

(4) IF THE OPERATOR IS A TRUST, THE NAME,
ADDRESS AND PHONE NUMBER OF THE TRUST,
AND THE NAME, ADDRESS, DATE OF BIRTH, AND
PHONE NUMBER OF ONE OF THE TRUSTEES.

(D) WITHIN THIRTY DAYS OF ANY CHANGE
OF INFORMATION THAT IS REQUIRED ON A REG-
ISTRATION FORM, THE OWNER OR OPERATOR OF
A RENTAL UNIT SHALL CONTACT THE DEPART-
MENT OF PUBLIC HEALTH, IN WRITING, TO
UPDATE THE INFORMATION ON THE REGISTRA-
TION FORM. NO FEE SHALL BE CHARGED FOR THE
UPDATING OF INFORMATION ON THE REGISTRA-
TION FORM.

(E) NO OWNER OR OPERATOR SHALL FAIL TO
REGISTER, WITH THE DEPARTMENT OF PUBLIC

App. 74

HEALTH, ALL RENTAL UNITS THAT THE OWNER
OWNS OR THAT THE OPERATOR OPERATES.

(F) NO OWNER OR OPERATOR OF A RENTAL
UNIT SHALL FAIL TO CONTACT THE DEPARTMENT
OF PUBLIC HEALTH, IN WRITING, WITHIN THIRTY
DAYS OF ANY CHANGE OF INFORMATION THAT IS
REQUIRED ON A REGISTRATION FORM, TO
UPDATE THE INFORMATION ON THE REGISTRA-
TION FORM.

(G) A REGISTRATION FEE PER OWNER OR
OPERATOR SHALL BE IMPOSED AS FOLLOWS, OR
AS THE HEALTH COMMISSION SHALL SUBSE-
QUENTLY ESTABLISH BY REGULATION:

(1) IF THE OWNER OWNS OR THE OPERATOR
OPERATES ONE RENTAL UNIT, A FEE OF $15.00;

(2) IF THE OWNER OWNS OR THE OPERATOR
OPERATES TWO TO FIVE RENTAL UNITS, A FEE OF
$25.00;

(3) IF THE OWNER OWNS OR THE OPERATOR
OPERATES SIX TO TWENTY-FIVE RENTAL UNITS, A
FEE OF $75.00;

(4) IF THE OWNER OWNS OR THE OPERATOR
OPERATES TWENTY-SIX TO ONE-HUNDRED
RENTAL UNITS, A FEE OF $150.00;

(5) IF THE OWNER OWNS OR THE OPERATOR
OPERATES ONE-HUNDRED AND ONE OR MORE
RENTAL UNITS, A FEE OF $250.00; AND

(6) IF A REGISTRATION FORM IS FILED LATE,
AN ADDITIONAL LATE FEE OF $10.00.

App. 75

(H) MONEY COLLECTED UNDER THIS SEC-
TION SHALL BE USED EXCLUSIVELY FOR RENTAL
UNIT REGISTRATION PURPOSES.

(I) A REGISTRATION FORM SHALL BE VALID
FOR ONE YEAR, UNLESS:

(1) FALSE INFORMATION IS

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1490%3A1. Public record. Not legal advice.