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Milford Airbnb Ban Unconstitutional

FOR IMMEDIATE RELEASE
October 4, 2022

 

Ohio cities unlawfully trample property rights when they criminalize vacation rentals.

 

Columbus, OH – The 1851 Center for Constitutional Law this week moved to enjoin the City of Milford’s severe new restrictions targeting homeowners listing their homes on Airbnb and VRBO.

The federal lawsuit is filed on behalf of Milford homeowners Tara Menkhaus, who is forbidden from hosting short-term guests because a neighbor within 300 feet first obtained a permit to do, and Linda Cassidy, who is forbidden from hosting short-term guests solely because lives in her own home down the street rather than within her vacation rental, as the City now requires.

Through its Motion for Preliminary Injunction, the 1851 Center explains that the Milford ordinance and its penalties violate the United States and Ohio Constitutions through arbitrarily suppressing private property rights and commerce:

  • Due process, equal protection, and antitrust guarantees protect Ohioans from “Neighborhood Vetoes,” whereby local governments authorize any protesting neighbor to veto another’s use of his or her home (as a vacation rental in this case), even if that neighbor is doing so to create a neighborhood monopoly for his own rental.

 

  • Due process and commerce guarantees also protect Ohioans from “Residency Requirements” that require homeowners live within a particular home in a specific city simply to retain their longstanding right to lease their own homes.

 

  • The Excessive Fines Clause forbids fines of up to $3,000 per day for simply continuing to lease one’s home.

“Ohio cities transgress both constitutional and ethical boundaries when they empower busybody neighbors veto power over our property rights, or condition our right on where we live,” explained 1851 Center Executive Director Maurice Thompson.  “In the absence of evidence that one’s property is actually inflicting harm on others, which can already be solved by nuisance law, local governments and their supplicants must peacefully tolerate homeowners’ harmless personal choices, be it the color of their home or who they invite to stay there.”

The case is pending before Judge Barrett in the Western Division of the Southern District of Ohio.

Read the 1851 Center’s Complaint here.

Read the 1851 Center’s Motion for Preliminary Injunction here.

The 1851 Center for Constitutional Law is a nonprofit, nonpartisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and searches and seizures.

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Ohio Court: Cities Can’t Charge “Fees” for Calling Police or Home Defense

FOR IMMEDIATE RELEASE
November 16, 2021

 

Cincinnati tax on those using home security alarms, whether they call the police or not, violates Due Process, is unconstitutional.

 

Cincinnati, OH – An Ohio Appellate Court this week ruled unconstitutional a City of Cincinnati ordinance forbidding use of home security alarms by residents unless they first pay the City an annual $100 fee.

The 1851 Center for Constitutional Law’s victory comes on behalf of local residents Vena Jones-Cox and Drew White, who equipped their homes and business with security alarms to protect themselves, their families, and their property from the City’s rising crime.  The City had fined Mr. White $800 for using a home alarm without first paying the City’s alarm tax.

The unanimous ruling by First District Court of Appeals Judges Winkler, Zayas, and Bock, holds that the City must stop collecting the assessments because they “are a tax, and the imposition of that tax is unconstitutional,” reasoning as follows:

  • “Appellants, like other taxpayers, already pay for police protection through their tax dollars. Imposing a separate fee or penalty constitutes a form of double taxation.”

 

  • “The assessments do not bear a reasonable relationship to the protections, benefits, or opportunities provided by the City to those paying them.”

 

  • “Instead of promoting the public health and welfare, the assessments have a chilling effect in deterring citizens from utilizing alarm systems to protect themselves, their homes, and their property.”

The case now returns to the trial court, where Cincinnati homeowners will certify a class action to recover funds the City unlawfully seized from them since enacting the ordinance in 2014.

“Both the state and federal constitutions forbid Ohio cities from charging ‘user fees’ to homeowners who defend their homes or call the police, whether with a home security alarm or otherwise,” explained 1851 Center Executive Director Maurice Thompson.  “This ruling confirms that Ohioans can prevail when cities attempt to swindle them through improper taxes, fees, and assessments.”

Read the Court’s Order here.

Read the 1851 Center’s Appellate Brief here.

Watch the Oral Argument here.

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The 1851 Center for Constitutional Law is a nonprofit, nonpartisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and searches and seizures.

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Ohio Court: State Mask Mandates Unconstitutional

FOR IMMEDIATE RELEASE
April 6, 2021

 

In Ashland County, ”any further attempt to enforce mask restrictions will result in further restraint of any such attempt.”

Ashland, OH – An Ohio Court late Wednesday cast doubt on the lawfulness of the state’s mask mandates, holding that the Governor and Department of Health lack authority to issue such mandates.

The decision by Judge Ronald Forsthoefel of the Ashland County Court of Common Pleas comes on behalf of 1851 Center for Constitutional Law’s client Cattlemans Restaurant in Savannah, Ohio. The Court concludes that “Plaintiffs should not be subject to any further enforcement action,” over masks due to the following:

  • “R.C. 3701.13 grants no authority to the Director of the Ohio Department of Health to issue or enforce mandatory mask orders since there is no stated or implied authority in R.C. 3701.13 which authorizes any action to prevent the spread of contagious or infections disease.”
  • “The Dine Safe Ohio Order in this case fails to accomplish anything scientifically demonstrable, or otherwise corroborated with empirical data, to prevent the spread of contagious or infectious diseases even if that purpose were authorized by R.C. 3701.13.”
  • Local health departments may not suspend restaurants’ licenses for “immediate danger to public health” arising from mask violations because such danger has not been “factually established nor scientifically demonstrated.”

“The Court’s Order is further evidence that no statute permits Ohio agencies to overregulate all Ohioans over an extended period of time, and that if one did, it would violation the Ohio Constitution’s separation of powers,” explained 1851 Center Executive Director Maurice Thompson. “The decision provides a roadmap for elected officials in other counties, who ultimately maintain the power to protect their citizens from the State’s arbitrary and continuous administrative overreach, since virtually all enforcement of these orders is undertaken locally.”

The Court’s reasoning arises while addressing procedural, jurisdictional, and timing issues in a case that ultimately resulted in an injunction forbidding the county’s health department from suspending food service operations licenses in response to restaurant employees not wearing masks.

The Ashland County Health Department had suspended Cattlemans business license for mask violations in July of 2020, but the 1851 Center won a Temporary Restraining Order permitted the Restaurant to open the next week.

Read the Read the Court’s Order here.

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The 1851 Center for Constitutional Law is a nonprofit, nonpartisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and searches and seizures.

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Akron Federal Court: CDC Eviction Ban Unlawful

FOR IMMEDIATE RELEASE
March 10, 2021
 
Centers for Disease Control has no authority to administratively criminalize removal of tenants who refuse to pay

Akron, OH – A federal court on Wednesday determined that the Centers for Disease Control exceeded its limited statutory authority in issuing an order halting residential evictions across the nation.

The 1851 Center for Constitutional Law’s victory comes on behalf of Canton landlords Lila and Eric Wohlwend, whose tenants used the CDC’s Order as grounds to cease paying rent for months on end.

The ruling by Judge Philip Calabrese of the Northern District of Ohio, identifying the issue as “whether Congress has given the Centers for Disease Control and Prevention the authority to make and enforce a nationwide moratorium on evictions,” concludes that “the Centers for Disease Control and Prevention’s orders—The Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19—exceed the agency’s statutory authority provided in the Public Health Service Act, and are, therefore, invalid.”

The Court reasoned that such a broad reading of authority would “authorize action with few, if any, limits” and “implicate serious constitutional concerns . . . But the text does not authorize such boundless action or depend on the judgment of the Director of the CDC or other experts for its limits.”

“Overreaching administrative agencies – whether state or federal – may not attack Ohioans’ property rights without specific, narrow, and unmistakable authority from elected legislative branches,” explained 1851 Center Executive Director Maurice Thompson. “As a practical matter, the ruling will simply permit Ohio’s housing providers, many of whom are themselves struggling, to use longstanding state law to reclaim their homes from ill-willed squatters and make those homes available to the many Ohioans earnestly seeking to improve their housing situations.”

Click here to view Court document.

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The 1851 Center for Constitutional Law is a nonprofit, nonpartisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and searches and seizures.

This litigation was brought in cooperation with the Pacific Legal Foundation.

 

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Ohio Court: Health Departments Cannot Suspend Licenses Over Masks

FOR IMMEDIATE RELEASE
July 23, 2020

Ashland County Restaurant is protected by Ohio Constitution’s limits on arbitrary administrative action

Ashland, OH – In the first attempt within Ohio to suspend a business license for an alleged mask violation, an Ohio Court of Common Pleas Thursday enjoined its county health department from suspending local restaurants’ food service operations licenses in response to restaurant employees not wearing masks.

The 1851 Center for Constitutional Law’s victory comes on behalf of Cattlemans Restaurant in Savannah, Ohio, whose business license was permanently suspended on July 15, 2020 when Ashland County Health Department agents observed a cook and dishwasher not wearing masks in Cattlemans’ kitchen.

The ruling by Judge Ronald Forsthoefel holds that Cattlemans Restaurant and its owner are “being denied their civil liberties, including the right to earn a living and operate a commercial enterprise, without due process of law.”

And as to the mask requirement as a basis for suspending business licenses, the Court explains “If the State’s Order recognizes exceptions to a blanket mask wearing rule and as such would not consider the lack of wearing a mask an immediate danger to the public health, then it begs the question as to whether the failure to wear a mask for any reason could ever constitute a basis for finding an immediate danger to the public health.”

Cattlemans Restaurant will reopen on Saturday July 25, 2020.

“We continue to view the State’s mask requirements, like all of the Orders of the Ohio Department of Health thus far, as unenforceable advice that may or may not be wise.  Accordingly, we will continue to protect Ohioans when overreaching state or local health departments attempt to enforce these requirements,” explained 1851 Center Executive Director Maurice Thompson.

Subsequent to the ruling, Ashland County Prosecuting Attorney Christopher Tunnell indicated to the Court that his office would no longer be representing its Board of Health in the matter, stating “The Prosecuting Attorney has thoroughly reviewed the matter and is of the opinion that the suspension was contrary to law and that there are no defenses which would not be frivolous.”

Read the Court’s Order Here.

Read the 1851 Center’s Motion for Preliminary Injunction Here.

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The 1851 Center for Constitutional Law is a nonprofit, nonpartisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and searches and seizures.

Health Departments Cannot Suspend Licenses Over Masks

FOR IMMEDIATE RELEASE
July 22, 2020

Ohio Restaurants are protected by Ohio Constitution’s limit on arbitrary administrative enactments.

Ashland, OH – The 1851 Center for Constitutional Law today, on behalf of an Ohio restaurant shut down by its local health department over its cook not wearing a mask, moved to immediately enjoin the department’s ongoing suspension of the restaurant’s food service operation license.

Cattlemans Restaurant in Savannah, Ohio has been shut down without a hearing since the Ashland County Health Department issued a Cease and Desist Order on July 15, 2020.

However, the 1851 Center’s Complaint and Motion for Temporary Restraining Order explain that health departments lack the authority to suspend an Ohio business license, even temporarily, over an alleged mask violation.

“The Ohio Constitution prevents administrative agencies from imagining new policies for suspending licenses and shutting down businesses,” explained 1851 Center Executive Director Maurice Thompson.  “The State’s mask requirements remain largely symbolic and unenforceable.”

The case is pending before Judge Ronald Forsthoefel in the Ashland County Court of Common Pleas.

Read the 1851 Center’s Motion for Preliminary Injunction Here.

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The 1851 Center for Constitutional Law is a nonprofit, nonpartisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and searches and seizures.

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Ohio Daycares Sue to End Unlawful Pandemic Regulations

FOR IMMEDIATE RELEASE
June 23, 2020

Ohio Dept. of Health has no Constitutional Authority to Overrule State Legislation Protecting Parents, Children, and Daycares

Mason, OH – The 1851 Center for Constitutional Law today filed suit on behalf of 40 daycare centers across Ohio to enjoin the Ohio Department of Health from continuing to enforce its arbitrary limits, as implemented through the Director’s May 29, 2020 Order, on the number of children daycares may supervise.

The May 29 Order severely reduces the number of children each adult staff member may supervise and the number of children who may be in the same room at any one time, even though the statutes governing daycares expressly protect their right to care for larger groups of children:

  • The Director’s Order reduces the number of pre-schoolers a staff member may care for from 14 to nine.
  • The Director’s Order reduces the number of school-aged-children a staff member may care for from 20 to nine.
  • The Director’s Order reduces the number of children who may be within the same room, regardless of the size of the space, from 40 to nine.

However, agency regulations attempting to overrule express legislation on the same subject violate Ohio’s Separation of Powers limits. And in this case the Ohio Revised Code expressly provides that no administrative regulations may conflict with the group sizes the General Assembly has protected.

“The Ohio Constitution protects Ohioans from unelected government administrators attempting to override statutes passed by elected representatives, no matter what the rationale,” explained 1851 Center Executive Director Maurice Thompson. “These regulations are particularly pernicious because they limit child care options for parents needing to return to work, dramatically raise the costs of these options, and threaten to bankrupt Ohio daycares.”

The case is pending before Judge Timothy Tepe in Warren County, Ohio.

Read the 1851 Center’s Motion for Preliminary Injunction Here.

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The 1851 Center for Constitutional Law is a nonprofit, nonpartisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and searches and seizures.

Water slide photo.
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Another Ohio Court Slams Forced Closures as Unconstitutional

FOR IMMEDIATE RELEASE
June 12, 2020

Another Ohio Court Slams Forced Closures as Unconstitutional

Statute Health Department relies on is unconstitutional and it has no authority to close businesses or create its own penalties

Kalahari wins right to open immediately

Sandusky, OH – An Ohio Court of Common Pleas Wednesday enjoined the Ohio Governor and Director of the Department of Health from “imposing or enforcing penalties solely for non-compliance with the director’s order” against Ohio waterparks.

The 1851 Center for Constitutional Law’s victory against Ohio’s Governor and Health Department comes on behalf of Kalahari Resorts, who moved to enjoin the Ohio Department of Health from continuing to enforce its criminalization of even safe business operations, as implemented through the Director’s various Orders since March.

The 12 page ruling by Judge Roger Binette of the Erie County Court of Common Pleas, the most forceful repudiation of the Governor’s pandemic Orders to date, explains that private property rights are fundamental rights in Ohio, and that the Ohio Department of Health has both violated those rights and exceeded the Ohio Constitution’s Separation of Powers in shutting down and otherwise penalizing Ohio businesses:

“The statutes granting [the Health Director] the authority, power to enforce, and criminalize also violates the separation of powers that exist in our Constitutional framework to protect our citizens from the consolidation of power in one person.”

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“Moreover, if one unelected, unaccountable to the public, official is allowed to invoke unfettered Orders, which can criminalize an otherwise non-criminal activity only for disobedience to her Orders, then the right to Due Process is extinguished. The authority to issue Orders, create strict liability crimes without legislative or Administrative oversight, and impose criminal sanctions. To restrict the fundamental right of property based on an impermissible classification of ‘identity’ rather than on ‘safety’. To violate the separation of powers by delegating policy making, rather than policy shaping, to an Administrative agency without proper oversight or reservation of authority to override Orders. All these are a concern for this Court in regards to Due Process and Equal Protection rights of the citizens being violated.”

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“Defendants are not harmed by granting the requested injunctive relief. This is because they have been improperly granted the power to create and criminally enforce, with strict liability, laws simply by a decision of an unelected, unaccountable to the general public, administrative officer by virtue of an Order. Application of which is, can and does trample of the fundamental rights of the citizens. Further, in regards to Defendants’ concern of the ‘spreading of the virus’ by allowing Plaintiffs’ business to open prior to June 19th, this Court points to Comm. Schade’s testimony. That 15 of the 19 deaths in Erie Co. were people who would not likely go to Plaintiffs’ businesses; they were in the Ohio Veterans Home.”

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“There appears to be no reason why Plaintiff Kalahari should remain closed at this juncture. The only reason they are is that an unelected official, with unbridled authority – that was given in offense to the separation of powers and used to infringe of Due Process and Equal Protection rights – issued the May 29th Order.”

“Our corrupt and incapable Governor can run from the Ohio Constitution, but he can no longer hide from it. With yet another judicial repudiation of his conduct, there can be no justification for continuing his unconstitutional assault on Ohioans.” explained 1851 Center Executive Director Maurice Thompson.

The Court’s Order means that Kalahari can fully re-open immediately.

In other news, the Ohio Attorney General agreed to drop all criminal charges against Vicki Brearley after the 1851 Center filed a Motion to Dismiss in that case.

Read the Court’s full Order Here.

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The 1851 Center for Constitutional Law is a nonprofit, nonpartisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and searches and seizures.

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1851 Fights 90 Days in Jail for “Disobedient” Ohio Diner Owner

FOR IMMEDIATE RELEASE
May 27, 2020

1851 Fights 90 Days in Jail for “Disobedient” Ohio Diner Owner

1851 Center Moves to Dismiss Criminal Charges in State’s First Criminal Case for Violating Pandemic Orders

Cambridge, OH – The 1851 Center for Constitutional Law today moved to dismiss the criminal charges against an Ohio restaurant owner who opened her restaurant one week early.

The motion is filed on behalf of National Road Diner owner Vicki Brearley of Cambridge, who faces 90 days in jail solely because, according to the prosecution, she “did violate an order the Director of Health issued to prevent a threat to the public caused by a pandemic” by “allowing sit down dining” on May 6, 2020.

The case is believed to be the first prosecution of an Ohio business owner for disobedience with the Orders of Health Director Amy Acton, and the first prosecution in the 134-year history of the quarantine statute.

“Ohioans should remain alert that the real-world consequence of seemingly-amicable ‘public health’ regulations is the violent caging of peaceful dissenters who have done no harm,” explained 1851 Center Executive Director Maurice Thompson. “But Ohioans ought not fear:  the Ohio Constitution prevents the State from criminalizing mere ‘disobedience with any order.’”

The 1851 Center’s motion to dismiss the charges posits as follows:

  • Only the Ohio General Assembly may criminalize conduct, and it must do so with specificity.
  • If the Ohio General Assembly has delegated to the Director of Health the unfettered power to create her own crimes, then that delegation is impermissibly vague and violates the Ohio Constitution’s separation of powers.
  • Insofar as they attempt to impose criminal penalties, the Director’s Orders are “void” because, pursuant to a prominent portion of the Ohio General Assembly’s 2015 criminal justice reforms, the Orders fail to “specify the degree of mental culpability required for commission of the offense.”

In addition, the 1851 Center emphasizes that while no Ohioan has been prosecuted for violating “any quarantine order” in the past 130 years, the only court to have addressed the issue, in the 1851 Center’s recent victory in Rock House Fitness v. Acton, determined that the Director lacked the authority to close businesses or unilaterally criminalize otherwise lawful conduct.

The Director’s April 30, 2020 “Stay Safe Ohio Order” purported to keep Ohio restaurants closed. However, that Order was lifted just several days after the May 11 charges were filed against Mrs. Brearley.

The case is pending before Judge John M. Nicholson of the Cambridge Municipal Court in Guernsey County.

Read the 1851 Center’s Motion HERE.

The 1851 Center for Constitutional Law is a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and search and seizures.

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Ohio Court: Forced Closure of Gyms Unconstitutional

FOR IMMEDIATE RELEASE
May 20, 2020

Ohio Court: Forced Closure of Gyms Unconstitutional

Health Department has no authority to close all business or create its own penalties

Painesville, OH – An Ohio Court of Common Pleas Wednesday morning enjoined the Ohio Governor and Director of the Department of Health from “imposing or enforcing penalties solely for non-compliance with the director’s order” against gymnasiums, health clubs, fitness centers, gyms, and workout facilities.

The 1851 Center for Constitutional Law’s victory against Defendant Amy Acton comes on behalf of 35 independent gyms across the state, who moved to enjoin the Ohio Department of Health from continuing to enforce its criminalization of even safe gym operations, as implemented through the Director’s various Orders since March.

The ruling by Judge Eugene Lucci of the Lake County Court of Common Pleas explains that private property rights are fundamental rights in Ohio, and that the Ohio Department of Health has both violated those rights and exceeded its own authority in “criminalizing lawful businesses, and imposing strict liability for violations, including severe criminal, civil, and equitable penalties”:  “The director has no statutory authority to close all businesses, including the plaintiffs’ gyms … She has acted in an impermissibly arbitrary, unreasonable, and oppressive manner without any procedural safeguards.”

The ruling further excoriates the Department of Health’s insistence that “one unelected individual could exercise such unfettered power to force everyone to obey impermissibly vague rules without any legislative guidance.”

“Constitutions are written to prevent governments from arbitrarily interfering in citizens’ lives and businesses.  On that front, the call to action is clear:  the Governor and Health Director may no longer impose their own closures and regulations and write their own criminal penalties to enforce those regulations and closures,” explained 1851 Center Executive Director Maurice Thompson.  “We remain available to serve those who are caught in the State’s tangled web of unlawful orders.”

Read the Court’s Order HERE.

The 1851 Center for Constitutional Law is a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and search and seizures.

Special thanks to Tim Cassell at Pinnacle Performance, who helped organize Ohio gyms to challenge government authority, even as other industries’ “leaders” wilted.