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Class Action Certified Against Cleveland Heights’ Attack on Outside Ownership

FOR IMMEDIATE RELEASE
April 12, 2024

Non-local homeowners forced to pay extra earn right to seek refunds.

Cleveland, OH – A federal court late yesterday certified a class action lawsuit against the City of Cleveland Heights, Ohio, explaining that homeowners who were forced to pay additional annual assessments are entitled to demand refunds of these “Out of County Registration Fees.”

The Order, made by Judge Philip Calabrese of the Northern District of Ohio, confirms class action lawsuits may be maintained against city governments who extort their citizens and businesses in a widespread manner, including through levying assessments beyond property taxes on nonresident homeowners.

In doing so, the Court highlighted the “common issue” of “whether the City’s collection of a $100 fee from persons who own residential rental property in Cleveland Heights but do not reside within Cuyahoga County violates the Constitution or otherwise unjustly enriches the City,” and explained that “without question, the fees at issue present a textbook example for a class action in this regard.”

Specifically, Judge Calabrese certified a class of “All individuals and businesses who own residential rental property in the City of Cleveland Heights and, while residing outside of Cuyahoga County, paid to the City of Cleveland Heights one or more $100 annual out-of-county owner registration fees.”

“Class action litigation is an excellent method for average citizens to even the playing field when fighting back against their corrupt and otherwise indifferent local governments.  This ruling confirms that Ohio cities must be held just as responsible to their citizens and big corporations are to their customers.” said Maurice Thompson, Executive Director of the 1851 Center.

In Crossroads v. City of Cleveland Heights, the 1851 Center explains how the City’s penalization of nonresident-homeowners violates the United States and Ohio Constitutions:

  • The Equal Protect Clause forbids discrimination against homeowners solely on the basis of their county of residency rather than on the basis of any actual harm they cause to others.
  • The Unconstitutional Conditions Doctrine prevents cities from extorting Ohioans in response to their exercise of their constitutionally-protected right to private property and right to reside where they wish.
  • Assessments may not be unilaterally imposed by Ohio cities’ attorneys rather than enacted by their city councils.

“Ohioans maintain a fundamental right to own and use private property any way that doesn’t inflict harm on others, and to live where they wish while doing so,” explained Thompson.  “Ohio cities cannot plunder Ohioans for simply carrying on business across county lines.”

Read the District Court’s Class Certification order here.

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Ohio Cities Cannot Gut Search Warrant Requirement

FOR IMMEDIATE RELEASE
October 2, 2023

Ohio Cities Cannot Gut Search Warrant Requirement

North Canton’s crusade for warrants to enter homes based solely on lack of consent from homeowners is unconstitutional.

Stark County, OH – The 1851 Center for Constitutional Law today moved to stop attempts by the City of North Canton to obtain boilerplate search warrants green-lighting forced search of local homes.

The action is brought on behalf of Canton-area landlords Eric and Lila Wohlwend and their tenants. The City brought suit against the Wohlwends to obtain a search warrant covering the entirety of their property after they simply declined to consent to such an inspection.

Through its Motion for Judgment on the Pleadings, the 1851 Center explains that the Ohio Constitution requires true “probable cause” of a significant threat to others before courts may issue a search warrant to conduct a sweeping inspection of Ohioans’ homes.

“Ohioans maintain a fundamental right to use their own property in ways that don’t inflict harm others. This right includes the right to exclude public officials from intruding into their homes and rifling through every square foot of their kitchens, bathrooms, and bedrooms for no reason other than ‘just to check things out,’” explained 1851 Center Executive Director Maurice Thompson. “Tenants aren’t second-class citizens without rights: they’re entitled to the same privacy and security from government overreach as those who own their homes, and sham warrants cannot be used to violate their rights any more than entirely warrantless searches.”

The 1851 Center for Constitutional Law protected Ohioans’ privacy and property rights by stopping warrantless rental and point-of-sale inspections of homes across Ohio through victories in Baker v. Portsmouth, Pund v. Bedford, and Thompson v. Oakwood.

“A finding of ‘probable cause’ to issue a warrant to rifle through Ohioans’ homes and issue arbitrary punch lists to homeowners, solely because a homeowner does not consent to that search, would entirely undermine the protections provided by the warrant requirement: a fortification against arbitrary, invasive, and harassing government intrusions onto their property, and especially into their homes,” added Thompson.

The case is pending before Judge Farmer in the Court of Common Pleas for Stark County, Ohio.

Read the 1851 Center’s Motion for Judgment on the Pleadings 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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Cleveland Heights Attack on Outside Ownership Unconstitutional

FOR IMMEDIATE RELEASE
February 15, 2023

 

Ohio cities may not charge extra assessments to nonresidents who own homes within their limits.

 

Columbus, OH – The 1851 Center for Constitutional Law this week moved to enjoin the City of Cleveland Heights discriminatory targeting of nonresident homeowners with annual assessment beyond their regular property taxes.

Those who do not pay the assessment are threatened with prosecution, imprisonment, and loss of the right to lease their homes to others.

Through its Motion for Preliminary Injunction, the 1851 Center explains that the City’s penalization of nonresident-homeowners violates the United States and Ohio Constitutions:

  • The Equal Protect Clause forbids discrimination against homeowners solely on the basis of their county of residency rather than on the basis of any actual harm they cause to others.
  • The Unconstitutional Conditions Doctrine prevents cities from extorting Ohioans in response to their exercise of their constitutionally-protected right to private property and right to reside where they wish.
  • Assessments may not be – as was done here – unilaterally imposed by Ohio cities’ attorneys rather than enacted by their city councils.

“Ohioans maintain a fundamental right to own private property, to use it in ways that don’t inflict harm on others, and to live where they wish while owning it and using it,” explained 1851 Center Executive Director Maurice Thompson. “Ohio cities cannot poach Ohioans for simply carrying on business across county lines.”

The case is pending before Judge Calabrese in the Eastern Division of the Northern District of Ohio.

Read the 1851 Center’s Complaint 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.

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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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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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Constitutional Rights During the Quarantine

Ohio Department of Health’s Orders may be prudent, but are largely unenforceable

Columbus, OH – State and federal constitutions entitle Ohioans to protections, which remain in place even as the state implements seemingly prudent restrictions to combat the COVID-19 pandemic.

On March 22, the Ohio Department of Health issued its “Director’s Stay at Home Order.” This Order, like others before it, relies upon the delegation to the Ohio Department of Health of a sweeping power – never previously relied upon or analyzed by a single court in the history of the state – to exercise “ultimate authority in matters of quarantine and isolation.”

The Order is set to expire on April 6, 2020. No court is likely to take action, much less question quarantine authority, prior to that date. However, depending on the circumstances, regulations that continue to remain in place subsequent to that date must be seriously examined: no attribute of these policies can be permitted to remain beyond their useful life.

For the reasons below, Ohioans must carefully scrutinize these exercises of power, and remember that they maintain rights against it:

1. Delegating “ultimate authority” to bureaucrats violates Separation of Powers. To justify their flurry of Orders, the governor and state health department rely on R.C. 3701.13 (“the department of health shall have . . . ultimate authority in matters of quarantine and isolation, which it may declare and enforce . . .”).

However, while the Ohio Constitution vests the General Assembly alone with emergency powers (Section 42, Art. II), even that authority is limited to “enemy attacks.” And, the General Assembly certainly cannot transfer its power to legislate on major policy issues to just one politically-unaccountable administrative agency.

Separating powers “divides power among sovereigns and branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crises of the day” and serves to “reduce the risk of tyranny and abuse.” New York v. United States, 505 U.S. 144, at 181, 187-188 (1992).

In Ohio, “the lawmaking prerogative is a sovereign power conferred by the people upon the legislative branch of the government,” and therefore “cannot be delegated to other officers, board or commission, or branch of government.” Matz v. J.L Curtis Cartage Co. 132 Ohio St. 271, 7 N.E.2d 220 (1937). Rather, the General Assembly can only “confer administrative power on an executive, a board or commission.” Since the time of the Ohio Constitution, these limits have been consistent: “the delegation of power to make the law, which necessarily involves a discretion as to what it shall be . . . cannot be done.'” Cincinnati, Wilmington & Zanesville R. Co. v. Com’rs of Clinton County, 1 Ohio St. 77, 88 (1852).

Consequently, it is black letter administrative law in Ohio that “Administrative regulations cannot dictate public policy, but rather can only dictate policy already established by the General Assembly.” D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 2002-Ohio-4172, ¶ 41.

To protect Ohioans, the Ohio Constitution forbids the General Assembly from giving away its policymaking power to unelectedagencies. But here, that has happened. The Ohio Department of Health’s picking and choosing between “essential” and “non-essential” business, travel, and activities, and then criminalizing what it alone deems “non-essential,” is policy-making that administrative agencies quite likely cannot undertake.

2. Neither the Ohio Department of Health nor the governor can cancel or schedule an election. On March 16, the Ohio Department of Health promulgated an Order insisting on “closure of the polling locations in the State of Ohio.” However, Article I, Section 4 of the United States Constitution expressly provides that, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

3. Ohioans are entitled to Equal Protection. Over half of the state’s twelve-page Stay at Home Order is dedicated to articulating exemptions from the Order, meaning that many Ohioans or their activities will be unaffected by it. However, any “attempted classification must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.” State v. Mole, 2016-Ohio-5124.

As the Ohio Lottery Commission remains exempt to sell lottery tickets, and others with strong lobbying presences in Columbus remain exempt, those put out of work or otherwise limited must examine whether they have been treated even-handedly.

4. Ohioans maintain the right to travel throughout Ohio. The Ohio Department of Health’s Stay at Home Order states, “all individuals currently living within the State of Ohio are ordered to stay at home.” However, since 2002, the Sixth Circuit, an appellate circuit within which Ohio is located, became one of a few circuits “to recognize the right to intrastate travel as “fundamental.” In Johnson v. City of Cincinnati, our circuit court held that, “the Due Process Clause of the Fourteenth Amendment protects the right to travel locally through public spaces and roadways,” which “enjoys a unique and protected place in our national heritage.” Johnson, 310 F.3d at 495–98. And “as early as the Articles of Confederation, state citizens “possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom.” See also Cole v. City of Memphis, 839 F.3d 530, 535 (6th Cir. 2016).

While the state maintains a compelling interest in limiting contact to curtail the spread of COVID-19, the state’s selective ban on travel it deems “non-essential” likely fails to advance that interest in a sufficiently narrow manner.

5. Ohioans maintain health care freedoms. On March 17, 2020, the Department of Health prohibited all “non-essential or elective surgery. However, in 2011, Ohio voters enacted the Health Care Freedom Amendment. Section 21(B) of Article I of the Ohio Constitution provides that, “No federal, state, or local law or rule shall prohibit the purchase or sale of health care.” Nor can health care be forced, as Division (A) of that amendment prohibits compulsion. There are many medical treatments the cancellation of which fails to create the availability of more resources to fight COVID-19.

A willing doctor and patient cannot be forbidden from participating in voluntary otherwise-lawful medical treatment.

6. Ohioans maintain the right to access and use their properties. Since March 15, the state has forbidden, selectively and without notice, businesses such as “onsite consumption” of food, liquor, beer, and wine. However, property rights protected by the Ohio Constitution are “fundamental rights” entitled to greater protection than what is provided by the federal constitution.

Just over two decades ago, the Ohio Supreme Court affirmed that, “an injunction closing property against its use for any purpose for one year violates Section 19, Article I of the Ohio Constitution, when applied to an owner who did not negligently or knowingly acquiesce to, and did not participate in the creation or perpetuation of the nuisance.” State ex rel. Pizza v. Rezcallah, 1998-Ohio-313, 84 Ohio St. 3d 116. The Court added that, “The fact that the order is of limited duration does not change this conclusion. It is well established that the Constitution protects against temporary takings just as it does against permanent takings,” and “Deprivation of the use of resources equal to the value of the property is as much a taking as is deprivation of the use of the property itself.” Id. While these rights can be limited, this is so only when “necessary,” “required,” and not “unduly oppressive upon individuals.” Id.

Barricading or otherwise obstructing all uses of a bar, restaurant, or other business or residential property would almost certainly constitute an unconstitutional taking of private property without compensation, as previously contemplated by the Ohio Supreme Court.

7. Ohioans maintain the right “to labor freely without restraint.” The Department of Health’s March 22 Order insists that “all businesses and operations in the state, except essential businesses and operations . . . are required to cease all activities.” However, “The right to contract, the right to do business and the right to labor freely and without restraint are all constitutional rights equally sacred.” Eastwood Mall, Inc. v. Slanco, 1994-Ohio-433.

The state’s selective impairment of some work, labor, and business, and not others raise the possibility that the non-exempt Ohioans have been arbitrarily deprived of this right. With that said, any argument to this end will be at its weakest in industries relying upon close distance and/or touch, such as the “hair salons, barber shops, tattoo parlors, body piercing locations, and massage therapy locations” forbidden on March 19.

8. Ohioans remain entitled to Due Process before or soon after any of the foregoing rights are injured. In the midst of disordered lawmaking through agency fiat, the state has prescribed no procedure for Ohioans to appeal the denial of their rights to travel, use their private property, to labor, or provide or procure health care. However, due process under the Ohio and United States Constitutions demands that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner where the state seeks to infringe a protected liberty or property interest. State v. Hochhausler, 1996-Ohio-374.

Our Ohio Supreme Court has held that, “Given the importance of the property interest affected, even the temporary denial of possession and use of the vehicle inflicts too severe a hardship on the individual wrongfully deprived,” and the state “will not be able to make a driver whole for any personal inconvenience or economic hardship suffered by reason of any delay in redressing an erroneous suspension through post-suspension review procedures.” State v. Hochhausler, 1996-Ohio-374.

Ohioans’ businesses and livelihood are just as important as one’s car or driver’s license: the Sixth Circuit Court of Appeals recently prohibited the taking of the right to operate a restaurant without a “pre-deprivation hearing,” explaining that “such a system unfairly jeopardized Johnson’s property interest in her means of livelihood, an interest that this court and the Supreme Court have recognized as ‘one of the most significant that an individual can possess.’” Johnson v. Morales, 946 F.3d 911, 937 (6th Cir. 2020).

Those forbidden from travel, health care, business, employment, and other activities during the quarantine are entitled to an opportunity to object and make their case that their activity is entitled to an objection. The state’s haphazard orders have entirely disregarded that right.

9. Local regulations are subject to all of the foregoing limits. Local governments may pass their own limitations on travel, health care, and business during this time. Those regulations, while unlikely to trigger separation of powers concerns, remain subject to all of the same constitutional limits articulated above.

These Orders may well be wise advice. But Ohioans must also be wise in protecting themselves from creeping paternalism, and subjection of their lives to the untreated anxieties of our public officials.

The 1851 Center is open around-the-clock by email. Ohioans threatened with penalties for noncompliance with the state’s restrictions should email us. These communications will be given priority over all other cases.

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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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Columbus Historic District Fines Unconstitutional

Ohio cities violate private property rights when they criminalize landscaping and gardening

Columbus, OH – The 1851 Center for Constitutional Law has filed an action in federal court on behalf of a Columbus couple threatened with 60 days in jail and fines of $100 per day after landscaping their front yard. Bryden Road couple Drew Stevens and Melanie Copenhaver face draconian penalties after planting a garden that the city ruled “incompatible” with the neighborhood.

“In Ohio, many zoning regulations needlessly interfere with private property rights, insult homeowners’ dignity, and defeat the very purpose of home-ownership. This regulation is no different,” said 1851 Center Executive Director Maurice Thompson. “Columbus pretends to be engaged in historic preservation, but instead subjects homeowners to the arbitrary personal preferences of neighborhood busybodies in search of conformity.”

The city claims Stevens and Copenhaver “destroyed a distinctive architectural feature” by replacing some of their grass with mulch and shrubs, a look that a city commission calls “too suburban.”

Through its Motion for Preliminary Injunction, the 1851 Center explains the Columbus ordinance and its penalties violate the Ohio Constitution through suppressing private property rights and imposing vague standards and excessive fines:

  • The regulation is unconstitutionally vague, insofar as it forces homeowners to avoid prosecution, and prove to a commission of volunteering and unaccountable nearby property owners that their yard is sufficiently “compatible” and “appropriate.”
  • Regulations professing to preserve historic architecture cannot be abused to accomplish gentrification, conformity and authoritarian control over private property.
  • Fines of $36,500 per year for gardening in one’s own yard are patently excessive.

“If home-ownership is to have meaning, Ohioans cannot be forced to obtain government permission to garden. Nor can they be thrown in jail for gardening without such permission, which is only granted when a government commission finds their yard ‘appropriate,’” said Thompson.

The 1851 Center draws a distinction between regulation seeking to preserve historically significant buildings and those regulating blades of grass.

The case is pending before Judge Marbley in the Eastern Division of the Southern District of Ohio.

Read the 1851 Center’s Complaint HERE.

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

View photos of the Bryden Road home before and after landscaping 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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Federal Court Victory: Forbidding More Than Three People from Living Together Violates Ohio Constitution

Ohio cities violate property rights by using zoning to prohibit more than three unrelated people from living in the same home

Bowling Green, OH – A federal court late Friday, agreeing with arguments made by the 1851 Center for Constitutional Law, held that an Ohio city’s zoning ordinance restricting homes to occupancy by no more than three unrelated adults violates the Ohio Constitution’s greater protection of private property rights.

The 1851 Center’s victory against the City of Bowling Green comes on behalf of 23 Bowling Green landlords and three student tenants threatened with eviction. The landlords own over 161 homes that until the ruling, despite having four or more bedrooms and ample parking, could not be occupied by more than three unrelated people.

“In Ohio, many zoning regulations needlessly interfere with private property rights, drive up the cost of living, fail to accomplish their proclaimed purposes, and are used as political weapons – often to benefit special interests or suppress disfavored minorities. This regulation is no different,” said 1851 Center Executive Director Maurice Thompson. “However, there is no coherent reason why four graduate students or even the  Golden Girls should be prohibited from occupying a large six-bedroom house, even as an unruly family of eight lives in a smaller home next door.”

The 13-page ruling by Judge James R. Knepp of the Northern District Ohio firmly rejects any notion that local zoning ordinances can be used to trample private property rights and equal protection, while embracing the Ohio Constitution’s protection of property and equality at a higher level than the federal constitution.

Specifically, in observing that an unlimited number of unruly, but barely-related family members could live together while a peaceful collection of students or even senior citizens could not, the court ruled as follows:

  • “[U]nder the Ohio Constitution, private property rights are fundamental rights to be strongly protected, such that “homeowners have a constitutionally protected property interest in running their residential leasing businesses free from unreasonable and arbitrary interference from the government” and “the free use of property is guaranteed by the Ohio Constitution.”
  • “[T]he City’s dwelling limit only focuses on the type of relationship between those living together in a home, and as such, is both over- and under-inclusive with respect to either of these interests. The Court thus concludes the dwelling limit is an “unreasonable and arbitrary” restriction on the issue of property.”
  • “[T]he limit is arbitrary, unduly oppressive, fails to substantially advance the avowed government interests of reducing population density or targeting specific issues with college-aged inhabitants, and treats similarly-situated homeowners and tenants differently without any justifiable basis. Consequently, the Court finds the dwelling limit is unconstitutional, as applied, and therefore unenforceable.”

Judge Knepp’s decision paves the way for overcoming overly-restrictive zoning regulations, and especially those, common in Ohio cities and college towns, that forbid unrelated adults from living together.

The 1851 Center draws a distinction between zoning regulations that prohibit homeowners from using their property to directly inflict harm on others and regulations simply aimed at social engineering.

“This regulation is aimed at government-controlled social engineering, i.e. keeping ‘the wrong kind of people’ out of certain neighborhoods, rather than land use. Unruly behavior should be directly regulated, rather than regulated on the basis of the relationships between those who live together,” added Thompson.  “Ohioans should not be forced to pay higher rent or endure longer commutes due to such arbitrary regulations.”

The case was brought in cooperation with Andrew Mayle of Mayle Law, and supported by an amicus brief from the Ohio Association of Realtors.

Read the Court’s Order HERE .

Read the 1851 Center’s Motion for Summary Judgment HERE .

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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 Cities Cannot Prohibit Use of Security Alarms

Cincinnati’s “alarm tax” violates homeowners’ right to communicate, freedom from double-taxation

The 1851 Center for Constitutional Law has moved to invalidate a municipal ordinance that forbids homeowners from protecting themselves with a home security alarm unless they first pay a punitive tax to the City of Cincinnati.

The legal action against the City of Cincinnati is brought on behalf of several homeowners and real estate investors who face $800 fines for simply using home security alarms to protect their homes, rental properties, and vacant investment properties, i.e. calling the police to inform them of potential criminal activity at the property.

Through its Motion for Preliminary Injunction, the 1851 Center explains that the City’s ordinance violates the Freedom of Speech by restraining and punishing the truthful reporting of criminal conduct while also impermissibly double-taxing homeowners who already pay for police protection through their general taxes:

The Ohio Constitution protects homeowners’ fundamental right to defend themselves and their houses, and cities cannot force homeowners to pay the City prior to exercising this right, especially when police assistance is not requested.

Speech in defense of oneself and one’s property is just as vital to protect as political speech. Homeowners maintain a First Amendment right to share evidence of criminal conduct on their properties with law enforcement, whether directly or through hiring an alarm company.

Cincinnati’s “alarm fee” is an unconstitutional tax because the City spends it on anything it likes, annually collects more than twice what it spends on security alarm issues, and the fees are imposed irrespective of whether homeowners with alarms actually use more city services.

“Ohio cities’ new practice of forcing homeowners to pay a fee for the privilege of protecting themselves, their families, and their homes with a security alarm is not just an unconstitutional tax, but an outright scam, taxing those who report crime and forcing taxpayers to pay twice for police protection,” explained 1851 Center Executive Director Maurice Thompson. “Government should encourage self-defense and crime-reporting, rather than prohibiting such socially beneficial conduct.”

The City of Cincinnati demands $100 up-front before one may use a security alarm, and those who protect themselves with security alarms without paying the fee are fined up to $800. This prohibition applies even to “local alarms” that do not involve police.

The case is pending before Judge Michael Barrett of the United States District Court for the Southern District of Ohio. However, the 1851 Center has moved to remand the case to state court

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

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Victory: Ohio Cities’ “Pre-Sale” Home Inspections and Fees Unconstitutional

City of Oakwood violated homeowners Fourth Amendment rights through sweeping city-wide  home inspection requirements and must now return in section fees to all affected homeowners

February 9, 2018: Dayton, OH – A federal court late yesterday declared unconstitutional the City of Oakwood’s pre-sale inspections mandates – – mandates requiring homeowners to obtain and pass thorough government inspection before being permitted to sell their homes.  The court also certified a class of all homeowners who were subject to the mandates and paid a $60 inspection fee at anytime over the past six years

The 40 page ruling, by Judge Thomas M. Rose of the Southern District of Ohio, firmly rejects the lawfulness of pre-sale inspections, sometimes also referred to as “point of sale” mandates, and paves the way for the return of inspections fees to all affected homeowners, rather than just those who filed the lawsuit

Specifically, the Court’s decision ruled and explained as follows:

  • “Oakwood’s ordinance violated Plaintiffs’ Fourth Amendment rights by subjecting them to a warrantless search without valid consent.”
  • “The Court agrees that an Oakwood property owner could not have provided voluntary consent under the prior ordinance because failure to do so could result in denial of a certificate of occupancy and a criminal penalty . . . A person cannot provide such uncontaminated consent when refusal to do so empowers the municipal authority to deny him the right to sell his property.”
  • “Plaintiffs have established Oakwood’s liability on their claim for unjust enrichment and restitution here. Plaintiffs paid the $60 fee to Oakwood for the inspection of their property. It would be inequitable to allow Oakwood to retain that money when it was collected pursuant to an unconstitutionally coercive ordinance.”

Judge Rose’s decision certifies classes of all individuals or businesses that have been subject to the inspections and paid inspection fees to the City in conjunction with the inspections.

“Local governments do not have unlimited authority to force entry into Ohioans’ homes.  To the contrary ‘houses’ are one of the types of property specifically mentioned by the Fourth Amendment; and Ohioans have every moral and constitutional entitlement to exclude others, even government bureaucrats, from their property,” said Maurice Thompson, Executive Director of the 1851 Center.  “The right to own property in Ohio has little value if local governments are permitted to stop the sale of one’s home to a willing buyer.”

“Class action litigation is an excellent method for average citizens to even the playing field when fighting back against their corrupt and otherwise indifferent local governments.  This ruling confirms that Ohio cities must be held just as responsible to their citizens and big corporations are to their customers,” added Thompson.

Such municipal ordinances, in addition to restricting Ohioans’ property rights, subject homeowners to open-ended warrantless searches of every interior and exterior space of a home, violating the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

Accordingly, in May of 2016, the 1851 Center for Constitutional Law moved to immediately enjoin Ohio cities, and the Cities of Bedford and Oakwood in particular, from enforcing “point of sale” and “pre-sale” programs that require citizens to endure and pass arbitrary and warrantless government inspections before they can sell their homes to even the most informed and willing buyers.

In each case, the Cities had threatened to criminally prosecute and even imprison homeowners if sold their homes without first submitting to and passing city inspections.

The legal action against Oakwood was filed on behalf of area real estate investor Jason Thompson, who was told by the City that he would face jail time for transferring a home he owns into a Limited Liability Company he created without first having paid for, obtained, and passed a pre-sale inspection.

This lawsuit is brought in partnership with the Finney Law Firm in Cincinnati.

Read the Court’s Order HERE

Listen to Maurice Thompson discuss the 4th Amendment:

​Watch our video discussing this case:

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