Court finds Portsmouth’s rental inspections unconstitutional

By Lorie Garland, OAR Assistant Vice President of Legal Services

In a recent decision by the District Court for the Southern District of Ohio, the Portsmouth Rental Dwelling Code (“RDC”) was found to violate the Fourth Amendment insofar as it authorized warrantless administrative rental property inspections.

In 2012, Portsmouth adopted its RDC. The code required rental property owners to apply to the Portsmouth Board of Health for a rental property permit in order to rent their property. To obtain a permit, a Code Enforcement Official would inspect the rental property to determine if the property met the requirements of the code. The city charged fees to issue and renew the annual rental property permits.

Inspections were to be conducted at least once a year and on a minimum of 48 hours notice unless the time period was waived by the tenant. A code enforcement official could also make an inspection in response to a complaint or if the official had a valid reason to believe that a violation of the Code exists. The inspection was limited to the items listed on the city’s dwelling inspection checklist which included 80 exterior and interior items. If the inspection revealed non-compliance items, the owner was given a specific time period to correct the items identified.

Although no property owners were cited for violations of the rental inspection program, owners who failed to respond to contacts by the city received a letter ordering the owner to contact the City Health Department to schedule an inspection. The letter stated that an owner’s failure to do so may result in an order to suspend the rental permits and/or implement procedures for condemnation by the Board of Health and possible issuance of a misdemeanor citation.

On June 16, 2014, several rental property owners filed suit against the City of Portsmouth claiming the RDC violated their Fourth, Fifth, and Fourteenth Amendment rights. The property owners alleged the code violated their Fourth Amendment rights by mandating warrantless inspections of their properties without probable cause. They also alleged violation of their due process rights under the Fifth and Fourteenth Amendments as the code requires rental property owners to forfeit their Fourth Amendment rights in order to rent their property. Lastly, the owners brought a claim for unjust enrichment claiming the city collected and inequitably retained inspection and permitting fee assessments under the RDC.

It is important to note that after this case was filed, Portsmouth amended its RDC. On July 28, 2014, the RDC was amended to include a provision that if the property owner or tenant refuses to permit the inspection, the Health Commissioner may petition the Court to obtain a warrant to inspect the rental property. This Court and their decision does not address the constitutionality or any other claim pertaining to the revised provisions of the Code. The Fourth Amendment provides that:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The rental property owners argued that the Code violates the Fourth Amendment as it mandates warrantless, coerced inspections of the interior of homes without probable cause. The property owners contend that because the Code requires them to consent to inspections or face a misdemeanor citation, it denied them the protections afforded by the Fourth Amendment, namely a warrant issued by an impartial court that has reviewed the evidence and found that probable cause exists for the inspection.

The District Court reviewed lower court decisions and found that generally the courts only upheld ordinances when the government was required to obtain a warrant if the owner had refused consent and the ordinance did not include criminal penalties for the lack of consent. The Court found that the US Supreme Court has repeatedly held that searches conducted outside the judicial process, without prior approval by a judge or magistrate are, per se, unreasonable with a few very specific exceptions. The Court found that those exceptions were not applicable in this case. Therefore, the Court held that the Portsmouth RDC violated the Fourth Amendment insofar as it authorizes warrantless administrative inspections.

The rental property owners sought reimbursement for the amount paid to the city in inspection fees. The city argued that as it is a political subdivision of the state, it is immune from liability. The Court did not agree finding that sovereign immunity bars tort claims for money damages but not equitable restitution which is the basis of the property owners’ claim. Therefore, the Court ruled that the property owners’ claim for restitution of the inspection fees related to the unconstitutional inspections could proceed.

It is important to keep in mind that this decision specifically addresses Portsmouth’s RDC and the version of their Code that was in effect prior to the July 28, 2014 revisions. The District Court for the Southern District of Ohio ruled that the Code was unconstitutional as it provided for warrantless administrative inspections. This case sets precedent for the Southern District of Ohio. Although this decision is not binding throughout Ohio, the decision could be used to support a challenge to other rental or point of sale inspection regulations if those regulations provide for warrantless administrative searches.

To read the decision in its entirety, click here.

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