[Cite as N. Canton Dept. of Dev. Servs. v. CF Homes, L.L.C., 2025-Ohio-522.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
DEPT. OF DEVELOPMENT SERVICES : JUDGES: FOR THE CITY OF NORTH CANTON : Hon. William B. Hoffman, P.J. OHIO, : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. Plaintiff - Appellee : : -vs- : : CF HOMES LLC, : Case No. 2024CA00108 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2023CV01178
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 14, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
OWEN J. RARRIC MAURICE A. THOMPSON WAYNE A. BOYER 1851 Center for Constitutional Law KYLE W. REA 122 E. Main Street Krugliak, Wilkins, Griffiths, Columbus, Ohio 43215 & Dougherty Co., L. P.A. 4775 Munson St. NW/P.O. Box 36963 THOMAS W. CONNORS Canton, Ohio 44735 Mendenhall Law Group 190 N. Union St., Suite 201 Akron, Ohio 44304 Stark County, Case No. 2024CA000108 2
Baldwin, P.J.
{¶1} Appellant CF Homes, LLC appeals from the trial court’s decision denying
its motion for summary judgment, granting summary judgment to appellee Dept. of
Development Services for the City of North Canton, Ohio, and finding that there was
probable cause to issue an administrative warrant authorizing the appellee to inspect the
appellant’s rental property located at 914 North Main Street, North Canton, Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On April 18, 2022, the North Canton Committee of the Whole conducted a
meeting in order to discuss and consider a new ordinance for inclusion in the Codified
Ordinances of North Canton establishing Chapter 703, Registration of Rental Units. The
stated purpose of the proposed Chapter was to establish a registry of rental units so the
city could ensure that properties rented within the city limits complied with certain safety
issues such as the presence of smoke detectors, carbon monoxide detectors, and other
safety measures. The measure was passed, and Chapter 703 became part of the city’s
Codified Ordinances.
{¶3} Section 703.01 set forth the purpose of the chapter, which was “to hold all
property owners and agents to the same property maintenance standards as set forth in
Part 17 [the Property Maintenance Code] of the Codified Ordinances of the City of North
Canton and to provide a safe and sanitary environment for the residents and their guests
of all rental dwelling units.” A “rental unit” was defined in Section 703.02(b) as “any
premises or portion thereof containing units being occupied, intended to be occupied, or
designed to be occupied for residential purposes by a tenant or person in like Stark County, Case No. 2024CA000108 3
circumstances of a tenant such as the tenant (purchaser) of a land contract.” 1 “Owner”
was defined in subsection (d) as “any person, agent, operator, firm, or corporation having
legal or equitable interest in the property; or recorded in the official records of the state,
county or municipality as holding title to the property; or otherwise having control of the
property, including the guardian of the estate of any such person, and the executor or
administrator of the estate of such person if ordered to take possession of real property
by a court.”
{¶4} Section 703.03 was entitled Registration of Rental Units Required, and
provided that any non-owner-occupied premises of eight or fewer units shall not be rented
or occupied unless the owner holds a Rental License. Section 703.04(a) provided that
any premises containing eight or fewer rental units shall be required to apply for and
maintain a valid rental license. Section 703.04(b) provided that the application for a rental
license required the owner of the property to provide the street address and unit
number(s); the name, address, and contact information of the property owner; the name,
address, and contact information of the agent or person in charge of the property if other
than the owner; and, the nature and extent of use of occupancy.
{¶5} Section 703.04(c) provided that upon the filing of an application for a Rental
License and payment of the applicable fee, the appellee shall conduct a general
inspection of the rental unit and premises to ensure compliance with Part 17 of the
Codified Ordinances, which contains the property maintenance code for the City of North
Canton.
1References herein are to the version of the Codified Ordinances that was in effect at the time of the appellee’s application for an administrative warrant. Stark County, Case No. 2024CA000108 4
{¶6} Section 703.04(c)(4)(C) provided that “[i]f a property owner fails to schedule
inspections for their property within thirty (30) days from the date the application for a
Rental License is filed or declines to have the Rental Unit inspected the Director of
Permits a) may obtain an order or warrant to inspect from a court of competent jurisdiction;
or b) may issue the Owner a Six Month Rental License for that Rental Unit.” While failure
to comply with the provisions of Chapter 703 may give rise to civil penalties, the rental
unit inspection process set forth therein did not provide for criminal penalties in the event
of non-compliance.
{¶7} The appellee sought to inspect the subject rental property owned by the
appellant pursuant to Chapter 703, and provided the appellant with a copy of the City of
North Canton Rental Unit Inspection Form which outlined a checklist of “inspection
categories,” and “details to be inspected” within each category. The complete checklist is
as follows:
• Life Safety:
• Are there working smoke detectors in each sleeping room?
• Are there working smoke detectors outside each sleeping area
door?
• Is there a working carbon monoxide (CO) alarm?
• Are all exits out of the building free of obstructions and able to be
used?
• Does each bedroom have a window that can be easily opened and
large enough for emergency escape?
• Kitchen Facilities: Stark County, Case No. 2024CA000108 5
• Is there a kitchen sink?
• Are countertops and backsplashes free of decay, rust, and rot?
• Is the kitchen floor free from holes, decay, and trip hazards?
• Bathroom Facilities:
• Is there at least one toilet; a lavatory sink; and either a bathtub or
shower, or a combination of a bathtub and shower?
• Are all plumbing fixtures in operating condition?
• Is the toilet/urinal connected to cold potable water under pressure
necessary for safe and sanitary operation?
• Is the floor free from holes, decay, and trip hazards?
• Are shower enclosure floors and walls in operating condition and
free of holes, cracks, breaches, decay, rust, and rot?
• Water Supply and Waste Water Disposal:
• Do all sinks, showers, and/or tubs have a hot water supply of at
least 110 degrees Fahrenheit?
• Are household waste pipes in operating condition and connected
to a public sewer system or to an approved private disposal
system?
• Are sewer clean-out openings capped with an approved plug?
• Trash, Recyclable Goods, and Food Scraps:
• Is the dwelling unit free of trash, recyclables, and food scraps?
• Is there a durable, covered container outside for trash and food
scraps? Stark County, Case No. 2024CA000108 6
• Is the exterior of the dwelling free from trash and litter?
• Are there any junk motor vehicles on the property?
• If pets are housed in the yard, is it clean of pet waste?
• Pests and Infestation:
• Is the home free of visual evidence of pests such as cockroaches,
ants, rats, mice, bats, etc.?
• Is the home free of any visual evidence of bedbugs?
• Does a licensed pest control operator take measures to address
pests and infestation?
• Heating and Air Conditioning:
• Is the heating equipment in operating condition and capable of
maintaining a room temperature of at least 15º F warmer that [sic]
the outside temperature, but in no event lower that [sic] 68ºF in
each habitable room?
• Is the refrigerated air in operating condition and capable of
maintaining temperature of at least 15º F cooler than the outside
temperature, but in no event higher than 85º F in each habitable
room?
• Natural and Mechanical Ventilation:
• Does every habitable room have at least one window or door on
an outside wall that can be opened for fresh air?
• Are bathrooms ventilated by a window that easily opens or by a
fan that vents to the exterior of the building? Stark County, Case No. 2024CA000108 7
• Are clothes dryers vented to the exterior of the building?
• Lighting and Electricity:
• Does each habitable room, bathroom, hallway, and stairway of the
dwelling have at least one electric outlet or light fixture controlled
by a wall switch?
• Are all electrical circuits and outlets maintained and in operating
condition?
• Is the electrical panel box in safe and operating condition?
• Appliances:
• Are appliances supplied by the owner in operating condition?
• Structural Conditions:
• Are all structural members free of deterioration so they are
capable of safely supporting dead and live loads?
• Are exposed metal or wood surfaces protected with an application
of paint or other weather-coating materials?
• Is the home structurally sound with no obvious signs of
deficiencies or unsafe conditions?
• Is the home free of visual evidence of mold or mildew?
• Is the roof maintained in operating condition, free from leaks,
holes, charred or deteriorated roof materials, rotted wood, and any
other unsafe conditions?
• Are gutters and downspouts, if any, in operating condition and
safely fastener? Stark County, Case No. 2024CA000108 8
• Do any windows have any broken or cracked glass?
• Are windows and doors sealed against drafts and moisture?
• Are interior walls, ceilings, doors and other surfaces free from
peeling, chipping, flaking or abraded paint?
{¶8} The appellant refused to permit the appellee access to inspect the subject
rental property. As a result, the appellant filed an Application for an Administrative
Inspection Warrant for a rental inspection of the subject premises. The appellant filed a
Verified Answer, as well as a Counterclaim in which it sought a declaration that the
appellee’s ordinance is constitutionally impermissible insofar as the appellee lacks
probable cause for the administrative warrant.
{¶9} The parties filed respective motions for summary judgment. On June 20,
2024, the trial court issued a Judgment Entry in which it found that there were no genuine
issues of material fact and found that, as a matter of law, the appellant’s constitutional
challenges to the appellee’s ordinance were unsupported by applicable case law. The
trial court further found that the appellee was entitled to judgment in its favor and was
entitled to the administrative warrant sought in its application for inspection of the subject
rental property.
{¶10} The appellant filed a timely appeal, and sets forth the following three
assignments of error:
{¶11} “I. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION
FOR JUDGMENT ON THE PLEADINGS OR IN THE ALTERNATIVE MOTION FOR
SUMMARY JUDGMENT, WHICH SOUGHT TO MAINTAIN THE STRINGENCY OF THE
OHIO CONSTITUTION’S “PROBABLE CAUSE” SAFEGUARD ESTABLISHED IN 1851.” Stark County, Case No. 2024CA000108 9
{¶12} “II. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT AND ISSUING A SEARCH WARRANT TO SEARCH
OCCUPIED PRIVATE RESIDENCES WITHOUT TRADITIONAL “PROBABLE CAUSE”
TO DO SO.”
{¶13} “III. THE CITY’S WARRANT APPLICATION SHOULD HAVE BEEN
DENIED BECAUSE IT IMPERMISSIBLE [sic] EXCLUDED TENANTS-OCCUPANTS
FROM THE PROCESS.”
{¶14} The appellant submits that the trial court erred in denying its motion for
summary judgment, in granting the appellee’s motion for summary judgment, and in
finding that there was probable cause to issue the administrative warrant for the
appellee’s inspection of the appellant’s rental property. We disagree.
STANDARD OF REVIEW
{¶15} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Accordingly, this Court reviews a
trial court’s award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77
Ohio St.3d 102, 105.
{¶16} Civ. R. 56(C) states in pertinent part: “Summary Judgment shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,
timely filed in the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law ... A summary judgment
shall not be rendered unless it appears from such evidence or stipulation, and only from Stark County, Case No. 2024CA000108 10
the evidence or stipulation, that reasonable minds can come to but one conclusion and
that conclusion is adverse to the party against whom the motion for summary judgment
is made, that party being entitled to have the evidence or stipulation construed most
strongly in the party's favor." Thus, summary judgment may be granted only after the trial
court determines that: 1) no genuine issues as to any material fact remain to be litigated;
2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the
evidence that reasonable minds can come to but one conclusion and viewing such
evidence most strongly in favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.,
50 Ohio St.2d 317 (1977).
{¶17} As stated by this Court in Infield v. Westfield Ins. Co., 2023-Ohio-1199 (5th
Dist.): “It is well established that the party seeking summary judgment bears the burden
of demonstrating no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477
U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The standard for granting
summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280 at 293, 662 N.E.2d
264 (1996): “* * * a party seeking summary judgment, on the ground that the nonmoving
party cannot prove its case, bears the initial burden of informing the trial court of the basis
for the motion, and identifying those portions of the record that demonstrate the absence
of a genuine issue of material fact on the essential element(s) of the nonmoving party's
claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by
making a conclusory assertion the nonmoving party has no evidence to prove its case.
Rather, the moving party must be able to specifically point to some evidence of the type
listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no Stark County, Case No. 2024CA000108 11
evidence to support the nonmoving party's claims. If the moving party fails to satisfy its
initial burden, the motion for summary judgment must be denied. However, if the moving
party has satisfied its initial burden, the nonmoving party then has a reciprocal burden
outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial
and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be
entered against the nonmoving party.” The record on summary judgment must be viewed
in the light most favorable to the opposing party. Williams v. First United Church of Christ,
37 Ohio St.2d 150, 309 N.E.2d 924 (1974).” Id. at ¶ 21.
ANALYSIS
{¶18} The appellant’s assignments of error are intertwined, and as such will be
addressed together.
{¶19} The topic of administrative warrants was discussed by the United States
Supreme Court in the seminal case of Camara v. Municipal Court of City and County of
San Francisco, 387 U.S. 523 (1967). The appellant in Camara was challenging the right
of a municipal health and safety official to inspect the premises in which the appellant was
living. When he refused said official access to the premises to conduct an inspection, he
was criminally charged. Although the case sub judice does not involve a criminal charge
or criminal penalties, the Court’s reasoning regarding health and safety inspections and
administrative warrants is instructive:
Unlike the search pursuant to a criminal investigation, the inspection
programs at issue here are aimed at securing city-wide compliance with
minimum physical standards for private property. The primary governmental
interest at stake is to prevent even the unintentional development of Stark County, Case No. 2024CA000108 12
conditions which are hazardous to public health and safety. Because fires
and epidemics may ravage large urban areas, because unsightly conditions
adversely affect the economic values of neighboring structures, numerous
courts have upheld the police power of municipalities to impose and enforce
such minimum standards even upon existing structures. In determining
whether a particular inspection is reasonable—and thus in determining
whether there is probable cause to issue a warrant for that inspection—the
need for the inspection must be weighed in terms of these reasonable goals
of code enforcement.
Id. at 535. The Court stated further:
. . . we think that a number of persuasive factors combine to support
the reasonableness of area code-enforcement inspections. First, such
programs have a long history of judicial and public acceptance. See Frank
v. State of Maryland, 359 U.S., at 367—371, 79 S.Ct. at 809—811. Second,
the public interest demands that all dangerous conditions be prevented or
abated, yet it is doubtful that any other canvassing technique would achieve
acceptable results. Many such conditions—faulty wiring is an obvious
example—are not observable from outside the building and indeed may not
be apparent to the inexpert occupant himself. Finally, because the
inspections are neither personal in nature nor aimed at the discovery of
evidence of crime, they involve a relatively limited invasion of the urban
citizen's privacy. Both the majority and the dissent in Frank emphatically
supported this conclusion: Stark County, Case No. 2024CA000108 13
‘Time and experience have forcefully taught that the power to inspect
dwelling places, either as a matter of systematic area-by-area search
or, as here, to treat a specific problem, is of indispensable
importance to the maintenance of community health; a power that
would be greatly hobbled by the blanket requirement of the
safeguards necessary for a search of evidence of criminal acts. The
need for preventive action is great, and city after city has seen this
need and granted the power of inspection to its health officials; and
these inspections are apparently welcomed by all but an insignificant
few. Certainly, the nature of our society has not vitiated the need for
inspections first thought necessary 158 years ago, nor has
experience revealed any abuse or inroad on freedom in meeting this
need by means that history and dominant public opinion have
sanctioned.’ 359 U.S., at 372, 79 S.Ct. at 811.
Id. at 536-537. Finally, the Court stated:
. . . Where considerations of health and safety are involved, the facts
that would justify an inference of ‘probable cause’ to make an inspection are
clearly different from those that would justify such an inference where a
criminal investigation has been undertaken. Experience may show the need
for periodic inspections of certain facilities without further showing of cause
to believe that substandard conditions dangerous to the public are being
maintained. The passage of a certain period without inspection might of
itself be sufficient in a given situation to justify the issuance of warrant. The Stark County, Case No. 2024CA000108 14
test of ‘probable cause’ required by the Fourth Amendment can take into
account the nature of the search that is being sought.' 359 U.S., at 383, 79
S.Ct. at 87 (Mr. Justice Douglas, dissenting).
Having concluded that the area inspection is a ‘reasonable’ search
of private property within the meaning of the Fourth Amendment, it is
obvious that ‘probable cause’ to issue a warrant to inspect must exist if
reasonable legislative or administrative standards for conducting an area
inspection are satisfied with respect to a particular dwelling. Such
standards, which will vary with the municipal program being enforced, may
be based upon the passage of time, the nature of the building (e.g., a
multifamily apartment house), or the condition of the entire area, but they
will not necessarily depend upon specific knowledge of the condition of the
particular dwelling. It has been suggested that so to vary the probable cause
test from the standard applied in criminal cases would be to authorize a
‘synthetic search warrant’ and thereby to lessen the overall protections of
the Fourth Amendment. Frank v. State of Maryland, 359 U.S., at 373, 79
S.Ct. at 812. But we do not agree. The warrant procedure is designed to
guarantee that a decision to search private property is justified by a
reasonable governmental interest. But reasonableness is still the ultimate
standard. If a valid public interest justifies the intrusion contemplated, then
there is probable cause to issue a suitably restricted search warrant. Cf.
Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed.
614. Such an approach neither endangers time-honored doctrines Stark County, Case No. 2024CA000108 15
applicable to criminal investigations nor makes a nullity of the probable
cause requirement in this area. It merely gives full recognition to the
competing public and private interests here at stake and, in so doing, best
fulfills the historic purpose behind the constitutional right to be free from
unreasonable government invasions of privacy. See Eaton v. Price, 364
U.S., at 273—274, 80 S.Ct., at 1468—1469 (opinion of Mr. Justice
Brennan).
Id. at 538-539. This case does not involve an attempted warrantless search, nor does it
involve criminal charges. Instead, a warrant procedure was outlined in the appellee’s
ordinance, and was followed by the appellee. The inspection sought by the administrative
warrant was limited to the items set forth on the appellee’s Rental Unit Inspection Form
checklist, which was provided to the appellant in advance. The appellee’s valid public
interest justifies the intrusion contemplated, and as a result there is probable cause to
issue a suitably restricted administrative warrant.
{¶20} The appellant focuses its argument on Article I, Section 14 of the Ohio
Constitution, submitting that it offers more expansive protections than the Fourth
Amendment to the United States Constitution. We disagree.
{¶21} The Fourth Amendment provides that “[t]he 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.” Article I, Section 14 of the Ohio Constitution
contains a parallel provision to the Fourth Amendment of the Federal Constitution, and Stark County, Case No. 2024CA000108 16
provides that “[t]he right of the people to be secure in their persons, houses, papers, and
possessions, against unreasonable searches and seizures shall not be violated; and no
warrant shall issue, but upon probable cause, supported by oath or affirmation,
particularly describing the place to be searched, and the person and things to be seized.”
Article I, Section 14 of the Ohio Constitution, which is nearly identical to the language
contained in the Fourth Amendment, has been held to afford the same level of protection
as the United States Constitution. State v. Hoffman, 2014–Ohio–4795, ¶ 11, citing State
v. Robinette, 80 Ohio St.3d 234 (1997). These protections against unreasonable
searches and seizures have been similarly interpreted and applied. Article I, Section 14
does not alter our analysis of the issues, nor does it alter our application of Camara.
{¶22} The stated purpose of the appellee’s ordinance regarding the registration
and inspection of rental properties was to establish a registry of rental units so that the
city could ensure that properties rented within the city limits complied with certain safety
issues, such as the presence of smoke detectors, carbon monoxide detectors, and other
safety measures; to hold all property owners and agents to the same property
maintenance standards as set forth in Part 17 of the Codified Ordinances of the City of
North Canton; and, to provide a safe and sanitary environment for the residents and their
guests of all rental dwelling units. These purposes are aimed at securing city-wide
compliance with minimum physical safety standards for private property. The appellee’s
primary interest is to prevent even the unintentional development of conditions which are
hazardous to the renting public’s health and safety. This is important in the context of
rental properties, as some landlords are not as conscientious about maintaining rental
properties as owners who reside in the premises. Moreover, renters may be less inclined Stark County, Case No. 2024CA000108 17
to report infractions for fear of retribution from their landlords. The appellee’s rental
property inspection ordinance protects those tenants and ensures that all rental properties
are held to the same standard as owner-occupied properties within the municipality.
Furthermore, the appellee’s inspections are confined to the inspection checklist form,
which specifically delineates what may be examined in any rental property. Finally, while
the ordinance may impose civil fines for failure to comply with the registration and
inspection requirements of the ordinance, it provides for no criminal penalties for non-
compliance.
{¶23} Although the facts in State v Finnell, 115 Ohio App.3d 583 (1st Dist. 1996),
dealt with the imposition of criminal penalties stemming from the property owner’s refusal
to permit an inspection of his vacant property, and the lack of a procedure within the
ordinance for obtaining a warrant, the court’s comments on the issue of administrative
warrants is instructive:
Administrative entry by the government into premises may only be
compelled within the framework of a formal warrant procedure. See v.
Seattle (1967), 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943. Probable
cause to issue an administrative warrant for entry into premises is the
subject of a flexible standard of reasonableness given the agency's
particular demand for access and the public need for effective enforcement
of the regulation involved. Id. However, the United States Supreme Court
declared: “But the decision to enter and inspect will not be the product of
the unreviewed discretion of the enforcement officer.” Id. Thus, a warrant
may be issued to permit authorities to enter commercial premises as long Stark County, Case No. 2024CA000108 18
as the public need for effective enforcement of the regulation involved
outweighs an owner's expectation of privacy, because under those
circumstances, the expectation is no longer “reasonable.”
Id. at 589. In this case, the appellee’s need for effective enforcement of its rental property
regulations in order to hold rental property owners to the same property maintenance
standards established for owner-occupied properties as contained in Part 17 of the
Codified Ordinances of the City of North Canton, and to provide a safe and sanitary
environment for the residents and their guests of all rental dwelling units, is based upon
reasonable concerns. The administrative warrant procedure is outlined in the ordinance
in the event an owner refuses to allow the inspection, and the application of the
administrative warrant is subject to an adversarial litigation procedure. The property
owner is notified of the application for the administrative warrant, and is permitted to
defend against it. There is no “unreviewed discretion of the enforcement officer” in this
case, as the trial court ensures the reasonableness of the requested warrant.
{¶24} The court’s decision in Kaim Properties, LLC v. Mentor, 2013-Ohio-4291
(11th Dist.) further supports this reasoning. In Kaim, the property owner appealed the
decision of the trial court granting summary judgment in favor of the city of Mentor
regarding the constitutionality of Mentor’s rental housing maintenance code, which
provided that rental properties be inspected in order to obtain a rental dwelling unit
certificate. The property owner failed to obtain the certificate, violation notices were
issued, and the matter was ultimately brought before the trial court, who granted summary
judgment to the City of Mentor. The court of appeals affirmed, stating: Stark County, Case No. 2024CA000108 19
Finally, we disagree with Kaim's suggestion that the Rental Code is
unconstitutional because it authorizes search warrants without probable
cause. Section 1391.06 provides that if the property owner refuses consent
to inspect, the “code official shall be permitted to seek, in a court of
competent jurisdiction, a warrant for administrative inspection.” Contrary to
Kaim's suggestion, the Code does not authorize, either expressly or by
implication, a search warrant without probable cause. The fact that the Code
authorizes the inspector to seek a search warrant from an appropriate court
implies that the applicant must establish probable cause in order to obtain
a warrant. Further, it is well settled that the government can obtain a warrant
for administrative inspections. Marshall v. Barlow's, Inc., 436 U.S. 307, 320
(1987). For purposes of an administrative search, probable cause justifying
the issuance of a warrant may be based on evidence of an existing violation
or on a showing that reasonable legislative standards for conducting an
inspection are satisfied. Id.
Id. at ¶40. In this case, the fact that the applicable ordinance authorizes procurement of
a search warrant from an appropriate court implies that the appellee must establish
probable cause in order to obtain the administrative warrant. Furthermore, it is well settled
that a municipality may obtain a warrant for administrative inspections of properties, and
probable cause may be based upon a showing that reasonable legislative standards for
conducting an inspection are satisfied. Said standards were satisfied in this case.
{¶25} Finally, the fact that the appellee did not include tenants in its application
for an administrative warrant does not proscribe the issuance of the warrant to inspect Stark County, Case No. 2024CA000108 20
the subject rental property and to ensure the appellant’s compliance with the appellee’s
ordinances and property maintenance code. None of the enumerated circumstances in
Civ.R. 19.1(A) apply to require a compulsory joinder in this case. Additionally, the
appellant has advocated for the same privacy interest any tenants may proffer. The
inspection permitted pursuant to the administrative warrant herein is not performed
without notice, and must be confined to the parameters of the appellee’s inspection
checklist.
{¶26} The appellee’s ordinance provides a definitive standard by which the
administrative warrant may issue, and contains a clearly defined purpose. In addition, the
inspection checklist provides very specific parameters by which the inspection may be
completed. The appellant’s assignments of error are, therefore, without merit. Stark County, Case No. 2024CA000108 21
CONCLUSION
{¶27} Based upon the foregoing, the appellant’s assignments of error numbers
one through three are overruled, and the decision of the Stark County Court of Common
Pleas is hereby affirmed.
By: Baldwin, P.J.
Hoffman, J. concur
King, J. concurs separately. Stark County, Case No. 2024CA000108 22
King, J. concurs separately,
{¶ 28} I join the judgment of this court and do not disagree with the opinion written
by Judge Baldwin. But I maintain doubt that the scheme created by North Canton is
consistent with Section 14, Article 1 of the Ohio Constitution and the general laws of Ohio.
Despite that doubt, I conclude that I must follow the precedent from the Supreme Court
of Ohio in this matter. I explain this more fully as follows.
{¶ 29} Search warrants are most often obtained to secure evidence of a criminal
violation. In addition, a search warrant may be issued for "administrative purposes." In
the latter case, the warrant is issued to search a premise for the purposes of ensuring
health, safety, and welfare. Because the purpose of the search is different than gathering
evidence for criminal prosecution, the question courts must confront is whether the
constitutional commands for reasonable searches and probable cause apply differently
when the search is motivated by one concern or the other.
{¶ 30} For the last several decades, the answer to that question is they are indeed
two different standards. It appears the first time this divergence was recognized was in
District of Columbia v. Little, 178 F. 2d 13 (1941). In that case, Ms. Little refused to allow
the health inspector into her house. The court of appeals found that there was no
distinction between a search and inspection and found both subject to the Fourth
Amendment. Id. 16-17. Although the Supreme Court of the United States upheld the
decision, it expressly avoided the constitutional question in doing so. District of Columbia
v. Little, 339 U.S. 1, 4 (1950).
{¶ 31} The Court returned to this question several years later in Frank v. Maryland,
359 U.S. 360 (1959). The lead opinion, authored by Justice Frankfurter, found that a Stark County, Case No. 2024CA000108 23
warrant was not needed for a sanitary inspection. Id. 373. Justice Douglas, joined by three
other justices, wrote a vigorous dissent arguing that an evaluation of history showed the
Fourth Amendment also applied outside of criminal contexts. Id. 377. He ended his
dissent by noting England had a long-standing history of requiring a warrant for health
inspections. Id. 384.
{¶ 32} This rule did not last long; the Court returned to this question in Camara v.
Municipal Court of City and County of San Francisco, 387 U.S. 523 (1967). The Court
noted that the district court relied on Frank and other state court cases in affirming a
warrantless search by the municipality and reversed, explicitly overruling a number of
cases. Id. 527-28. In holding that a warrant was required for this kind of search, the court
determined the warrant could be issued upon either probable cause or "if reasonable
legislative or administrative standards for conducting an area inspection are satisfied with
respect to a particular dwelling." Id. 538. See also Marshall v. Barlow's, Inc., 436 U.S.
307, 321-322(1978) and Martin v. Int'l Matex Tank Terminals-Bayonne, 928 F.2d 614,
622 (3d Cir. 1991).
{¶ 33} The need for probable cause, even if relaxed from the traditional sense that
is used in criminal investigations, is plainly rooted in the text, history, and tradition of the
Fourth Amendment and Section 14, Article 1 of the Constitution of Ohio. The history and
tradition of a general section or provision (such as "probable cause") is often
determinative when construing a constitution. State v. Skaggs, 2024-Ohio-4781, ¶62.
(5th Dist.) (King, J., dissenting). But I question obviating probable cause altogether when
the government establishes "legislative or administrative" standards. This appears to be
both ahistorical and a late judicial fabrication. Stark County, Case No. 2024CA000108 24
{¶ 34} Despite any misgivings about extending this aspect of the holding of
Camara to our state constitution, I believe we are obligated to affirm this case on the basis
of stare decisis. Just prior to the decision in Frank, the Supreme Court of Ohio has the
opportunity to review Section 14, Article 1. State ex rel. Eaton v. Price, 168 Ohio St 123
(1958). It concluded this:
We, therefore, conclude that an ordinance establishing minimum
standards 'governing utilities, facilities and other physical things and
conditions essential to make dwellings safe, sanitary and fit for
human habitation,' and 'governing the conditions and maintenance
of dwellings,' and containing a provision which authorizes a housing
inspector to make inspections of 'dwellings, dwelling units, rooming
houses, rooming units and premises located within the city' and
which also authorizes such inspector 'upon showing appropriate
identification * * * to enter, examine and survey at any reasonable
hour all dwellings' and which require that the 'owner or occupant of
every dwelling' shall give such inspector 'free access to such dwelling
* * * at any reasonable hour for the purpose of such inspection,
examination and survey,' with penalties of fine or imprisonment or
both for violation of such provision, is not violative of Section 14 of
Article I of the Ohio Constitution prohibiting unreasonable searches
and seizures. Stark County, Case No. 2024CA000108 25
{¶ 35} Id. 532-533. Although the Supreme Court of the United States cited to this
case negatively in an attempt to distinguish the rule in Camara from what came before
it, it did not—and could not—nullify its holding with respect to Constitution of Ohio.
Accordingly, I concur in judgment to affirm the judgment of the trial court.