Wilson v. City of Cincinnati

346 N.E.2d 666, 46 Ohio St. 2d 138, 75 Ohio Op. 2d 190, 1976 Ohio LEXIS 607
Ohio Supreme Court·Decided May 5, 1976·No. No. 75-622·Published·Cited by 36 cases

Opinions

Herbert, J.

Appellant contends initially that the warranty established by subsection (D) of Ordinance No. 556-1973 is contrary to the common law in this state and, therefore, represents an unconstitutional exercise of the city’s police power.

Section 3 of Article XVIII of the Constitution of Ohio, commonly known as the “home rule” amendment, provides:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

in the instant case, enactment of the ordinance was j tot an exercise of the powers of local self-government. State ex rel. Canada, v. Phillips (1958), 168 Ohio St. 191, 151 N. E. 2d 722; State, ex rel. Petit, v. Wagner (1960), 170 Ohio St. 297, 164 N. E. 2d 574; Leavers v. Canton (1964), 1 Ohio St. 2d 33, 203 N. E. 2d 354; State, ex rel. Mullin, v. Mansfield (1971), 26 Ohio St. 2d 129, 269 N. E. 2d 602.

At the heart of appellant’s contention is her assertion that the phrase “general laws” must include the common law of the state. Such an argument was rejected in Leis v. Cleveland Ry. Co. (1920), 101 Ohio St. 162, 128 N. E. 73, and wo are not convinced that a departure from the holding in Leis is presently desirable.

Appellant asserts further that the ordinances are invalid because the certificate requirement and warranty do not trar a real and substantial relationship to the general of the nublic.

The “real and substantial relationship” standard, as [142]*142used to test the constitutionality of a municipal police regulation, is stated in .West Jefferson v. Robinson (1965), 1 Ohio St. 2d 113, 119, 205 N. E. 2d 382:

“Police regulations, whether by ordinance or statute, will frequently interfere with, the enjoyment and use of property and with the making-of contracts.. However, this court has consistently held that a police regulation having that effect may be valid unless it clearly appears that such regulation bears no real and substantial relation to the public health, safety, morals or general welfare, of the public or is unreasonable or arbitrary. ” .

See Benjamin v. Columbus (1957), 167 Ohio St. 103, 146 N. E. 2d 854; Curtiss v. Cleveland (1959), 170 Ohio St. 127, 163 N. E. 2d 682; Ghaster Properties, Inc., v. Preston (1964), 176 Ohio St. 425, 200 N. E. 2d 328; Porter v. Oberlin (1965), 1 Ohio St. 2d 143, 205 N. E. 2d 363.

; Moreover, because municipalities are presumed to be familiar with local conditions and the needs of the community, a court will not substitute its judgment for legislative discretion unless there has been a clear and palpable abuse of power. Porter v. Oberlin, supra; Allion v. Toledo (1919), 99 Ohio St. 416, 124 N. E. 237.

In the case at bar, Ordinance No. 556-1973 encourages inspection of residential housing prior to sale and, thus, supplements enforcement of the city’s housing code. The ordinance bears witness to the city’s attempt to preserve the quality of its existing housing stock and, in that respect, possesses a real and substantial relation to the-public health, safety, morals or general welfare of the public, and is neither arbitrary nor unreasonable.

Appellant also argues that the warranty established by subsection (D) is vague and indefinite, and violates the due process clause of the Fourteenth Amendment to the Constitution of the United States. From an examination of subsection (D), it is sufficiently clear that an implied warranty of compliance with the city’s building and zoning codes is created and that the warranty runs to the prospective buyer. Thus, the provisions are not so vague that [143]*143men of common intelligence must necessarily guess at their meaning and differ as to their application. Columbus v. Rogers (1975), 41 Ohio St. 2d 161, 324 N. E. 2d 563; Columbus v. Thompson (1971), 25 Ohio St. 2d 26, 266 N. E. 2d 571.

In reply to the cross-appeal, appellant urges that the necessity of a warrantless inspection by appointment prior to issuance of a certificate of inspection, and the attendant criminal penalty imposed by subsection (F), are contrary to the Fourth Amendment to the United States Constitution.1

From an examination of Ordinance No. 556-1973, it can be seen that the homeowner, prior to entering into a contract for the sale of the property, is required to tender to the prospective buyer a Certificate of Housing Inspection. The failure to so comply, with three exceptions, renders the seller subject to the criminal penalty provided in subsection (F) and- Ordinance No. 557-1973. A critical aspect of the legislation, however, is that the seller can obtain the certificate only by agreeing' to a time when an inspector is permitted access to the property.

Obviously, the seller is faced with a serious dilemma'; either he must consent to a warrantless search or face the possibility of a criminal penalty.

Generally, a search to which an individual consents meets Fourth Amendment requirements. Katz v. United States (1967), 389 U. S. 347, 358. Thus, it may be represented that because the' seller arranges for the inspection, including a proper time, he consents to the search. However, a valid consent involves a waiver of constitutional [144]*144rights and cannot be lightly inferred; hence, it must be “voluntary and nncoereed, either physically or psychologically.” United States v. Fike (C. A. 5, 1972), 449 F. 2d 191, 193; Phelper v. Decker (C. A. 5, 1968), 401 F. 2d 232; Cipres v. United States (C. A. 9, 1965), 343 F. 2d 95.

In the case before ns, the coercion represented by the sole alternative of possible criminal prosecution clearly negates any “consent” which may be inferred from the allowance of the inspection and, therefore, the validity, of such searches upon the basis of consent is not sustainable.

A finding that the provisions of subsection (F) and Ordinance No. 557-1973 cannot be constitutionally enforced is further warranted in light of the decision of the United States Supreme Court in Camara v. Municipal Court (1967), 387 U. S. 523. There, after a lessee refused to permit a warrantless inspection of his residence, he was arrested and charged with violation of a provision of the San Francisco Housing Code.2

In reaching its determination that the Fourth Amendment bars prosecution of a person who refuses to permit a warrantless, code-enforcement inspection of his personal residence,3 the court in Camara, at page 529, noted with approval its language in Johnson v. United States (1948), 333 U. S. 10, 14:

[145]

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Wilson v. City of Cincinnati, 346 N.E.2d 666, 46 Ohio St. 2d 138, 75 Ohio Op. 2d 190, 1976 Ohio LEXIS 607 (Ohio 1976).

346 N.E.2d 666 (Wilson v. City of Cincinnati) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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