Cleveland v. Berger

• Decision Date: 12 October 1993
• Docket Number: No. 63089,63089
• Citation: 631 N.E.2d 1085,91 Ohio App.3d 102
• Parties: CITY OF CLEVELAND, Appellee, v. BERGER, Appellant. *
• Court: Ohio Court of Appeals

Page 102

91 Ohio App.3d 102

631 N.E.2d 1085

CITY OF CLEVELAND, Appellee, v. BERGER, Appellant. ^*

No. 63089.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Oct. 12, 1993.

Danny R. Williams, Director of Law, and Martha R. McCorkle, Asst. Director of Law, Cleveland, for appellee.

Berger & Fertel and Robert M. Fertel, Cleveland, for appellant.

BLACKMON, Judge.

This is an appeal from a judgment of the Housing Division of the Cleveland Municipal Court, assessing a fine to Sanford J. Berger, defendant-appellant, for violations of C.C.O. 369.13 and 369.15. Berger challenges the judgment and assigns eight errors for our review. ¹

After a review of the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow.

Berger owns an apartment building in Cleveland, Ohio. In 1983, Berger entered into a fifteen-year contract with the United States Department of Housing and Urban Development ("HUD") for participation in the Section 8 program which provides rental subsidies for selected tenants. To conduct its required interior and exterior building inspection, HUD appointed the Cuyahoga Metropolitan Housing Authority.

On June 18, 1991, a housing inspector arrived to inspect the building in response to an anonymous complaint. The exterior inspection revealed several maintenance violations. The building custodian escorted the inspector into the building and a resident allowed the inspector to examine her apartment.

The inspector notified Berger of the violations and gave him ten days to correct the problems. On July 23, 1991, a follow-up inspection revealed that the problems remained uncorrected. A ticket was issued listing violations of Cleveland Codified Ordinances 369.13 and 369.15.

On September 19, 1991, Berger filed unsuccessful motions for suppression of evidence and for dismissal of the complaint against him. He argued that the inspection constituted a warrantless search of his building and that C.C.O. 367.03 was unconstitutional since it allowed such searches. He also argued that, since his building was controlled by the federal government, the local housing code was preempted by federal law and the building was immune from inspection by city housing inspectors. He also argued that governmental immunity or governmental contractor immunity barred a trial.

Berger's motions were overruled by the trial court. After a hearing, Berger was found guilty of violating C.C.O. 369.13 and 369.15. He was fined $50 plus costs. Berger filed a notice of appeal and a motion to suspend execution of his sentence.

Berger argues that C.C.O. 367.03 and C.C.O. 367.99 are unconstitutional. C.C.O. 367.03 requires that housing inspectors may, at any reasonable time, enter any dwelling in the city of Cleveland in order to enforce the housing code. It also provides that no person shall prevent the inspector from entering the premises. C.C.O. 367.99 imposes fines for refusing to permit the housing inspector to enter the premises.

Berger was not convicted of violating C.C.O. 367.03 or 367.99. We find, therefore, that he lacks standing to challenge the constitutionality of these statutes. "The constitutionality of a state statute may not be brought into question by one who is not within the class against whom the operation of the statute is alleged to have been unconstitutionally applied and who has not been injured by its allegedly unconstitutional provisions." Palazzi v. Estate of Gardner (1987), 32 Ohio St.3d 169, 175, 512 N.E.2d 971, 977. C.C.O. 367.03 and 367.99 apply to the rights of a housing inspector to enter property for inspection and to the penalties for refusing entry. In the case sub judice, the housing inspector was allowed to enter. Berger was not charged with, or convicted of, violating C.C.O. 367.03 or 367.99. He was not within the class of persons with respect to whom the statutes are allegedly unconstitutional. See Palazzi at 174, 512 N.E.2d at 976-977. Berger's first assignment of error is without merit.

Berger also claims that the trial court erred in denying his motion to suppress evidence. He claims that the evidence of housing code violations was obtained through an illegal warrantless search of his property in violation of the Fourth Amendment. We disagree.

The Fourth Amendment protects against unreasonable searches and seizures. It does not protect against all searches. Generally, warrantless searches of homes are unreasonable. Ridgeway v. Union Cty. Commrs. (S.D.Ohio 1991), 775 F.Supp. 1105. The same protection extends to commercial buildings. State v. Penn (1991), 61 Ohio St.3d 720, 723, 576 N.E.2d 790, 792. An exception to the general rule prohibiting warrantless searches is a search by consent. State ex rel. Holcomb v. Wurst (1989), 63 Ohio App.3d 629, 579 N.E.2d 746, motion to certify overruled (1989), 47 Ohio St.3d 711, 548 N.E.2d 242.

We find that the inspector obtained valid consent for the search. Upon approaching the building, she identified herself as a city housing inspector and asked to see the custodian or other responsible person. Several people sitting on the steps of the building directed her to Charles Bridget. Bridget identified himself as the custodian. The inspector presented him with her identification and asked for permission to inspect the property. Bridget allowed the inspection.

Berger argues that Bridget was not employed as a custodian in the building and was not authorized to consent to the inspection. However, several residents of the building identified Bridget as the custodian. Bridget escorted the inspector into the common areas of the building. We find that, under the circumstances, the inspector was reasonable in her belief that Bridget had the authority to consent to the inspection. Consent to search is valid if it is obtained from a person with sufficient authority over the property to give his consent, or at least from a person reasonably believed to have such authority. White Fabricating Co. v. United States (C.A.6, 1990), 903 F.2d 404. The inspector had a reasonable belief that Bridget was authorized to consent to the inspection; therefore, the search proceeded under valid consent. Finding no constitutional violation, we overrule Berger's second assignment of error.

Berger next argues that C.C.O. 367.04 denied him due process of law by improperly delegating the city's legislative authority to housing inspectors. He claims that it is improper to allow housing inspectors to decide the amount of time necessary to make repairs before criminal charges are filed against the property owner. We disagree.

The housing code covers many different structures within the city of Cleveland. Some code violations may be more extensive than others, requiring more time to complete repairs. The vast number of different violations necessitates that the time for repair be established on a case-by-case basis. Despite Berger's argument that this policy offers the potential for arbitrary and discriminatory treatment of property owners, he has presented us with absolutely no evidence that he was unfairly "targeted" by housing inspectors. The statute provides that a property owner may appeal a ticket within the time allowed for compliance. Although the owner must still appear at his arraignment, action to enforce the ticket is suspended during the pendency of the appeal. Berger had the right to appeal the ticket and could have delayed its enforcement by appealing it. We reject Berger's argument that the ordinance denies him his due process rights.

We also reject Berger's argument that he was improperly denied the opportunity to present evidence that the time allowed for him to make repairs was arbitrary and unreasonable. As discussed above, we find that the time for repairs is best decided on a case-by-case basis. The housing inspector testified that she based the repair time on the size of the building, the type of cited violations and the fact that there was a custodian on the property. She had more than ten years of experience as a housing inspector. We find nothing arbitrary about the inspector's actions. Berger's fourth assignment of error is without merit.

In his fifth assignment of error, Berger argues that the trial court erred in convicting him of charges that were not contained in the written warning notice issued by the housing inspector. He claims that criminally charging him with violations without prior notice denied him his due process rights. Our review of the record shows that Berger was notified of the violations he was convicted of. The warning notice issued to Berger included the following violations: rear porch fascia board deteriorated, rear porch system in need of paint, debris in rear stairwell of cellar, cellar retaining wall needs painting. The subsequent ticket listed the following: front and rear door locks are in need of repair in No. 9 gutter and downspouts are leaking south side, exterior wood trim is in need of paint, fascia is deteriorated. Berger argues that, since only the deteriorated fascia was listed in both notices, the court erred in convicting him of other violations.

In support of his argument, Berger cites C.C.O. 367.04(a), which states:

"Whenever the Commissioner of Building and Housing shall find any dwelling structure or premises, or any part thereof, to be in violation of the provisions of this Housing Code, he shall give or cause to be given to the owner or agent or person in charge of such structure or premises, and the mortgagee of record, a written notice stating the violations therein. Such notice shall order the owner within a stated reasonable time to repair, improve, demolish or effectively board the structure or premises concerned."

C.C.O. 367.05 provides that, upon an owner's failure to make the necessary repairs, the Commissioner of Building and Housing may order the building vacated or may pursue legal action to compel the owner to make the repairs. The...