Mariemont Apartment Assn. v. Mariemont, 2007 Ohio 173 (Ohio App. 1/19/2007), Appeal No. C-050986.

CourtUnited States Court of Appeals (Ohio)
Citation2007 Ohio 173
Docket NumberAppeal No. C-050986.
PartiesMariemont Apartment Association, Plaintiff-Appellant, v. Village of Mariemont, Ohio, Defendant-Appellee.
Decision Date19 January 2007

Page 1

2007 Ohio 173
Mariemont Apartment Association, Plaintiff-Appellant,
Village of Mariemont, Ohio, Defendant-Appellee.
Appeal No. C-050986.
Court of Appeals of Ohio, First District, Hamilton County.
Date of Judgment Entry on Appeal: January 19, 2007.

Civil Appeal from Hamilton County Court of Common Pleas, Trial No. A-0501912.

Reversed and Judgment Entered For Appellant.

Katz, Greenbberger & Norton, LLP, Richard L. Norton and Scott H. Kravetz, for Plaintiff-Appellant.

Edward J. McTigue, Village of Mariemont Solicitor, for Defendant-Appellee.



{¶1} Plaintiff-appellant, Mariemont Apartment Association (the "association"), appeals the trial court's decision declaring an ordinance enacted by defendant-appellee, the village of Mariemont, Ohio, to be constitutional. We find merit in one of the association's assignments of error. Therefore, we reverse the trial court's decision.

{¶2} The record shows that on January 10, 2005, the village adopted Ordinance No. 1-2-05. This ordinance enacted Chapter 154 of the Mariemont Code, which pertains to "Rental of Dwelling Units and the Obtaining of Permits." It applies to all residential dwellings for rent that become vacant after February 1, 2005.

{¶3} The ordinance requires the owner of residential rental property within the village to obtain a rental permit issued by the Office of the Building Commissioner. It applies to units being rented to new tenants or to any unit where the current permit is three years or older. A permit costs $25.

{¶4} The ordinance also requires the building commissioner to conduct an inspection within two business days, at which the owner or a representative must be present. But the inspection cannot occur unless the owner has paid the $25 fee. The commissioner or the commissioner's representative must inspect the dwelling for compliance with the village's previously enacted property-maintenance code, using a checklist prepared by the building department.

{¶5} Once the inspection is completed, the building commissioner shall issue a rental permit to an owner who (1) has paid the permit fee, (2) has filed a written application, (3) has scheduled and attended the required inspections, and (4) is in compliance with all applicable zoning and building codes. If the commissioner

Page 3

cannot certify that a dwelling conforms to the requirements in the checklist, the commissioner may issue a conditional permit if the violations are not an immediate threat to the health, safety, or public welfare of the community, or to any actual or potential inhabitants.

{¶6} A conditional permit must specify the nonconformities and give the owner 30 days to correct them. If the owner fails to correct the specified nonconformities within 30 days, the commissioner must revoke the conditional permit, and the owner must cease renting or seeking to rent the unit and cause it "to be vacated." If a tenant occupies the unit, the owner must notify the tenant that until the owner receives the required rental permit, the tenant may be required to vacate the unit.

{¶7} Upon renting any unit, the owner must furnish the building commissioner with the names of all tenants within seven days of the date of occupancy. Failure to furnish the names results in the revocation of the rental permit and a $25 fine.

{¶8} The ordinance provides that an owner may appeal any action of the building commissioner relating to rental permits to the Board of Building Appeals by filing a notice of appeal within 30 days after receipt of a written notice or letter from the commissioner. It contains no other provisions about appeals. It also states that any owner who rents a dwelling without a valid rental permit or conditional permit is guilty of a minor misdemeanor. Each day of noncompliance constitutes a separate violation for which the village can fine the owner.

{¶9} The association filed a declaratory-judgment action in which it alleged that the ordinance (1) was unconstitutionally vague; (2) criminalized "inherently innocent and harmless conduct"; (3) was "unreasonable in its scope"; (4) did not

Page 4

"bear a real and substantial relationship to the public's health, safety, morals or general welfare"; (5) arbitrarily and unreasonably discriminated between the owners of residential rental property, the owners of commercial rental property, and the owners of residential property not used for rental; (6) invaded tenants' privacy rights; (7) unconstitutionally denied the owners of residential property the rights of equal protection and due process of law; and (8) was "unreasonable and arbitrary." The trial court granted the village's motion for summary judgment and overruled the association's. This appeal followed.

{¶10} The association presents six assignments of error, which we address out of order. We begin our analysis by noting that legislative enactments enjoy a presumption of constitutionality.1 Courts must liberally construe legislation to save it from constitutional infirmities. The challenging party bears the burden to show that the legislation is unconstitutional.2


{¶11} In its first assignment of error, the association contends that the trial court erred in finding the ordinance to be constitutional, because it conflicts with the general laws of Ohio. The association argues that the ordinance regulates the rights and responsibilities of the parties to residential leases, which is inconsistent with R.C. Chapter 5321, Ohio's Landlord-Tenant Act. This assignment of error is not well taken.

{¶12} The association relies upon R.C. 5321.19, which provides in part, "No municipal corporation may adopt or continue in existence any ordinance * * * that is

Page 5

in conflict with this chapter, or that regulates the rights and obligations of parties to a rental agreement that are regulated by this chapter." But the statute goes on to state, "This chapter does not preempt any housing, building, health or safety code * * * ." The provisions of R.C. Chapter 5321 "are intended to be preventative and supplemental to other remedial measures."3 They do not limit a court's power and duty to enforce all applicable building, housing, health, and safety codes.4

{¶13} State laws only preempt local ordinances to the extent that that are utterly inconsistent with local law, or when the legislature has expressed a clear intention to override local law.5 The ordinance in this case is consistent with R.C. Chapter 5321, and therefore it is not preempted.6 Consequently, we overrule the association's first assignment of error.


{¶14} In its third assignment of error, the association contends that the trial court erred in finding the ordinance to be constitutional, because it requires property owners to disclose to the village the identity of tenants, forces landlords to violate the tenants' rights to privacy, and forces them to act as the village's investigators. While the provision requiring the owners to give the tenants' names to the village gives us pause, we ultimately conclude that this assignment of error is not well taken.

{¶15} The right to privacy involves the interest in avoiding disclosure of personal matters and the interest in making certain kinds of important decisions

Page 6

independently.7 But the right to privacy is not absolute. Privacy of the individual must yield when required by public necessity.8

{¶16} The right to privacy encompasses only personal information and information not readily available to the public.9 Consequently, the Ohio Supreme Court has stated that individuals do not have a legitimate expectation of privacy in their telephone numbers, their names and work addresses, and their resumes.10 Courts have upheld the sale of the names and addresses of motor-vehicle registrants to direct-mail advertisers.11 Further, the names and addresses of sexual offenders are not private because they are contained in records that governmental agencies must keep by law.12

{¶17} The requirement that landlords provide the names of the tenants to the village does cause us concern. The association's argument that this requirement endangers the safety of tenants, particularly the elderly or single mothers, and could leave them open to identity theft has some validity. Nevertheless, we are not convinced that it is such a violation of the right to privacy that it overrides the village's legitimate interest in regulating rental housing within the village. Certainly, the disclosure of individuals' names and addresses does not rise to the level of the disclosure of their social-security numbers or copies of their tax returns, which courts have held are private information subject to statutory regulation.13

Page 7

{¶18} We agree with the trial court when it stated, "The Auditor's Office and Recorder's Office ha[ve] a plethora of information regarding what property a person owns and who pays taxes on certain property. Law Enforcement entities are entitled to collect vast information regarding citizens. Taxing agencies are entitled to extremely private information regarding citizens. None of the aforementioned situations have been adjudged to be violative of a person's privacy rights."

{¶19} Further, all individuals, whether renters, rental property owners, or private home owners, must generally publicly reveal their residential addresses if they want to receive public or governmental services. No individual has a reasonable expectation of living in complete anonymity, and tenants generally do not have a reasonable expectation of privacy in the location of their residences.

{¶20} Also, a more serious threat to the right of privacy occurs when information is disclosed to the general public.14 In this case, property owners are required to disclose the information to village officials, not to the general public. Once the information is in the village's possession, it arguably becomes a public record under...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT