Thompson v. City of Oakwood, Case No. 3:16–cv–169
| Decision Date | 08 February 2018 |
| Docket Number | Case No. 3:16–cv–169 |
| Citation | 307 F.Supp.3d 761 |
| Parties | Jason THOMPSON and 2408 Hillview, LLC, Plaintiffs, v. CITY OF OAKWOOD, OHIO, and Ethan Kroger, Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Maurice A. Thompson, Columbus, OH, Christopher P. Finney, Finney Law Firm, LLC, Cincinnati, OH, for Plaintiffs.
Lynnette Dinkler, Jamey T. Pregon, Dinkler Pregon LLC, Dayton, OH, Robert F. Jacques, Oakwood, OH, for Defendants.
ENTRY AND ORDER GRANTING PLAINTIFFS' AMENDED MOTION FOR SUMMARY JUDGMENT (DOC. 52), GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 50), AND GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (DOC. 18)
From approximately 1992 until July 2016 (shortly after this lawsuit was filed), a municipal ordinance in the City of Oakwood, Ohio made it unlawful to transfer ownership of any real estate, or change a tenant, without having obtained a "pre-sale inspection" of the property under the municipal code. (Doc. 28–9, Oakwood Codified Ordinances, § 17, at PageID # 3112–3152.) The pre-sale inspection program required the property owner to complete an application, schedule and appear for an inspection of the property with the code official, pay a $60 fee, correct or otherwise address identified violations of the city's fire, zoning, building, and property maintenance codes, and pay all outstanding water and sewer bills for the property in full, in order to obtain a "certificate of occupancy" authorizing the property's sale. Violation of the pre-sale inspection requirement was punishable as a misdemeanor. (Doc. 28–9 at ¶¶ 5, 8–9.)
Plaintiffs own and have sold residential homes in Oakwood. They brought this action under 42 U.S.C. § 1983 against Oakwood and Ethan Kroger, one of its code enforcement officers, for allegedly infringing their constitutional rights by requiring them to submit to warrantless searches or risk criminal punishment before permitting them to sell their homes. Plaintiffs seek to represent a class of similarly situated individuals who sold real estate in Oakwood and were "coerced into paying pre-sale inspection fees." (Doc. 12 at ¶ 112.)
This case is before the Court on Plaintiffs' Motion for Class Certification (Doc. 18) and Amended Motion for Partial Summary Judgment (Doc. 52) and Defendants' Motion for Summary Judgment (Doc. 50). Typically, the Court would decide a motion for class certification before a dispositive motion, but, in this case, the resolution of the parties' motions for summary judgment simplifies the issues relevant to whether a class should be certified. See Thompson v. Cty. of Medina, Oh. , 29 F.3d 238, 241 (6th Cir. 1994) (). In this Order, the Court therefore rules on the parties' motions for summary judgment before turning to the question of whether class certification is proper.
Oakwood is a residential suburb just south of Dayton, Ohio. Due to the age of Oakwood's housing stock, some of which dates back to the 1920s and 1930s, Oakwood actively encourages residents to maintain their homes, including through the pre-sale inspection program at issue in this lawsuit. (Doc. 26–1 at PAGEID # 312; Doc. 25–2, PAGEID # 217–218; Doc. 25–3, PAGEID# 280–281; Doc. 25–4, PAGEID # 292.) Oakwood credits its rising home values and the "scant number of fire and structural events occurring annually" within the city at least in part to its pre-sale inspection program. (Doc. 26–1 at PAGEID # 312; Doc. 28–8 at PAGEID # 3011–311; Doc. 26–1, PAGEID # 312; Doc. 28–8 at PAGEID # 2947–3010; Doc. 25–2 at PAGEID # 218; Doc. 25–3, PAGEID # 281; Doc. 25–4, PAGEID # 292.)
From 1968 until 1992, Oakwood's pre-sale inspection ordinance included a provision that required the city's building commissioner to obtain a search warrant if the owner or occupant of the premises objected to the inspection. (Doc. 28–9 at PAGEID # 3166); (Doc. 28–9 at PAGEID # 3167.) In 1992, the City hired an outside agency to revise its entire Codified Ordinances, including the Property Maintenance Code that contains the pre-sale inspection program. (Doc. 28–9 at PAGEID # 3168–3170.) The revised pre-sale inspection program omitted the warrant provision present in the former version. Oakwood claims that the omission was inadvertent and it had no intention of discontinuing its earlier compliance with Wilson v. City of Cincinnati , 46 Ohio St. 2d 138, 346 N.E.2d 666 (1976). (Doc. 50–1 at ¶ 8.) In Wilson , the Supreme Court of Ohio held that "where a municipal ordinance requires the owner of real property to tender a certificate of housing inspection to a prospective buyer, and such certificate may be obtained only by allowing a warrantless inspection of the property, the imposition of a criminal penalty upon the owner's failure to tender the certificate violates the owner's rights under the Fourth Amendment to the United States Constitution." Id. at 145, 346 N.E.2d 666.
Plaintiffs challenge the pre-sale inspection program effective after the 1992 revision to Oakwood's Codified Ordinances. The program at issue provided, under Oakwood Codified Ordinance § 17–107.5, that "it shall be unlawful for the owner of any real estate premises to transfer legal or equitable ownership of that premises, or change tenant, without having obtained a pre-sale inspection of it under this code." (Doc. 28–9 at PAGEID# 3120–3121.) Upon completion of the inspection and other requirements, a real estate owner could obtain a "certificate of occupancy" from Oakwood. (Id. ) Issuance of the certificate of occupancy was important because, under § 17–107.8, it was unlawful for a new owner or tenant to occupy or use any premises "without having obtained from the code official or the previous owner a valid certificate of occupancy for that premises." In addition, under § 17–106.4, an owner who failed to comply with the pre-sale inspection requirement or occupied a premises without having first obtained a certificate of occupancy was guilty of a minor misdemeanor—a criminal offense. (Id. at PAGEID# 3117.)
Plaintiffs filed this lawsuit on May 4, 2016. About two months later, on July 5, 2016, Oakwood passed an Emergency Ordinance that repealed the pre-sale inspection program enacted in 1992 and replaced it with a new program. The new program retains many of the same procedures, but adds an administrative warrant procedure for residential and business inspections and clarifies that assertion of one's rights under the Fourth Amendment is not grounds for criminal prosecution. (Doc. # 23–1 at PAGEID # 190–193.) Plaintiffs do not challenge the constitutionality of the amended ordinance. (Doc. 37.)
Plaintiffs are Jason Thompson ("Thompson") and 2408 Hillview LLC ("the LLC"). The LLC was formed by Thompson and his partner Timothy Gwin ("Gwin") for the purpose of buying and selling houses. (Doc. 45 at PAGEID # 3326–27; Doc. 46, PAGEID # 3672.) As alleged in the Amended Complaint, the LLC owned two homes in Oakwood, one at 421 Hadley Avenue and the other at 2408 Hillview Avenue. (Doc. # 46, PAGEID # 3673.) The LLC sold the property at 421 Hadley Avenue on April 25, 2016, but continues to own the property at 2408 Hillview Avenue—or at least owned it as of the briefing on the motions before the Court. Consequently, only the property at 421 Hadley Avenue is at issue in this case.
The LLC, through Gwin, engaged Jill Aldineh of Re/Max ("Aldineh") to act as the seller's agent in the sale of the 421 Hadley Avenue property. (Id. ) Gwin signed an agency agreement with Aldineh, which required the property owner to make application for any required housing inspection and to furnish Aldineh with a copy of the resulting certificate of occupancy. (Doc. 25–2 at PAGEID # 216, 229.) Aldineh paid the $60 application fee and scheduled an inspection of the property. (Id. at PAGEID # 216.)
On April 12, 2016, Defendant Ethan Kroger ("Kroger"), an Oakwood code enforcement officer, conducted the inspection of the 421 Hadley Avenue property. (Doc. 25–2 at ¶ 7.) Another agent from Re/Max attended the inspection on the LLC's behalf. (Doc. 50–2 at ¶ 6.) Gwin testified he was unaware that Aldineh had paid the $60 fee or had the inspection done. (Doc. 45 at PAGEID # 3350.) Thompson, after learning the pre-sale inspection occurred, demanded that Oakwood refund Aldineh the $60 fee so that he could pay it instead—which he did. (Doc. 46 at PAGEID # 3685.)
The April 12, 2016 inspection revealed some issues that needed to be addressed to comply with Oakwood's Building Code. (Doc. 25–2 at PAGEID # 217.) They were quickly resolved and a final inspection for 421 Hadley Avenue was scheduled for April 14, 2016. (Doc. 45 at PAGEID # 3344.) Gwin attended the final inspection, which Kroger again conducted. Kroger asked Gwin for permission to inspect the garage, which was accessible during the first inspection. (Id. at PAGEID # 3338–3339.) Gwin declined. Kroger therefore did not inspect the garage, but nevertheless processed the LLC's application for approval. (Id. at PAGEID# 3339–3340.) The LLC then completed the sale of 421 Hadley Avenue. (Doc. 45 at PAGEID # 3345.)
Oakwood's Property Maintenance Code contains an administrative appeal procedure for property owners to challenge any decision or order of a code official. (Doc. 26–1 at PAGEID # 314; Doc. 28–9 at PAGEID # 3112–3152.) No Oakwood property owner, including Plaintiffs, has filed an administrative appeal challenging any decision or order of an Oakwood code official in the enforcement of the pre-sale inspection ordinance at issue. (Id. ; see also Doc. 26–1 at PAGEID # 312–313.) The City has never denied a property owner an occupancy permit. (Doc 26–1 at PAGEID # 314.) Its practice and policy is to work with sellers and buyers as they work to maintain the aging housing stock. (Doc. 26–1 at PAGEID # 307–314; Doc. 28–9 at PAGEID # 3119–3121; Doc. 25–2,...
To continue reading
Request your trial
-
Pund v. City of Bedford
...voluntary consent could have been given by any homeowner, given that the only alternative to "consent" was criminal penalty? See Thompson , 307 F.Supp.3d at 774. If, as Plaintiffs argue, class members had a Fourth-Amendment right to withhold consent to warrantless inspection, and the threat......
-
Parker v. Strawser Constr., Inc.
...Cir. 2008) (where some time has elapsed between the protected activity and the adverse action, as opposed to when the adverse action 307 F.Supp.3d 761immediately follows the protected activity, "the employee must couple temporal proximity with other evidence of retaliatory conduct to establ......
-
Metro. Omaha Prop. Owners Ass'n v. City of Omaha
...choose between consenting to warrantless searches or losing the ability to exercise property rights. See Thompson v. City of Oakwood, 307 F. Supp. 3d 761 (S.D. Ohio 2018) (finding the city violated the Fourth Amendment by requiring property owners to submit to a warrantless pre-sale inspect......
-
Oron 2015 LLC v. City of Southfield
...City] to retain that money [if] it was collected pursuant to an unconstitutionally coercive ordinance," Thompson v. City of Oakwood, Ohio, 307 F. Supp. 3d 761, 780 (S.D. Ohio 2018), and thus finds that Oron 2015 has stated a claim for unjust enrichment.III. MOTION TO CERTIFY CLASS A. Standa......