Wilson v. City of Cincinnati

• Decision Date: 05 May 1976
• Docket Number: No. 75-622,75-622
• Citation: 46 Ohio St.2d 138,346 N.E.2d 666,75 O.O.2d 190
• Parties: , 75 O.O.2d 190 WILSON, Appellant and Cross-Appellee, v. CITY OF CINCINNATI, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 138

46 Ohio St.2d 138

346 N.E.2d 666, 75 O.O.2d 190

WILSON, Appellant and Cross-Appellee, v. CITY OF CINCINNATI, Appellee and Cross-Appellant.

No. 75-622.

Supreme Court of Ohio.

May 5, 1976.

Syllabus by the Court

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.

In December 1973, the city of Cincinnati enacted two ordinances modifying and amending its building code.

Ordinance No. 556-1973, Section Cc-3-47.03, provided, in pertinent part:

'Whereas, the city of Cincinnati desires to preserve quality in its housing inventory; and

'Whereas, in most of the city, existing housing is only inspected on a complaint basis; and

'Whereas, the city of Cincinnati desires to protect its citizens from housing which is a threat to their health and safety; and

'Whereas, the city of Cincinnati desires to provide more effective information to prospective housing purchasers * * *.

'Sec. CC-3-47.03. Certificate of Housing Inspection.

'(A) Every owner of improved real property intended for use as residential housing, prior to entering into a contract for the sale of that property, shall tender to the prospective buyer and obtain from the prospective buyer his signed acknowledgment of the receipt of a copy of a Certificate of Housing Inspection, issued by the Director of Buildings and Inspections on the subject property within 180 days of the entering into the contract for sale.

'* * *

'(C) The Director of Buildings and Inspections shall issue a Certificate of Housing Inspections within fourteen (14) days after gaining access to all structures upon the realty and when:

'(1) The owner or his authorized agent applies in writing to the director, agrees to a time during the working hours of the Department of Building and Inspections during which the subject property will be available for inspection, and pays to the City Treasurer the following fees: * * *.

'* * *

'(D) In every sale of realty to which this section applies, the seller shall warrant that the structure is in substantial compliance with Chapter CC-77 of the Cincinnati-Ohio Building Code and the provisions of the Cincinnati Zoning Code pertaining to use and occupancy at the time of the contract for sale, except where the seller has obtained and presented to the buyer a Certificate of Housing Inspection or where the buyer has actual knowledge of the deficiencies in the structure at the time of the contract for sale. The buyer shall be presumed not to have knowledge of any deficiencies unless:

'(1) The buyer signs a written statement which specifically notes each deficiency, or

'(2) The buyer derives a substantial portion of his income from the business of real estate operations or is otherwise actively engaged in the business of real estate operations.

'Any action to enforce the provisions of the warranty imposed by this section shall be brought within two years of the time of the entering into the contract for sale.

'* * *

'(F) Any person, being the owner or agent of improved realty subject to the provisions of this section, who fails to tender a Certificate of Housing Inspection to a prospective buyer in accordance with the provisions of this section shall be subject to penalty as provided in Section CC-3-64 COBE. The absence of deficiencies in the subject property or the buyer's actual knowledge of any deficiecies shall not be a defense to the failure to tender a Certificate of Housing Inspection.'

Ordinance No. 557-1973, stated, in part:

'* * * any person who violates any of the provisions of Section CC-3-47.03(F) shall be guilty of a misdemeanor and upon conviction thereof shall be subject to a penalty of a fine of not less than $5.00 nor more than $500.00.'

Subsequently, the Cincinnati Board of Realtors, Inc., and Chester J. Wilson filed an action for declaratory judgment in the Court of Common Pleas, asserting that the ordinances were unconstitutional and invalid, and seeking an injunction against their enforcement. Appellant and cross-appellee herein, Vivian E. Wilson, was then added as a plaintiff by an amended complaint.

After dismissing the Cincinnati Board of Realtors and Chester Wilson for lack of standing, the court held that the ordinances were unconstitutional and enjoined the city from acting under their provisions.

The Court of Appeals found that Ordinance No. 556-1973 was a valid exercise of the city's police power in that it bore an adequate relationship to the public health, safety and general welfare. However, the court determined that subsection (F) and Ordinance No. 557-1973 in its entirety were contrary to the Fourth Amendment to the United States Constitution; that the presmption within subsection (D), and the two exceptions thereto, were arbitrary and unreasonable; and, that the two year limitation of action established by subsection (D) was in conflict with state law and was invalid.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Frost & Jacobs and R. O. Klausmeyer, Cincinnati, for appellant and cross-appellee.

Thomas A. Luebbers, City Solicitor, and Ely M. T. Ryder, Cincinnati, for appellee and cross-appellant.

HERBERT, Justice.

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 not 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 we 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 bear a real and substantial relationship to the general welfare of the public.

The 'real and substantial relationship' standard, as used 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, 387:

'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. Teledo (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 men 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 thr prospective buyer a Certificate of Housing Inspection. The failure to so comply, with three exceptions, renders the seller...