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Vonderhaar v. Village of Evendale

United States District Court, S.D. Ohio, Western Division

January 19, 2018

HAROLD VONDERHAAR, et al. Plaintiffs,
VILLAGE OF EVENDALE, OHIO, et al. Defendants.



         This matter is before the Court on Plaintiffs' Motion for Temporary Restraining Order and Preliminary and Permanent Injunction and the responsive memoranda thereto. (Docs. 2, 15, and 17). The Court held a hearing on September 27, 2017. Following the hearing, the parties submitted post hearing briefs. (Docs. 29, 30). This matter is now ripe for review.

         I. FACTS

         The crux of the issue herein relates to the constitutionality of one particular Chapter - Chapter 1468 - of the Village of Evendale Property Maintenance Code (“Code”) enacted on February 14, 2017. The purpose of the Chapter is to “insure the public health, safety and welfare by establishing minimum standards governing the maintenance, appearance, and conditions of all residential and nonresidential premises.” (Doc. 1-3, PageID 30). As it relates to this case, the Code governs the required procedures for obtaining rental permits in the Village. (See generally id.). Section 1468.06 of the Code provides as follows:

Prior to the issuance of a permit, property owners seeking a rental registration permit shall do either of the following:
1. Permit the rental property for which the permit is being sought to be inspected by the Building Commissioner and/or their designee(s) to determine compliance with this Code; or
2. Sign a sworn affirmation indicating that the property in question is in compliance with this Code.

(Id. at PageID 44). The Code also outlines the authority of the Building Commissioner-a position currently held by Defendant Donald Mercer. (Section 1468.13; (Doc 1, PageID 5 at ¶ 13). Regarding Right of Entry, the Code states:

Where it is necessary to make an inspection to enforce the provisions of this code, or whenever the Building Commissioner has reasonable cause to believe that there exists in a structure or upon a premises a condition in violation of this code, the Building Commissioner is authorized to enter the structure or premises at reasonable times to inspect or perform the duties imposed by this code, provided that if such structure or premises is occupied the Building Commissioner shall present credentials to the occupant and request entry. If such structure or premises is unoccupied, the Building Commissioner shall first make a reasonable effort to locate the owner or other person having charge or control of the structure or premises and request entry. If entry is refused, the Building Commissioner shall have recourse to the remedies provided by law to secure entry.

(Id. at PageID 51, Section 1468.13(C)). Finally, relevant to this lawsuit, the Code outlines the penalties for violations as follows:

A. Whoever knowingly makes false statements in a sworn affidavit submitted pursuant to Section 1468.06(B) shall be guilty of a misdemeanor of the first degree, and subject to penalties as specified in Evendale Code of Ordinances § 698.02.
B. Whoever violates or fails to comply with any other provision of this chapter is guilty of a minor misdemeanor for a first offense. Whoever violates or fails to comply with any other provision of this chapter on two or more occasions is guilty of a misdemeanor of the third degree for each offense after the first.
C. A separate offense shall be deemed committed each day during or on which a violation or noncompliance occurs or continues.

(Id. at PageID 55, Section 1468.99).

         Plaintiffs separately own and manage rental properties in the Village. (Doc. 1, PageID 3 at ¶ 1). Plaintiff Lemen chose to execute an affidavit indicating he believed his sole rental property was in compliance with the Code. (Doc. 1, PageID 9 at ¶ 43). He paid the required $100 fee for his rental property, and has had no further contact with the Village as it relates to the Code. His rental property had not been subject to an inspection.

         Plaintiff Vonderhaar owns or manages 13 different single-family rental properties in the Village. On June 26, 2017, he received letters from the Village threatening legal action if rental registration permits were not obtained. (Doc. 1-3, PageID 76-87). On July 20, 2017, after this lawsuit was filed, the Village cited Plaintiff Vonderhaar for failing to obtain a rental registration permit. (Ex. 2; Ex. 3). The citations are minor misdemeanors in which he is subject to a fine in an amount up to $150 per day for each property. (Ex. 1). No other enforcement actions have been initiated against rental property owners. (Doc. 28, PageID 878).

         Plaintiffs move for injunctive relief, mounting both a facial attack on the Code and an as-applied attack. They ask the Court to strike portions of the Code they deem unconstitutional and to suspend enforcement of the Code.


         The threshold issues before the Court are whether the search provision and waiver provision violate the Fourth and Fifth Amendments to the United States Constitution, respectively.

         Under Federal Rule of Civil Procedure 65, injunctive relief is an extraordinary remedy, the purpose of which is to preserve the status quo. Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007). In determining whether to grant or deny a preliminary injunction, the Court must consider four factors: (1) whether the movant has a likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of the injunction. ACLU Fund of Mich. v. Livingston Cnty., 796 F.3d 636, 642 (6th Cir. 2015) (citing Bays v. City of Fairborn, 668 F.3d 814, 818-19 (6th Cir. 2012)). The foregoing factors are not prerequisites, but are factors that the Court should balance. United States v. Edward Rose & Sons, 384 F.3d 258, 261 (6th Cir. 2004).

         On a preliminary injunction, “a plaintiff must show more than a mere possibility of success, ” but need not “prove his case in full.” Certified Restoration Dry Cleaning Network, 511 F.3d at 543. “[I]t is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” Northeast Ohio Coalition v. Husted, 696 ...

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