United States District Court, S.D. Ohio, Western Division
HAROLD VONDERHAAR, et al. Plaintiffs,
VILLAGE OF EVENDALE, OHIO, et al. Defendants.
OPINION AND ORDER
MICHAEL R. BARRETT, JUDGE
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.
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
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
(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 §
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
(Id. at PageID 55, Section 1468.99).
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.
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).
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.
STANDARD FOR INJUNCTIVE RELIEF
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.
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).
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.”
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