The Ohio Supreme Court is considering the meaning of probable cause when it comes to inspections of rental homes, in a case that could have major impacts to Ohio tenants and landlords alike.
The state’s highest court heard arguments last week from CF Homes, LLC, and the Department of Development Services for the City of North Canton, on an appeal from the Fifth District Court of Appeals.
The city enacted laws in 2022 establishing a rental registry, which it argues is a way to keep rental properties in compliance with health and safety standards, including the presence of things like smoke detectors and proper ventilation.
The case centers on whether or not North Canton had the right under Ohio’s probable cause standard to inspect a rental property, despite the fact that the owner, CF Homes, declined the inspection.
Probable cause is a legal standard to which officials like law enforcement must adhere in order to search premises or arrest someone for a particular charge, for example. Often, probable cause is noted when police want to enter a home where criminal activity is alleged.
In this case, the city of North Canton said they had probable cause for an “administrative inspection,” in order to determine a six-unit rental property’s compliance with health and safety standards.
The Stark County Common Pleas Court approved a warrant for the inspection, leading to an appeal by CF Homes to the Fifth District Court of Appeals. The appellate court agreed with the trial court, leading the company to take the case to the Ohio Supreme Court.
The appeals court cited a U.S. Supreme Court case from 1967, in which “inspection programs” were aimed at “securing city-wide compliance with minimum physical standards for private property,” unlike in a criminal investigation, according to court documents.
Attorneys representing CF Homes said the city needed more proof of the need for an inspection than they were given, especially considering the company said no allegations of hazardous conditions were made.
Legal aid groups across Ohio have jumped in on the case, supporting the city ordinances as ways to help “ensure that the rental housing stock in North Canton meets minimum safety requirements,” and also allow the city to protect low-income tenants.
Attorney Maurice Thompson, on the side of CF Homes, asked the court to “leave undisturbed” the original public meaning of probable cause, meaning the government would be required to provide evidence that an inspection was needed, not just the potential for a hazardous situation.
“Because the protections of the home are so important and are so strong in Ohio, I don’t think we should leave this issue twisting in the wind,” Thompson said. “The government has to justify getting into a home.”
Brendan Heil, an attorney representing North Canton’s Department of Development Services, argued probable cause standards could be met by showing that the property “may become hazardous,” not just in a situation when a hazard already exists.
In the case of CF Homes, Heil said the inspection was deemed necessary partly because “the property was aging” and because the building had not been searched before.
Arguments on the North Canton side met with many questions and challenges from Ohio Supreme Court justices.
Justices Pat DeWine and Pat Fischer went back and forth with Heil and an attorney from the Ohio Attorney General’s Office also on the side of the city government, to question the standard of a potential hazard as meeting probable cause.
“Unless ‘may become hazardous’ is just something that applies to any property over a certain age, it seems kind of a meaningless standard,” DeWine said.
Fischer contended that any apartment could become hazard, though some may not, an argument Heil acknowledged as true.
“And so the tenants are going to be invaded whether there’s probable cause or not,” Fisher responded. “Is that what you’re saying?”
The North Canton attorney said showing that the apartment is aging and had never been searched before “is the showing that it may become hazardous.”
“We’re merely saying that as long as you’re promulgating a reasonable legislative reason to inspect for health and safety, you can satisfy the ‘may become hazardous’ under the statute,” Heil said.
He further argued that proactive inspection of a home can be an “excellent tool” in protecting tenants from having to go through tedious court proceedings, like withholding rent through municipal court action, to force problem landlords to fix health and safety problems.
“This prospective inspection would be much quicker because it would happen before the violations would even get to the point of the tenant withholding the rent,” Heil said.
Chief Justice Sharon Kennedy took hold of that argument, pointing out that proactive inspections would circumvent the need for probable cause actions.
“You just said that there’s no violation, so there no probable cause … there’s no reason to enter the premises because the government has no knowledge that there is actually a violation,” Kennedy said.
Samuel Peterson, of the Ohio Attorney General’s Office, further argued the standard to warrant an inspection can be met in the belief that things “may pose a hazard.”
“You don’t have to have an objective belief that there is an existing hazard,” Peterson said.
Kennedy posed a hypothetical situation to Peterson in which she received a certificate of occupancy for a building, proof she was compliant with the law up to that point.
“What you are now saying to me is the government has the right to enter my premises any time they want to inspect anything they want if I’m renting my premises, even though I’ve complied with everything under the law when I built my structure,” Kennedy said.
Peterson doubled down, arguing that to ensure health and safety, “there are certain times that it would be appropriate.”
Originally published by the Ohio Capital Journal. Republished here with permission.