Ohio Cities’ Rental Licensing and Inspection Requirements Unconstitutional

Legal Center moves to protect property rights of landlords from unlawful searches and licensing regulations in Mt. Healthy, Ohio

forrentColumbus, OH – The 1851 Center for Constitutional Law today moved in federal court to immediately enjoin Ohio municipalities, and the City of Mt. Healthy in particular, from enforcing new “Rental Permit Programs” that require small landlords to undergo warrantless inspections, pay permit fees, and obtain a license simply to continue renting their houses to tenants.

Such municipal ordinances, such as the Mt. Healthy ordinance which became effective in March, in addition to restricting Ohioans’ property rights, subject property owners and tenants to open-ended warrantless searches that violates the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution. Further, the Rental Permit Program discriminatorily applies only to single family homes, and not to multi-family residences, such as apartments.

The legal action is filed on behalf of four rental property owners and one tenant, all in the City of Mt. Healthy, Ohio, which is located just outside of Cincinnati in Hamilton County. These property owners have long rented their property in Mt. Healthy without license or inspections, and their properties have never been the subject of complaint by tenants, neighbors, or others.

The City has threatened to criminally prosecute and even imprison these landlords if they continue to rent their homes without first submitting to an unconstitutional warrantless search of the entire interior and exterior of these homes.

Both the United States and Ohio Supreme Court have invalidated warrantless inspections of rental property, and repeatedly held that warrantless administrative inspections of business property are generally invalid, absent exigent circumstances.

Nevertheless, Ohio cities have vigorously sought to collect licensing fees from area landlords and find cause to impose fines, and the warrantless searches serve as the lynchpin to each of these goals.

Ordinances such as the Mt. Healthy Rental Permit Program establish an absolute prohibition on renting property within a community, even though the landlord may have long done so and even though his or her property may be in pristine condition, without a government-approved license that cannot be acquired without first paying a $100 annual fee per rental home and submitting to an open-ended warrantless search of the property, inside and out.

The lawsuit seeks to restore Ohio small business owners’ freedom from warrantless searches without probable cause. In doing so, the 1851 Center’s Complaint explains the following:

 

  • Searches of homes, even when business property to the owner, require a warrant, and warrantless searches violate Ohioans’ Fourth Amendment rights.

 

  • Even if a city were to seek a warrant to insect a rental home, in the absence of serious complaints about the property or an emergency, regulatory schemes such as rental permit programs do not allow cities to seek and obtain warrants to search homes.

 

  • Licensing fees that are designated for the purpose of conducting unconstitutional searches are also unconstitutional, and cities cannot require their payment.

 

“Local government agents do not have unlimited authority to force entry into Ohioans’ homes or businesses. To the contrary ‘houses’ are one of the types of property specifically mentioned by the Fourth Amendment; and Ohioans have a moral and constitutional right to exclude others, even government agents, from their property. Entry requires either a warrant or an emergency, and neither is present with respect to these suspicionless rental inspections,” said Maurice Thompson, Executive Director of the 1851 Center.

“Government inspections of one’s home frequently results in arbitrary orders to make thousands of dollars worth of untenable improvements to even the most well-maintained properties. The right to own property in Ohio has little value if local governments can continuously chip away at one’s right to actually make use of that property, requiring government permission slips for even the most basic human arrangements.”

Read the Rental Property Owners’ Complaint HERE.

Read the Rental Property Owners’ Motion for Preliminary Injunction HERE.

Banning Internet Cafes to Benefit Casinos: Unconstitutional and Inadvisable

Attacking politically weak small businesses at behest of influential larger businesses is wrong way for Republicans to begin new legislative session

internetcafesColumbus, OH – The 1851 Center for Constitutional Law today emphasized to Ohio’s state senators and representatives that “priority” legislation to shut down Ohio’s 800-plus internet cafes is inconsistent with principles of limited government, unconstitutional, and dangerous to Ohio’s economic well-being.

House Bill 7, introduced on February 8, is designed to regulate Ohio internet cafes out of existence. The legislation comes in swift response to the casino industry’s public expression of a strong desire “to prohibit internet sweepstakes cafes in Ohio,” which are “posing a threat to existing state-licensed businesses.”

In a comprehensive analysis released today “Placing a Dangerous Bet: Banning Internet Cafes to Benefit Casinos is Unconstitutional and Inadvisable,” the 1851 Center for Constitutional Law explains that the legislation has no place on the “conservative” agenda, much less prioritized as a “first legislative initiative” by House Republican leadership. Specifically, the report asserts:

(1) The ban violates the most basic principles of limited government: treating similarly situated parties equally, respecting property rights and voluntary transactions, and avoiding choosing sides between market competitors.

(2) The newfound interest in banning rather than regulating these business coincides with casino lobbying for the same.

(3) The ban violates the spirit, if not the letter, of Ohio’s anti-cronyism provisions and property rights protections.

(4) The current text of House Bill 7 violates the free speech protections of the state and federal constitutions.

(5) Assigning such a high priority to legislation picking winners and losers amongst business competitors sends a dangerous message to the business community.

The report further notes that the internet cafe business model does not constitute gambling, is not prohibited by the Ohio Constitution’s “lottery” provision, and the only plausible justification for shutting down rather than licensing and regulating internet cafes is to advance the private financial interest of the Ohio’s new casinos.

“House Republicans are misguided in fast-tracking unconstitutional legislation that destroys over 800 harmless small businesses and 16,000 jobs, particularly while Ohioans continue to be burdened by overspending, over-taxation, and over-regulation at the state level,” said Maurice Thompson, Executive Director of the 1851 Center. “This legislation sets a dangerous precedent by signaling to large businesses that they can use political influence to shut down their less influential competitors.”

“While internet cafes do not pursue a universally-adored business model, the property rights of ‘unpopular’ businesses must be afforded the same respect as those of popular businesses,” added Thompson.

Read the policy report: Placing a Dangerous Bet: Banning Internet Cafes to Benefit Casinos is Unconstitutional and Inadvisable

February 15, 2013: Twinsburg Bulletin: Ohio House Begins Hearings on New Bill to Regulate Sweepstakes Parlors [VIDEO]

Eminent Domain Abuse Continuing Along Ohio Pipeline Route

1851 Center stops abuse in Licking County, offers free assistance to property owners threatened with taking of property by private pipeline corporation

farmColumbus, OH – The 1851 Center for Constitutional Law today condemned a private pipeline corporation’s continued assertion of legal authority to take Ohioans’ private property for its own benefit, and threatened litigation, should the corporation not discontinue. In addition, the Center (1) made public its analysis demonstrating a lack of such authority; (2) disclosed that the corporation has immediately backed down from its threats once confronted with 1851 analysis; and (3) offered free legal representation to all owners threatened with a taking of their private property.

Enterprise Liquid Pipelines, a Texas-based corporation amongst the world’s largest pipeline companies, to construct the Appalachia to Texas (“ATEX”) Pipeline across the state, claims that it — by itself and without government approval — can take Ohioans’ homes and land pursuant to an arcane Ohio statute. Enterprise is relying on Ohio Revised Code Section 1723.01, which at first blush appears to permit certain private pipeline companies to “appropriate so much land. . . as is deemed necessary. . . for the laying down of pipes.”

In a November 27, 2012 formal statutory notice to farmer Dave Bonifant, Enterprise threatened “the property you own . . . is within the proposed route of the pipeline,” “Enterprise will exercise its eminent domain authority to appropriate your property,” and “Enterprise will exercise its eminent domain authority through a court proceeding if you and it are unable to reach an agreement.” In the same letter, Enterprise claimed that the fair market value of Mr. Bonifant’s property was just “$5,500.”

In its December 17, 2012 response on behalf of Mr. Bonifant and several others, the 1851 Center exhaustively outlines why the Ohio Constitution denies appropriation authority to the pipeline project.

The 1851 Center’s legal memorandum includes the following analysis:

  • R.C. 1723.01 does not apply to ethane pipelines. While R.C. 1723.01 authorizes the use of eminent domain, in some cases “for transporting natural or artificial gas, petroleum, coal or its derivatives, water, or electricity, through tubing, pipes, or conduits,” etc., the ATEX pipeline does not transport any of these. Rather, it transports ethane, which Enterprise describes as a “liquid,” that is “derived from the natural gas extraction process.”
  • ELP, through the ATEX, is not a “public utility. Due to Senate Bill 315’s amendments to R.C. 4905 in June of 2012, ELP is clearly not a “public utility.”
  • The Ohio Constitution requires that any taking of property be for “public use. The Ohio Supreme Court has explained that “even under * * * a deferential standard * * * public use is not established as a matter of law whenever the legislative body acts.” Instead, “defining the parameters of the power of eminent domain is a judicial function, and [Ohio courts] remain free to define the proper limits of the doctrine.”
  • Economic benefits to private interests are not “public uses.” In Norwood v. Horney, the Supreme Court of Ohio recently affirmed private uses for private gain are not public uses, explaining “we have never found economic benefits alone to be a sufficient public use for a valid taking;” [t]o justify the exercise of eminent domain solely on the basis of the fact that the use of that property by a private entity seeking its own profit might contribute to the economy’s health is to render impotent our constitutional limitations on the government’s power of eminent domain;” “economic development by itself is not a sufficient public use to satisfy a taking;” and “[w]e hold that an economic or financial benefit alone is insufficient to satisfy the public-use requirement of Section 19, Article I. In light of that holding, “any taking based solely on financial gain is void as a matter of law.” Thus, the economic benefits of the ATEX Pipeline alone would not appear to justify appropriation of private property.
  • The public will not possess or otherwise use the ATEX Pipeline.In Pontiac Improvement Co. v. Board of Com’rs of Cleveland Metropolitan Park Dst., the Supreme Court of Ohio indicated that the use must always be a public use, and the land or the interest therein must be taken by the public. Where private property is taken against the will of the owner under the power of eminent domain, it is a prerequisite that possession, occupation, and enjoyment of the property by the public, or by public agencies, is sought and is necessary;” and “‘[p]ublic use means the same as use by the public.” The ATEX, however, will not be possessed or used by the public, but will instead be privately owned, operated, and possessed, solely for the benefit of Enterprise and several large natural gas producers.
  • Taking property to advance the ATEX Pipeline is not “necessary.”In addition to being for a “public use,” the Ohio Constitution requires that takings be “necessary.”Similar pipelines are being built in Ohio without the use of eminent domain. As the Supreme Court of Ohio explained in Cooper v. Williams, “[i]t is only this great and common benefit to all the people alike that creates a necessity authorizing and justifying the seizure.”

In response to this analysis, Enterprise has refrained from following through with the threatened legal action against Licking County property owners. Instead, Enterprise responded by first offering Mr. Bonifant a six-figure dollar amount for his “$5,500” property before altering the route to avoid Mr. Bonifant’s property altogether, as he had consistently requested.

However, Enterprise continues to use the threat of eminent domain to gain leverage over Ohioans along the ATEX route.

“Ultimately, any Ohio statute attempting to convey eminent domain authority to a purely private corporation should be repealed. The entire purpose of a constitution is to prevent government from taking private property from the politically weak and transferring it to well-connected special interests. Yet that his precisely what this statute enables,” explained 1851 Center Executive Director Maurice Thompson. “The abuse along the ATEX is a prime example of what can happen to Ohio property owners when such a statute remains on the books.”

“And while we fully support this pipeline project, and the continued development of oil and gas reserves in eastern Ohio,” continued Thompson, “the very thing that makes private enterprise possible is respect for private property rights – – the Ohio Constitution does not enable private parties to take Ohioans homes and land, simply to improve their own profit margins.”

The 1851 Center draws a distinction between takings for pipelines facilitating home heating or energy independence and pipelines for purely private commercial interests. While public utilities may exercise eminent domain to provide service to Ohioans homes, and certain oil and gas pipelines may even possess eminent domain authority, the ATEX is set to haul Ethane — a chemical byproduct of fracking later used to manufacture consumer plastics — across the state. ELP intends to save money by constructing a pipeline rather than channeling the ethane to their Texas-based facilities by truck or rail. The pipeline remains submerged through the entire state, provides no service to Ohioans, and maintains the same legal status as would a pipeline for milk, bottled water, or chocolate.

“At minimum, Enterprise is using the false threat of eminent domain to intimidate Ohio property owners into accepting below-market settlements for their land,” added Thompson. “Ohioans should be aware of this ploy.”

Compounding the matter, in a March 28, 2012 letter to property owners, Enterprise claimed to have eminent domain authority by virtue of its status “as a public utility.” However, Senate Bill 315, enacted in June of 2012, clarified that such operators are clearly not public utilities. Enterprise has not corrected itself and nevertheless continued to threaten homeowners who may have been misled as to Enterprise’s status.

Meanwhile, many eminent domain attorneys hired by property owners have incentives to work in implicit cooperation with the pipeline: a typical attorneys fees agreement to negotiate a pipeline taking provides that the attorney is only paid if the client eventually sells his or her property to the pipeline company. Accordingly, many attorneys summarily advise their clients that Enterprise does indeed maintain eminent domain authority, and that they have no choice but to sell.

The ATEX is set to begin in Jefferson County, Ohio, along the Ohio River, and after crossing the state south of Columbus, exit Ohio through Butler County.

The 1851 Center is offering free representation to homeowners who object to the taking of their private property by Enterprise.

Read the 1851 Center’s full legal memorandum to Enterprise Liquid Pipelines HERE.

April 1, 2013: Farm and Dairy: Licking County landowner fights pipeline and appears to have won

February 2, 2013: The Buckeye Lake Beacon: Help offered to pipeline opponents

January 23, 2013: Ohio Watchdog: Ohio lawyer offers free aid to stop pipeline land seizures

Legal Center Move to Protect Rights of Ohio Gold and Silver Dealers to do Business

Regulations prohibit advertising and impose warrantless searches

Columbus, OH – The 1851 Center for Constitutional Law today moved in federal court to immediately enjoin the state from enforcing the “Ohio Precious Metals Dealers Act,” against Ohio coin dealers threatened with criminal sanction for advertising their businesses, and sweeping warrantless searches of their business records and properties without probable cause.

The legal action is filed on behalf of Liberty Coins, a Delaware, Ohio coin dealer ordered by the Ohio Department of Commerce to cease all advertising indicating that it purchases gold and silver and all actual purchases of gold and silver, and threatened with a $10,000 fine and jail time if it does not comply.

The Supreme Court has repeatedly confirmed that First Amendment applies to “commercial speech,” which includes advertising. Nevertheless, the Ohio Department of Commerce has begun vigorous enforcement of regulations prohibiting coin dealers from advertising without a license, and requiring a license if they do advertise (conditioned on a state finding of “good character and reputation”). Once licensed, state and local agents may search and seize any item or business record without a search warrant or finding of probable cause, and may do so on a daily basis.

The Department of Commerce enforcement policies, which exempt banks, jewelers, and other special interests, appear to be targeted at preventing theft and resale of gold and silver items. However, the policies punish any coin or precious metals dealer who advertises “we buy gold and silver,” even if that dealer, as Liberty Coins does, purchases gold and silver items exempted by the Act, such as certain collectibles, coins, hallmark bars, ingots, numismatics.

Further, the regulations apply only to coin dealer to advertise, entirely exempting those who do not. The state defines advertising to include business cards and signs in storefront windows making reference to gold and silver.

The lawsuit seeks to restore the right of Ohio retail gold and silver coin dealers to be free from a licensing regime that punishes them on the basis of their speech, and subject them to unconstitutionally sweeping searches and seizures.

“This Act and its aggressive enforcement treats the many Ohio small businesses who participate in gold and silver markets as public utilities at best, and criminals at worst, irrespective of whether they have done harm,” said Maurice Thompson, Executive Director of the 1851 Center.

“The state misguidedly seeks to advance its mission of ‘preventing theft and resale of precious metals’ through gag orders, warrantless searches, and criminalization of innocent small businesses. Fortunately, the First Amendment allows us to protect Ohioans’ rights to engage in truthful promotion of their businesses, and to run a business without constant subjection to unlimited warrantless searches of one’s property and records by state agents. And protect these rights we must: if these regulations are upheld, there is nothing stopping the state from imposing similarly on all business activity with the state.”

The state’s heightened enforcement tactics, which effectively put many coin dealers out of business, come at a time of rising precious metals prices, where despite an already burdensome state sales tax on the purchase of precious metals, an increasing number of Ohioans seek to use gold and silver to protect their savings against potential inflation due to federal government increases in the money supply.


Read Liberty Coins’ Complaint HERE.
Read Liberty Coins’ Motion for Preliminary Injunction HERE.


November 16, 2012:WBNS-10TV: Scrap Metal Fight: A coin dealer is suing the state over scrap metal license requirements [VIDEO]

Jackson v. Bartec

 
 
 
 
 
 
 
 
 
 
 
 
 

 

 

This case is brought on behalf of Zeno’s Victorian Village, a family-owned Columbus tavern.

The Center argues the smoking ban unconstitutionally deprives business owners of fundamental property rights. It also argues that the state health officials’ methods while enforcing the ban exceed their constitutional authority and is at odds with the plain language of the ban.

“Irrespective of what one thinks of the merits of this law, it was never intended to result in the indiscriminate imposition of $5,000 citations on innocent business owners,” said 1851 Center Executive Director Maurice Thompson. “These enforcement complications are largely a function of trying to fit a square peg into a round hole: local taverns are not public property, and owners of these properties have a right to decide how their indoor air is used, just as potential patrons have a right to freely enter or exit.”

The 1851 Center believes this will be Ohio’s most important decision on property rights since the Ohio Supreme Court decided Norwood v. Horney in 2006, prohibiting takings of private property for economic development. “In Norwood, the Court called Ohioans’ property rights, including the right to use property, ‘fundamental’ and ‘sacrosanct,’” said Thompson. “This case will determine whether the Court really meant that.”

Historical Overview

In September, 2009, the 1851 Center offered to defend Zeno’s pro bono, challenging the constitutionality and enforcement of the Ohio smoking ban, after the Attorney General’s office filed a lawsuit to make an example of Zeno’s. The Center sought an injunction to prevent the Ohio Attorney General from seizing Zeno’s tavern and its assets to collect on faulty smoking ban citations. The suit was part of the 1851 Center’s ongoing defense of tavern owners unfairly victimized by the state’s smoking ban.

The legal center argued Ohio’s smoking ban unconstitutionally deprives business owners of fundamental property rights. It also argued that the state health officials’ methods while enforcing the ban exceeded their constitutional authority and is at odds with the plain language of the ban.

A Franklin County Common Pleas court agreed and ruled that state and local health officials had overstepped their authority in enforcing the law. “When an individual is asked to stop smoking but refuses, liability is transferred from the property owner to the individual,” wrote Judge David E. Cain in his February 2010 decision.

The Ohio attorney general appealed the decision to the Tenth District Court of Appeals, which overturned the lower court and prompted the current appeal to the Ohio Supreme Court.

“The Health Department and its designees have and continue to exceed their limited executive branch authority when they employ a policy of strict liability for the presence of smoking against Ohio’s business and property owners,” wrote Thompson in the Ohio Supreme Court filing.

Oral Arguments were made before the Ohio Supreme Court in October, 2011; we are currently awaiting the court’s decision.

Partners in Action

The Ohio Licensed Beverage Association, Buckeye Liquor Permit Holders Association, Ohio Liberty Council, COAST, and the Ohio Freedom Alliance filed amicus briefs with the high court supporting the 1851 Center’s position, and asking the Court to review the case.

Case Timeline

October 19, 2011 – Oral Arguments before the Ohio Supreme Court


 

March 6, 2011 – High Court Agrees to Review Smoking Ban Constitutionality

The Supreme Court of Ohio has agreed to become the first state supreme court in the nation to determine whether a statewide smoking ban violates bar owners’ property rights. The Court has also agreed to review whether the Ohio Department of Health has consistently exceeded its authority in fining business owners under the ban.

January 4, 2011 – Legal Center Asks High Court to Accept Smoking Ban Challenge

The 1851 Center for Constitutional Law, a public interest law firm, yesterday asked the Ohio Supreme Court to make a final determination on the legality of Ohio’s state smoking ban, and its enforcement. The legal center argues that state health officials’ misguided enforcement of the law violates Ohio constitutional protections, and unduly punishes innocent business owners. Also, the center argues the law itself is unconstitutional, when applied to certain types of bars. A copy of the court filing is available here.

February 5, 2010 – State Smoking Ban Enforcement Declared Unlawful

Ohio Department of Health officials and the Attorney General have substantially overstepped their authority in enforcing the state’s smoking ban law, a Franklin County Common Pleas Court ruled. In a cased won by the 1851 Center for Constitutional Law, a non-profit constitutional rights advocacy firm, Judge David E. Cain vacated all fines against Columbus bar Zeno’s. The decision renders the state’s current enforcement of the Ohio Smoke Free Workplace Act invalid and will require government officials to readdress its tactics.

Specifically, the court determined current enforcement of the state smoking ban unduly punishes innocent business owners. In explaining the decision, Judge Cain wrote, “when an individual is asked to stop smoking but refuses, liability is transferred from the property owner to the individual.”

“Law-abiding business owners have a right to operate their establishments free from the tyranny of government officials who overstep their authority and trample personal property rights, all while in pursuit of the extraction of fees,” said 1851 Center Director Maurice Thompson. “This decision should give pause to officials who cavalierly issue $5,000 fines without regard for the negative economic impact their actions impose on law-abiding small business owners.”

WTVN 610 Bob Conners 

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October 14, 2011 – Toledo Blade: Budget cut may yield weakened smoke ban 

October 14, 2011 – Washington Examiner: Ohio High Court to Hear Smoking Ban Case  

April 7, 2011 – Columbus Dispatch: High Court to Weigh Smoking Ban Fines 

April 7, 2011 – Dayton Daily News: Smoking ban challenge to be taken up by Ohio Supreme Court 

April 7, 2011 – Toledo Blade: Ohio Supreme Court to weigh ban on smoking 

April 6, 2011 – Fox19: Ohio Supreme Court to review smoking ban constitutionality 

April 6, 2011 – Bloomberg Businessweek: Ohio High Court to Hear Challenge to Smoking Ban

January 4, 2011 – Columbus Business First: Smoking ban detractor wants Ohio Supreme Court to weigh in

Sept 6, 2011 1851 Center’s reply brief

June 27, 2011 Merit Brief filed in Ohio Supreme Court

February 22, 2010Trial court decision

January 3, 2010 Motion for Jurisdiction

 

Merrill v. State of Ohio Department of Natural Resources

 

September 14, 2011 – Ohio Supreme Court Protects Property Rights

The court held that the State of Ohio extends to the natural shoreline, which is “the line at which the water usually stands when free from disturbing causes.” The court reiterated its role as a protector of private property rights against state incursions and reminded the state that private property rights are expressly protected in the Ohio Constitution.

October 1, 2010 – The Ohio AG’s Land-Grab on the Lake

The 1851 Center filed an amicus brief in the Supreme Court of Ohio to stop Ohio Attorney General Richard Cordray’s redefinition of property rights along Lake Erie.

The AG and several left-wing environmental interest groups now claim that because the State of Ohio owns the waters of Lake Erie, it also owns the beaches of Lake Erie. However, property owners along the lake have deeds that demonstrate their ownership, have paid taxes on the land for years, and were previously told (by the state) that they owned the land. The state is proceeding under the “Public Trust Doctrine,” which says it owns navigable waters and wild animals in Ohio. This is the first time Ohio’s politicians have attempted to extend the doctrine to dry land.

Both state and federal courts have supported the residents’ legal position. However, Attorney General Cordray has appealed the case to the Supreme Court of Ohio, despite being told by lower courts that he lacks standing to pursue the matter, since he has no client in the case.

“Ohioans have a constitutional right to acquire, possess, use and dispose of their private property in a way that does not harm others. Lake Erie property owners have owned this land since Ohio became a state. Only now, with dollar signs in its eyes, does the political class claim that it has always owned the property, and that lakefront owners must actually lease it back from the state,” 1851 Center Executive Director Maurice Thompson said in the court filing.

 

 

 

 

June 3, 2011 – Cleveland Plain Dealer: Ohio Supreme Court should rule soon on Lake Erie private v. public shoreline battle

September 23, 2010 – Maurice Thompson discusses the case on the Fred LeFebvre Show –

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September 20, 2010 1851 Center’s Amicus Brief

Moto Verde and the Village of Fairfax

In July 2009, the 1851 Center advised the Village of Fairfax, an enclave in the city of Cincinnati, that it had violated the constitutional rights of Moto Verde. Moto Verde is a motor scooter shop, but the village had classified it as an automobile dealership, refused it the right to operate, and denied it a hearing.  Fairfax reconsidered and today Moto Verde is open for business.

 

June 29, 2009: 1851 Center’s Letter to City of Fairfax

Pour House Inc., v. Ohio Department of Health

A victory came on October 19, 2009 for Ohio bars and restaurants facing fines for breaking the state smoking ban. Up to that point, enforcement methods essentially required small businesses to enforce the smoking ban for the government. The 1851 Center points out that it’s the government’s law and that the state should be required to enforce its own laws.  That’s what the statute said and that’s what the court has said.

“I think we’ve been cited about 12 times and it’s up to about $33,000,” Dick Allen said; he owns Zenos Bar in the Harrison West neighborhood of Columbus.
 
The state’s 10th District Court of Appeals ruled that the way the ban is enforced is unfair, 10TV’s Kurt Ludlow reported. It all came down to two words “permit smoking.” The court ruled that if a business posts signs prohibiting smoking, and notifies customers that smoking is not allowed, then the business should not be charged with permitting smoking just because a patron is caught doing so.
 
A Toledo bar challenged a $500 fine it received after a Lucas County health department worker caught a patron smoking inside the bar. In the lawsuit, the Pour House of Toledo argued that they were improperly cited because they had posted signs and told patrons to refrain from lighting up. It’s notable that no one smoking in a bar has been fined as an individual. Now the state is going to have to start investigating whether the patron is smoking without the permission of the owner, or whether the owner gave permission to the patron.
 
Allen said he would help the state enforce the law if they paid him.  “If the state wants me to be their police officer, they should be paying me $30,000 and then I’d be happy to do it,” Allen said. Zenos Bar has not paid any of the fine money.
 

Media

August 20, 2009 – ONN: Smoking Ban Lawsuit Goes Before an Appeals Court

Filings

October 15, 2009: Appellate Court’s Decision

Manna Storehouse v. Ohio Department of Agriculture

 

 

 On the morning of December 1, 2008, law enforcement officers forcefully entered the Stowers’ residence, without first announcing they were police or stating the purpose of the visit. With guns drawn, officers swiftly and immediately moved to the upstairs of the home, finding eight children in the middle of a home-schooling lesson. Officers then moved the mother, Jacqueline Stowers, and her children to their living room where they were held for more than six hours. Ohio Department of Agriculture (ODA) and Lorain County Health Department agents forcefully raided the home and unlawfully seized the family’s personal food supply, cell phones and personal computers.

What was the crime alleged against Mr. and Mrs. Stowers that required such use of force?  The state alleged that the couple was operating a retail food establishment without a license.

In fact, the Stowers operate a private-membership organic food cooperative called Manna Storehouse.  There has never been a complaint filed against Manna Storehouse or the Stowers related to the quality or healthfulness of the food distributed through the co-op.

The Center argues the right to buy food directly from local farmers; distribute locally-grown food to neighbors; and pool resources to purchase food in bulk are rights that do not require a license. In addition, the right of peaceful citizens to be free from paramilitary police raids, searches and seizures is guaranteed under the Fourth Amendment to the United States Constitution and Section 14, Article 1 of the Ohio Constitution.

“The Stowers’ constitutional rights were violated over grass-fed cattle, pastured chickens and pesticide-free produce,” 1851 Center of Constitutional Law Director Maurice Thompson said. “Ohioans do not need a government permission slip to run a family farm and co-op, and should not be subjected to raids when they do not have one. This legal action will ensure the ODA understands and respects Ohioans’ rights.”

Such raids are beyond the scope of the purely administrative authority delegated to ODA and county health departments. In enforcing licensure laws, these agencies are only permitted to contract for routine enforcement services. Forceful raids and sweeping searches and seizures are not routine, and exceed the authority granted to ODA and county health departments. The 1851 Center seeks to ensure that such raids do not occur in the future.

 

Case Timeline

December 19, 2008: Center Files Complaint in Common Pleas Court

On December 19, 2008, The  1851 Center for Constitutional Law took legal action against the Ohio Department of Agriculture (ODA) and the Lorain County Health Department for violating the constitutional rights of John and Jacqueline Stowers of LaGrange, Ohio. The complaint was filed in Lorain County Court of Common Pleas.

The 1851 Center sought an injunction against similar future raids, and a declaration that such licensure laws are unconstitutional as applied the Stowers and individuals like them. The Center also committed to defend the Stowers from any criminal charges related to the raid.

October 10, 2009: Center Appeals Trial Judge’s Ruling

The Center successfully obtained a court order for the return of over $10,000 in food seized by authorities, and appealed the trial judge’s ruling that deems it constitutional to destroy, through regulation, a private-membership organic food cooperative.

June 6, 2011: Court of Appeals Rules Against the Stowers Family

The court applied the rational basis test, deferring to the legislature. The Court of Appeals explained that the government’s “explanation for the statute need not be supported by evidence; rather, we will be satisfied with the government’s ‘rational speculation’ linking the regulation to a legitimate purpose, even ‘unsupported by evidence or empirical data.’”

July 21, 2011: Center Appeals to Ohio Supreme Court 

On July 21, Manna Storehouse and the Stowers family moved the Ohio Supreme Court to protect their rights.

The Stowers argued that the state’s imposition on their property rights and right to earn a living requires the utmost scrutiny and must be protected.  They further argued that requiring government permission and licensure to operate their safe and private cooperative converts state government to one of unlimited powers, transgressing the limits of state power, while violating their rights.

November 2, 2011: Ohio Supreme Court Refuses to Hear Case

The Ohio Supreme Court stated that there was no substantial question for review.

December 3, 2008: Morning Journal: Local Food Cooperative Searched by State

December 3, 2008: The Bovine: ODA “Swats” Manna Storehouse Co-op

December 4, 2008: WorldView: Swat Team Like Raid on a Farm House in Lagrange

December 9, 2008: Reason Magazine: Pantry Raid

December 17, 2008: World Net Daily:Armed Officers Raid Home, Hold Mom, Kids for 6 Hours

December 18, 2008: Cleveland Plain Dealer: Manna Asks Court to Rule Search Illegal

March 3, 2009: Filed in Federal Court: Combined Motion to Amend and Remand asking to remand the case back to the State of Ohio Common Pleas Court. 

March 3, 2009: Filed in Federal Court: Amended Complaint motioning for a Preliminary Injunction & Writ of Replevin.

December 17, 2009: Filed in Ohio Common Pleas Court: Motion for Summary Judgment

July 6, 2010: Appellant’s Brief to the Ninth District Court of Appeals, Lorain County appealing the Common Pleas Court ruling.

July 21, 2011: Motion for Jurisdiction in Ohio Supreme Court