- Associated Press - Friday, October 2, 2015

CINCINNATI (AP) - A federal judge has ruled that a southern Ohio city’s inspections of rental properties without a warrant are unconstitutional.

U.S. District Judge Susan Dlott agreed this week with property owners who last year sued the Ohio River city of Portsmouth, contending that the city’s rental dwelling code violated their constitutional protections to due process and against unreasonable searches by forcing them to allow inspections without probable cause warrants.

Court documents show that city officials explained that much of Portsmouth’s housing stock dates to post-World War II construction, and the wave of foreclosures during the Great Recession resulted in many old homes sitting vacant for long periods, then being converted into rental properties. City officials said many families were living in unsafe and unsanitary conditions, so a new rental dwelling code adopted in 2012 required buying rental permits and allowing inspections.

“This code is to protect the public health, safety and welfare of occupants in all rental dwellings,” the city stated at the time.

The code required rental property owners to apply for a permit to rent their property, subject to code enforcement approval. Annual license fees started at $50.

Dlott said that while securing public health, safety and welfare is a valid and important government concern, she found that the warrantless inspections “impact a substantial privacy interest … (and) are also significantly intrusive” and “unreasonable.”

Maurice Thompson, executive director of the Columbus-based 1851 Center for Constitutional Law, which represented property owners in the case, called the ruling a victory for both property owners and tenants by protecting them from “suspicion-less” inspections. He also called such rental codes “back-door tactics” to collect revenue.

“Local government agents do not have unlimited authority to force entry into Ohioans’ homes or businesses,” Thompson said in a statement.

Dlott’s order also said the property owners are entitled to seek repayment of inspection fees related to unconstitutional inspections.

The Portsmouth Daily Times reported that City Solicitor John Haas said he’ll discuss the ruling with the city’s insurance carrier’s legal counsel and other city officials before deciding how the city will proceed.

The city revised its rental dwelling rules last year after the lawsuit was filed, and Haas said he interprets the ruling as describing acceptable rules that appear to follow the amended ordinance.

Dlott’s ruling noted that the code had been amended, but said the court “expresses no opinion on the constitutionality of or any other claim” from the revised ordinance.

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