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IN THE.qO.u~T OF COMMON PLEAS

F tlJAt8.tOUNTY, OHIO .
KAIM PROPERTIES, ~~,r\R~ 11 Prl)3 L\SCASE NO. 11 CV000352
'. Plaintiff MAUREENG. K~LL,(
. vs. L A K E C O ,), JUDGMENT ENTRY
C L E RK O f C O rRT
CITY OF MENTOR, et al., )
}
.Defendants )
The within matter came on for consideration this day, to wit: May 4,2012 upon
the following:
1. Defendants' Motion for Summary Judgment, and Brief in Support of
Defendants' Motion for Summary Judgment, both filed December 2,
2011; .
2. Opposition to Defendants' Motion for Summary Judgment and
Plaintiff's Motion for Summary Judgment, filed January 24, 2012; and
3. Defendants' Reply Brief in Support of Defendants' Motion for
Summary JUdgment and Brief in Opposition to Plaintiffs Motion for
Summary Judgment, filed January 31,2012.
This action involves Plaintiff Kaim Properties, LLC's Complaint against Defendants
City of Mentor, City of Mentor City Council, and John Alesci (in his official capacity as Code
Enforcement Officer). Plaintiff is asking this Court to declare two of the City of Mentor's
municipal ordinances unconstitutional both on their face and' as applied to Plaintiffs
properties. In addition, Plaintiff seeks an order enjoining Defendants from enforcing the
ordinances.
Plaintiff is the owner of certain residential real properties that may be occupied by
rental tenants. In the early 1990s, City of Mentor City Council passed a Multi-Family
Dwellings Code in which owners or operators of a multi-family apartment rental property
. were required to apply for and obtain a certificate of occupancy from Defendant City of
Mentor ("Mentor"). Under this code, Mentor inspected multi-family dwellings based on
. certain public health/safety standards. On October 16, 2007, the City Council of Mentor
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amended the existing Mentor Multi-Family Dwellings Code and enacted a residential rental
inspection program, generally described as "Part Thirteen-Building Code: Title
Nine-Rental Housing Maintenance Code, Codified Ordinances of the City of Mentor,
Chapters 1375 through 1391, and Codified Ordinances of the City of Mentor, Chapters
1375.01 through 1375.09." This section is now expanded to include single family, duplex
and.triplex rental housing in addition to apartments.
Under the code, every two years, a rental property owner must apply for a Rental
Dwelling Unit Certificate from the Engineering and Building Department. This Department
then attempts to schedule a consensual inspection of the rental property. In April 2010,
the Rental Housing Code was further amended to include a provision for Mentor to obtain
an administrative warrant from a court when the rental property owner refuses or interferes
with the inspection.
Plaintiff was notified of the changes in July 2008. Despite numerous notices,
Plaintiff did not apply for a Rental Dwelling Certificate. Mentor then obtained an
administrative search warrant from Mentor Municipal Court. plaintiff moved to quash the
warrant and filed the instant matter in this Court. Mentor then withdrew its request for the
warrant in Mentor Municipal Court.
In support of its Motion, Defendants preliminarily argue that the Complaint against
Defendants Mentor City Council and John Alesci should be dismissed in that both are
superfluous parties. Defendants argue that a city council cannot be sued and even if it
could, Plaintiff has not presented any evidence to support a conclusion 'that the City
Councilacted unconstitutionally or beyond the scope of itsauthority. Further, Frank Kaim,
the principal owner of Plaintiff Kaim Properties, LLC, stated in his deposition that .
Defendant John Alesci has not done anything inappropriate or outside of his authority and
that he believed Defendant John Alesci was doing his job and not being deceptive.
In addition, Defendants argue that Plaintiffs Declaratory Judgment action should
be dismissed because Mentor's Rental Housinq Code is constitutional on its face and in
its application. Defendants assert that Mentor has a I~gitimate government interest in
regulating the health, safety and welfare of its rental housinq market; (2) the Rental
Housing Code is not unconstitutionally vague; (3) the Rental Housing Code does not
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violate substantive or procedural due process; (4) the Rental Housing Code has adequate
due process in that notices must be served and there is ~(right to an appeal and hearing;
(5) Mentor's application of administrative searches thro~ugh consent or warrant is not
unconstitutional; (6) the fees assessed for rental properties are not arbitrary or
unreasonable.
In response and in support of its own Motion fO( Summary Judgment, Plaintiff
contends that Mentor's rental inspection program violates Plaintiff's right to due process
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in that the program does not provide for a pre-deprivation. hearing. In addition, Mentor's
rental inspection program amounts to a taking and is unconstitutional on its face and as
appliedto Plaintiff. Moreover, Plaintiff contends that Ohio does not recognize the authority
to order an administrative warrant, and consent to inspection cannot be gained by the
threat of an unlawful warrant.
In its Reply Brief, Mentor asserts that Plaintiff does not demonstrate any issues of
material fact in its Brief in Opposition. Further, Mentor contends that a notice of code
violation is not a deprivation of property rights and that therental code provides adequate
procedural due process.
Upon review, theCourt finds Mentor's Motion for Summary Judgmentwell taken and
Plaintiffs Motion for Summary Judgment not well taken. In order for summary judgment
to be granted, the moving party must prove: (1) no genuine issue as to any material fact
remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to but one conclusion,
and viewing such evidence most strongly in favor of the nonmovinq party, that conclusion
is adverse to the party against whom the motion for summary judgment is made.
Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385, 1996-0:1io-389.
The moving party bears the initial responsibility of :informing the trial court of the
basis for the motion, and identifying those portions of the record which demonstrate the
absence of a genuine issue of fact ona material element of the nonmoving party's claim.
Dresherv. Burt, 75 Ohio St.3d 280,296, 1996-0hio-107. If the moving party satisfies the
burden, then the nonmoving party has the burden pursuant to Civ.R. 56(E) to provide
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evidence demonstrating a genuine issue of material fact. Id. If the nonmoving party does
not satisfy this burden, then summary judgment is appropriate. Civ.R. 56(E).
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Preliminarily, the Court finds that City Council of Mentor is an improper party in that
it is not an entity capable of being sued. See City of Cuyahoga Falls v. Robart, 58 Ohio
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St.3d 1, 6, 567 N.E.2d 987 (1991). In addition, the Court fmds that Plaintiff has failed to
present any evidence in support of its claims against Defendant John Alesci. As such,
Defendant Mentor City Council and Defendant John Alesci should be dismissed from this
action.'
The Court now turns to the remaining arguments in Plaintiff and Defendant's
Motions. Plaintiff first contends that Mentor's Rental Code constitutes an unlawful taking.
Plaintiff asserts that the City cannot enforce new building or zoning regulations against a
lawful use or structure which predates that enactment of the new regulations. However,
as noted by the United States Supreme Court,"[a] requirement that a person obtain a
permit before engaging in a certain use of his or her property does not itself "take" the
property in any sense * * * . [E]ven ,if the permit is denied, there may be other viable uses
available to the owner. Only when a permit is denied and the effect of the denial is to
prevent "economically viable" use of the land in question can it be said that a taking has
occurred." United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127, 106
S.Ct. 455,88 L.Ed.2d 419 (1985).
However, even if the permit requirement could be construed as a taking, the Court
finds.that Plaintiff does not have standing to challenge the constitutionality of the Rental
Code. The Eieventh District Court of Appeals has addressed this identical issue in Kruppa
v. Warren, 11thDist. No. 2009-T-0017, 2009-0hio-492i: (2009). In Kruppa, the plaintiff
~ileda complaint for declaratory judgment alleging that an ordinance requiring a permit for
rental properties in the City of Warren was unconstitutional as it was vague and denies the
owners of residential rental property equal protection and due process. The trial court
entered summary judgment against the plaintiff, which was upheld by the Court of Appeals.
In its opinion, the Court of Appeals held that because the plaintiff had not alleged that he
applied for and was denied a dwelling permit under the ordinance, he lacked standing to b
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challenge the ordinance as unconstitutional on its face, as applied, or with regard to due
process. ;
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"Unless the challenged legislation implicates PlrstArnendment rights, a party cannot
assert a facial void-for-vagueness challenge unless he f!rst demonstrates that legislation
is invalid as applied to him." Kruppa at 1 1 1 8 . Plaintiff is unable to demonstrate this as it has
not applied for and been denied a permit. "A party may npt bring an 'as applied' challenge
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to a licensing or permitting scheme unless the party ha~ applied for and been denied a
license or permitunder the scheme at issue." Id. at '1 l1 9 . ;/(Citations omitted). Plaintiff fully
admits that it did not apply for the permit it challenges, and therefore it lacks standing to
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allege that this ordinance is unconstitutional or its face or as applied.
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Plaintiff further contends that Mentor's rental inspection program violates its.right to
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due process in that the program does not provide for a pre-deprivation hearing. Mentor

argues that a mere notice of a code violation does nqt amount to a deprivation of a
property interest. Even if it did, however, Mentor asserts that there is a right to appeal any
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code violation to the Board of Building Standards. Once again, the Court finds that as
Plaintiff does not allege that it has been denied a permit, it lacks standing to assert this due
process claim. Kruppa at 1[50.
Accordingly. Plaintiff's Motion for Summary Judgment shall be denied and
Defendants' Motion for Summary Judgment shall be granted. Plaintiffs Complaint shall
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therefore b~~dismiss"9a.----- - ---.~ .---- ..-----.- ..__ ;:..... _". .
'W~EREFORE,it is the order of this Court that ~Plaintiff's Motion for summa;-:'~."
Judgment is hereby denied and Defendants' Motion for Summary Judgment is hereby /
granted. Plaintiff's Complaint is dismissed at Plaintiff's costs. ~
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----LL.lS SO ORDERED. -----
Copies to:
Joseph R. Klammer, Esq.
Stephen S. Zachin, Esq.
FINAL APPEALABLE ORDER
Clerk to serve pursuant
to C i v .R5 8 (8)
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