Update: This article was updated July 26, 2023, to include the city’s comment that virtually all of Kent’s rental landlords are in compliance with the inspection rules.
Kent’s housing inspection program has been dealt another legal setback, thanks to a summary judgment issued earlier this month in Portage County Common Pleas Court.
On Aug. 8, 2022, Constellation Ohio, representing a number of local landlords, sued the city, objecting to Kent’s practice of tying rental licenses to property inspections, and to fining landlords if inspections were not scheduled and completed.
Overruling the city’s most recent effort (there have been several) to dismiss the Constellation Ohio case, Judge Becky Doherty on July 12 ruled that Kent’s inspection policy and practice are “unconstitutional and unreasonable,” the fines used to enforce the code are “arbitrary, capricious, unreasonable, and unconstitutional,” and attaching unpaid fines to the landlords’ real estate taxes is “contrary to state law.”
Doherty also said Kent has been unjustly enriching itself by collecting fines and application fees for housing licenses that were not issued, and she ordered Kent to return an undetermined amount of the fines and fees, plus interest, to the plaintiffs.
The summary judgment forbade the City of Kent from enforcing the inspection provisions in its ordinance 1367 in any way contrary to its ordinance 1371.01(b), which the court found complies with the law.
Ordinance 1367 requires rental agents and landlords of residential rental units to have a current, unrevoked housing license. It also requires them to schedule an inspection with the health commissioner and stipulates that non-compliant landlords may have their properties condemned. The city will not create the housing licenses until after the inspections are completed and the properties pass muster, the ordinance says.
The ordinance sets a fee structure for the housing licenses and fines for failing to schedule inspections, and it directs all proceeds to the city’s general fund.
Provision 1371.01(b), which the judge did not object to, simply authorizes the health commissioner and community development director to request entry to residential rental properties to inspect them during weekday business hours.
The court also directed the Portage County auditor and treasurer not to place or collect assessments arising from the city’s ordinance 1367.
The judge awarded the plaintiffs $10 in nominal damages, as well as an undetermined amount of the costs they incurred in filing the lawsuit, including attorney’s fees.
A Sept. 11 hearing is set to determine the actual amount of application fees and fines, plus interest, the plaintiffs have already paid to the city, all of which must be reimbursed. The hearing is also meant to determine the costs the plaintiffs incurred by suing the city, including reasonable attorney fees, that Kent owes the plaintiffs.
Bernie Noble, one of the plaintiffs in the Constellation Ohio case, said he was happy with the judge’s ruling.
“I am happy to see the judgment and hope all the landlords in the city of Kent get their money refunded for a program that never should have been in place. The city was warned a long time ago, a couple years ago. They still did inspections and they were still fining people. They keep shoving these things down people’s throats even when they know they’re wrong,” he said.
Attorney Chad Murdock, who represented the plaintiffs in the Constellation Ohio lawsuit, declined comment other than to observe that, “The summary judgment speaks for itself.”
Eric Fink, Kent’s assistant law director, issued a July 19 memo to his boss, Law Director Hope Jones, and Bridget Susel, the city’s community development director, stating that unless Doherty’s decision is overturned by the 11th District Court of Appeals, the city will have to reimburse the plaintiffs, and that the city will be liable to the plaintiffs for “$10 plus Attorney Murdock’s legal expenses.”
He also stated that the city may not collect further fines for rental registration violations from other landlords. Susel said that applies to just two people, which is 0.3% of the city’s 656 residential rental landlords. She added that the city has not collected any civil fines from Constellation Ohio.
Until the Sept. 11 hearing is complete, it is “premature” to file a case in appellate court, Fink stated. He did, however, add that the city can ask the appellate court to allow Kent to conduct business as usual on similar cases that are now pending in common pleas court, and may consider alternative methods of enforcing Kent’s rental registration ordinance, such as via civil lawsuits for damages, administrative warrants, and/or requests for preliminary injunctions.
On Nov. 3, 2022, two additional landlords, New Era Rentals and 644 South Water Street, sued the city, saying the city is misreading its own ordinance governing how many unrelated people may live in a single residential rental unit.
Landlords James and Brandon Pearl own residential rental units they are renting to four unrelated people. The city cited them for allowing more than two unrelated people to occupy a single rental unit. Through their attorney, Andrew Mayle, the Pearls objected, saying the city code allows three or more unrelated people to do so.
“The City of Kent is misreading its own ordinance,” Mayle said.
The city also informed James Pearl and Brandon Pearl that their licenses for residential rental property at 563 Rellim Dr. and 644 S. Water St. had expired as of Sept. 9, 2022, and that they were operating without current licenses.
The city requested hundreds of dollars from the Pearls for operating residential rental units without a housing license and operating a rooming house, allegedly since September 2020. Unless the fines were paid by Oct. 3, the city stated the amount due would double, and would increase to $1,800 if sent for collection on property tax. However, if they admitted guilt and paid within 48 hours, the fines would be reduced by half.
A hearing is set for later this month in Portage County Common Pleas Court.
On March 6, 2023, landlord Reed Havel sued Kent’s Board of Zoning Appeals, also alleging that the city denied him a certificate to rent to four unrelated people at his Columbus Street property.
In his appeal of the Community Development Department’s decision to deny him a certificate, Havel stated that U.S. District Court Judge Amanda Knapp said a house with four unrelated people creates no more population density than one with four related roommates. Basing his decision on an already-completed Ohio Supreme Court case involving Bowling Green landlords, Havel alleged that Kent’s decision was “unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported” by evidence, and requested an administrative hearing in Portage County Common Pleas Court.
In such a hearing, sometimes called a bench trial, an administrative law judge instead of a trial judge determines the facts of a case. Both sides submit evidence, and the administrative law judge renders a decision. Should either side disagree, they have the right to appeal the ruling to an administrative appeals authority or to seek judicial review elsewhere.
According to records filed with the court, Havel has received several citations for failure to schedule or reschedule a property inspection, and he has been fined for not having done so.
“They fined me for not adhering to their ordinance that a single-family residence cannot be occupied by more than two unrelated individuals,” Havel said.
Havel said the property was always a rental except for a short time when his family occupied it from 1994-2001. Even then, he said, his mother fostered children and adults with developmental disabilities at the address and continued renting it until 2022, when he bought it.
“There were always more than two unrelated people living at the property from 1994 until I bought it in 2022,” he said. “Kent’s wanting no more than two unrelated people.”
After a July 11 hearing, both sides have 30 days to submit their briefs.
Wendy DiAlesandro is a former Record Publishing Co. reporter and contributing writer for The Portager.