Forbidding More Than Three People from Living Together Violates Ohio Constitution

 
 Ohio cities violate property rights by prohibiting more than three unrelated people from living in the same home
 
Bowling Green, OH - The 1851 Center for Constitutional Law today moved to strike a municipal ordinance that criminalizes greater than three unrelated individuals living in the same home regardless of the size of the home.
 
The action is filed against the City of Bowling Green on behalf of 23 Bowling Green landlords and three student tenants threatened with eviction.  The landlords own over 161 homes that, despite four or more bedrooms and ample parking, may not be occupied by greater than three unrelated people.
 
Through its Motion for Preliminary Injunction, the 1851 Center explains that the City's ordinance, which imposes a $500 per day fine, is violates the Ohio Constitution through suppressing private property rights and equal protection and imposing vague standards and excessive fines:
  • As in other states that have invalidated such occupancy limits, the Ohio Constitution is more protective of private property rights and equal protection than the federal constitution. 
  • While the regulation professes to limit population density, many homes in the City are exempt from the rule, while there are no similar occupancy limits on related individuals.
  • The regulation is unconstitutionally vague, insofar as the City maintains no list of which properties are exempt, and regulates houses based upon whether or not they were "designed for single family use."
  • Fine of $162,500 per year for permitting four individuals to live in a four-bedroom home is patently excessive. 
 
"In Ohio, many zoning regulations needlessly interfere with private property rights, drive up the cost of living, fail to accomplish their proclaimed purposes, and are used as political weapons - - often to benefit special interests or suppress disfavored minorities.  This regulation is no different," explained 1851 Center Executive Director Maurice Thompson.  "However, there is no coherent reason why four missionaries should be prohibited from occupying a large six bedroom house, even as an unruly family of eight lives in a smaller home next door."
 
The 1851 Center draws a distinction between zoning regulations that prohibit homeowners from using their property to directly inflict harm on others and regulations simply aimed at social engineering.
 
"This regulation is aimed at government-controlled social engineering, i.e. keeping 'the wrong kind of people' out of certain neighborhoods, rather than land use. Unruly behavior should be directly regulated, rather than regulated on the basis of the relationships between those who live together," added Thompson.  "Ohioans should not be forced to pay higher rent or endure longer commutes due to such arbitrary regulations." 
 
The case is pending before Judge Zouhary in the Western Division of the Northern District of Ohio.  The Judge has issued a temporary standstill order. 

 
 

Fighting to Make “Fair” Housing Fair:
The Helen Grybosky Saga

From January to July 2008, Helen Grybosky, a then-78 year old widow from North Kingsville, Ohio, received several calls to rent out a three unit home she owned in Conneaut. 

The first caller, who came to the property, asked Helen about allowing a “therapy dog” for her brother who had anxiety and needed the dog to help him sleep. After some discussion, Helen agreed to allow the animal for an additional $100 deposit. 

During another visit Helen told a prospect that she would not rent out the second story to small children because the noise between the floors was too much for the old house.

Another caller asked about a “seeing eye” dog, which Helen stated she would allow without a deposit. 

Unfortunately for Ms. Grybosky, the callers were not bona fide applicants looking for housing, but “testers” from a local housing agency, randomly checking landlords for possible housing discrimination—a common practice throughout the United States.

Round 1: The Housing Agency Demands Cash

In September 2008 the private, non-profit housing agency filed charges of housing discrimination against Ms. Grybosky based on the “therapy dog” and not allowing children in the second story.

The agency demanded that she pay it  $6,500, undergo housing education, and pay for an advertisement in the local paper announcing her shame.  These demands were further submitted to Helen by the Ohio Civil Rights Commission (“OCRC”) under threat that if she refused to pay the private agency the money and other terms it demanded, she would face prosecution by the State of Ohio and be subjected to even greater damages, plus mandatory attorney’s fees.

Ms. Grybosky refused to pay the settlement because she did not believe she committed any discrimination based on the testing, and the case was sent to the Ohio Attorney General. The AG filed a formal complaint against Helen and her son Gary, who was listed as owner of the property on the tax records, but whose legal status was actually as a remainderman in a life estate held by Helen.

Round 2: The Administrative Hearing

The case proceeded to an administrative hearing before an administrative judge employed by the Ohio Civil Rights Commission (OCRC).

Following a three day hearing in May 2010 and briefing by the parties, the administrative judge recommended that the OCRC find that Helen and Gary (who never spoke to any of the testers and had nothing to do with the operation or management of the property) committed acts of discrimination based on the “therapy dog” testing and Helen’s not wanting to rent to children on the second story.  The administrative judge’s recommended resolution: 

  • Helen and Gary pay $12,000 in actual damages
  • Plus $10,000 in punitive damages
  • Plus roughly $80,000 in legal fees to the Attorney General and the attorneys for the agency.

In its final decision on October 10, 2013 the Commission found that Helen and Gary committed discrimination on both charges,  but modified the recommendations by their administrative judge and ordered Helen and Gary to pay:

  • $2,513.05 in actual damages to the agency
  • Attorney fees of $4,933 to the Ohio Attorney General,
  • Attorney fees of $4,185 to the attorneys for the agency.

So after a five year battle, even the Commission had to admit that there was no basis for the $6,500 demand.  The Gryboskys appealed the Commission’s decision to the Ashtabula Common Pleas Court.

What’s Really at Stake Here…
Read This Even if You Just Scanned the Rest

It’s important to understand that the key issues in this case are not about whether what Helen Grybosky said could constitute discrimination were an actual applicant involved.

What is important is that the system be changed so that landlords have the opportunity to resolve charges of discrimination in a fair and balanced manner, that they are not faced with mandatory attorney fees, and that private agencies are not permitted to manufacture discrimination as a means to create a profit.

The issues in this case will potentially affect the legal rights of every rental property owner in the United States. There are crucial constitutional and procedural questions about how fair  housing law is enforce, like:

  1. How does a private housing agency sustain any damages by sending a “tester”—a person posing as a member of a protected class to which they do not belong, and pretends to be seeking housing that they are not seeking— to investigate how a landlord might respond to hypothetical issues? In the law, damages are based on injury flowing from a person’s wrongdoing. In the random testing cases, agencies investigate potential discrimination and do not sustain any injury based on the responses. In other words, there cannot be damages when no one has actually been denied housing, and yet the Ohio Civil Rights Commission allows for the agency to recover “actual damages” where none exists.
  2. What evidence can a landlord demand to establish that a tenant has a bona fide need for an assistant animal due to a “disability” What evidence is reasonable? Every day now, we hear more stories about people who claim the need for therapy animals for a growing list of ‘disabilities’. An industry has developed that sells tenants and applicants letters (purportedly from medical or psychiatric professionals) stating that they have a need for a “helper animal”. In fact, such a diagnosis can be purchased off the internet for less than $50.

 What is not clear in the law—and thus is widely used by housing agencies to engage in testing—is whether anxiety, sleeplessness, etc rise to the level of ‘disability’, necessitating reasonable accommodations under fair housing law. Housing providers don’t deny housing to animals capriciously; animals do measurable damage to units, make multifamilies harder to rent, and present a risk of liability.

Who decides when an animal is a true service animal, necessary for a tenant’s day to day functioning, vs. a comfort animal that the tenant wants but doesn’t truly “need”?

  1. 3. Due process issues in the prosecution of fair housing offenders. In Ohio, if an accused landlord does not resolve the charge “through conference, conciliation, and persuasion” (that is, by paying the money demanded by the agency), the case goes to a hearing and if any discrimination is found, the landlord must pay “reasonable attorney fees” and is subjected to potential punitive damages. 

            As in the Grybosky case, these attorneys fees can total in the tens of thousands of dollars and guess what: there is no provision for the landlord to recover attorney fees or punitive damages if no discrimination is found—regardless of how frivolous the charges may be.

            In addition, fair housing hearings at the OCRC are different than in a true court of law. Once the case is accelerated to that level, the landlord faces prosecution for any discrimination, not limited to the allegations in the complaint and not even limited to the parties in the complaint.  The commission, while presided over by an administrative judge, is not subject to the usual rules of due process.

  1. The impossibility of following requirements that are vague and inconsistent. The statute obligates the landlord to make a “reasonable accommodation” for a “disability,” but also prohibits any inquiry about the extent of the disability and does not provide any specific standard of what is reasonable, or even what constitutes a “disability.”

            In other words, you might think you’re making a reasonable accommodation by allowing an applicant’s “anxiety pit bull” with a $500 refundable pet deposit, and still lose a claim because there is no real guidance as to the definition of disability, service animal, or reasonable accommodation.

      It’s for these reasons that OREIA, its members and member organizations, have been supporting Ms. Grybosky’s legal fund and following her case so intently for the past 3 years.

      In October, Judge Yost of the Ashtabula County Common Pleas Court ruled on her appeal against the OCRC and the housing agency with mixed results (see the text of the case at www.OREIA.com) : the judge dismissed the disability discrimination based on the therapy dog, denied the agency any attorney fees, dismissed the charges against Helen’s son Gary

      However he did find discrimination based on the statements to the tester about not renting to children on the second floor and ordered Helen to pay damages of $1,104 and attorney fees of about $5,000.

Next Steps and How You Can Help Make Fair Housing Fair for All

      The next step is to appeal the case to the 11th District Court of Appeals and eventually to the Ohio Supreme Court.  

      We are hopeful the court will find:

  1. That the procedures in the statutes (including mandatory attorney fees against landlords), which allow the OCRC to engage in such extortion to be unconstitutional
  2. That the random testing does not create any damages for which the agency can recover any monies, and
  3. That the statute’s wording for disability and reasonable accommodation is ambiguous and unenforceable in a meaningful way.

      A win on these issues will literally even the playing field for you as a housing provider, making it impossible for fair housing organizations to extort money in cases where no damage has been done, making real cases of discrimination clearer and easier to prosecute, and making it far more obvious where the “line”, particularly with animals, is.

If every OREIA attendee gave just $25, we could take care of 1/2 of the expected legal bill this weekend.

      This is a rare chance to invest a tiny amount of money and see a huge, positive effect on our entire industry, so when the hat gets passed, be generous. It’s your own future you’re buying into.

See Court Ruling HERE

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