Article from: www.thenewspaper.com/news/47/4709.asp
5/27/2015Ohio: Code Enforcement Officers Personally Liable For Seizing Cars
Ohio Court of Appeals finds code enforcement officers can be held personally liable for towing cars without due process.
Code enforcement officers in Riverside, Ohio do not have the unfettered right to tow cars from a private residence that they they imagined they had. Although Voncile DuBose and Peter Williams were backed up by a city ordinance, they found that they did not have the statutory immunity for their actions on the city's behalf that they imagined, thanks to a ruling earlier this month by the Ohio Court of Appeals. A divided three-judge panel held Kevin Vlcek could hold city employees personally liable for taking his cars without giving him a meaningful opportunity to appeal.
"A reasonable finder of fact could find that Williams and DuBose, the only two officials responsible for code enforcement, were aware of the procedural due process rights contained in the ordinances they were charged with enforcing," Judge Mike Fain wrote for the court.
Between July 23, 2010 and September 2011, city employees marched onto Vlcek's well maintained property three times to cite him for storing unlicensed vehicles in violation of the Riverside's "exterior property maintenance code." At the time of Vlcek's first notice, this ordinance only allowed 48 hours for him to file an appeal, though the document did not mention this fact.
Within three days, Vlcek mailed a letter contesting the violation and mentioning that he had a 1997 court settlement that allowed him to keep certain cars on his property. Vlcek, an aeronautical engineer and former Air Force major, was called to work at Wright Patterson Air Force Base on the day the city chose for his appeal. Although his hearing date was rescheduled for a month later, his 2000 Chevrolet Tracker, 1998 Ford Escort GL and flatbed trailer were towed away while he was gone.
On February 23, 2011, the city was back, anxious to tow another car and trailer. The code enforcers left a new notice of violation. Vclek sent another letter challenging the seizure.
"By now you are (or should be) fully aware that I am not in violation of your ordinances, and any discussion to the contrary outside of court must be delayed until after my vehicles are returned and the damages are repaired at Riverside's expense as [city manager] Bryan Chodkowski and I had earlier agreed," Vlcek wrote. "I must insist that until such time as a court authorizes the removal of anything on my property, you are to stay off my property."
The city did not bother setting up an appeal hearing. Instead, the next week it dispatched Sid's Towing to take Vlcek's 1971 Chevy Camaro and trailer without a court order. On September 7, 2011, the city was back with a notice saying he was to be charged with a criminal violation of the outdoor storage ordinance. On February 3, 2012, a municipal court judge found Vlcek not guilty.
A three-judge appellate panel majority found this sufficient evidence to believe that the code enforcement officers had mistreated Vlcek.
"Vlcek submitted his own affidavit, the depositions of five Riverside officials and 39 documents to support a factual finding that his constitutional right to due process was violated," Judge Fain wrote for the majority. "Our independent review of the evidence reveals numerous factual grounds to support a conclusion that the actions of Williams and DuBose directly deprived Vlcek of his right to due process."
The city argued that it did not need to provide written notice of appeal rights in order to afford due process, but the majority decided otherwise.
"We conclude that the trial court correctly found that the actions of Williams and DuBose depriving Vlcek of his right to due process were objectively unreasonable," Judge Fain wrote. "Therefore, the record supports the trial court's conclusion that Williams and DuBose failed to establish, as a matter of law, that they are protected by qualified immunity."
A copy of the decision is available in a 250k PDF file at the source link below.
Source: Vlcek v. Chodkowski (Court of Appeals, State of Ohio, 5/15/2015)
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