For Industry Professionals, Managers, Trades & Suppliers
J. NORMAN STARK, ATTORNEY and REGISTERED ARCHITECT
JURIS DOCTOR, B. ARCHITECTURE, B.F.A.
17000 St. Clair Avenue . Cleveland, Ohio 44110-2535
Tel.: (216) 531-5310 . Fax: (888) 833-5860 . E-Mail: www.Normstark@aol.com
In Florida . 6500 Midnight Pass Rd. #105 . Sarasota, FL 34242 . (941) 349-2061.
Nuisance; Closure Orders, Forefeiture of Real Property
Federal and Ohio laws prohibiting illegal activities such as trafficking and drug sales from residential properties are
prosecuted under a Complaint to Abate a Nuisance. Upon conviction, these actions may result in temporary or even
permanent closure ("boarding up") orders of Court, effectively amounting to a forfeiture of real property rights of an
The Supreme Court of Ohio reviewed the application of law to a cited drug violation at a leased residence. The Court
held: "In each of the three cases before us a non-owner resident was arrested for conduct that violated felony drug
laws while occupying residential property owned by one of the appellees herein. In all three cases, it is undisputed
that the appellee property owners neither acquiesced to nor participated in the drug activities that took place on
their property. Further, the record indicates that all three owners acted in good faith, taking affirmative action to
investigate allegations and to remove the offending residents upon discovering the illegal activity. The state
nonetheless filed a Complaint to Abate a Nuisance, pursuant to R.C. Chapter 3767, against each owner."
".we hold that R.C. 3767.02 does not require a finding of acquiescence to or participation in the creation or
perpetuation of a nuisance on an owner's property in order to find an owner guilty of maintaining a nuisance."
However, the Court held: ".the statute violates the Fourteenth Amendment Due Process Clause and the Fifth Amendment
Takings Clause of the United States Constitution, and Section 19, Article I of the Ohio Constitution, when applied to
an owner who did not negligently or knowingly acquiesce to, and did not participate in the creation or perpetuation of
".we hold that the imposition of a mandatory closure order pursuant to R.C. 3767.06(A) would be unconstitutional
as applied to these defendants."
".A forfeiture is "a divestiture of specific property without compensation; it imposes a loss by the taking away of
some preexisting valid right without compensation."
Black's Law Dictionary (6 Ed.1990) 650. An order to close property "against its use for any purpose," as mandated
by R.C. 3767.06(A), renders the owner's property economically idle for a
year. In Lucas v. South Carolina Coastal Council (1992), 505 U.S. 1003, 1019, 112 S.Ct. 2886, 2895, 120 L.Ed.2d 798,
815, the court noted that "when the owner of real property has been called upon to sacrifice all economically beneficial
uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking." The
fact that the order is of limited duration does not change this conclusion. It is well established that the Constitution
protects against temporary takings just as it does against permanent takings."
".the mandatory closure order provisions of R.C. 3767.06(A) violate the Takings Clause of the Fifth Amendment to the
United States Constitution when imposed against an innocent owner. "
"We hold as a separate and independent basis for our decision that the mandatory closure-order provision of R.C.
3767.06(A) is unconstitutional as applied to these defendants under Section 19, Article I of the Ohio Constitution,
which provides that "[p]rivate property shall ever be held inviolate, but subservient to the public welfare."
A hangover is the wrath of grapes.
AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered
Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of
Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme
Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with
additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness
(Forensic Architect). His office is in Cleveland, Ohio.