In This Issue

• Pet Fee
• Eviction – Three Day Notice
• Trespass Orders
• Religious Activity by Employees

Pet Fee

Lawrence F.
Feheley

The question recently posed in court was whether a "pet fee" is considered to be a security deposit, such that it is subject to the Ohio-Landlord statute. If the pet fee is a security deposit, then it is refundable. In addition, if the landlord does not comply with the statute, the tenant can recover double the security deposit and attorney fees. Section 5321.16, Ohio Revised Code.

In this case, the pet fee obligation was written in a lease addendum. The addendum stated clearly that (a) the pet fee was non-refundable, and (b) the fee was not to be applied to damages upon move-out by the tenant.

The court ruled that where a pet deposit is given to secure performance of the lease by the tenant, and to provide security for damage done by the pet, it can be considered a security deposit. However, in this case the addendum stated that it was not to be applied to damages, and so it could not have been intended to secure the apartment unit from damage. Therefore, the fee was not refundable to the tenant. Ritter v. Fairway Park Properties, LLC, 154 Ohio App. 3d 444 (Summit Co. 2003).

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Eviction – Three Day Notice

State law requires a landlord to give a tenant a 3-day notice to leave the premises, after the expiration of which the landlord can commence an eviction action. Section 1923.04, Ohio Revised Code. The statute provides that the notice can be served by certified mail, by hand-delivery, or "by leaving it at [the tenant's] usual place of abode or at the premises from which the defendant is sought to be evicted." Proper service of this notice is a mandatory prerequisite to filing an action to evict the tenant.

In order to start an eviction, a housing authority served the 3-day notice by posting the notice on the outside of the door to the tenant's unit. The court ruled that this did not satisfy the statutory requirements, and that the landlord's eviction action had to be dismissed. The court held that although placing the notice under the door or through the mail slot of the residence was sufficient service, posting the notice on the tenant's door would not suffice because that does not ensure that the tenant actually receives the notice. Cincinnati Metropolitan Housing Authority v. Morgan, 155 Ohio App. 3d 189 (Ham. Co. 2003).

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Trespass Orders

Some housing authorities work with local police to issue trespass notices to individuals who cause problems on the property, with the result that the individual can be arrested if they trespass again. What happens if an individual is given a trespass notice, but they are then invited by a tenant to come on the property? According to the Montgomery County Court of Appeals, the tenant has no right to issue the invitation and a criminal trespass conviction will be upheld. State v. Scott, 2004-Ohio-271 (Mont. Co. 2004).

In this case, the individual had been issued two trespass notices advising him not to enter housing authority property. His girlfriend then asked him to help her move from her housing authority apartment unit. When he was discovered on the property, he was arrested and eventually convicted of criminal trespass.

The individual argued that he was given permission by a tenant to enter the property. However, the court ruled that the tenant could not invite someone to the property over the objection of the housing authority:

"[The tenant's] rights to invite guests were subject to [the housing authority's] right to preclude certain guests by means of the criminal trespass policy."

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Religious Activity by Employees

Can a state agency discipline a born-again Christian employee for religious proselytizing to customers while on state business? According to the U.S. Court of Appeals for the Second Circuit, the answer is "Yes." Knight v. State of Conn. Dept. of Public Health, 275 F.3d 156 (2nd Cir. 2001).

The employees argued that they had a First Amendment right to engage in religious-based speech and conduct. However, the appeals court ruled that First Amendment rights must be balanced against the interest of the State in providing effective and efficient public services. The case involved two employees. One was a health care worker who lectured about AIDS to a homosexual couple. The other was a sign-language interpreter who urged her religious beliefs on a mentally ill patient.

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