417 N.E.2d 1019 | Ohio Ct. App. | 1979
Defendant-appellant, Delores Lindsay, appeals from a conviction for violating Section
Mrs. Barbara Roderich testified that she was employed by the city of Cleveland Heights to maintain the non-solicitation *216 list. She further testified that a copy of this list, bearing Mrs. Waychoff's name, had been sent to the appellant's employer by registered mail. Margo Malone, an administrative assistant in the Cleveland Heights Housing Service, also testified that Mrs. Waychoff's name was on the non-solicitation list.
On October 5, 1977, appellant was charged with violating Section
"No real estate broker, real estate salesman or other person shall telephone or personally call upon, or mail or hand deliver literature, to the home of an owner of a single or two-family dwelling unit in this City, for the purpose of securing a listing for sale of real estate of such homeowner, or for any purpose relating to sale of such owner's property, after receiving a written notice not to communicate with such homeowner for such purpose, so long as the notice is submitted in accordance with the procedures outlined herein.
"The provisions of this ordinance shall not be applicable to any person who has publicly listed and/or advertised his home for sale."
Prior to the commencement of trial, appellant filed a motion to dismiss the complaint, alleging that Section
I. "The Cleveland Heights antisolicitation ordinance violates freedom of speech guaranteed by the Constitution of the United States and the state of Ohio."
II. "The Cleveland Heights antisolicitation ordinance conflicts with Ohio Revised Code, Chapter 4735, and is therefore unconstitutional."
III. "The Cleveland Heights antisolicitation ordinance is discriminatory as applied; is contrary to the terms of the Ohio Revised Code, Section
IV. "The Cleveland Heights antisolicitation ordinance creates a discriminatory classification against real estate *217
brokers and is therefore violative of the
Appellant's fourth assignment of error will be considered first. Appellant argues that Section
The ordinance at issue in the present case is part of a legislative attempt to prevent blockbusting in the city of Cleveland Heights. Blockbusting has been defined as "the practice of inducing owners of property to sell because of the actual or rumored advent into the neighborhood of a member of a racial, religious or ethnic group." Summer v. Teaneck (1969),
Blockbusting practices create instability in both housing markets and neighborhoods. The prevention of such practices is a legitimate function of the city council. Because blockbusting practices are exclusive to the real estate industry and are not committed by other types of residential solicitors, there is a rational basis between the purpose of the ordinance and the restrictions placed on real estate brokers and salesmen. Consequently, the classification created by the operation of Section
As her first assignment of error appellant argues that Section
An issue similar to the one currently being raised was addressed by the court in Rowan v. United States Post OfficeDept. (1970),
The court's holding in Rowan was consistent with its prior decision in Martin v. Struthers (1943),
The court's decisions in Martin, supra, and Rowan, supra, involved the balancing of the solicitor's right of free speech against the homeowner's right of privacy.3 The effect of these decisions is that although a statute which imposes a complete prohibition on solicitation will be unconstitutional, a statute which provides a mechanism by which the homeowner may choose whether he wants to be solicited will not be constitutionally infirm.
An important distinction between Martin, supra, and *220 Rowan, supra, is the type of speech which was attempted to be expressed. In Martin the solicitor was distributing leaflets concerning a religious organization. In Rowan, however, the attempted solicitation was commercial in nature. The
In support of her argument, appellant places primary reliance on the case of Linmark Associates v. Willingboro (1977),
The holding in Linmark, supra, is distinguishable from the issue raised by appellant in the present case. To begin with, the ordinance at issue in Linmark was a total prohibition of real estate signs by the municipality. In striking down the *221 ordinance, the court noted that the municipality failed to establish that the objective of the ordinance could not be obtained in a less restrictive manner. Id., at page 95. The antisolicitation ordinance in the present case does not impose a complete prohibition on real estate brokers and salesmen from soliciting business in Cleveland Heights. Instead, it prohibits solicitation from those homeowners who do not wish to be solicited. Thus, this is not a case in which the judgment of the community has been substituted for the judgment of the individual homeowner. Martin v. Struthers, supra, at pages 143-44.
In addition to the above, the court in Linmark, supra, at page 94, noted that the ordinance did not "restrict a mode of communication that `intrudes on the privacy of the home * * *.'" Unlike a "for sale" sign posted on a front lawn, unsolicited and unwanted leaflets, telephone calls and sales representatives go beyond the outside limits and penetrate into the privacy of the home. A further distinction between Linmark and the present case is the operation of the ordinance at issue. The effect of the ordinance in Linmark was to impede the free flow of information concerning housing sale activities in the community. Id., at pages 95-97. The court stated that this information was of vital interest to the residents, bearing directly on their decision where to live. Id., at page 96. See, also, Virginia State Bd. ofPharmacy, supra, at pages 763-65. In the present case, although the ordinance acts as a mechanism by which real estate brokers and salesmen are restricted in soliciting business, the restriction is imposed not by the ordinance, but by the homeowner who wishes to avail himself to the protection of the ordinance. Thus, the decision of whether to receive the information which is being offered by the real estate broker or salesman is made by the individual and not mandated by statute. See Virginia State Bd. of Pharmacy, supra, at page 770.
Section
As her second assignment of error, appellant argues that Section
Real estate brokers are licensed by the Superintendent of Real Estate. R. C.
"A license is a permission granted by some competent authority to do some act which, without such permission, would be illegal. * * *" State, ex rel. Zugravu, v. O'Brien (1935),
Appellant argues as her third assignment of error that the Cleveland Heights ordinance is discriminatory in its application, and is therefore contrary to R. C.
A municipal ordinance which bears a real and substantial relationship to the public health, safety, morals or general welfare has a presumption of validity. Curtiss v. Cleveland
(1959),
There are no facts in the record from which this court *224 could determine that the ordinance at issue is discriminatory in its application. Consequently, appellant has failed to rebut the ordinance's presumption of validity. Therefore, her third assignment of error is not well taken. There being no other assignments of error raised by the appellant, the judgment of the trial court is affirmed.
Judgment affirmed.
KRENZLER, P. J., and JACKSON, J., concur.
"Deny any person access to or membership or participation in any multiple-listing service, real estate brokers' organization, or other service, organization, or facility relating to the business of selling or renting housing accommodations, or to discriminate against any person in the terms or conditions of such access, membership, or participation, on account of race, color, religion, sex, national origin, handicap, or ancestry." *225