A judge says Cincinnati's pay-to-stay ordinance is enforceable. Will magistrates listen?
A Hamilton County judge says Cincinnati’s pay-to-stay ordinance should be enforced, but that doesn’t necessarily mean magistrates will start enforcing it after refusing for seven months.
Cincinnati Council passed pay-to-stay last year. It’s supposed to force a landlord to stop a nonpayment eviction if the tenant can pay all past due rent and fees. Hamilton County magistrates announced their decision not to enforce it on the day it went into effect in December, saying they think the local ordinance conflicts with state law.
It was an unusual move, considering there was no legal challenge to the law; nor is there one now.
Legal Aid challenged that decision in one particular eviction case, where the tenant has a voucher from the Community Action Agency for rent assistance from federal stimulus funds.
Municipal Judge Dwane Mallory dismissed the eviction this week, saying the magistrates are wrong about the ordinance.
“[T]his court finds the city of Cincinnati’s ‘Pay to Stay’ ordinance does not conflict with state laws and is a constitutionally valid exercise of its home-rule authority,” Mallory wrote. “As such, the ordinance provides an affirmative defense and should have been applied in this case.”
But that’s not the reason Mallory dismissed the eviction. He says the notice to vacate was filed too early and therefore the court doesn’t have jurisdiction: “This court’s aforementioned findings [regarding pay-to-stay] are rendered moot.”
Attorney David Donnett represents the landlord.
“There's a thing in law where a court rules, but then a court makes side comments, and those are called dicta,” Donnett said. “If it's dicta, anybody can follow it or ignore it. It is not a decision that is bound.”
In other words, Donnett says the magistrates can continue refusing to enforce pay-to-stay in all cases.
Legal Aid attorney Zach Frye, representing the tenant, disagrees.
“Judge Mallory does extensive analysis about pay-to-stay and states in the decision that in this case, and in general, pay-to-stay does not conflict with state laws and is a constitutionally valid exercise of the city of Cincinnati's Home Rule authority,” Frye said. “And so what we'd say is, regardless of whether it was necessary to resolve this case, this is still the decision on point … and the court should look to it when deciding whether to enforce pay-to-stay.”
Assistant Court Administrator Andrew Gillen declined an interview on behalf of the magistrates.
"As noted in correspondence regarding this issue previously provided to you, the magistrates will continue to apply the law to cases before them on a case by case basis," Gillen said in an email.
The correspondence Gillen refers to is a letter dated December 20, 2021 in which Presiding Judge Heather Russell told Legal Aid there was no policy to ignore pay-to-stay.
But as WVXU has reported, as recently as Feb. 10, another magistrate said in court the judges are not enforcing the city ordinance: "[The judges] found it to be in conflict with state law," said the Honorable Melissa West.
The landlord could appeal Judge Mallory’s dismissal; Donnett said he is still reviewing the decision with his client and they have not decided whether to appeal.
Frye says Legal Aid will continue using pay-to-stay as a defense in eviction cases, and tenants without legal representation can use that defense as well.
“I see, pretty much every day, in eviction court someone who either tried to pay the rent late or is somewhere in the rental assistance process, and most of the time, that person gets an eviction judgment against them,” Frye said. “In Hamilton County as a whole, there's typically somewhere in the range of 70 to 80 eviction cases being heard per day. And so this is this is something that's happening all the time, and [pay-to-stay] can protect a lot of tenants.”
Council Member Greg Landsman authored the pay-to-stay legislation last year, and previously said he was disappointed that the court refused to enforce it.
He says Judge Mallory’s opinion is a good decision.
“It’s good news for tenants — children, families, folks who are trying to stay in their homes — it’s good for neighborhoods, because it just maintains stability and we want more and more people to be able to keep their homes,” Landsman said.
Millions of dollars in rental assistance is still available in Hamilton County, with more on the way.