Key Points

Letter from a concerned citizen:

1. Transfer of Police Responsibilities from Government to Private Business

Section 722.11 part 2:

Once a reasonable opportunity to cure the problems has been afforded to the licensee without substantial success, a license should be revoked even though the license holder has taken all reasonable measures to achieve compliance.

“Problems” specifically listed for which the business owner is now held accountable include gambling, prostitution, drug dealing, weapons possession, disorderly conduct, loitering, public nuisance, and obstructing legal process. (721.15)

A business owner doesn’t have the authority to take action to personally stop any of these activities. Unless the city of Toledo intends to force business owners to take up arms and dispense vigilante justice, then the most responsible action business owners could take to curb illegal activities on their property would be to notify the police of the activity. If a business owner has contacted the Toledo P.D. and criminal activity continues on the premises, isn’t that a reflection on the police department? Why are we punishing the business owner because the police are incapable of eliminating crime? Basically, the business owner is being held accountable for the failures of the police department.

Perhaps the section should read:

Once a reasonable opportunity to cure the problems has been afforded to the Toledo Police Department without substantial success, all officers and administrators will be terminated, even though the department has taken all reasonable measures to achieve compliance.

Obviously that would be ridiculous, too, but at least you’d be holding the people who are actually responsible for reducing crime accountable, as opposed to just transferring responsibility to private citizens. If police—who legally carry weapons, arrest and detain citizens, and are authorized to use deadly force,—can’t eliminate crime at these locations, why would anyone think a convenience store owner can do it?

2. 4th Amendment Violation

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This one is so obvious I find it hard to even write anything of interest, but I’ll try.

721.04 (b) 5 states:

Upon the request of an authorized City official, the media form shall be provided to the official no later than eight (8) hours after the request.

Who are "authorized City officials?” What protections are in place to ensure that tapes will not be requested by police for “fishing expeditions.” How will this be different from a “general warrant,” which is specifically prohibited by the 4th Amendment? Is there any form of judicial oversight whatsoever governing these media requests? If not, how is a business owner to know if the request is authorized and legal?

Furthermore, I think an issue needs to be made of the fact that the police are effectively putting these businesses under surveillance. The government would never be allowed to monitor this private property themselves, yet it’s somehow legal for them to make businesses pay for the surveillance systems which the police can then access at any time? The only difference between the city installing the surveillance themselves and this statute is that the businesses are required to pay for and maintain the equipment. That’s actually worse than the government just installing the video surveillance themselves, and clearly no one would argue the constitutionality of such action.

By way of analogy, imagine if the government said that all business owners were required to pay for equipment to tap their own phones, and that any city official would then be allowed to access that data at any time, seemingly without judicial oversight. It’s self evidently ridiculous. So how is this any different or less egregious?

3. 5th Amendment Violation

By releasing surveillance tapes to the city without knowing why the tape is being requested, the business owner could be forced into a direct violation of his 5th Amendment right against self-incrimination. Worse, the business owner is not only being compelled in a criminal case to be a witness against himself, he’s being forced to pay for the equipment which is then violating his constitutional rights.

Additional Points of Interest:

• Is there an obligation to report a crime if no one is in danger? I wouldn’t have thought that citizens were compelled to report loitering to the police.
• This policy is blatantly discriminatory. Why are only convenience stores being forced under constant de facto government surveillance? What other businesses and organizations are required to place themselves under 24/hour monitoring? Are larger businesses such as Wal-Mart (who could actually afford to meet these obligations) required to surveil themselves? Are all areas of the Police Department on camera 24/hours per day? Police cruisers?
• 721.15 (3) - “The licensee is directly and vicariously responsible for any violations on the premises, including parking areas, by any employees, independent contractors, other persons hired by the licensee. . . .” Are there any other businesses where the owner is responsible for criminal violations committed by his employees or independent contractors without his/her knowledge? Again, this speaks to the discriminatory nature of the policy. Can you imagine a Wal-Mart being closed down because one of their employees is making calls to his bookie while at work? A McDonalds being closed because one of the tellers is caught skimming from the register?
• 721.15 (4) - What is the definition of “provide adequate security to prevent criminal activity, loitering, lurking and disorderly conduct on the business premises, including the parking lot?” Again, it just seems like an abdication of responsibility. The police aren’t able to control the crime, so let’s shift the cost and responsibility to the business owners.
• Do we need to put a camera in the bathroom in order to allow it to be open it to the public? [721.15 (6)] (I’m sure the answer is no, I just like the point too much to let it go.)
• Ultimately, this law will drive out the few remaining businesses that are willing to still serve inner city Toledo. Why would convenience store owners spend the money on a high tech surveillance system and “adequate security” knowing that their business can still be shut down at any time, even if they have done everything in their power to eliminate the criminal element from their property, per 721.22 (2).
• There are already laws on the books that could be used to deal with these issues. Why would the city of Toledo feel the need to create this huge bureaucracy as opposed to just enforcing their existing laws? Their motivations must be questioned, given the dramatic and disproportionate economic impact this will have on those least in a position to afford burdensome new regulations.