Wallace: Federal court rules rental inspections unconstitutional

Last month, the United States District Court for the Southern District of Ohio ruled that mandatory rental inspections were unconstitutional warrantless searches. In the case of Baker vs. City of Portsmouth, the court ruled that the city’s mandatory rental inspections were warrantless searches and violated the Fourth Amendment of the United States Constitution. This is what local Port Huron real estate investors have been claiming for decades.

The Fourth Amendment of the United States Constitution states that the government cannot search persons, their houses, papers or effects unless a search warrant has been issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Basically, the government cannot search you, your home or your stuff without a proper probable cause search warrant.

The city of Portsmouth, Ohio, had mandatory rental inspection requirements very similar to Port Huron’s Rental Inspection Ordinance. Both programs required regular mandatory inspections and mandatory periodic inspection fees. Also, like Port Huron’s ordinance, the Portsmouth program provided for possible criminal penalties if the properties are rented without complying with the rental inspection requirements.

The 1851 Center for Constitutional Law filed the successful lawsuit on behalf of four rental property owners and one tenant. The executive director of the 1851 Center for Constitutional Law Maurice Thompson, announced:

“The Federal Court’s ruling yesterday is a victory for all property owners and tenants. Local government agents do not have unlimited authority to force entry into Ohioans’ homes or businesses. To the contrary ‘houses’ are one of the types of property specifically mentioned by the Fourth Amendment; and Ohioans have a moral and constitutional right to exclude others, even government agents, from their property. Entry requires either a warrant or an emergency, and neither is present with respect to these suspicion-less rental inspections...”

“Government inspections of one’s home frequently results in arbitrary orders to make thousands of dollars worth of untenable improvements to even the most well-maintained properties. These enactments were nothing more than a set of back-door tactics to collect revenue on the backs of Ohio property owners, while attempting to chase ‘the wrong type of owners’ out of town.”

The court made a number of findings that seem very much applicable to the Port Huron Rental Inspection Ordinance. In the court’s amended order, Judge Susan J. Dlott stated:

“[T]he Court finds that the Portsmouth [Rental Dwelling Code] violates the Fourth Amendment insofar as it authorizes warrantless administrative inspections. It is undisputed that the [Rental Dwelling Code] affords no warrant procedure or other mechanism for precompliance review... the owners and/or tenants of rental properties in Portsmouth are thus faced with the choice of consenting to the warrantless inspection or facing criminal charges, a result the Supreme Court has expressly disavowed under the Fourth Amendment.”

That sounds like this could also be applicable to the Port Huron Rental Inspection Ordinance. Although some violations of the Port Huron Rental Inspection Ordinance are “civil infractions,” continued violations and renting could result in criminal penalties, such as jail time. The judge in the Portsmouth case went on to say:

“The inspections are also significantly intrusive. As the Supreme Court has noted, the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’”

A person’s home is their castle, which should not be intruded upon. In reviewing the inspection procedure, Judge Dlott continued:

“The search inspection sheet details eighty items to be inspected throughout the entirety of the rental property. The court thus concludes that the intrusion is significant.”

Doesn’t Port Huron have a rental inspection checklist? Could that also be considered intrusive?

“When balanced against the significant privacy interest and substantial intrusion thereon, the Court concludes that the warrantless inspections authorized by the Code are unreasonable under the Fourth Amendment”

Ditto, Port Huron?

“Having determined that the Code is not saved by special needs or the closely regulated industry exceptions, the Court concludes that the Code’s failure to include a warrant provision violates the Fourth Amendment.”

The city needs a probable cause warrant to perform a rental unit inspection.

The court in the Portsmouth case also allowed the property owners to continue their case against the city to seek reimbursement for all of their inspection fees that they paid for the unconstitutional inspections. I wonder what the total inspection fees that the city of Port Huron has collected over the years. What would be the impact on the city budget if the city of Port Huron had to pay it all back to the real estate investors? Hmmm.

How will this affect Port Huron? That all depends upon city council and city administration. It also may depend upon some property owners and tenants stepping up to the plate to defend their constitutional rights. We shall see.

Matthew M. Wallace is an attorney and CPA with the Wallace Law Firm, PC in Port Huron and can be reached at 810-985-4320 or at matt@happylaw.com.