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HOMETOWN CO-OP. APARTMENTS v. CITY OF HOMETOWN

May 26, 1981

HOMETOWN CO-OPERATIVE APARTMENTS, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, PLAINTIFF,
v.
CITY OF HOMETOWN, A MUNICIPAL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Hometown Co-operative Apartments, an Illinois not-for-profit corporation, brought this action pursuant to the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983, challenging the constitutionality of an amendment to the municipal building code of defendant, the City of Hometown, Illinois, making it unlawful for a new owner or lessee of residential property to occupy the premises unless a certificate of housing inspection without any deficiencies has been issued for the property within the prior three months.*fn1 The ordinance provides that the building department is to issue a certificate of inspection within fourteen days after gaining access to the property whether by consent or by warrant.*fn2 Each day of occupancy without a valid certificate of inspection constitutes a separate offense punishable by a fine of not less than ten nor more than five hundred dollars.*fn3

Plaintiff seeks injunctive relief against the enforcement of the ordinance and a declaratory judgment that the ordinance authorizes unreasonable searches in violation of the fourth amendment as applied to the states through the fourteenth amendment due process clause.*fn4 This matter is presently before the Court on the parties' cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. The parties agree, and we so find, that there are no material facts in dispute and that the question before the Court is of a purely legal nature.

This is not the first time these parties have been before the Court with respect to the constitutionality of a Hometown ordinance that authorizes point of sale inspections of residential property. Last year, this Court held that the predecessor of Hometown's present ordinance was "unconstitutional under the fourth amendment insofar as it fail[ed] to provide for a warrant as a prerequisite for the point of sale inspection." Hometown Cooperative Apartments v. City of Hometown, 495 F. Supp. 55, 60 (N.D.Ill. 1980).*fn5 Following our ruling, the City of Hometown amended its ordinance by specifically providing that:

    (e) [w]here no consent has been given to enter
  or inspect any property, no entry or inspection
  shall be made without the procurement of a
  warrant from the Circuit Court of Cook County.
  The Court may consider any of the following
  factors along with such other matters as it deems
  pertinent in its decision as to whether a warrant
  shall issue:
1.  Eyewitness account of violation.
2.  Citizen complaints.
3.  Tenant complaints.
4.  Plain view violations.
5.  Violations apparent from City records.
6.  Property deterioration.
7.  Age of property.
8.  Nature of alleged violation.
9.  Similar properties in the ...

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