United States District Court, Northern District of Illinois, E.D
May 26, 1981
HOMETOWN CO-OPERATIVE APARTMENTS, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, PLAINTIFF,
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
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
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
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 area.
10. Documented violations of similar properties
in the area.
11. Passage of time since last inspection.
12. Previous violations on the property.
Cause for issuance of a warrant shall be deemed
to exist in light of reasonable legislative and
administrative standards which show that there is
reason to believe that a condition of
nonconformity exists with respect to a particular
property in violation of a City ordinance.
Hometown Ordinance No. 16-1977, as amended September 9, 1980,
§ 21.127(e). The City also made other changes in the ordinance
not relevant here. We must now decide whether the inclusion of
a warrant procedure in the ordinance covering situations in
which a property owner or tenant refuses to consent to an
inspection remedies the earlier constitutional defect.
In Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18
L.Ed.2d 930 (1967), the Supreme Court held "that administrative
searches of the kind at issue here are significant intrusions
upon the interests protected by the Fourth Amendment, that such
searches when authorized and conducted without a warrant
procedure lack the traditional safeguards which the Fourth
Amendment guarantees to the individual." 387 U.S. at 534, 87
S.Ct. at 1733. While the Court recognized that the fourth
amendment provides that "no Warrants shall issue, but upon
probable cause," it concluded, after balancing the governmental
and individual interests involved in area-wide code enforcement
inspections, that probable cause to issue a warrant to inspect
exists "if reasonable legislative or administrative standards
for conducting an area inspection
are satisfied with respect to a particular dwelling." 387 U.S.
at 538, 87 S.Ct. at 1736. The Court enumerated several factors
that might constitute sufficient reason to conduct an
inspection, including the passage of time, the nature of the
building, or the condition of the area, but it expressly
rejected the contention that probable cause must "depend upon
specific knowledge of the condition of the particular
dwelling." Id. Courts in other jurisdictions have similarly
upheld the constitutionality of code enforcement inspections
and ordinances similar to the one involved in the case at bar
as long as a warrant is required when the owner or occupant of
the property refuses to voluntarily consent to the inspection.
Currier v. City of Pasadena, 48 Cal.App.3d 810, 121 Cal.Rptr. 913,
cert. denied, 423 U.S. 1000, 96 S.Ct. 432, 46 L.Ed.2d 375
(1978); Wilson v. City of Cincinnati, 46 Ohio 2d 138,
346 N.E.2d 666 (1976).
By providing for a warrant procedure in cases in which a new
owner or lessee of property refuses to consent to an
inspection by the building department, the City of Hometown
has remedied the fatal flaw in its earlier point of sale
inspection ordinance. The property owner is no longer forced
to choose between consenting to a warrantless search or
subjecting himself or herself to substantial fines for failure
to procure a certificate of inspection. If the property owner
or tenant refuses to consent to the inspection, the city must
procure a warrant in order to gain access to the property. To
this extent, the Hometown ordinance is now in accord with the
fourth amendment proscription of unreasonable searches and
The plaintiff maintains, however, that the ordinance — even
as amended — is unconstitutional because it still has the
effect of coercing involuntary consent to a warrantless search
at the risk of substantial penalty in situations in which the
city either refuses to or cannot procure a warrant consistent
with the reasonable cause to believe standard set forth in
Camara. In such circumstances, plaintiff argues that the
property owner or lessee is in the same position as if the
warrant procedure were not incorporated in the ordinance. Since
the ordinance flatly prohibits occupancy of a residence as a
new owner or tenant without a valid certificate of inspection,
plaintiff contends that, in a situation where the city does not
or cannot procure a warrant, the property owner must either
consent to a warrantless search or risk substantial fines just
as before the ordinance was amended.
Plaintiff's argument assumes that there will be situations
in which the City of Hometown either will refuse to seek a
warrant, presumably in bad faith and contrary to the letter
and spirit of the ordinance, or will be unable to procure one,
and that in such circumstance the city will force a property
owner or tenant to consent to a warrantless search on the
threat of substantial penalty. This speculation and conjecture
as to possible future events is inappropriate at this time,
however, in light of the facial validity of the Hometown
ordinance as discussed above.
In order to present a justiciable case or controversy ripe
for judicial decision, there must be "a real, substantial
controversy between parties having adverse legal interests, a
dispute definite and concrete, not hypothetical or abstract."
Babbitt v. United Farm Workers National Union, 442 U.S. 289,
298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1978). The Supreme Court
itself has noted that "[t]he difference between an abstract
question and a `case or controversy' is one of degree, of
course, and is not discernible by any precise test." Id., 442
U.S. at 297, 99 S.Ct. at 2308. At the core of the
justiciability issue, however, is the ripeness of a particular
question for decision, and it is clear that a court should
exercise discretion when "the tendered case involves uncertain
and contingent future events that may not occur as anticipated,
or indeed may not occur at all." Wright, Miller & Cooper,
Federal Practice and Procedure, § 3532 at 238 (Cumm.Supp.
Speculation about the possibility of future unconstitutional
acts of officials under a statute is insufficient to create a
ripe case or controversy. In Boyle v. Landry, 401 U.S. 77, 91
S.Ct. 758, 27 L.Ed.2d 696 (1971), the Court refused to enjoin
enforcement of a criminal statute that had never been used or
asserted against the plaintiffs in the manner that they feared.
The Court noted that the mere possibility of future bad faith
prosecutions under the statute was insufficient to state a
justiciable claim. Further, there was nothing to indicate, as
in the case at bar, that the plaintiffs were in danger of
suffering irreparable injury if the state was left free to
prosecute under the statute in the normal manner. Similarly, in
Goodman v. Parwatikar, 570 F.2d 801 (8th Cir. 1978), the
plaintiff complained about the possibility of future arbitrary
and uncontrolled official use of discretion under a state
statute authorizing the discharge of voluntarily committed
mental patients. The court held that it did not need to reach
the question of the constitutionality of the statute since the
patient in question had not been discharged under the statute
and there were no plans to do so in the future. The court
concluded, "[t]hus, we are not presented with a factual
situation in which the validity of the statute is actually
involved in an adversarial context." 570 F.2d at 805-06.
In the same vein, the possibility that circumstances will
arise in the future, as postulated by the plaintiff herein, in
which residents of the City of Hometown will be forced to
consent to inspections against their will because the city
either refuses to seek a warrant or is unable to procure one
under the relatively liberal standards set down in the
ordinance consistent with Camara, does not state a case or
controversy ripe for judicial determination.
Accordingly, for the reasons set forth in this opinion,
defendant's motion for summary judgment is granted and
plaintiff's motion for summary judgment is denied. It is so