contended that its ordinance adequately protects against disclosure nor has it otherwise argued that the ordinance does not violate the tenants' interests in avoiding unwarranted accumulation and disclosure of information.
While Bolingbrook's requirement that tenants provide information may bear a rational relation to its interest in enforcing its single-family zoning, it is not clear that the Rent/Lease Permits would necessarily survive scrutiny under a less deferential standard of review. With regard to the tenants' claims, the parties have concentrated on the issues of standing and have not focused extensively on the merits of the privacy claim. Without full information on the meaning and operation of the ordinance,
and without full briefing on the proper standard of review, we are not prepared to say at this time that the ordinance does not violate the tenants' right of privacy. We therefore deny Bolingbrook's motion to dismiss that claim.
The tenants also contend that the ordinance impinges on their right to travel and their right to live in a dwelling, which they characterize as a fundamental right. They further charge that the ordinance provides no criteria by which Bolingbrook officials are to decide whether tenants who apply for a Rent/Lease Permit will actually receive one. This absence of criteria, the tenants argue, chills the exercise of their rights. The tenants further contend that the ordinance denies them the equal protection of the laws, because only renters, but not homeowners, must apply for permission to live within the Village of Bolingbrook. We offer no opinion on whether these claims state a cause of action, as Bolingbrook has not addressed any of them in its motion to dismiss.
B. Claims of Inland and the Bank
1. Equal Protection
Inland has complained that the ordinance denies it the equal protection of the laws. First, Inland asserts, section 27-201 of Bolingbrook's Code prohibits property managers from renting unless 1) a compliance letter has issued and 2) the tenants have a valid Rent/Lease Permit. Property owners, Inland asserts, are not subject to the prohibition of 27-201, thus creating a classification that violates the equal protection clause.
Instead of arguing that this classification is constitutional, Bolingbrook contends that Inland has misread the ordinance and found a classification where none exists. Bolingbrook directs us to section 27-205, which, we agree, does apply to both owners and managers. We do not agree, however, that the content of section 27-205 demonstrates that section 27-201 treats owners and managers alike.
Section 27-205 requires both owners and managers to notify the City of Bolingbrook whenever the occupancy of a rental unit will change. That section, however, does not appear to affect the prohibition in section 27-201, which by its terms applies to managers and not to owners. Reading the sections together, it appears that both owners and managers must report a change of occupancy, but owners do not otherwise violate the ordinance if they rent to tenants who lack the proper credentials.
We thus conclude that section 27-501 does treat owners and managers differently. As Bolingbrook has not argued that this classification is constitutional, we offer no opinion on that subject. Because we reject the argument Bolingbrook advances, we deny its motion to dismiss the equal protection claim.
2. Unreasonable Searches
Inland and the Bank contend that the ordinance violates the Constitution by forcing them to consent to unreasonable warrantless searches. In moving to dismiss, Bolingbrook contends that the inspections meet constitutional standards for warrantless administrative searches of closely regulated commercial enterprises. The parties direct our attention to opinions from other jurisdictions assessing the validity of apartment inspection schemes similar to Bolingbrook's. See Sokolov v. Village of Freeport, 52 N.Y.2d 341, 420 N.E.2d 55, 438 N.Y.S.2d 257 (1981) (invalidating warrantless inspections); Dome Realty, Inc. v. City of Paterson, 83 N.J. 212, 416 A.2d 334, 349-50 (1980) (upholding warrantless inspections). Bolingbrook argues that the New Jersey opinion adheres more faithfully to the Supreme Court's criteria, as interpreted in this circuit in Bionic Auto Parts v. Fahner, 721 F.2d 1072 (7th Cir. 1983), for analyzing the Fourth Amendment's operation in pervasively regulated businesses.
The Fourth Amendment condones only searches that are reasonable. When authorities have no warrant, "there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails." Camara v. Municipal Court, 387 U.S. 523, 536-37, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), quoted in Bionic Auto Parts, supra, 721 F.2d at 1078. In the City of Paterson opinion on which Bolingbrook relies, the government's need for the searches was well established on the record. The preamble to Paterson's ordinance cited a "cycle of deterioration" in local housing that existing enforcement programs could not prevent or cure. The New Jersey Supreme Court approved the City of Paterson's ordinance upon a record that disclosed that one-half of the city's rental units violated the housing code. In contrast, the record in this case does not suggest that an intractable problem of deteriorating housing prompted municipal authorities to adopt drastic enforcement measures. The housing problems that plague older industrial communities in New Jersey do not appear to be prevalent in a newly-built modern suburb like Bolingbrook, Illinois. Because Paterson's ordinance and the conditions that prompted its drafting are distinguishable, we do not find the decision of the New Jersey Supreme Court to be persuasive.
When analyzing legislation that authorizes searches of commercial property, especially in industries that are already subject to pervasive regulation, the Supreme Court has developed criteria that more specifically direct courts in their attempt to balance the government's need for the search against the intrusion that it would entail. An ordinance that provides for warrantless inspections of commercial property must meet three criteria. First, it must further a "substantial" government interest. Second, the warrantless inspections must be necessary to enforce the government's regulatory program. Third, the inspection program, "in terms of the certainty and regularity of its application," must substitute for a warrant by providing notice that the search is authorized and by confining both the scope of the search and the discretion of the officer. New York v. Burger, 482 U.S. 691, 702-03, 96 L. Ed. 2d 601, 107 S. Ct. 2636 (1987).
While we suspect that Bolingbrook's ordinance would have no trouble fulfilling the first criterion, the record does not permit a similar conclusion with regard to the second and third elements. Nothing in the record would permit us to conclude that Bolingbrook can enforce its housing code only by inspecting apartments with every change of tenant. Nor does the record before us permit us to conclude that the ordinance also defines with sufficient clarity the subject, scope and frequency of the searches. See Bionic Auto Parts, 721 F.2d at 1078 (to satisfy requirement of certainty and regularity, inspection program "must define clearly what is to be searched, who can be searched and the frequency of such searches"). Bolingbrook argues that section 27-201 limits the searches to inspections for building code violations and confines the search to a particular rental unit. We find, however, that the cited section of the ordinance says nothing about building and safety regulations but instead refers, uninformatively, to "all violations of this Chapter or code adopted by this Chapter." The record before us does not contain the portion of the Bolingbrook Code to which this refers, so we cannot say at this time that the scope of the searches is limited to building and safety code violations. Furthermore, in the portions of the ordinance before us, we find no support for defendant's assertion that the inspections are confined to particular rental units. It would seem that in multi-unit buildings many violations of the building code could be discovered only by inspection of common areas, perhaps basements, where pipes, furnaces, water heaters and fuse boxes are located. If the inspections extend to these areas, then they are not confined to a particular rental unit. If the inspections do not extend to these areas, then these less-than-complete inspections appear less necessary to furthering Bolingbrook's legitimate interests in enforcing its building and safety code, a factor that also weighs in the analysis of warrantless administrative searches.
We also cannot ascertain the frequency of the searches from the record before us. Section 27-205 provides for an inspection with each "change in occupancy, as defined in this Ordinance." As the section of the ordinance containing that definition is not in the record, we have no basis for determining whether the ordinance adequately informs Inland of the frequency of the searches.
At this point in the litigation, we cannot say that Bolingbrook has shown as a matter of law that the ordinance is valid on its face. We therefore deny defendant's motion to dismiss the fourth amendment claims.
III. Count III
Bolingbrook's motion to dismiss Count III turns on its success in striking all the claims raised in Counts I and II. As we decline to dismiss those claims, we also deny Bolingbrook's motion to dismiss Count III.
For the foregoing reasons, Bolingbrook's motion to dismiss is denied.
February 28, 1990.