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TOBIN v. CITY OF PEORIA

August 29, 1996

STEVEN TOBIN, ET AL., PLAINTIFFS,
v.
CITY OF PEORIA, ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Mihm, Chief Judge.

  ORDER

This matter is before the Court on Defendant's Motion to Dismiss [# 3]. For the reasons set forth below, the Motion to Dismiss is GRANTED on the merits as to the issue of whether the Ordinance in question is constitutional on its face and GRANTED WITHOUT PREJUDICE on the issue of whether the Ordinance is constitutional as applied because that issue is not ripe for adjudication at this time. The Motion to Dismiss is GRANTED as to Plaintiffs' Fair Housing Act allegations, and Plaintiffs have 21 days to replead the deficient allegation.

Factual Background

In 1995, the City of Peoria ("City") adopted the Rental Registration and Inspection Ordinances ("Rental Ordinances"), three ordinances relating to the registration and inspection of rental properties. The first, ordinance # 13,908, amended Chapter 5 of the Code of the City of Peoria (the "Code") by adding Article XIII, §§ 5-520 through 5-530. (Exhibit A to Plaintiffs' Complaint, hereinafter "Registration Ordinance".) The second, ordinance # 13,913, amended Chapter 5 of the Code by adding a preamble, as well as extending Article XIII to include §§ 5-531 through 5-544. (Exhibit B to Plaintiffs' Complaint, hereinafter "Inspection Ordinance".) The third, ordinance # 13,957 amended Chapter 5 of the Code by adding additional language to § 5-531 of Article XIII. (Exhibit C to Plaintiffs' Complaint.) Only the constitutionality of the Inspection Ordinance, §§ 5-531, et seq., is at issue in this case. (Complaint at ¶ 91.)

The Rental Ordinances require owners of rental properties to register their properties with the City and to have these properties inspected for compliance with the City's housing, environmental, and building codes. (Rental Ordinances, §§ 5-520, et seq.) Specifically, § 5-521 of the Registration Ordinance requires every owner of an occupied or vacant dwelling to file a registration statement for each such property with the City. (Registration Ordinance, § 5-521.) Section 5-532(a) of the Inspection Ordinance provides that all dwellings constructed prior to 1961 shall be subject to inspection at least once every three years. (Inspection Ordinance, § 5-532(a).) Section 5-531 limits the interior inspections to the 15 specifically enumerated health and life-threatening violations. Id. at § 5-531. Only the constitutionality of the Inspection Ordinance, §§ 5-531, et seq., is at issue here. (Complaint at ¶ 91.)

Pursuant to § 5-534(a), a Certificate of Inspection issues to the owner of the property once the inspection is complete and the property is found to be in compliance. (Inspection Ordinance, § 5-534(a).) If the property is found to have one or more health or life-threatening violations or an exterior housing code or environmental violation, the City is to provide written notice to the owner citing these violations and setting a reinspection date by which time the owner must correct these violations. Id. at § 5-534(b). Section 5-532 requires the City to give written notice of the date of inspection of the dwelling to the authorized agent or owner of the property, as well as to the occupant. Id. at § 5-532(a). Section 5-532(a) also provides that this notice "shall advise the owner or authorized agent and occupant of the inspection, their right to refuse inspection of the dwelling unit, and the City's right to seek issuance of an administrative search warrant in the event of any such refusal." Id. Pursuant to § 5-539(a), it is unlawful for any person to occupy or lease any dwelling without a Certificate of Inspection. Id. at § 5-539. However, § 5-533(a) provides that proof of registration pursuant to § 5-521 of the Registration Ordinance shall constitute a temporary Certificate of Inspection which allows the owner to rent the property until the initial inspection has been performed pursuant to § 5-532. Id. at § 5-533(a). Finally, § 5-539(b) enumerates the penalties for noncompliance. Id. at § 5-539(b).

Procedural Background

Plaintiffs are 69 owners of rental dwellings which are subject to inspection under the Peoria Municipal Code, Chapter 5, Article XIII, §§ 5-531, et seq., the Inspection Ordinance. (Complaint at ¶¶ 4-72.) Plaintiffs filed a civil rights action for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 3604, and 28 U.S.C. § 2201, 2202, in an effort to enjoin enforcement of the Ordinance. Id. at ¶ 1.

Plaintiffs allege that the Inspection Ordinance is unconstitutional on its face and as construed and applied because it coerces them to consent to warrantless administrative searches of their rental properties in violation of their Fourth Amendment right to be free from unreasonable searches and seizures. Id. Plaintiffs further allege that the Inspection Ordinance on its face and as construed and applied violates 42 U.S.C. § 3604(a) of the Fair Housing Act. Id.

The City filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. (Motion to Dismiss at 1.) The City asserts the following claims in support of its Motion: first, the Inspection Ordinance does not violate the Fourth Amendment restriction against unreasonable searches and seizures; second, there is no allegation in Plaintiffs' Complaint that the Inspection Ordinance has been applied in any unconstitutional manner to any of the Plaintiffs, and, therefore, the matter is not ripe for decision by this Court; and, third, Plaintiffs' Complaint is inadequate to put the Defendant on notice as to how the Inspection Ordinance violates the Fair Housing Act, 42 U.S.C. § 3604(a), or how any of the Plaintiffs has standing to bring an action under this section of the Fair Housing Act. Id.

In their Response, Plaintiffs argue that the Inspection Ordinance unconstitutionally coerces them to consent to warrantless administrative searches of their rental premises in order to obtain the required Certificate of Inspection and, thus, to avoid payment of a penalty for failure to comply. (Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion to Dismiss ("Memo. in Opp.") at 25.) Plaintiffs argue that the Inspection Ordinance's warrant procedure does not remedy this constitutional defect because it directs the City to advise landlords and tenants of their right to seek issuance of an administrative search warrant rather than requiring the City to procure the warrant. Id.

Discussion

In resolving a motion to dismiss, courts must consider all well-pled facts as true and must draw all inferences in favor of the non-moving party. Bontkowski v. First Nat. Bank of Cicero, 998 F.2d 459, 461 (7th Cir.), cert. denied, 510 U.S. 1012, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993). In ruling on a motion to dismiss, courts consider whether relief is possible under any set of facts that could be established consistent with the allegations in the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Courts dismiss a claim only if it is beyond doubt that no set of facts would entitle the plaintiffs to relief. Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir. 1993).

A. Warrantless Administrative Searches

The leading case on the issue of warrantless administrative searches is Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Camara involved a tenant who refused to consent to an inspection of his property and then sued to enjoin prosecution for violation of a housing code. Camara, 387 U.S. at 525-28, 87 S.Ct. at 1729-30. The inspectors were acting pursuant to a San Francisco ordinance which allowed them to enter a building without a warrant and check for possible building code violations. Id. at 525-27, 87 S.Ct. at 1729. The Supreme Court held that warrantless searches of residential property by municipal inspectors violated the Fourth Amendment protection against unreasonable searches and seizures. Id. at 528-34, 87 S.Ct. at 1731-33. The Court reasoned that administrative searches for housing code violations significantly intrude ...


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