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