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 upon the interests protected by the Fourth Amendment and,
therefore, administrative searches which are not authorized by a
warrant violate the traditional safeguards provided by the Fourth
Amendment and are unconstitutional. Id. at 532-34, 87 S.Ct. at
The Court did acknowledge the strong governmental interest in
inspecting for housing code violations and established the
standard for obtaining administrative search warrants to inspect
for such violations. Id. at 538-40, 87 S.Ct. at 1736. The Court
concluded that "`probable cause' to issue a warrant to inspect
must exist if reasonable legislative or administrative standards
for conducting an area inspection are satisfied with respect to a
particular dwelling." Id. Some factors to be considered include
"the passage of time, the nature of the building (e.g., a
multi-family apartment house), or the condition of the entire
area. . . ." Id. However, the Court went on to conclude that
reasonableness is the ultimate standard. Id. As long as "a
valid public interest justifies the intrusion contemplated, then
there is probable cause to issue a suitably restricted search
In the present case, the City argues that there is no
constitutional infirmity with the Inspection Ordinance because
(1) it provides a warrant procedure for situations in which the
landlord or tenant refuses to consent to an inspection; (2) in
such situations, probable cause to issue a warrant exists under
the standard set forth in Camara; and (3) speculation about the
possibility that the City will not or cannot obtain a warrant is
not appropriate at the present time. (Defendant's Memorandum of
Law in Support of its Motion to Dismiss ("Memo. in Supp.") at
5-6.) In their Response, Plaintiffs argue that (1) warrantless
searches without consent are unconstitutional, Camara, 387 U.S.
at 528-30, 87 S.Ct. at 1731; (2) coercing an involuntary consent
to a warrantless search through the imposition of a penalty is
unconstitutional, Sokolov v. Village of Freeport, 52 N.Y.2d 341,
438 N.Y.S.2d 257, 260, 420 N.E.2d 55, 58 (1981); and (3) the
Inspection Ordinance's warrant procedure is inadequate because it
does not require the City to procure a warrant upon a refusal
to permit an inspection. (Memo. in Opp. at 6-7.) Thus, the
parties agree that both warrantless searches without consent and
searches made with involuntary consent are unconstitutional.
(Memo. in Supp. at 4; Memo. in Opp. at 6.) Therefore, on the
merits, the central disputes are whether the search warrant
provision in the Inspection Ordinance on its face
unconstitutionally coerces Plaintiffs to consent to a warrantless
search because there is no warrant requirement and whether the
Inspection Ordinance, as written, provides the requisite
Turning to the Inspection Ordinance itself, § 5-532(a) provides
that the City "shall" inspect those dwellings subject to
registration under Article XIII "at least once every three
years." (Inspection Ordinance, § 5-532(a).) Prior to inspection,
the City must give written notice of the date of inspection to
the owner of the building or his authorized agent and to the
occupant at least fifteen days prior to the date of the
inspection. Id. The notice must advise these persons of their
right to refuse inspection of the dwelling unit. Id. The City
then reserves the right to seek an administrative search
warrant in the event of any such refusal. Id. Section 5-539(a)
makes it unlawful for any person to occupy or lease any dwelling
which does not have a valid Certificate of Inspection. Id. at §
5-539. Finally, § 5-533 provides that proof of registration of a
rental property under § 5-521 of the Registration Ordinance shall
constitute a temporary Certificate of Inspection which authorizes
an owner to rent the dwelling until the initial inspection is
performed. Id. at § 5-533.
The City maintains that because the Inspection Ordinance
provides for a warrant procedure and because it would follow the
procedure outlined in Camara for seeking a warrant, the
Inspection Ordinance is constitutionally sound. (Memo. in Supp.
at 5.) Next, the City argues that the Inspection Ordinance does
not coerce Plaintiffs into involuntarily consenting to a
warrantless search because Plaintiffs are proceeding under the
false assumption that they will be subject to penalties for
noncompliance upon a refusal to permit inspection. Id. at 3.
The City maintains that it has the right to seek a warrant
and will automatically do so in the event it cannot obtain
consent to inspect. Id. Finally, the City insists that it will
not impose penalties for noncompliance without first obtaining a
warrant to inspect the premises. Id.
In spite of the City's contentions, Plaintiffs maintain that
the Inspection Ordinance is unconstitutional because it coerces
involuntary consent through the imposition of a criminal penalty.
(Memo in Opp. at 21-22.) Plaintiffs cite cases in which courts
found similar inspection ordinances unconstitutional because they
forced the property owners to choose between consenting to a
warrantless inspection and facing criminal penalty. Id. at
7-15; Sokolov, 438 N.Y.S.2d at 260-61, 420 N.E.2d at 58-59;
Pashcow v. Town of Babylon, 96 Misc.2d 1036, 410 N.Y.S.2d 192,
193-94 (1976); Wilson v. City of Cincinnati, 46 Ohio St.2d 138,
346 N.E.2d 666, 670 (1976).
Plaintiffs further argue that the lack of an express warrant
requirement is the vital flaw which renders the ordinance
unconstitutional. (Memo. in Opp. at 21-22.) In support of this
proposition, Plaintiffs cite Currier v. City of Pasadena,
48 Cal.App.3d 810, 121 Cal.Rptr. 913, 916, cert. denied,
423 U.S. 1000, 96 S.Ct. 432, 46 L.Ed.2d 375 (1975), which involved an
ordinance similar to Peoria's. Id. at 22. The Currier Court
held the ordinance to be unconstitutional because "[t]he
ordinance must be judged by what could happen under it," not by
what the city represents would occur. Currier, 121 Cal.Rptr. at
916. Thus, Plaintiffs maintain that because the City reserves the
right to seek a warrant, the decision is discretionary and
therefore unconstitutional. (Memo. in Opp. at 25.)
This Court finds that the plain language of the Inspection
Ordinance can be read as incorporating a warrant requirement into
the inspection procedure, thereby successfully defeating a claim
that it is unconstitutional on its face. As to the question of
whether the Inspection Ordinance has been or will be
unconstitutionally applied, that issue is not ripe for judicial
(1) The Inspection Ordinance on Its Face
Despite Plaintiffs' protestations to the contrary, the plain
language of the Inspection Ordinance, when viewed as a whole,
incorporates a warrant requirement into the inspection procedure.
In Gomez v. United States, 490 U.S. 858, 864, 109 S.Ct. 2237,
2241, 104 L.Ed.2d 923 (1989), the Supreme Court issued a reminder
that, when interpreting statutory schemes, "[i]t is our settled
policy to avoid an interpretation of a federal statute that
engenders constitutional issues if a reasonable alternative
interpretation poses no constitutional question." The Court
quoted from its decision in Pilot Life Insurance Co. v.
Dedeaux, 481 U.S. 41, 51, 107 S.Ct. 1549, 1555, 95 L.Ed.2d 39
(1987), that "[I]n expounding a statute, we [are] not . . .
guided by a single sentence or member of a sentence, but look to
the provisions of the whole law, and to its object and policy."
(Internal quotation marks omitted.)
The purpose of the Inspection Ordinance is to make certain that
various health and life-threatening violations are not present in
rental dwellings. (Inspection Ordinance, § 5-531.) To make this
goal a reality, § 5-532(a) provides that all rental dwellings
shall be inspected at least once every three years. Id. at §
5-532(a). Camara requires consent or a warrant for a valid
administrative search to occur. Camara, 387 U.S. at 532-34, 87
S.Ct. at 1733. Thus, the City needs consent or a warrant to
inspect rental properties. The plain language of the Inspection
Ordinance makes the inspections mandatory. Absent consent, the
City must exercise its right to seek a warrant. If it does not
seek a warrant, then it cannot fulfill the main purpose of the
Inspection Ordinance, inspecting all rental properties to
eliminate deleterious conditions.
If the Court reads into § 5-532(a) a requirement that the City
exercise its right
to seek a warrant when denied consent to inspect (if the City is
going to deny the landlord a Certificate of Inspection), then
Plaintiffs cannot claim any violation of their constitutional
rights. If the Court adopted Plaintiffs' logic here, then it
would be ignoring the Supreme Court's directive that courts
choose a "reasonable alternative interpretation" that does not
require them to reach constitutional issues. See Gomez, 490
U.S. at 863-64, 109 S.Ct. at 2241. Because § 5-532(a) of the
Inspection Ordinance requires the City to inspect, it is read
to require the City to seek a warrant to inspect when refused
consent. This interpretation allows the City to fulfill the
mandate of the Inspection Ordinance and avoids any
unconstitutional application of the Inspection Ordinance.
Accordingly, the language of the Inspection Ordinance itself
compels the Court to grant Defendant's Motion to Dismiss in that
the Inspection Ordinance is facially valid.
(2) The Inspection Ordinance as Applied
Plaintiffs claim that the Inspection Ordinance
unconstitutionally coerces them to consent to warrantless
administrative searches of their rental property. (Complaint at ¶
2.) This Court will use the ripeness doctrine "to determine
whether [this] dispute has yet matured to a point that warrants
decision." See CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H.
COOPER, FEDERAL PRACTICE AND PROCEDURE, § 3532 (Cumm.Supp. 1996).
In deciding this question, the primary concern "is whether the
case involves uncertain or contingent future events that may not
occur as anticipated, or indeed may not occur at all." Id.
Thus, whether or not a case is ripe depends upon when it is
brought. Armstrong World Indus., Inc. v. Adams, 961 F.2d 405,
411 n. 13 (3d Cir. 1992).
The ripeness doctrine is used by courts "to enforce prudential
limitations upon their jurisdiction," giving the doctrine a
prudential component. Peick v. Pension Ben. Guar. Corp.,
724 F.2d 1247, 1261, 1261 n. 15 (7th Cir. 1983), cert. denied,
467 U.S. 1259, 104 S.Ct. 3554, 82 L.Ed.2d 855 (1984). Although there
is some disagreement as to what extent the doctrine is grounded
in the "case or controversy" requirement of Article III, it is
clear that it at least partially evolved from that requirement.
Id. at 1261 n. 15; see Armstrong, 961 F.2d at 411 n. 12. As
such, much of the case law deciding questions of ripeness
contains overlapping elements of both "case or controversy" and
"prudential limitations" jurisprudence.
One test of whether a claim is ripe for declaratory relief
rests on a court's determination of whether:
[T]he facts alleged, under all the circumstances,
show that there is a substantial controversy, between
parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a
Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270,
273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); Government
Suppliers Consol. Serv., Inc. v. Bayh, 975 F.2d 1267, 1274 (7th
Cir. 1992), cert. denied, 506 U.S. 1053, 113 S.Ct. 977, 122
L.Ed.2d 131 (1993). Another test for determining whether a claim
is ripe focuses on the "fitness of the issues for judicial
decision" and "the hardship to the parties of withholding court
consideration." Abbott Laboratories v. Gardner, 387 U.S. 136,
148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967).
In the present case, Plaintiffs seek a declaration that the
Inspection Ordinance is unconstitutional. (Complaint at ¶ a.) The
Declaratory Judgment Act requires that there be an "actual
controversy" between the parties. 28 U.S.C. § 2201(a). To
demonstrate that a claim brought in the context of a request for
declaratory relief presents a controversy ripe for judicial
The disagreement must not be nebulous or contingent
but must have taken on fixed and final shape so that
a court can see what legal issues it is deciding,
what effect its decision will have on the
adversaries, and some useful purpose to be achieved
in deciding them.
Peick, 724 F.2d at 1261 (7th Cir. 1983) (quoting Public Serv.
Comm'n v. Wycoff Co., 344 U.S. 237, 244, 73 S.Ct. 236, 240, 97
L.Ed. 291 (1952)). When a court must decide a constitutional
issue before granting declaratory relief, it should be
"particularly vigilant" to make certain the case is ripe. Artway
v. Attorney Gen. of State of N.J., 81 F.3d 1235, 1249 (3d Cir.
1996), citing Communist Party of the U.S. v. Subversive
Activities Control Bd., 367 U.S. 1, 81, 81 S.Ct. 1357, 1402, 6
L.Ed.2d 625 (1961).
Thus, in order to present a substantial controversy which is
fit for judicial decision, Plaintiffs must demonstrate that the
possibility that the Inspection Ordinance may be
unconstitutionally applied is not merely contingent. Plaintiffs
must show that there is a "realistic danger of sustaining a
direct injury as a result of the statute's operation or
enforcement." Babbitt v. United Farm Workers Nat. Union,
442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895, judgment
vacated, 442 U.S. 936, 99 S.Ct. 2872, 61 L.Ed.2d 305 (1979).
Plaintiffs do not have to await consummation of the injury, but
the injury must, at the very least, be impending. Id. at
296-98, 99 S.Ct. at 2308 (quoting Pennsylvania v. State of West
Virginia, 262 U.S. 553, 43 S.Ct. 658, 663, 67 L.Ed. 1117,
aff'd, 263 U.S. 350, 44 S.Ct. 123, 67 L.Ed. 1144 (1923)).
In Hometown Co-Operative Apartments v. City of Hometown,
515 F. Supp. 502 (N.D.Ill. 1981), the Northern District of Illinois
dealt with an ordinance similar to the one in the present
case.*fn1 Like the City's Inspection Ordinance, the Hometown
ordinance provided a warrant procedure for situations in which a
landlord refused to consent to an inspection but was ambiguous as
to whether the municipality was required to obtain a warrant in
the event of a refusal to consent to inspection. Id. at 503.
The plaintiffs in Hometown also sought a declaratory judgment
that the ordinance was unconstitutional. Id. The Hometown
court held that the issue was not ripe because there was no
"real, substantial controversy between parties having adverse
legal interests, a dispute definite and concrete, not
hypothetical or abstract." Id. at 504. (Internal quotation
marks omitted.) In other words, the matter did not present a
justiciable actual controversy within the context of the
Declaratory Judgment Act because the alleged injury was
contingent and abstract rather than impending.
In the present case, the City makes two arguments why the
Inspection Ordinance should not be declared unconstitutional.
First, it argues that it will act in good faith and seek a
warrant upon a refusal to permit inspection. (Memo. in Supp. at
3.) Second, the City further argues that Plaintiffs do not allege
that the City has refused to seek a warrant or has been
unsuccessful in seeking a warrant, making the matter not ripe
because no "impending" injury is presented. Id. at 6. The City
concludes that "speculation and conjecture as to possible future
events is inappropriate at this time." Id. (quoting Hometown,
515 F. Supp. at 504).
Notwithstanding the City's arguments, if Plaintiffs refuse
consent and the City declines to pursue a warrant, Plaintiffs
will be forced to consent to a warrantless search to obtain a
valid Certificate of Registration in order to legally rent their
premises. (Memo. in Opp. at 22.) However, according to the
rationale of Hometown and the guidelines set forth in Abbott,
Maryland Casualty, Government Suppliers, and Peick, this
contingent possibility is insufficient to render the Inspection
Ordinance unconstitutional because the alleged injury is not
immediate and real. "[T]he possibility that circumstances will
arise in the future [in which a Plaintiff will be coerced into
consenting to a warrantless inspection] does not state a case or
controversy ripe for judicial determination." Hometown,
515 F. Supp. at 505. Plaintiffs' constitutional argument does not pose
an issue that is fit for judicial decision at the present time.
See Abbott, 387 U.S. at 147-49, 87 S.Ct. at 1515. Further, they
face no hardship at this time if the Court finds this matter
unripe. See id. at 153-54, 87 S.Ct. at 1518 (inferring that the
requisite hardship exists when plaintiffs must immediately and
significantly change how they conduct their affairs).
Accordingly, the Court grants without prejudice Defendant's
Motion to Dismiss in that Plaintiffs' claim that the Inspection
Ordinance is unconstitutional as applied is not ripe for
B. Fair Housing Act
Plaintiffs allege that the Inspection Ordinance as construed
and applied violates 42 U.S.C. § 3604(a) of the Fair Housing Act
("Act"). (Complaint at ¶ 2, request for relief at ¶ b.) Section
[I]t shall be unlawful —
(a) To refuse to sell or rent after the making of a
bona fide offer, or to refuse to negotiate for the
sale or rental of, or otherwise make unavailable or
deny, a dwelling to any person because of race,
color, religion, sex, familial status, or national
Fair Housing Act, Title 42 U.S.C. § 3604(a).
When reviewing a Motion to Dismiss, a court construes the facts
in favor of the non-moving party. Bontkowski, 998 F.2d at 461.
Even so, Plaintiffs' claim, as pleaded, fails to state a cause of
action under § 3604(a). Assuming arguendo that Plaintiffs are
proper plaintiffs and the City is a proper defendant under §
3604(a) of the Act, Plaintiffs must demonstrate that the City's
adoption of the Inspection Ordinance was discriminatory according
to the Act. See 42 U.S.C. § 3604(a).
Plaintiffs make no allegation that the City is refusing to sell
or rent a dwelling or refusing to make a dwelling available to
any Plaintiff, or to any other person. See 42 U.S.C. § 3604(a);
Housing Justice Campaign v. Koch, 164 A.D.2d 656, 565 N.Y.S.2d 472,
appeal denied, 78 N.Y.2d 858, 575 N.Y.S.2d 454,
580 N.E.2d 1057 (1991). Plaintiffs make no allegations whatsoever with
respect to race, color, religion, sex, familial status, or
national origin. See 42 U.S.C. § 3604(a). Plaintiffs have
failed to allege any facts in regard to a violation of the Fair
Housing Act, let alone facts sufficient to state a claim.
Accordingly, the Court grants Defendant's Motion to Dismiss as to
Plaintiffs' Fair Housing Act claim and sets a 21-day deadline for
Plaintiffs to replead.
For the reasons set forth above, Defendant's Motion To Dismiss
[# 3] is GRANTED on the merits in that the Inspection Ordinance
is constitutional on its face and GRANTED WITHOUT PREJUDICE in
that the issue of whether the Inspection Ordinance is
constitutional as applied is not ripe for adjudication at this
time. The Motion to Dismiss is GRANTED as to Plaintiffs' Fair
Housing Act allegation, and Plaintiffs have 21 days to replead