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February 23, 1998


The opinion of the court was delivered by: GOTTSCHALL


 Plaintiffs Jack Jabrosky, Pamela Jabrosky, and Debra Taylor *fn1" ("plaintiffs") have brought this action under 42 U.S.C. § 1983 against the Village of Park Forest ("the Village"), challenging the constitutionality of the Village's annual inspections of rented single-family homes and of certain provisions of the Village's Housing Code. *fn2" The Village is a home-rule municipality incorporated and operating pursuant to Article IV, Section VI of the Illinois Constitution. It is a "person" within the meaning of 42 U.S.C. § 1983. The plaintiffs are tenants who reside in rented single-family homes within the Village.

 In their complaint, plaintiffs attack the constitutionality of the inspection program and the Housing Code provisions on four grounds, all of which are based on the Fourth Amendment as incorporated by the Fourteenth Amendment. Section 16-3(c) of the Housing Code requires the owner or occupant of a property to provide inspectors access to the property. In Count I, plaintiffs argue that § 16-3(c) of the Housing Code allows the Village to seek consent from the landlord to perform inspections without a warrant and that this provision therefore violates the exclusive right of tenants to decide whether or not to consent to a housing inspection. If a landlord or tenant objects to the inspection, § 16-3(c) requires the Village to obtain either an administrative search warrant or a court order before conducting the inspection. In Count II, plaintiffs contend that the inspection program is unconstitutional because the Village is permitted to obtain a search warrant based merely upon the passage of time between inspections. Plaintiffs argue that a more rigorous standard of probable cause should apply, under which the Village would have to demonstrate a reasonable basis for believing that a housing code violation is present in order to obtain a warrant. In Count III, plaintiffs argue that the inspection program is unconstitutional because it is not based on reasonable legislative or administrative standards. Finally, in Count IV, plaintiffs assert that § 16-4(c)(2) of the Housing Code impermissibly burdens the exercise of the Fourth Amendment right to demand a search warrant by charging a $ 60 fee when the Village is unable to obtain consent and is forced to obtain a search warrant. *fn3"

 Plaintiffs and the Village have each moved for summary judgment on all four counts. In support of their motion, plaintiffs submitted a joint stipulation of facts. In addition to the joint stipulation of facts, the Village filed a supplemental statement of facts in support of its motion. Plaintiffs dispute many of the facts in the Village's supplemental statement. Nevertheless, plaintiffs and the Village contend that there are no disputed issues of material fact and that the claims are ripe for summary judgment.


 In January 1994, the Village amended the Housing Code to authorize inspections by an administrative official of rental properties at "all reasonable times." The annual rental inspection program at issue here *fn5" is in addition to the Village's change-of-occupancy inspection program, which applies to both rental and owner-occupied properties. Prior to January 1994, the Village inspected rental properties only after tenants moved out and before new tenants moved in.

 The Village conducts routine annual inspections of the interior of rented, non-owner-occupied single-family homes. The Village does not conduct such inspections of occupied condominiums, duplexes, units in multi-family apartment complexes, or owner-occupied homes, but conducts exterior inspections and interior common area inspections of these types of properties. Inspections of these types of properties also occur during licensing and reoccupancy permitting and upon tenant complaint.

 The Village requires that the owner of a rented, single-family home ("the landlord") provide access on demand to all parts and areas of the property for the inspection. The landlord is charged an inspection fee of $ 100 per inspection. Under § 16-3(c) of the Housing Code, if a landlord or tenant objects to the inspection, the Village must obtain either an administrative search warrant or a court order. Search warrants issued under § 16-3(c) are served on the occupants of the house by an administrative official and a police officer. If the occupant is not at home, a notice is posted on the door of the house to inform the occupant of the existence of the search warrant.

 The Village amended the Housing Code in June 1995 to charge an additional $ 60 fee if a landlord or a tenant requires the Village to obtain a search warrant. Housing Code §§ 16-4(c)(1) and (2). The $ 60 fee is charged to the landlord, regardless of whether it is the landlord or the tenant who objects to the search.

 Plaintiffs are individuals who currently rent single-family homes in the Village. As such, they are subject to inspections under the Village's Housing Code. They do not want to have their homes searched by the Village without either their explicit consent or a valid search warrant issued upon probable cause.

 The Village contacted Taylor's landlord to arrange an inspection. When the landlord objected, the Village obtained a warrant. The warrant was not based on complaints by Taylor nor was it based on a belief that there were Housing Code violations in Taylor's house. The warrant was based on the Village's allegation that an administrative inspection of Taylor's home had not occurred within the past year. Taylor was not present when the Village inspector went to her home. The inspection did not occur, and the inspector left a notice informing Taylor of the search warrant. The Village did not attempt to re-serve the warrant. Instead, the Village filed a petition for rule to show cause in the Cook County Circuit Court asking that Taylor, her landlord, and her 12-year old daughter, Afton Brown, be held in contempt and imprisoned for a minimum period of 24 hours. The Village states that it was not aware that Brown was Taylor's 12-year old daughter. The contempt proceedings have been stayed pending the outcome of this litigation.

 The Jabroskys' landlord objected to the inspection of the Jabroskys' property. The Village obtained a search warrant and served it on the Jabroskys. When the Jabroskys objected to the search, the inspector did not perform the inspection. However, the Jabroskys later allowed their home to be inspected.


 Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The evidence must be considered in the light most favorable to the non-moving party and all inferences must be resolved in that party's favor. Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 511 (7th Cir. 1996). Of course, since plaintiffs and the Village have each moved for summary judgment, the court must determine if either side is entitled to summary judgment.

 1. Count I - Consent

 Plaintiffs claim that the Housing Code unconstitutionally infringes the tenant's exclusive right to consent or withhold consent to an inspection. In Camara v. Municipal Court, 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967), the Supreme Court held that if a tenant does not consent to a search of his or her home, government officials must obtain a search warrant before conducting an administrative search or inspection. *fn6" Numerous cases have made clear that a landlord's consent is insufficient to authorize a search of a tenant's home; the right to consent or not consent to a search belongs to the tenant. See, e.g., Chapman v. United States, 365 U.S. 610, 616-17, 5 L. Ed. 2d 828, 81 S. Ct. 776 (1961); United States v. Chaidez, 919 F.2d 1193, 1201 (7th Cir. 1990).

 Plaintiffs argue that § 16-3(c) permits the Village to obtain consent for an inspection from the landlord, without ever obtaining the consent of the tenant. Section 16-3(c) provides in pertinent part:

The owner or occupant of every dwelling . . . shall give the administrative official or his authorized representative free access to such dwelling . . . . If any owner or occupant of any dwelling . . . refuses to permit free access or entry into such dwelling . . . with respect to which an inspection authorized by this Code is sought to be made, the administrative official shall petition and obtain a warrant to inspect or an order from a court of competent jurisdiction directing compliance with the inspection requirements of this chapter.

 Plaintiffs attack the constitutionality of § 16-3(c) both on its face and as applied to them. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987). In arguing the facial unconstitutionality of § 16-3(c), plaintiffs emphasize its disjunctive language: "The owner or occupant of every dwelling . . . shall give the administrative official or his authorized representative free access to such dwelling . . . ." ...

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