# City to homeowner: Let us in, or get out



## Bob Hubbard (Oct 5, 2009)

[FONT=Palatino, Georgia, Times New Roman, Times, serif][SIZE=+2]City to homeowner: Let us in, or get out[/SIZE][/FONT]
   [FONT=Palatino, Georgia, Times New Roman, Times, serif][SIZE=+1]Man evicted from house for resisting warrantless inspections[/SIZE][/FONT]


> [SIZE=-1]Posted: October 04, 2009
> 11:33 pm Eastern
> 
> [/SIZE] [FONT=Palatino, Times New Roman, Georgia, Times, serif]By Drew Zahn[/FONT]
> ...


http://www.wnd.com/index.php?fa=PAGE.view&pageId=111795


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## Ceicei (Oct 5, 2009)

WHAT??  Whatever happened to the Bill of Rights? :rpo:

- Ceicei


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## Bob Hubbard (Oct 5, 2009)

Google the guys name....
"Michael Marcavage"

interesting.


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## Ceicei (Oct 5, 2009)

Bob Hubbard said:


> Google the guys name....
> "Michael Marcavage"
> 
> interesting.



Ummm, interesting.  Is this (from searching on Google) the same Michael that is in the OP article?  If so, he is definitely seeking publicity.  However, he is right to a point. Warrantless searches aren't something to be taken lightly.

- Ceicei


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## Bob Hubbard (Oct 5, 2009)

It seems on first glance it is, but I'm unable to find any other info on this case to check atm.


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## shesulsa (Oct 5, 2009)

There is the distinct possibility these are two separate agendas - the Christian one and the Fourth Amendment one.


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## Flea (Oct 5, 2009)

I'm curious as to whether his tenants also lost access to their own homes as well?  That would suck, to say the least.


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## Makalakumu (Oct 5, 2009)

Even if there is something more to this story and something creepy is going on, in terms of principle, this violates the Constitution.  They guy could have the building stuffed with kiddie porn and it would still be wrong for the police to barge in without a warrant and prevent him from entering.  

This is another example of what Senator Russ Feingold pointed out as gross abuses of the Patriot Act.  The "anti-terror powers" are being used against citizens, who have nothing to do with terrorist activities.


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## celtic_crippler (Oct 5, 2009)

Land of the... uh... Land of the... Bees? No, that's not it...

Land of the... Knees? ...nope...dang...can't remember how that goes. 

Land of the ...Sneeze? ...sigh... I know that's not right....


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## Ken Morgan (Oct 5, 2009)

It's interesting. How does the government do a home inspection or a building inspection to make sure everything is up to code? Generally after renovations the city needs to inspect everything to make sure it measures up. I know in our city they are very strict with the building and fire code for homes being turned into rental apartments. Windows need to be so big, etc, etc. It also increases your taxes, and that's what I think this is all about. I see the guys point about the government coming into your place without a warrant, but if I'm renting a unit from him, I damn well want to make sure my rental space is up to code.


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## Bill Mattocks (Oct 5, 2009)

This particular behavior (cities which require warrant-less inspections of rental properties) is not that unusual, and it is frequently litigated.  Some cities have backed down, some have not.

At issue is the public safety issue of rental properties not being maintained safely (think slumlords) to the detriment of the people living there.  The cities believe they have an obligation to ensure that rental properties are properly maintained.

However, the Fourth Amendment does seem to provide good and sufficient reason for the municipality to not be given access.

Many cities do as this one has apparently done - they make acceptance of voluntary warrant-less entry part of the license application.  If a landlord signs the application, the city can say they have the landlord's permission; therefore a warrant is not required.  If the landlord refuses to sign the application, the city can shut the rental property down because there is no rental property license.

It's a bit of a Catch-22.  If the landlord signs the rental license application, he can't deny entry.  If he doesn't sign it, he cannot rent out his property.

It's a Catch-22 for the public, as well.  Suppose this guy does not maintain his properties, and code and safety violations end up with people being hurt or killed - the public would howl and demand to know why the city hadn't forced him to keep his property safe?

Example:

http://www.laprogressive.com/2009/06/25/lax-enforcement-keeps-slumlords-from-cleaning-up-act/

Consider also that if you live in an urban or suburban area in the USA, you probably have to pull a permit from the city or county to do extensive renovations on your home, inside or out.  You pull a permit to put in a new bathroom, for example, you have to allow the city inspector in to see the work, or you could risk being ordered to pull it back out again - or having the house condemned and being forced to move out until it meets code AND the inspector can see it.

How is this different?

I see both sides here.


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## jks9199 (Oct 5, 2009)

Actually, the Fourth Amendment prohibits UNREASONABLE searches without a warrant, not any and all searches.  So the question becomes is a search of rental residences without unreasonable or is it within the scope of the government's duties in protecting the public?  I'm not familar with the ruling cited that the article says held them to be unconstitutional; often these rulings distinguish themselves from each other in small but significant details.  The courts have also consistently distinguished between administrative warrants (often issued on less-than-probable cause) and other (usually criminal) search warrants, which require probable cause.  After all, the purpose of an inspection is often to determine whether or not a violation exists, so you're not going to have probable cause until you inspect...

What I found more interesting (and probably a stronger argument) is the requirement to waive rights in return for a license to operate a business...  That's coercive, to me, and I suspect that having that requirement will be a major factor in the decision.

I won't be at all surprised if the guy gets very limited relief, initially, in the form of an injunction permitting him access to his residence without permission to operate the rental rooms while the case proceeds.


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## Makalakumu (Oct 5, 2009)

jks9199 said:


> Actually, the Fourth Amendment prohibits UNREASONABLE searches without a warrant, not any and all searches.



This is becoming a separate debate because I think as more information on the story comes out, we'll start to see some more reason behind the actions.  

However, generally speaking, the reasonability of searches is a matter of opinion.  The Founding Fathers felt that the government needed to be limited in this capacity because they had a strong belief that all citizens were innocent until proven guilty.  When a search takes place without a warrant, the assumption is that the person has done something wrong.  In a very real sense, the assumption is that the person is "probably" guilty.  

This is what has privacy advocates up in arms.  They see it as a slippery slope that will descend into the elimination of privacy and property rights as various government officials find more excuses for "reasonable" searches.


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## Bill Mattocks (Oct 5, 2009)

maunakumu said:


> This is what has privacy advocates up in arms.  They see it as a slippery slope that will descend into the elimination of privacy and property rights as various government officials find more excuses for "reasonable" searches.



What, then, do we do when citizens complain that buildings are literally collapsing on tenants because 'slumlords' won't fix them and the city can't get in to inspect?

Is there a compelling public interest that overrides the individual right to freedom from unreasonable searches, or do we just say 'too bad' to people whose rented homes are infested with disease-carrying insects or which are unsafe firetraps?


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## CanuckMA (Oct 5, 2009)

When you open rental units in your property, you effectively become a business and subject yourself to the rules and regulations that govern your area of business. 

In a 'standard' multi-unit property, the inspector can gain access to the common areas of the building and can ascertain probable cause. 

Or how about a restaurant? Would you take the same stand if a restaurant owner refused entry to a health inspector unless they had a warrant?

The result would be inspectors carrying open warrants.


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## Andrew Green (Oct 5, 2009)

> WND contacted Michael Jozwiak, Lansdowne's director of zoning and code enforcement, who said Marcavage's talk of inspections was "putting the cart before the horse."
> "The notice says nothing about inspections," Jozwiak explained. "Mr. Marcavage failed to file for his rental license, and that's the reason for the notice."



This isn't about them wanting to search, it's about following the rules around running a business.  He's using his property as a business, which means following the rules that allow him to do that.  

All businesses are subject to certain types of inspections.  If this was a restaurant refusing a health inspection I doubt he'd find any supporters, but the situation is basically the same.


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## Bruno@MT (Oct 6, 2009)

In this case, the man is running a business that comes with rules and regulations. It is unreasonable NOT to allow inspectors to enter the premises (with advance notice).

People already mentioned public health department for restaurants. Let me add the FDA and various other agencies for the pharmaceutical industry that inspect our sites. Is it unreasonable of them to want to inspect our site, in order to make sure that we comply with all governing rules and regulations?


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## Bruno@MT (Oct 6, 2009)

Ceicei said:


> WHAT??  Whatever happened to the Bill of Rights? :rpo:
> 
> - Ceicei



This is what I don't get. Whenever something happens, people are dragging the constitution, the bill of rights and the umpteen amendements into the fray.

But what about zoning laws, rules, and regulations?
If you want to run a business, there has to be a way for the governing body to inspect the operation to make sure that the business complies with everything.


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## shesulsa (Oct 6, 2009)

Andrew Green said:


> This isn't about them wanting to search, it's about following the rules around running a business.  He's using his property as a business, which means following the rules that allow him to do that.
> 
> All businesses are subject to certain types of inspections.  If this was a restaurant refusing a health inspection I doubt he'd find any supporters, but the situation is basically the same.



While your essential logic is correct, your analogy is not appropriate.  People don't live in the landlord's residence ... the landlord does.  He doesn't serve food from there - if there's anything at his residence he uses to do business it would be the area he uses as an office where he store files and any storage location for maintenance equipment and improvement/repair materials.  They don't need to inspect his bedroom, his bathroom, his kitchen because those things are not applicable to the business - unless he has declared himself an employee.  I know in the state of Washington that businesses run out of the home are *not* subject to commercial business inspection.  In fact, unless someone has reported a code violation on the properties (which they haven't, of course, because we rock) the only people who get to inspect our properties is us.

The law is a bad law and needs to be changed to comply with the constitution and its framers investigated and exposed.


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## Bill Mattocks (Oct 6, 2009)

Bruno@MT said:


> This is what I don't get. Whenever something happens, people are dragging the constitution, the bill of rights and the umpteen amendements into the fray.



That is because the Constitution is the framework under which all federal rules are built.  By the extension of the 14th Amendment 'due process' clause, it is also the framework for many state and local laws.

If a law, rule, or regulation is contrary to the Constitution, then it cannot stand, because it is not complaint with the framework.



> But what about zoning laws, rules, and regulations?



What if there were a local law that permitted, say, slavery?  We'd say that the law could not be permitted to stand, because it contravenes the Constitution, which forbids it in the 13th Amendment.

The Constitution (as amended) is the controlling law.



> If you want to run a business, there has to be a way for the governing body to inspect the operation to make sure that the business complies with everything.



That is indeed the core of the argument.  There are good reasons to see it from either point of view.  How does one distinguish between a rule or regulation that provides a public benefit or prevents a public disaster with one that merely infringes on liberty without an overwhelming public reason to do so?


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## shesulsa (Oct 6, 2009)

Bill Mattocks said:


> That is indeed the core of the argument.  There are good reasons to see it from either point of view.  How does one distinguish between a rule or regulation that provides a public benefit or prevents a public disaster with one that merely infringes on liberty without an overwhelming public reason to do so?



There has to be a clear definition on what elements are required or should be required by law to run the business and there usually are.  For instance, in Washington state, we are required to retain applications, reports and all other tenant files in a secure location, in some kind of locking filing system.  The only time this would be inspected, however, if there should be some kind of problem or suspected problem as to privacy.

Of course, if this is kept in the home, then we would have to let someone in to see it.  This is where having a secured office separate from the home is quite beneficial because you only have to let them in to the location where the operations of the business are conducted. So if you have an office separately located in your garage or a separate storage shed, this is most beneficial because you can't be required to allow them into a structure that has nothing to do with the business. Makes things easier, too - any cleaning products, paint, maintenance supplies and equipment for a home rental business can be stored in a shed and separate insulated and locked room can be used for an office or even just for file storage. 

Some of this also has to do with the type of business - a corporation, an LLC, etcetera.

If the mandate is that regular inspections be done, then there must be a delineation of where they can inspect and where they can't and he should be prepared.  If they have the right to inspect the entire premises ... well, I would take issue with that and lobby to have the law changed to comply with the constitution.  I would also seriously consider a structure separate from the home in which to conduct business.


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## jks9199 (Oct 6, 2009)

It's also unclear in the article whether the portion he lives in is functionally distinct from the rental areas.  If he simply lives in Room 101, with attached kitchen... that's one thing.  If he lives in the house on the property, it's another.

I'm not completely comfortable with waiving rights to get a business license when there is a simple, standard way to do it.  See Administrative Warrants...  Devise a standard plan for inspections, and have the admin warrants in hand, and they're in.


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## Bruno@MT (Oct 6, 2009)

Bill Mattocks said:


> That is because the Constitution is the framework under which all federal rules are built.  By the extension of the 14th Amendment 'due process' clause, it is also the framework for many state and local laws.
> 
> If a law, rule, or regulation is contrary to the Constitution, then it cannot stand, because it is not complaint with the framework.
> 
> ...



I understand the concept. However, why is constitutionality not examined upon creation of the law? The US law seems to be a mish mash of rules and regulations at local, state, and federal level, and the constitutionality of some things gets only decided long AFTER the laws have been passed. The great dependence on case law, precedent and interpreatation basically makes it so that anything can be argued, nothing is certain, and a lot hinges on your representation.

Take this case for example. This should be cut and dried for a very long time. Instead, now we are arguing constitutionality of zoning inspections.


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## jks9199 (Oct 6, 2009)

Bruno@MT said:


> I understand the concept. However, why is constitutionality not examined upon creation of the law? The US law seems to be a mish mash of rules and regulations at local, state, and federal level, and the constitutionality of some things gets only decided long AFTER the laws have been passed. The great dependence on case law, precedent and interpreatation basically makes it so that anything can be argued, nothing is certain, and a lot hinges on your representation.
> 
> Take this case for example. This should be cut and dried for a very long time. Instead, now we are arguing constitutionality of zoning inspections.


Law makers generally do think about the constitutionality of the laws they write -- but the Constitution is an evolving and living document; in fact that's part of it's genius.  We have things today that the Founding Fathers couldn't have foreseen -- yet judges can look at the Constitution, and figure out how it applies. 

That's also part of the principle of precedence that underlies much of our jurisprudence.  The Old Common Law was a pattern of looking at what had been done before to have some consistency in what was done today, rather than crime, punishment, and civil decisions being completely random based on the fiat of the judge/lord in question.  It's a slow process -- but it's working.  Which is probably the best argument to be cautious in mucking about with it.  You might find some of the material HERE from C-Span's Supreme Court Week presentations interesting.


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## Makalakumu (Oct 6, 2009)

Bill Mattocks said:


> What, then, do we do when citizens complain that buildings are literally collapsing on tenants because 'slumlords' won't fix them and the city can't get in to inspect?
> 
> Is there a compelling public interest that overrides the individual right to freedom from unreasonable searches, or do we just say 'too bad' to people whose rented homes are infested with disease-carrying insects or which are unsafe firetraps?



That's the other side of the argument.  Ideally, one would be moral enough not to rent out a property like that, however, this simply isn't the case.  I know that some people would argue that tenants in such a building are agreeing to take those risks in exchange for discount rents.  I think there needs to be some kind of regulation, however, it can be done in such a way that people do not completely lose the rights a title has traditionally been known to confer.


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## 5-0 Kenpo (Oct 7, 2009)

Bruno@MT said:


> I understand the concept. However, why is constitutionality not examined upon creation of the law? The US law seems to be a mish mash of rules and regulations at local, state, and federal level, and the constitutionality of some things gets only decided long AFTER the laws have been passed. The great dependence on case law, precedent and interpreatation basically makes it so that anything can be argued, nothing is certain, and a lot hinges on your representation.
> 
> Take this case for example. This should be cut and dried for a very long time. Instead, now we are arguing constitutionality of zoning inspections.


 
You are right.  The laws are often not holistically made.  This is usually because every couple of years you have different law makers get elected, all with different interests and knowledge.  Very rarely is a law repealed just because a new law overlaps it.

But, though a law may be passed that is "unconstitutional", the way that our system works allows such a law to be passed anyway.  If no one contests the law in court, it is allowed to stand.  In this case, if everyone submits to the inspection, then there is no case for it to be ruled unconstitutional.


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## 5-0 Kenpo (Oct 7, 2009)

Bill Mattocks said:


> That is indeed the core of the argument. There are good reasons to see it from either point of view. How does one distinguish between a rule or regulation that provides a public benefit or prevents a public disaster with one that merely infringes on liberty without an overwhelming public reason to do so?


 
I think its quite easy actually.  If someone complains about the conditions of their residence, the complaining party has the right to allow the inspectors onto the premises.  If the regulations are not being followed, they the owner can be cited and their license revoked.


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## Bruno@MT (Oct 7, 2009)

jks9199 said:


> Law makers generally do think about the constitutionality of the laws they write -- but the Constitution is an evolving and living document; in fact that's part of it's genius.  We have things today that the Founding Fathers couldn't have foreseen -- yet judges can look at the Constitution, and figure out how it applies.



Yes. Kinda. 

But the fourth amendement is quite old. One would think that when zoning laws were created, they checked whether everything was legal or not. Or if in doubt, got the supremes to give a yay or a nay on the matter at hand. It would save a lot of hassle and a lot of confusion.


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## jks9199 (Oct 7, 2009)

Bruno@MT said:


> Yes. Kinda.
> 
> But the fourth amendement is quite old. One would think that when zoning laws were created, they checked whether everything was legal or not. Or if in doubt, got the supremes to give a yay or a nay on the matter at hand. It would save a lot of hassle and a lot of confusion.


The Supreme Court rarely addresses an issue until there is disagreement in various federal circuits.  I believe that the C-Span documentary said that the Supreme Court receives something like 180 requests for certiorari a week; even an activist court only hears a tiny minority of them.  This case is making news because it's got some drama; a guy is prevented from living in his own home.


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## Andrew Green (Oct 7, 2009)

shesulsa said:


> While your essential logic is correct, your analogy is not appropriate.  People don't live in the landlord's residence ... the landlord does.  He doesn't serve food from there



It is still a commercial property, and has likely has additional rules regarding fire code and other safety issues. The units are the same building and a risk in one is a risk in the other.  They may even share the same ventilation system.


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## shesulsa (Oct 8, 2009)

Andrew Green said:


> It is still a commercial property, and has likely has additional rules regarding fire code and other safety issues. The units are the same building and a risk in one is a risk in the other.  They may even share the same ventilation system.



Oh jeez, I don't know how I skipped right over that they're connected.  Still, zoned residential with conditional use usually lends some leniency in most states.  Obviously not there, though.  And again - the only person in the "business area" is the owner.  I think it should all depend on whether he declares himself an employee of his own company and if he has anyone else working "for" him.


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