City to homeowner: Let us in, or get out

[shesulsa]

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.

 

[jks9199]

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.

 

[Bruno@MT]

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.

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.
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 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.

 

[jks9199]

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.

 

[Makalakumu]

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.

 

[5-0 Kenpo]

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.

 

[5-0 Kenpo]

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.

 

[Bruno@MT]

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.

 

[jks9199]

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.

 

[Andrew Green]

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.

 

[shesulsa]

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.