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Santa Maria Sun / News

The following article was posted on May 16th, 2017, in the Santa Maria Sun - Volume 18, Issue 11 [ Submit a Story ]
The following articles were printed from Santa Maria Sun [santamariasun.com] - Volume 18, Issue 11

Guadalupe inspection ordinance raises concerns for rental tenants and landlords

By BRENNA SWANSTON

The city of Guadalupe may face legal action for alleged violation of residents’ Fourth Amendment right to protection from unreasonable searches, according to attorney Stew Jenkins.

Jenkins has teamed up with a group of 17 Guadalupe residents—both landlords and tenants—who claim the city’s rental inspection mandates could lead to warrantless searches of rental homes. He presented a 12-page letter to the City Council on May 2 demanding the council members repeal the ordinance adopted last year that permits city employees to “enter and inspect or abate any building or premises whenever necessary” to ensure compliance with property laws.

“We’re hoping that the City Council suspends the enforcement,” Jenkins told the Sun. “It was a bad idea in the beginning, and it violates people’s basic fundamental rights.”

At the May 9 City Council meeting, Jenkins urged council members to agendize a proposed suspension of the inspection ordinance. He said he’ll wait to see if they put the item on their agenda for the June meeting, and if not, he and his clients will proceed with legal action.

“It’s not a matter of if, it’s just a matter of when,” Jenkins said. “Of course, my clients’ hope, and my hope, is the members of the City Council will see the wisdom in doing the right thing for the people of Guadalupe.”

Jenkins compared Guadalupe’s inspection ordinance with one repealed by the San Luis Obispo City Council earlier this year.

But Guadalupe City Attorney David Fleishman told the Sun that Guadalupe’s ordinance is “dramatically different” from SLO’s failed rental inspection program. He claimed it would be a “misnomer” to call Guadalupe’s a “rental inspection ordinance,” saying it was actually a “business inspection ordinance.”

“Most cities have something similar in their municipal code,” Fleishman said.

The inspection provision in Guadalupe’s municipal code (8.50.100) is short and simple, broken into two parts. The first establishes that people planning to do business in buildings in city limits must first seek approval from the fire, health, building, and planning departments, and ensure that the building in question complies with the city’s public safety laws. It also says certain department representatives are authorized to make necessary premises inspections, which are required before people begin doing business from the building in question, and once a year from that point forward.

The second section instills authority in any city officer, employee, or agent to enter and inspect any building or area whenever necessary to ensure its compliance with city law. This section continues, “If required by law, the officer, employee, or agent shall first obtain consent of the responsible party or an appropriate court order.”

San Luis Obispo’s rental housing inspection ordinance, on the other hand, specifically targeted residential rental dwelling units.

The SLO ordinance added: “If the inspector has reasonable cause to believe that the residential rental dwelling unit is so hazardous, unsafe, or dangerous as to require immediate inspection to safeguard the public health or safety, the inspector shall have the right to immediately enter and inspect the premises and may use any reasonable means required to effect the entry and make an inspection.”

Guadalupe’s ordinance does not make that provision.

In 2014, Guadalupe voters adopted a business tax measure that replaced a previous chapter of the city’s municipal code. Part of that previous code established the city’s right to enter rented properties to inspect or abate them, but that right wasn’t specified in the business tax measure implemented in 2014. The 2015 inspection ordinance was intended to re-establish that right on behalf of the city.

Jenkins and Fleishman approach that fact from different angles. Jenkins argued that Guadalupe residents should have had the opportunity to vote on the inspection ordinance before City Council adopted it in May 2015, because they had previously intentionally chosen to remove the provisions made in that ordinance from the municipal code.

“When the people vote on something like that, they have a right to have it put before them before there’s a re-adoption of what they just repealed,” Jenkins said.

But Fleishman said the new ordinance simply reflects a rule that had already historically existed in the city. According to him, the city was simply reclaiming a right it had always had, but had incidentally disappeared from the municipal code following the 2014 election.

“We had that provision in the municipal code for many, many years, and when the voters readopted the business license tax, they did not adopt the inspection provision that had been in the code for many years,” Fleishman said.

However, he added that rented homes in Guadalupe could potentially be covered by the city’s “business inspection ordinance.”

“The way the business license provisions of the municipal code is written, it refers to businesses as including rentals and leases, so it is possible to interpret it that way,” Fleishman said. “But the whole idea of doing warrantless searches—that’s just not happening.”

He said it was difficult to address Jenkins’ accusations that the municipal code would lead to constitutional violations because there hadn’t been any actual instances yet.

“A lawyer comes in and says the city is doing a terrible thing, and it’s a violation of the Constitution, but he hasn’t pointed to any specific instance in which it’s happened,” Fleishman said. “It’s difficult to address something that’s theoretical in another lawyer’s mind.”

He said he wasn’t aware of any real situation in which the city had to conduct an inspection of a home without a warrant. And even if such a situation arose, any tenant could simply refuse a city attempt at a warrantless inspection, he said.

“If someone does not want the city coming in, they just say no,” Fleishman said. “Then we do what’s provided for in the municipal code, which is comply with the Constitution and get a warrant.”

Wrangling a warrant is difficult, he added, but “courts are willing to grant them in the appropriate circumstance.”

Staff Writer Brenna Swanston can be reached at bswanston@santamariasun.com.




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