City to homeowner: Let us in, or get out

[Bob Hubbard]

[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]
[SIZE=-1] [/SIZE]



A Pennsylvania man who refuses to allow city officials to enter his home without a warrant has been forced out to stay in a hotel instead, evicted by a notice posted on his door that forbids him from using or occupying the building he owns.

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

 

[Ceicei]

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

- Ceicei

 

[Bob Hubbard]

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

interesting.

 

[Ceicei]

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

 

[Bob Hubbard]

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

 

[shesulsa]

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

 

[Flea]

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

 

[Makalakumu]

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.

 

[celtic_crippler]

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....

 

[Ken Morgan]

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.

 

[Bill Mattocks]

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.

 

[jks9199]

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.

 

[Makalakumu]

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.

 

[Bill Mattocks]

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?

 

[CanuckMA]

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.

 

[Andrew Green]

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.

 

[Bruno@MT]

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?

 

[Bruno@MT]

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.

 

[shesulsa]

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.

 

[Bill Mattocks]

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?