Commentary

Sanford City Council needs a Constitutional Reality Check

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On Tuesday, the Sanford City Council met to take public comment on a new amendment to their Building Construction Ordinance, among other subjects. This portion was surely the most contentious issue of the evening. It began with a presentation by Ian Houseal, the newly-hired Community Development Director. For years, Mr. Houseal has made a career of shepherding new housing ordinances through Maine city governments under the guise of “safer, fairer housing.” Before Sanford brought him on, he worked for the city of Portland for six years, resulting in the city’s new rental housing licensing program that began last year. Before that he was Special Assistant to the Lewiston City Administrator in a similar capacity. As was also proposed in these communities, the Sanford proposal would require licensing of all rental properties and vacant buildings.

Mr. Houseal’s presentation (beginning at 56:00) was heavy on rhetoric and light on substance, and what little substance he brought was woefully misrepresented. He claimed that no new housing codes would be enacted, merely that the existing codes would be enforced. In a decidedly Orwellian turn, he went on to say that city officials would go “block-by-block” and “building-by-building” to administer these “proactive inspections,” seeking “full compliance.”

Admittedly, this political observer gets a bit squeamish when government officials coin terms like “proactive inspections.” It translates, past the lofty rhetoric, to a deference to government agencies instead of individual rights and due process.

In addition, Mr. Houseal was shockingly vague on enforcement procedure. Even when pressed, he did not answer the question of what occurs when code enforcement officers need to gain access to determine code compliance of a building but do not have the property owner’s consent to do so. He instead chose to speak on the procedure town officials use to gain consent, claiming that these inspections are merely “routine” and the town’s willingness to work with the property owners’ schedules was sufficient to gain access. He barely acknowledged the scenario in which a landlord does not consent to an initial inspection.

The text of the proposed ordinance states that anyone failing to apply for a rental license is on the hook for civil penalties including fines and an “administrative warrant” to conduct the inspection. Curiously, the ordinance claims this authority is derived from M.R.S.A. Title 30-A § 4452 which gives municipal officials, “with the consent of the owner, occupant or agent,” authority to inspect housing property for code violations. Maine State law does not allow housing inspections to be carried out without proper consent, as the U.S. Constitution mandates, and as federal district courts and the Supreme Court have maintained.

In 2015, Ohio’s 1851 Society represented property owners under similar circumstances for which Judge Susan Dlott of the Western Division of the Southern District of Ohio ruled:

“[T]he Court finds that the Portsmouth [Rental Dwelling Code] violates the Fourth Amendment insofar as it authorizes warrantless administrative inspections. It is undisputed that the [Rental Dwelling Code] affords no warrant procedure or other mechanism for pre-compliance review . . . the owners and/or tenants of rental properties in Portsmouth are thus faced with the choice of consenting to the warrantless inspection or facing criminal charges, a result the Supreme Court has expressly disavowed under the Fourth Amendment.”

According to the Fourth Amendment, no unreasonable search and seizure shall be granted without obtaining a warrant based on probable cause. Probable cause refers to a state entity’s reasonable suspicion that a crime has been committed or will soon be committed. Barring the owner’s consent, government officials cannot search property without a warrant. The Sanford City Council will have to rely on landlords and tenants falling in line and allowing code enforcers to search and inspect their property.

Possibly the most offensive aspect of this program–despite the apparent ignorance of the Fourth Amendment–is the expectation that, during these inspections, code enforcement officers will expect to see the entire building This means that landlords who reside in a building which they partially rent may have their own living space searched without a warrant as well.

Even the Supreme Court has held, as in Payton v New York (1980), that “the sanctity of the home . . . has been embedded in our traditions since the founding of the Republic” and further, in Camara v San Francisco (1967), that “[i]t is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” In Camara, the Court maintained that even in noncriminal cases (such as the enforcement of building codes) the Fourth Amendment still applies.

This makes one wonder how the town got along since its founding in 1768 without this housing scheme in place. Up until now, city officials had requested to search property if a complaint had been filed by a tenant or neighbor alleging some sort of criminal conduct or code infringement associated with the property. Even today, tenants have the quickest, easiest route to issuing a complaint about their living situation–complete with photo or video evidence–than ever before.

For other concerned citizens worried about this potential overreach of government power, the author urges his readers to contact Sanford Mayor Tom Cote and the City Council before they vote on this ordinance at their next meeting on July 18, especially if Sanford residents. Serve them a hearty reality check on private property rights. If we do not stand up to this overreach, they will surely take more of our rights wherever and whenever they can.

About Nick Murray

Nick is the Development Associate at The Maine Heritage Policy Center working to plan events, engage with supporters, and spread the word about MHPC's work to new audiences around the state.

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