I just received a notice to apply for a license (new city ordinance they slipped through during the summer) to rent the upstairs apartment that I’ve been renting out for years without needing a license.
I have to fill out the application and send it with a check for $100 (per rental unit) to the code officer. No applications will be accepted without a payment included.
Part of the application includes a non-voluntary – or coerced – inspection of the tenant’s apartment (a violation of the Fourth Amendment of the U.S. Constitution). If I fill out and send in the application with the payment, but I (or my tenant, in this case) refuse to allow an unconstitutional search of the premises without probable cause, the city will fine me per day, keep my application payment and ultimately refuse me a license to rent.
Meanwhile, my trusting tenants are out on the street and any hope of fixing up my building is crashed, along with my mortgage agreement. This will cause me to lose my house, which I’ve owned and rented to satisfied tenants since 2001 (with no interference from the government).
The city is circumventing the Fourth and Fifth amendments of the U.S. Bill Of Rights as well as the Maine Constitution (which re-establishes the probable cause clause of the Fourth Amendment). There was some heated discussion at the city council meetings and the workshop for the ordinance, but the council went ahead with the rental registry program anyway.
The city council brought in a guy named Ian Houseal, who set up similar schemes in Old Orchard Beach and Portland, to establish the rental license ordinance in Sanford/Springvale. Mayor Tom Cote is trying to claim that residential apartments fall under the “closely regulated business” category, which will allow the city to come into your apartment at their will and do inspections similar to those done in restaurants, liquor stores, hospitals, gun dealers, mining operations, etc.
The problem is that private dwellings do not fall into that category – even though the city wants to claim that “it’s a business, and they’re going to be regulated and controlled,” according to Cote.
The city is not using this ordinance against single family dwellings, even though, if this is really about safety, there are plenty of single family homes in Sanford that have code violations that put the occupants in harm’s way. The city is not allowed to go into those private homes.
The mayor thinks that because a landlord advertises an apartment, it’s a business – which legally entitles the city to require licensing, regulation and control of the property to protect the unsuspecting, unaware public and promote public safety.
The mayor, city council and Houseal repeatedly use the “Portland Fire” incident as an example of why we need this ordinance. The Portland fire was caused by a smoldering cigarette and tenants having disabled the smoke detector – a tenant error rather than a landlord error.
Although public safety is important, it does not trump the protection given to private homes by The Constitution. Until now, the city has implemented a “complaint-based” system, which relies on the complaint of a tenant or the discovery of a utility employee or neighbor, which describes a code violation that may or does endanger a tenant. That produces the all-important “probable cause” that is required by the Fourth Amendment.
Without the need for probable cause, the warrantless inspection now becomes a search for code violations.
Further, a closely regulated business must meet certain requirements and must have a record of being “historically” regulated, meaning there has to be a history of apartments being regulated and inspected by the government, which has never been the case in this country. Apartments are private dwellings and are protected by the Fourth Amendment from unwarranted search and seizures by the government.
Just as you have the constitutional right to refuse an unwarranted search by a police officer, you also have the constitutional right to refuse an unwarranted inspection by the code officer. You cannot be punished for exercising your constitutional rights.
City governments have what they call an “administrative” inspection warrant, which they can use against a closely regulated business or a property owner who owns a property that is in obvious (observed or documented) violation of a building code that poses a danger to the public. They can also use these warrants for those who refuse to cooperate or communicate with city officials when violations occur.
What is unconscionable is the idea that the city council can create an ordinance that violates the Fourth Amendment and expect that they will breeze through by means of intimidation and threats of punishment. Now, that’s against the law, folks.
Back in July, I went down to the code office at city hall and asked how the city goes about obtaining administrative warrants in this type of situation. The woman I spoke with told me that in all her years there, the city had only used an administrative warrant one time – against an out-of-town property owner who had refused to reply or communicate with the city about his vacant property that was in decay and posing danger to the public.
Just as the Fourth Amendment prevents the city from conducting unwarranted search and seizure of a single-family home, they are also restricted from any such inspection of an apartment. What makes an apartment any less a home/dwelling/residence than a single-family?
While assessing property value for tax purposes, the city defines apartment buildings as residential, not commercial, yet they turn it around and define them as commercial to suit this ordinance.
I attended one of the open hearing council meetings in July, and I took the mic and brought up the Fourth Amendment issue. Councilor Luke Lanagan spoke up and suggested that they would have the town’s legal counsel come to the next workshop meeting and “put this whole legal thing to bed.” Then, Ian Houseal came up to the mic, and said the following:
“We had a legal review, and it came back fine — a few tweaks — but as far as the Fourth amendment, I can’t weigh in on that.” No kidding!
They need your voluntary consent or exigent circumstances to enter your apartment. If those don’t exist, then they need to obtain an administrative inspection warrant from a judge. Maine state law gives you the right to be present at this hearing. If they circumvent this pre-compliance provision, then they will have also violated the Fifth and 14th amendments of the Bill Of Rights, as you are allowed due process of the law.
The truth is that this is not really about public safety at all. At a city council meeting, Mayor Cote said, “We should see some results from this. Inevitably, you’re going to have a better tenant pool, and the rents will go up. And the landlords will make more money inevitably.”
You see, it’s about money – doesn’t it always come down to that? The city wants to gentrify and replace poor tenants and landlords who can’t afford to fix their “unsightly” buildings according to the city’s timeline.
It’s about the city finding a way to weasel around the the rule of law and come up with a plan to make you fix your buildings now, or get out of town.
The city council needs to slow down and formulate a solution that does not violate our constitutional rights. And we, as citizens, must be aware of our rights and stand up to unlawful government intrusion.
There needs to be serious discussion and a grassroots movement needs to be started to empower the residents of Sanford-Springvale to use what was given to us in order to protect ourselves from government – our constitutional rights.
Let’s move!
