Government Over-reach Stopped in One Case

On today’s show we’re talking about government over-reach which has been partially stopped in one instance.

Municipal Governments all over North America are trying to implement rules to improve the quality of rental accommodations in their cities. One of the methods is called proactive enforcement. That’s code for inspections.

The theory is that if landlords know their property will be inspected, they will have a stronger incentive to make sur their property complies with the building code and property standards that make a property considered inhabitable. Not only do things need to be in working order, they have to be safe, and free from health hazards like molds or other toxins.

You would think that if the goal is to improve the quality of rental properties, then the tenants who have problems with the quality of their units would favour these inspections. Well, in the Commonwealth of Pennsylvania, that rule just got challenged in court.

In June 2015, The Borough of Pottstown Penn enacted a number of housing ordinance amendments. At issue here, the amendments included provisions requiring each owner of a rental property to permit inspections of all rental units every two years. If voluntary access for an inspection is denied, the ordinance allows the Borough to apply for an administrative warrant. The new rule does not disclose what criteria, if any, the Borough must satisfy in order to obtain such a warrant.

In the case before the court, the tenants, and the landlord refused voluntary access to their rental units by Borough inspectors.

The Commonwealth Court overturned a lower court’s ruling in favor of Pottstown in a lawsuit challenging the borough’s rental inspection ordinance. The lower court upheld the right of the borough to enter residents’ homes without cause and without the residents’ consent.

Tenants in the case asserted that the use of administrative warrants is unconstitutional because such warrants are issued without requiring and individual probable cause to believe any building code violation exists. Tenants also pointed out that each inspector is instructed to share with police any observation of an item in the rental unit that the inspector in their sole discretion considers an indicator of criminal activity. This effectively gives police the ability to obtain information about the contents of a dwelling without the need for a search warrant.

The tenants also argued that the privacy protections under the Pennsylvania constitution are more extensive than the protections under the United States Constitution concerning individual rights of privacy and freedom from unreasonable searches.

The actual article in the constitution says,

“The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures..."

This language is similar to that of the Fourth Amendment of the US Constitution, but provides broader protection than the 4th amendment.

In June of 2018, the Borough filed a motion for Judgement on the pleadings. They argued that the inspection provisions of the housing ordinance were not unconstitutional.

On Monday this week, the Judge who heard the cased rules in favour of the landlords and tenants who opposed the new rule. Judge Ceisler’s ruling said, “To require Tenants to endure the inspections before challenging the inspection requirement would render Tenants’ Article I, Section 8 privacy rights illusory,”.

Essentially what the judge was saying is that Pottstown’s rental inspections regime was a way to get around constitutional protections for privacy rights.

This ruling could ensure that every Pennsylvanian who resists a search of their home can only have the government enter with a warrant supported by probable cause that something is wrong inside.