Municipalities have a vested interest in maintaining the health, safety, and welfare of their citizens. One of the most effective ways to meet this goal is through the passage of city ordinances that govern the day-to-day interactions within the city. Notably, property ordinances can serve this end by ensuring that prospective tenants do not present a danger to either city residents or property. Further, they can ensure that landlords are not subjecting tenants to harmful or dangerous living conditions. However, when enacting such legislation, cities should be mindful of the potential intrusive effect that the ordinances may have on the personal lives of the tenants and landlords.

In DPH Aurora Properties LLC v. City of Aurora, the plaintiff, DPH, had a property inspection where several of their tenants did not consent to the City’s inspection, and DPH failed to provide certain required documents. In response, the City of Aurora assessed fees against DPH, which ultimately led DPH to file suit. DPH’s suit contained a litany of claims, but of note was its claim that the property ordinances violated its Fourth Amendment rights under Camara v. Municipal Court of the City & County of San Francisco. 387 U.S. 523, 540 (1967) (holding it is improper to impose sanctions against landlords or tenants for exercising their Fourth Amendment right to refuse entry). The Illinois Appellate Court found that the ordinance was not unconstitutional on its face as the language of the ordinance provided the City with lawful recourse to seek a warrant to obtain entry. However, the Court determined further litigation was needed to decide if the fees assessed by the City, and any additional statements made by the City inspector, were merely means to force the tenants to consent to the inspection. If that were the case, then DPH would have a valid claim that the ordinance was unconstitutional as applied to its specific set of facts.

The DPH opinion covers a lot of legal ground. DPH asserted the right to privacy, equal protection, and individual liability claims against the City and its employees in addition to the Fourth Amendment claims. The Court found that all of those claims were properly dismissed at the circuit court level. However, the most pressing takeaway is the Court’s analysis of both the “on its face” and “as applied” legal challenges. The Court stated that the ambiguity in the language of the ordinance allowed it to pass muster under the “on its face” analysis. The threat of sanctions, or actual sanctions, for the purpose of infringing on someone’s Fourth Amendment rights is expressly prohibited, but the ordinance allowed for the inspector to seek “remedies provided by law to secure entry.” The language was ambiguous enough to leave room for a constitutional interpretation – the inspector could always seek a lawful warrant to secure entry. Alternatively, as the case is sent back to the circuit court, the parties will be tasked with proving, or disproving, whether the imposition of fines and further communication from the City were merely a means to force tenants to consent to the inspections or a penalty for refusing consent. The relationship between the “as applied” and “on its face” challenges shows the importance of not just drafting good legislation but ensuring that it is enacted constitutionally.

For more information about this article, please contact Tressler Attorney Alex Myers at amyers@tresslerllp.com.

About the Author

Alexander (Alex) Myers serves as an associate in Tressler’s Local Government and Litigation Practice Groups. His practice is primarily focused on civil rights litigation, tort litigation, employment litigation and counseling, and matters arising from section 1983, and police misconduct. Alex has successfully defended his clients through all stages of litigation, and through that process, has gained valuable litigation skills. Click here to read Alex’s full attorney bio.