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Washington courtsOn reading the Washington Supreme Court opinion in Pasco v. Shaw – released today – our first question was why someone in the property rights world hadn’t tried something like this before. Or maybe that was because the issues involved had been thought through better, before . . .

Because the basic ideas seems right up the alley of those property rights groups: A constitutional challenge to all those state and local rules and regulations involving inspection of building quality and related matters. Since this involves government entities coming onto private property without a reasonable belief that something criminal was going on.

The problems being alleged were certainly significant enough.

For example, the landlords involved in this case owned rental units for which there was no working source of heat. Tenants were told they had to provide their own heat via portable electric space heaters. In addition, kitchens contained no vent, hood, fan, or window, despite the fact that natural gas was used to heat them. In one building, windows were not properly installed, allowing weather to enter the wall. Plumbing was in such disrepair that a bucket had to be used to catch water draining from a bathroom sink. One unit was infested with cockroaches. Some units had unsound wall finishes and warped or buckled walls.

One of the Shaws’ tenants complained that they were refusing to make necessary repairs to her apartment. For some time, neither the heat nor the air conditioning worked. The doors did not open unless she resorted to using a knife or plastic card. Both the bathroom and kitchen sinks drained into buckets. The shower wall was collapsing and the kitchen and bathroom floors were rotting. When the tenant demanded either repairs, placement into a better rental unit, or refund of her deposit so she could move out, the apartment manager told her that if she continued to complain, he would have her deported.

The regulating ordinance was passed in 1997, after which an inspection on a group of rental units (managed by the Shaw family and others) found confirmation of problems. The Shaws didn’t give the city the required certification, but kept on rent; the city made moves to shut down the rentals.

The Shaws countered with a lawsuit: “In response, the Shaws asserted that tenants occupying some of their rental units had refused to permit “unauthorized searches of their home.” CP at 8. The Shaws argued that absent a warrant, they could not permit a third party to inspect their tenants’ homes. They also argued that Pasco Ordinance 3231 violates the Fourth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the Washington Constitution because it requires inspection of rental units even if the tenants do not consent and the ordinance is unconstitutionally vague.”

The 4th amendment, of course, is a ban on unreasonable search and seizure; the Washington constitutional provision is intended to protect the right of privacy. The court noted that it has used those provisions in blocking some building inspection rules in the past – the area of argument isn’t completely invalid.

Here’s part of what allowed the Pasco rules to survive the challenge:

The Pasco ordinance requires a landlord to submit a certificate of inspection, but it does not authorize the city itself to search for housing violations. The petitioners point to Kuehn v. Renton School District No. 403, 103 Wn.2d 594, 600, 694 P.2d 1078 (1985), in which we held that parent chaperones of a high school student trip acted with enforcement authority of school officials when they searched student bags. However, under the Pasco ordinance a landlord can engage private inspectors in order to further the private objective of obtaining a certification needed to maintain a business license. Significantly, if a private inspector finds code violations, the ordinance does not require the inspector to turn his or her findings over to the city. Thus, a landlord can remedy any violations found by an independent inspector, submit to another inspection, and obtain a license based on the new inspection, without the city ever being notified of the original violations.

The city insists only upon the certificate that an inspection has been successfully completed. Landlords first and foremost further their own ends when they engage in the inspections contemplated by the ordinance. In sum, the petitioners have not met their burden of showing that landlords and their privately engaged inspectors are state actors. Absent state action, neither the Fourth Amendment, nor article I, section 7 was violated.

It’s a significant distinction, along with the fact that the requirement has to do with the application for a license – not the initial action by a government.

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