Marietta, Georgia wants to have more homeowners and fewer home-renters. To help achieve that goal, the city passed an ordinance requiring all rental properties be inspected by a city-approved “rental housing inspector.” The ordinance allows inspections to be conducted without a warrant and without the tenant’s consent. In fact, the ordinance permits the city to evict tenants from homes that have not been inspected, giving the city tremendous leverage to force tenants to submit to these warrantless inspections. Thus, in Marietta, homeowners and even suspected criminals enjoy greater constitutional protections from unreasonable searches than people who live in apartments, duplexes and other rental properties.
Fortunately, the notion that renters are second-class citizens—with less right than homeowners to enjoy the security and privacy of their own homes—exists only in the minds of Marietta politicians, not in the pages of any law book. Contrary to the mayor’s and city council members’ misconception, Marietta tenants enjoy the same constitutional rights as Marietta homeowners, including the right to decide who may enter their homes and for what purposes.
In order to vindicate that right, and to help put a stop to Marietta’s unconstitutional efforts to advance its social engineering goals, the Institute for Justice has filed a lawsuit in Cobb County Superior Court on behalf of three Marietta tenants seeking a declaration that Marietta’s rental inspection ordinance violates both the U.S. and Georgia Constitutions and requesting a permanent injunction to prohibit further warrantless, unconsented inspections of rental properties.
“Reinventing” Marietta by Getting Rid of Renters
Marietta is in the midst of an effort to redefine and redevelop itself. By attracting developers and investors who will create new housing developments, shopping centers, and office parks, the city hopes to recapture its former status as the “crossroads of the county.” Marietta plans to increase its tax base, improve the quality of its schools and make the city a more desirable place to live—for some people.
For other people—specifically, people who rent their homes instead of owning them—the city has a much simpler vision: Get out. The politicians who run Marietta have decided that the city has too many tenants and not enough homeowners. And they appear to have made a conscious decision to reduce that ratio to a number they find acceptable, even if that means trampling on tenants’ constitutional rights.
Approximately 65% percent of the housing in Marietta consists of rental units; the rest is owner-occupied.[c]Durbin, Joan, “Officials Start Marietta Rental License Program,” Marietta Daily Journal (online edition) (March 16, 2004).[/c] According to the New Georgia Encyclopedia, those figures are almost the reverse of those for the rest of Cobb County.[c]The New Georgia Encyclopedia, Marietta, available at http://www.georgiaencyclopedia.org/nge/Article.jsp?path=/ CitiesCounties/Counties&id=h-765.[/c] A report by the Marietta Redevelopment Task Force states that rental properties comprise 61 percent of the city’s housing units, which the task force claims is “twice the norm.”[c]Marietta Redevelopment Task Force, “Progress Report to Mayor and City Council,” May 30, 2002, slide 20 (PowerPoint presentation; available from the Institute for Justice) (hereafter “Task Force Progress Report”).[/c]
The job of the Marietta Redevelopment Task Force was to “recommend actions to be taken by the city council of Marietta that will improve the redevelopment process, attract investors, protect the quality of life in Marietta, and stimulate the redevelopment of the city.”[c]Id. slide 5.[/c] In its May 2000 progress report to the mayor and city council, the Task Force makes clear its strong bias in favor of owning rather than renting one’s home and concludes with a recommendation that the city “undertake an all out effort to . . . increase home ownership.”[c]Id. slide 103.[/c] This bias is further reflected in the City of Marietta’s “vision statement,” in which the city’s leaders say they “recognize the importance of homeownership and our vision is that a majority of our residences will be owner-occupied.”[c]City of Marietta, Georgia, The Marietta We Will Be Vision, Version 6.0, available at http://www.city.marietta.ga.us/government/images/ VISION%20STATEMENT%20ONLY1.pdf[/c]
Thus, even if the city had not singled them out for warrantless, unconsented inspections of their homes, Marietta would still be sending a loud and clear message to renters that they are second-class citizens. While there are many good reasons to own a home, that option is not right for everyone. Some people can’t get a mortgage, while others would prefer not to be saddled with such a huge obligation. Then there are those who simply relish the flexibility and simplicity of renting instead of owning, preferring to leave day-to-day maintenance and upkeep to a landlord instead of dealing with those hassles themselves.
Even more obnoxious than designating renters as second-class citizens is Marietta’s plan for achieving its stated goal of majority home-ownership. It is no accident that in the PowerPoint presentation put together by the Marietta Redevelopment Task Force, the subject of “Home Ownership” is followed by five slides on “Housing Code Enforcement.”[c]Task Force Progress Report, slides 61-65.[/c] In the vanilla lexicon of bureaucratese, the Task Force recommends “adopting a managed approach to code enforcement rather than a complaint driven approach.”[c]Id. slide 61.[/c] The Task Force also suggested consideration of a “fee-based rental property inspection program,”[c]Compare id. slide 65 with City of Marietta Ordinance No. 6664 § 4 (requiring that a “separate license shall be obtained for each and every rental property”) (copy available from the Institute for Justice) (hereafter “Inspection Ordinance”).[/c] which is exactly the scheme the city ultimately adopted. The presentation ends with the admonition that the strengthening of code enforcement is “vital to redevelopment.”[c]Task Force Progress Report, slide 103.[/c]
Based on the specific contents of the Inspection Ordinance and the way it has been applied, the term “code enforcement” seems to be a euphemism for “roust the renters.” For example, landlords have reported that some inspectors will fail a property for purely cosmetic issues such as dented gutters, water stains, and unused windows that won’t open because they have been painted shut. Inspectors also failed properties for conditions that were completely within the control of the tenant, such as dirty dishes in the sink or piles of laundry on the floor.
The Inspection Ordinance makes clear that landlords will not be given a “business license” to continue renting the property until all of these conditions have been corrected and the property is in perfect compliance with the “provisions of the Codes and Ordinances for the City of Marietta.”[c]Inspection Ordinance § 10(A) & (B).[/c] It doesn’t matter how trivial the supposed violation is and it doesn’t matter whether the tenant wants it fixed or even whether the tenant noticed it in the first place. Of course, all those repairs cost money, which the landlord is going to have to pass on to the tenant. That in turn will drive up the cost of renting the properties and—the City seems to hope—ultimately encourage many tenants to move somewhere else.
If “code enforcement” is so important to the City’s redevelopment goals, why does the Inspection Ordinance apply only to rental properties? The answer seems to be that Marietta is less interested in making sure that all dwellings comply with the City’s “Provisions and Codes” than it is in making it as onerous as possible to rent a home in Marietta.
That Marietta’s Inspection Ordinance has more to do with getting rid of renters than ensuring housing code compliance is further suggested by one other fact. Both the inspection and reporting requirements of Marietta’s Inspection Ordinance directly contradict state law. In April of 2003, the Georgia General Assembly passed a bill saying that “[n]o local government is authorized to perform investigations or inspections of rental property unless there is probable cause to believe there is or has been a violation . . . of applicable codes.”[c]O.G.C.A. § 36-74-30(b).[/c] The same bill provides that “in no event may a local government require the registration of residential rental property.”[c]Id.[/c] According to one of the legislators who helped pass the statute, it was specifically intended to prevent local governments from passing laws like Marietta’s Inspection Ordinance.[c]Affidavit of State Senator Greg Lamutt ¶¶ 4, 6 filed in Plantation Oaks, et al. v. City of Marietta, et al., Civil Action No. 04-1-4482-24 (copy available from the Institute for Justice).[/c]
If Marietta is genuinely concerned with ensuring code compliance, it is hard to understand why it would pass an ordinance that directly contradicts state law by requiring inspections that are not based on probable cause. The short answer, of course, is that Marietta’s stated concerns about code compliance are purely pretextual, and its true intent is to promote its social engineering goal of increased home ownership.
Your Home Is Your Castle, Even If It’s an Apartment
Connie Brumberg lives in a charming brick building on Atlanta Street in Marietta. The building was built in 1929, just before the Great Depression, and has been lovingly restored. Connie moved to downtown Marietta so that she could enjoy the charm of downtown Marietta after a successful career as a real estate agent in Atlanta. From her experience in real estate, Connie learned knows the importance of location; she chose her apartment because of the short two block walk to Marietta’s charming city center. She is adamantly opposed to the idea of being forced to allow strangers into her home without her permission.
Andy Nobles, a 25-year resident of metropolitan Atlanta, lives in the same building. He loves the history of the building, with its old-fashioned steam radiators and coal bin. Andy prefers the simplicity and efficiency of renting rather than spending his valuable time maintaining a home. But he resents that fact that, in the eyes of the city government, that makes him a second-class citizen compared to homeowners, who are not required by the City to allow strangers into their homes to poke around.
Gerald Florence feels the same way. He rents one side of a duplex on West Dixie Avenue in Marietta, and he has told his landlord in no uncertain terms not to bring anyone into his home without his permission. Gerald installs cables for a living and helps out with maintenance and repair work at the Sewell Mill Baptist Church when he has time. He figures even though he’s not a homeowner, he has the same right as anyone else to decide who can come into his home and for what purpose. City-approved rental housing inspectors are not welcome.
Although Connie, Andy, and Gerald are not constitutional law experts, they share the same conviction about their rights as American citizens. One of the most fundamental of those is the right to enjoy the privacy of their own homes. The Fourth Amendment to the U.S. Constitution says that “[t]he right of the people to be secure in the persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Georgia Constitution contains identical language regarding unreasonable searches, as well as a due process of law provision that has been interpreted by the Georgia Supreme Court as protecting a right of privacy “far more extensive than that protected by the Constitution of the United States.”[c]Powell v. State, 510 S.E.2d 18, 22 (Ga. 1998).[/c]
The U.S. Supreme Court has made clear that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”[c]United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297, 313 (1972).[/c] By protecting the home from unwarranted and arbitrary government intrusions, the Fourth Amendment “gives concrete expression to a right of the people which is basic to a free society.”[c]Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 528 (1967) (quoting Wolf v. People of State of Colorado, 338 U.S. 25, 27 (1949).[/c]
While most commonly associated with searches performed by law enforcement officers investigating crimes, the Fourth Amendment ensures that all citizens have the right to keep unwanted intruders out of their homes and off of their property. Thus, the Supreme Court has held that the Fourth Amendment applies to “all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life.”[c]Boyd v. United States, 116 U.S. 616, 630 (1886) (emphasis added).[/c] The Court has emphasized that “even the most law-abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority.”[c]Camara, 387 U.S. at 530-31.[/c]
Generally, the Fourth Amendment requires that, in order to enter a person’s property without his consent, a government official must obtain a valid search warrant issued by a judge and based on some reasonable suspicion (“probable cause”) that a law is actually being violated.[c]Maryland v. Buie, 494 U.S. 325, 331 (1990).[/c] Both of those requirements—probable cause and the issuance of a warrant—safeguard people from “arbitrary invasions by governmental officials.”[c]Camara, 387 U.S. at 528.[/c] The requirement of “probable cause” ensures that government officials cannot engage in blanket searches of the homes of law-abiding citizens,[c]Payton, 445 U.S. at 583-84.[/c] and the warrant requirement ensures that a neutral judge will review an official’s determination that “probable cause” in fact exists.[c]Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 4.1 (collecting Supreme Court cases) (2004).[/c] Because officials are not neutral (they are pursuing the government’s interests and may see “probable cause” where it does not exist), the Supreme Court has emphasized that generally, searches conducted without a warrant are presumed unconstitutional.[c]Groh v. Ramirez, 124 S.Ct. 1284, 1290 (2004).[/c]
The twin requirements of probable cause and a valid search warrant have been specifically held to apply to rental property inspections like Marietta’s.[c]Black v. Park Forest, 20 F. Supp. 2d 1218 (N.D. Ill. 1998).[/c] And, contrary to Marietta officials’ apparent misconception, the government cannot escape those requirements by ordering landlords to use ostensibly private parties to perform the mandated inspections.[c]See, e.g., Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989) (“Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government”).[/c]
The Institute and its clients will challenge the Marietta Inspection ordinance on the grounds that it violates the search and seizure provisions of the U.S. and Georgia Constitutions and also on the grounds that it violates the right of privacy reflected in Article I, Section I, paragraph 1 of the Georgia Constitution. First, the U.S. Supreme Court has made crystal clear that—absent extenuating circumstances not present here—the government must obtain either a valid search warrant or consent of the occupant before it may search any home. The Marietta Inspection Ordinance requires searches to be performed with no warrant and regardless of whether the tenant consents to the search.[c]See Inspection Ordinance § 8(C).[/c] This is a clear violation of the Fourth Amendment and the analogous provision of the Georgia Constitution.[c]See, e.g., Black v. Park Forest, 20 F. Supp. 2d 1218 (N.D. Ill. 1998).[/c]
This case is part of the Institute’s ongoing effort to establish legal safeguards for property rights and prevent bureaucrats from trampling them. As the U.S. Supreme Court has declared, “Individual freedom finds tangible expression in property rights.”[c]United States v. James Daniel Good Real Property, 510 U.S. 43, 61 (1993).[/c] This case will seek to build upon the Black v. Village of Park Forest case, also litigated by the Institute, in which a federal court in Illinois struck down warrantless inspections of single family rented homes.[c]Black v. Park Forest, 20 F.Supp.2d 1218 (N.D. Ill. 1998).[/c]
Leading the Institute for Justice’s team in this case is Senior Attorney Clark Neily. Neily litigates property rights, economic liberty, school choice, and First Amendment cases nationwide. Prior to joining the Institute, Neily was an associate in the trial department of the Dallas-based law firm Thompson & Knight. He is joined by Staff Attorney Valerie Bayham, who litigates property rights, economic liberty, and First Amendment cases, as well as William H. Mellor, president and general counsel of the Institute for Justice. Assisting the Institute for Justice as local counsel is Atlanta lawyer Charles Mace.
For more information, contact:
John E. Kramer (Vice President for Communications)
Lisa Knepper (Director of Communications)
Institute for Justice
901 N. Glebe Rd. Suite 900
Arlington, VA 22203