LITTLE ROCK -- A man who owns rental property across the city is challenging its rental inspection code, which he says allows illegal searches for violations.
Property owner Robert Moore is seeking class-action status for his federal lawsuit, which alleges the city code violates the Fourth Amendment right of landlords and tenants to be free from unnecessary searches and seizures, and infringes on other constitutional rights as well.
Having survived the city's motion to dismiss, the case was headed for an Aug. 31 jury trial in a federal courtroom until Wednesday, when U.S. District Judge James Moody granted the city's recent request to postpone proceedings until he can decide whether the case should proceed as a class-action.
In court documents, attorney Chris Corbitt of Little Rock argues there are 1,138 potential class members -- property owners who were subject to code-violation searches, or requests for such searches, between Nov. 3, 2014, and Dec. 31, 2017. He wants Moore to represent all class members in seeking a declaration that the code and its supporting ordinances are unconstitutional and invalid, and declaring that all evidence obtained during illegal searches during the period be suppressed. The suit also seeks a refund of fines and fees levied as a result of the inspections, compensatory and punitive damages, and reimbursement of attorneys' fees.
Exempted from the class would be any property-owning city official named as a defendant and any presiding judge who owns, or whose relatives own, rental property in Little Rock.
The city attorney's office transferred the case to federal court in August from Pulaski County Circuit Court, where it was filed in late 2017. The city's request to have it dismissed hadn't been ruled on.
Corbitt says Moore is a landlord who has "always kept his houses up to snuff," but has nevertheless been subjected to random inspections without warning as a result of an agreement all landlords must sign to obtain a business license allowing them to rent out property.
"Requiring that is unconstitutional," Corbitt contends.
He said that while landlords should be required to maintain their properties, there are ways that tenants can seek relief for maintenance and safety concerns, and there are ways to ensure that any repairs are paid by the landlord, without infringing on a person's right to be secure in his own home.
"They use these inspections really to beat up landlords," Corbitt said Thursday. He said inspectors cite "made-up rules," such as writing up broken face-plates on light switches, that make it hard for property owners to pass an inspection. Corbitt also said that different inspectors have "different requirements" for passing inspections, making efforts to comply "almost never-ending."
The problem, he said, is that the code doesn't specify the scope of inspections.
"They can look in your closets," he said. "It's just outrageous."
Corbitt also complains that the city's rental inspection code doesn't require officials to provide the property owner, tenant or agent in charge of the property with written notice of a right to refuse consent to search.
If a tenant or an owner doesn't allow an unannounced inspection, Corbitt said, the inspector may seek an administrative search warrant from a district judge, but, the lawsuit contends, the official "is not required to show any facts to establish probable cause before obtaining the warrant."
It says the code "purports to establish probable cause for all search warrants based only upon a legislative declaration by the city."
Corbitt said the policy should require actual knowledge of something wrong inside the house to obtain an administrative warrant. However, the city says district judges only issue warrants based on probable cause.
The rental inspection code applies to all rental housing units in Little Rock, including houses, apartments, manufactured homes and mobile homes.
The lawsuit alleges that the city has an established custom of coercing unlawful searches through the threat of loss of property, privacy or liberty.
Corbitt said Moore filed suit after encountering problems with the city over a house at 1518 S. Taylor St. he bought in 2009 and rented out. Corbitt said tenants may allow inspectors inside, but in this case the female tenant refused to allow code enforcement officers in, so the inspectors obtained an administrative search warrant, though they didn't actually execute the warrant.
The city said code enforcement officers asked to search the home "after being made aware of the property's involvement in the City's criminal abatement program." City attorneys said a code officer swore out details in an affidavit that the district judge considered probable cause for issuing the search warrant.
Court documents show the city caused a criminal citation to be filed against Moore for his refusal to allow a search in January 2016. The violation ended up being dismissed, but Corbitt said inspectors then retaliated against Moore for complaining about them by "focusing a laser on him" and threatening to inspect all 11 of his properties.
He said two of those properties were searched after the tenants let inspectors in, and as a result Moore was required to make several repairs. Corbitt says he has evidence of other "coerced" inspections that ended up causing landlords to make unnecessary, costly repairs.
The city attorney's office argued that the case should be thrown out because the Taylor Street house wasn't searched, consent was obtained for the other two properties, and Moore hasn't been assessed a fine for any violation, which means he hasn't been injured by the rental inspection policy.
The city also argued that because Moore had rental property in the city, he was subject to the inspection code and couldn't sue over it.
In refusing to dismiss the suit, Moody said that Moore has raised arguable concerns about property owners being forced to accept no-warrant searches and, if they refuse, being subjected to the city declaring the property a public nuisance and condemning it, essentially taking property without just compensation.
NW News on 05/26/2020
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