Trouble… right here in river city… Not long ago the City was nailed asking for permission to do background checks on candidates for elected office. Now they’ve passed an ordinance that would require landlords to hand the City keys to their rental property. Have they no concept of boundaries, of intrusive behavior, and DUH, constitutional rights? How is it they have no clue of legal and appropriate behavior?

The Red Wing Republican Beagle gets the importance:

Editorial: Inspect the case

R-E Editorial Board, The Republican Eagle
Published Saturday, November 18, 2006

Red Wing took a public bruising this fall when the Minnesota Attorney General’s Office chastised City Hall for candidate background checks. That story generated statewide attention â?? the kind no community needs but, in this instance, that the city brought on itself.

Red Wing suffered another black eye Wednesday, this time involving the Fourth Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Institute of Justice filed a lawsuit Wednesday in hopes of blocking the city’s rental code inspection law. The city appears poised to defend its position.

We won’t debate the merits of the rental code or the lawsuit today, but we don’t hesitate to warn city officials to take caution. City Council must balance carefully the costly litigation that could mean dipping deeper yet into taxpayers’ pockets.

Here’s the background on this:

From RWRE- Nick Dranias, attorney and the RW landlords

Red Wing sued over rental code
Samantha Marcus – The Republican Eagle
Published Thursday, November 16, 2006

A Minnesota-based public interest law firm that has been gearing up for a fight against the city of Red Wingâ??s rental inspection program filed a civil rights complaint Wednesday with the Goodhue County District Court.

The Institute for Justice is representing a group of Red Wing landlords and tenants seeking an injunction to prevent the city from enforcing the Rental Dwelling Licensing Code.

They allege that the program violates the Fourth Amendment right to privacy.
Nick Dranias (center) of the Institute for Justice is joined by a group of Red Wing landlords Wednesday at a press conference announcing a lawsuit they had filed against the city of Red Wing. The group says the city’s rental inspection code violates tenants’ Fourth Amendment right to privacy and freedom from unreasonable searches.

Itâ??s not the first time a municipal rental inspection code has been challenged, but Institute for Justice attorney Nick Dranias said elements of coercion make Red Wingâ??s program dangerous. Dranias referred to the program as an â??ad hoc concoction.â?

The city adopted the Rental Dwelling Licensing Code in February 2005, after deeming rental housing a concern.

The suit also names Jay Owens, the city engineer designated as enforcement officer, and Gene Durand, assistant building inspector, as defendants in their official capacities.

News of the lawsuit began circulating Wednesday. City officials said they hadnâ??t received a copy of the complaint yet and would need time to review it before commenting. Mayor Donna Dummer said an e-mail from the city administrator was the only notice of the lawsuit she had received as of Wednesday afternoon. Councilman Stephen Castner said he had heard the city was named in a lawsuit, but that no one had seen it yet.

Once the city is served the complaint, it has 30 days to answer by responding to points made in the complaint.

The city has held in the past that it is inspecting rental units for the public interest in â??ensuring that there are no possible conditions that could adversely affect the health and safety of the residents and the public.â?

How we got here

On Feb. 28, 2006, the city sent letters to East End rental property owners to set up inspections pursuant to the code. Landlords were to assume responsibility for obtaining their tenantsâ?? consent.

Institute for Justice attorneys said they got involved in April or May, when both landlords and tenants came to them with concerns about an intrusion on their right to privacy.

After failed attempts to reach the landlords by phone, City Attorney Jay Squires issued another piece of correspondence on July 27, alerting the rental owners that the city would seek legal recourse â?? namely, a warrant â?? to conduct inspections.

Between July 31 and Aug. 19, landlords Ryan Peterson, Doug Sjostrom, Kim Sjostrom, Brad Sonnentag, Robert McCaughtry and Robert McCaughtry for Michele McCaughtry each wrote to the city, challenging the city to produce warrants.

Sonnentag said he sent questionnaires to his tenants. Five of the six who responded said they were uncomfortable with the searches. And if they werenâ??t comfortable with it, neither was he, Sonnentag said.

He and the other landlords also said they were uncomfortable with the city leveraging their licenses against a property inspection.

The Rental Dwelling Licensing Code dictates that no one can operate a rental unit without a city-issued license or temporary permit. Both hang on a city inspection.

So while the city is applying for a warrant, landlords said they realize theyâ??re in a lose-lose situation.

If the court grants the cityâ??s request, the inspections will be conducted against the landlordsâ?? and tenantsâ?? wishes. If the court denies the warrant, the city canâ??t perform inspections but the landlordsâ?? licenses are jeopardized.

Dranias called it a â??Sophieâ??s choiceâ? at a press conference Wednesday announcing the lawsuit.

The complaint alleges that the element of coercion makes the warrant irrelevant.

â??The city has conditioned a landlordâ??s right to earn a living on waiving a constitutional right,â? Dranias said.

But itâ??s not just a landlordâ??s source of income or the roof over someoneâ??s head at stake, he added. Noncompliance is considered a misdemeanor, carrying a fine or imprisonment for up to 90 days.

â??The intimidation practices were very subtle,â? said Lee McGrath, executive of the Minnesota chapter of the Institute for Justice. â??But itâ??s enough to scare ordinary citizens.â?

Rentersâ?? rights

The case is ultimately about the Fourth Amendment â?? the paramount sanctity of oneâ??s right to privacy.

Dranias said the cityâ??s warrant request amounts to an unrestricted right to enter a renterâ??s home any time and as many times as inspectors choose.

Kim Sjostrom said she thought it was ridiculous that her tenants â?? ordinary citizens â?? have less right to privacy in their homes than suspected criminals do under Red Wingâ??s rental code.

For now the program focuses on rental units, but the Institute for Justice fears this is only phase one: The City Council expressed interest in pursuing citywide home inspections, according to an internal memorandum between the city administrator and city attorney.

â??Theyâ??re starting with the least able to organize and then extending it to the rest of us,â? McGrath said.

Landlords are quick to point out that renters werenâ??t without remedy before the code was adopted. Tenants could call the city and request an inspection at any time.

Sonnentag and Peterson said that system was more than adequate.

The City Council, which debated the code for months before approving it 20 months ago, disagreed.

Morris case

In 2003, the Minnesota Civil Liberties Union filed a similar grievance against the city of Morris, Minn. While the court upheld that cityâ??s code, Dranias said there are critical differences in Red Wingâ??s code.

The complaint against Red Wing accuses the city of using licenses to coerce warrantless inspections. And if landlords donâ??t comply, the city seeks out unconstitutional warrants, Dranias said.

Plus, Red Wingâ??s code doesnâ??t limit the scope of the inspections. An affidavit signed by the city engineers states that inspectors are to â??determine whether the structure is in compliance with the Housing Maintenance Code, other city ordinances, and the laws of the state.â?

The city of Morris explicitly limited its search to building codes, Dranias said. Red Wing has the broad authority to inspect for all forms of disorderly conduct, which is defined under the rental dwelling licensing code to include gambling, weapons offenses and prostitution â??searches that require warrants based on traditional probable cause.

If that is the cityâ??s intent, officials should be applying for a traditional warrant, Dranias said. That places the burden on the city to prove suspicion of a violation exists.

Dranias and McGrath said it seems the city could use the inspections as a facade for addressing criminal activity.

Attached to the Feb. 28 letter City Clerk Kathy Johnson sent to East End landlords was a letter regarding â??8-hour Crime Free Multi-Housing Programâ? training.â?

The program invited landlords to have the Red Wing Police Department conduct criminal history checks on prospective tenants in addition to attending sessions geared toward instruction on â??personal safety, applicant screening, landlord and tenant laws, drug and gang identification.â?

Attorneys for the landlords called the cityâ??s motives suspect.

â??Weâ??re very troubled by what we see in Red Wing,â? McGrath said.

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