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City to homeowner: Let us in, or get out
Posted By Drew Zahn On 10/04/2009 @ 11:33 pm In Front Page | Comments Disabled
City notice posted on Michael Marcavage’s duplex
A Pennsylvania man who refuses to allow city officials to enter his home without a warrant has been forced out to stay in a hotel instead, evicted by a notice posted on his door that forbids him from using or occupying the building he owns.
Borough Ordinance No. 1188 of Lansdowne, Penn., requires all rental properties – including the private residence of the landlord, if he lives onsite – be subjected to annual inspections, with or without a warrant.
But Michael Marcavage, who lives in half of a Lansdowne duplex he owns, renting out the other half, believes the city knocking on the door and demanding warrantless entrance and inspection of his private residence – just because it also happens to be part of a rental building – is a violation of the U.S. Constitution’s Fourth Amendment.
The Fourth Amendment states in part, “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.”
Marcavage has not been accused of any wrongdoing, nor has any warrant been sought to inspect his property. In fact, he’s been fighting the borough’s rental inspection ordinance as unconstitutional for years, both for himself and his tenants. He’s even been issued a citation and fine in the past for refusing to permit warrantless search of his home.
But earlier this week, the borough stepped up the battle.
Two days ago, city code officials posted a notice on Marcavage’s door informing him his house was deemed an “unlawful rental property” and allowing him to the end of that same day to obtain his rental license or get out.
Now Marcavage is staying at a hotel, but he vows to fight the city’s ordinance and actions in federal court, if necessary.
“I cannot and will not bow to these tyrannical actions by government officials,” Marcavage stated. “The notice posted on my front door was not only a notice to me, but a notice to all Americans, that if you are unwilling to forsake your constitutional rights, the government will make you suffer.”
WND contacted Michael Jozwiak, Lansdowne’s director of zoning and code enforcement, who said Marcavage’s talk of inspections was “putting the cart before the horse.”
“The notice says nothing about inspections,” Jozwiak explained. “Mr. Marcavage failed to file for his rental license, and that’s the reason for the notice.”
But Marcavage told WND the dispute still comes down to mandatory entry into his home and the homes of his tenants. He intentionally refused to sign the renewal forms Jozwiak alluded to, because they required compliance with the city’s warrantless search ordinance.
“I could not in good conscience agree to the terms of the license renewal, thus signing away my Fourth Amendment rights,” Marcavage said. “I explained this to Mr. Jozwiak and sent him U.S. Supreme Court rulings demonstrating the city’s ordinance as unconstitutional. I even offered to file the necessary forms unsigned.”
Marcavage highlighted the 1967 Camara v. Municipal Court of City and County of San Francisco case, in which the Supreme Court overturned conviction of a tenant for refusing a housing code inspection.
“We hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment,” the court ruled, “that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual.”
Marcavage also told WND that he is seeking an injunction that would enable him to move back into his home without violating the notice posted on his door and possibly risking an arrest.
“We’ve got to defend our rights,” Marcavage said, “especially after the Supreme Court’s recent decisions on eminent domain.”
Marcavage also pointed to a case in Red Wing, Minn., to argue that it’s not just renters and landlords that need to be concerned about the erosion of the Fourth Amendment.
In the 2006 case of Stewart v. City of Red Wing, landlords similarly rejected the city’s attempt to require warrantless code inspections. During the case, however, it was discovered city officials were considering the inspection of rental properties as only a first step, before seeking the ability to inspect all private residences in the city.
Though Red Wing has since explicitly backed away from the plan to inspect all homes, Marcavage warns Americans need to remain vigilant:
“I believe it was Thomas Jefferson,” Marcavage said, “who warned of the government encroaching on our rights, not all at once, but in increments.”
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