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Homeowner wins 1st battle against city inspections
Posted By Drew Zahn On 10/06/2009 @ 3:34 pm In Front Page | Comments Disabled
City notice posted on Michael Marcavage’s duplex
A resident of Lansdowne, Penn., is back in his house today, after a federal judge ordered the city not to enforce eviction of the homeowner for refusing to allow code officials to enter and inspect his home.
As WND reported, city code officials posted a notice on Lansdowne resident Michael Marcavage’s door last week, informing him his duplex – half of which is his private residence, and the other half he leases to renters – was deemed an “unlawful rental property” and allowing him to the end of that same day to obtain his rental license or get out.
Lansdowne Borough Ordinance No. 1188 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, in order to receive a rental license.
When Marcavage refused to file papers with the city permitting the inspections, however, he was served a notice forbidding him from renting, using or occupying his house.
Marcavage, who had been staying in a hotel and with friends, filed a complaint in U.S. district court, and yesterday Judge Anita B. Brody agreed to issue an order halting the further enforcement of the ordinance against Marcavage and his tenants until the case is decided.
“I’m glad to be home, but this is only part one of a legal battle that will continue for years to come,” Marcavage stated. “They want to come into my home today and yours tomorrow. The next thing you know, they’ll want to tuck you into bed at night.”
Marcavage has been fighting Ordinance No. 1188 for years, believing 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.”
“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.”
Michael Jozwiak, Lansdowne’s director of zoning and code enforcement, however, told WND Marcavage’s talk of inspections and warrantless searches 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 pointed to a case in Red Wing, Minn., to argue that it’s not just renters and landlords who 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:
“These tyrannical abuses by government are ever-increasing,” Marcavage said. “I am reminded of the words of James Madison, who said, ‘I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations.’”
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