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Fourth Amendment prohibits search without probable cause and judicial warrant

COLUMBIA, 5/6/13 (Beat Byte) -- Provisions in two Columbia ordinances governing rental properties may violate a U.S. Constitutional Amendment against unlawful search, says a coalition of concerned citizens that doesn't always see eye to eye: landlords and tenants.

Properly challenged, the Occupancy Disclosure Ordinance's warrantless tenant records search mandate and the Rental Unit Conservation Law's warrantless premises search mandate may be unconstitutional under the Fourth Amendment.

A staff report under consideration by the Columbia City Council tonight has prompted some to speak out. Landlords worry about added regulatory burdens and liability for violations of Federal credit reporting laws; renters worry about a broadening loss of privacy.
 
Representatives of both groups have been grumbling since the Columbia City Council passed the Occupancy Disclosure Ordinance (ODO). Without a warrant and "upon request," ODO requires property managers to "immediately exhibit" to police or city inspectors an astonishing array of private and confidential records: "leases, rental payments, and tenant information," which can include rental applications and credit data.
 
"That's far in excess of what's necessary to establish how many people occupy a unit," one property manager told the Heart Beat. "It sounds like the old 'Papers, please!' demand under a Fascist dictatorship."
 
Council members unanimously passed the ODO January 7th against what some have characterized as "weak opposition" from the Columbia Apartment Association (CAA) and its attorney, Skip Walther.

But Walther warned the City Council the law was "probably unconstitutional and certainly over-reaching," while CAA president Stanley Diaz issued similar warnings on radio programs and other public venues. Walther also argued the disclosure law wasn't necessary, with only a handful of over-occupancy complaints among some 25,000 Columbia-area rental units.

Monday night's staff report asks Council members to consider private, third party inspectors -- rather than public officials -- to insure compliance with occupancy limits and a second potentially unconstitutional city ordinance that dates back 35 years: the Rental Unit Conservation Law (RUCL). City administrators have long interpreted RUCL as allowing city inspectors to enter and inspect rental property without a court-ordered search warrant -- and without tenant consent.
 
Some worry the proposed shift from public to private inspectors may be an "end run" around Constitutionality concerns brewing since last year, when worries over ODO prompted additional review of RUCL.
 
Public safety concerns about carbon monoxide in furnaces reportedly led City Hall to adopt the RUCL in 1978, while rental unit over-occupancy, particularly in the Grasslands neighborhood, led to the ODO this year.

 
 

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