"IN-THE-BORO" News, Video and Commentary: December 2019

Monday, December 16, 2019

Wednesday, December 11, 2019

Paint Rock, Alabama - December 11, 2019 - Back in the News - Building Code Ordinance - Safety versus Unlawful Inspections and Entry of Homes and Buildings - More on the Dilemmas of a Small Town, Doing What is Right

Old Railroad Sign, Paint Rock, Alabama photo by G. Morgan

Paint Rock, Alabama - a small town in west Jackson County Alabama located on U.S. Highway 72. Population in 2017 estimated at 204 residing in the town limits. Photo from Wiki: https://en.wikipedia.org/wiki/Paint_Rock,_Alabama Fair Use for non-profit news reporting and commentary.

The views and opinions expressed within this article are my thoughts on this issue and does not reflect a bonafide legal opinion as I'm not an attorney. Links and articles listed are easily available on the World Wide Web and are based on good sense and well established, easily read law available to any person.

Paint Rock citizens are upset and concerned regarding this ordinance.

One concerned citizen commented that she was afraid of the Mayor or town council breaking into her home to perform a so called inspection. Others stated they would defend their property as necessary from an illegal search by city officials.

Previously in June 2018, Paint Rock citizens expressed concerns regarding closed meetings, not open to the public and Open Meetings requirements. Link to articles about that issue on this blog - https://arklite.blogspot.com/search/label/Paint%20Rock%20Alabama , the open meeting problems were resolved by the town council and mayor after several heated discussions and a presentation by the Town Attorney. In the current ordinace, the "Town Attorney" is described as the "Department of Law."

This time the concern involves the town's "Building Code Ordinance" and the alleged right of the "building official" or his or her appointed representative to enter homes, businesses or premises to "inspect" premises at "reasonable times. The new ordinance provided to this writer by concerned citizens, regarding building codes, is not signed or dated, but has been distributed as occurred with the open meetings ordinance. It appears there was no legal review of this ordinance before distribution. Hopefully, this small town which has very few funds if any, will quickly learn their lessons before there is a costly legal action.

Image of the "Building Code" opening.

(Click on image for an expanded view.)

The entire code consists of 15 pages, some of the code appears to be out of date and is revised from the original International Code Committee code set.

The concerning part involves entry to premises for inspection. Reasons for the "Right of Entry" (page 6) are not stipulated in this portion of the code. Definitions are stated on page 9. It seems on reading this part of the code that the building inspector or his representative may enter any premises to inspect without just cause.

Research on this issue.

Cullman, Alabama has an extensive code on the issue of inspection and entry. Link: https://librarystage.municode.com/al/cullman/codes/code_of_ordinances?nodeId=COOR_CH10BUBURE_ARTVIADEN_S10-367IN

Sec. 10-367. - Inspections.

(a)

Inspections required under the provisions of this chapter shall be made by the building department. Upon evidence of probable cause and presentation of proper credentials, authorized agents of the building department may enter, at reasonable times, any building, structure, or premises in the city in order to enforce this article.

(b)

Any property, building, equipment, appliance, or system installed, constructed, erected, altered, repaired, maintained, or used in the city shall be subject to inspection by the building department.

(c)

No official or employee of the building department making inspection of properties for the purpose of determining the necessity for repairs or corrections shall have any financial interest, directly or indirectly, in any repairs or corrections which may be required by this article.

Sec. 10-368. - Inspection warrant procedure.

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(a)

The building department, in addition to other procedures provided, may obtain an inspection warrant under the conditions specified in this chapter. The warrant shall authorize the director or agents thereof to conduct a search or inspection of property, either with or without the consent of the person whose property is to be searched or inspected, under the conditions set out in this article.

(b)

Inspection warrants may be issued by the municipal court when the issuing judge is satisfied that all of the following conditions are met:

(1)

The person seeking the warrant must establish under oath or affirmation that the property to be inspected is to be inspected as a part of a legally authorized program of inspection which includes that property or that there is probable cause for believing that there is a condition, object, activity, or circumstance which legally justifies such an inspection of that property.

(2)

The issuing judge determines that the warrant is authorized by this article.

(c)

The inspection warrant shall be issued only if it meets all of the following requirements:

(1)

The warrant is attached to the affidavit required to be made in order to obtain the warrant.

(2)

The warrant describes, either directly or by reference to the affidavit, the property upon which the inspection is to occur and is sufficiently accurate that the executor of the warrant and the owner or possessor of the property can reasonably determine from it the property for which the warrant authorizes an inspection.

(3)

The warrant indicates the conditions, objects, activities, or circumstances which the inspection is intended to check or reveal.

(4)

The warrant refers, in general terms, to the Code provisions sought to be enforced.

Case law and Discussion

The Pennsylvania Law Weekly, May 18, 2017, By: Zachary A. Sivertsen, Esq.

Municipalities throughout the [states] have enacted property maintenance, zoning and building codes to ensure construction is performed safely and in a technically sound manner, development occurs in an orderly fashion and properties are maintained and kept free of safety hazards. Key components of these regulatory schemes are inspections performed by municipal agents and employees, such as code enforcement officers and building inspectors, who monitor conformity with municipal regulations and issue citations and violation notices for noncompliance. Such “administrative inspections” however, may, in certain circumstances, violate the constitutional rights of residents to be free from unwarranted searches, guaranteed by both the U.S. and [state] constitutions. In fact, any search of private property by the government or someone acting on behalf of the government implicates the Fourth Amendment’s protections.

Most people are aware of these limitations, at least peripherally, in the context of police officers and other law enforcement officials investigating suspected criminal activity—namely the requirement that a search warrant be obtained prior to performing a nonconsensual search of property. Failure to obtain court permission for such a search invokes the “fruit of poisonous tree” doctrine, by which any evidence discovered as a result of the search is inadmissible against the occupant or property owner. This type of search warrant is known as a “general search warrant,” and must be issued by a judge.

Less well known though, is that inspections to enforce municipal regulations (including zoning ordinances, property maintenance code requirements, construction code requirements, rental or other licensing requirements, and other property-related municipal ordinances) are subject to the same constitutional restrictions. Thus when a municipal officer or agent wishes to perform an inspection, but does not have the owner or occupant’s permission to do so, they must obtain an “administrative search warrant.” Administrative search warrants are almost always issued by magisterial district judges; though case law indicates that such warrants could be issued by a neutral magistrate or officer, as in Commonwealth v. Tobin, 828 A.2d 415, 419 (Pa. Commw. Ct. 2003).

To obtain either type of search warrant, the requesting official must demonstrate “probable cause.” This means that the requesting official must have a reasonable basis to believe a crime has been committed (for general warrants) or that an inspection should be conducted (for administrative warrants). The standard for establishing probable cause for an administrative warrant is different and less stringent than that required for a general warrant. To obtain an administrative warrant, probable cause can be established by showing that “reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling,” as in Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 538 (1967).

Relevant factors for evaluating probable cause include: the passage of time since a prior inspection, the condition of the premises, and the condition of the general area. Another basis is if there is a general administrative plan for the enforcement of an ordinance that is “derived from neutral sources,” as in Marshall v. Barlow’s, 436 U.S. 307, 321 (1978). For example, a property maintenance code with a general inspection schedule that clearly identifies districts of the municipality to be inspected, timelines for performing inspections of those areas, and a checklist of minimum standards to guide the inspections.

The underlying standard applied by the court when evaluating all searches, is reasonableness. The fundamental purpose of the constitutional protection from unwarranted searches is to protect individual privacy rights from government intrusion. Reasonableness is assessed by balancing the need of the municipal official or agent to perform the search, against the level of invasion into the property owner or occupant’s privacy rights that will result from the search.
This is not to say that an administrative warrant must be obtained in every situation. Certain exceptions from the warrant requirement do exist. The primary exception implicated in the context of administrative inspections is the existence of “exigent circumstances.” This is when there is some compelling need for official action, such as a fire or other emergency that creates an immediate threat to public health or safety, and there is no time to secure a warrant.
More on this issue may be read at this link: https://www.eastburngray.com/publications/municipal-inspections-youre-going-need-warrant/

United States of America Constitution, 4th 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."

Alabama Constitution: "Section 5 - Unreasonable Search and Seizure; Search Warrants - That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation."

The town of Paint Rock, Alabama should insure that any ordinance prior to implementation or distribution to citizens should receive a legal review to insure shortcomings and errors do not result in future legal action. For the town's officials to not acquire a legal review is, in my opinion, negligent. Note the Cullman, Alabama Ordinance and procedures above.

Tuesday, December 3, 2019

THE FEDERAL BUREAUCRACY

"I can say with confidence that the federal government needs a major overhaul. Don’t get me wrong, most public servants in government are highly educated and dedicated professionals who are committed to “the greater good.” At the same time, the government has become a bloated bureaucracy that is based on past conditions and in too many cases, federal programs and policies can’t demonstrate that they are generating real results that benefit the American people."
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David Walker President and CEO The Peter G. Peterson Foundation http://www.pgpf.org/ ; former, recently served for 10 years, Comptroller General of the United States and head of the U.S. Government Accountability Office (GAO).
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NPR's story on David Walker: http://www.npr.org/templates/story/story.php?storyId=124460237