Flynn v. City of Lincoln Park

MARY FLYNN, PETER FLYNN, Plaintiffs, v. CITY OF LINCOLN PARK, Defendant.

2:18-cv-12187

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 21, 2020

HON. TERRENCE G. BERG

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Rental property owners Mary and Peter Flynn have filed a proposed class action against the City of Lincoln Park claiming that the City's ordinances requiring inspections of rental property violate their constitutional rights against warrantless searches under the Fourth Amendment, their due process rights under the Fifth and Fourteenth Amendments and give rise to several other civil claims. The case is now before the Court on a motion for summary judgment filed by the City. ECF No. 24. Oral argument was presented by the parties on December 18, 2019. Having carefully reviewed the arguments of the parties and all the relevant authorities, the Court concludes that summary judgment should be entered in favor of the City of Lincoln Park on each of Plaintiffs' claims.

BACKGROUND

Under Michigan law, "a city may adopt a law, code, or rule that has been promulgated and adopted by an authorized agency of this state pertaining to fire, fire hazards, fire prevention, or fire waste, and a fire prevention code, plumbing code, heating code . . . [or] an international maintenance code . . . ." Mich. Comp. Laws § 117.3(k). Accordingly, the City of Lincoln Park adopted a code of ordinances for rental dwellings with the stated purpose of "protect[ing] the public health, safety and welfare by establishing minimum standards governing the state of repair and maintenance of rental dwellings." ECF No. 24-4, PageID.506 (Lincoln Park Code of Ordinances § 1482.02(a)). The ordinances also enable the City "to provide an efficient system for compelling both absentee and local landlords to correct violations and maintain, in proper condition, rental property within the city." ECF No. 24-4, PageID.506 (Lincoln Park Code of Ordinances § 1482.02(a)).

The ordinances require that rental properties pass inspection by a City Building official at least once every three years to ensure they are in compliance. ECF No. 24-4, PageID.506-08 (Lincoln Park Code of Ordinances §§ 1482.03, 1482.04, 1482.06). Passing inspection is also a prerequisite to obtaining the certificate of compliance all rental properties must have to operate within the City. The relevant ordinance provides that "[a] certificate of compliance shall be issued . . . when it is established that such dwelling or facility is in compliance with all of the code requirements applicable to existing structures or residential occupancies." ECF No. 28-1, PageID.63 (Lincoln Park Code of Ordinances § 1482.07). According to Mary Flynn's deposition testimony, the buildinginspections generally take between five and ten minutes to complete. See ECF No. 24-3, PageID.485, 488 (Mary Flynn Dep. Tr.).

The City's rental ordinances also include enforcement provisions, one of which provides that if the owner of any rental dwelling fails to promptly comply with inspection requirements "after being properly notified" of them, the Building Department "shall . . . post[ ] a notice requiring that the occupant of the unit provide entry for inspection purposes at a specified date and time." ECF No. 24-4, PageID.509 (Lincoln Park Code of Ordinances, § 1482.09). Failure to comply with the City's ordinances may result in a "municipal civil infraction." ECF No. 24-4, PageID.510 (Lincoln Park Code of Ordinances, § 1482.99). And any individual who commits three or more violations of the ordinances within a 24-month period may be charged with a misdemeanor punishable by a fine of up to $500 and 90 days in jail. Id.

The Flynns' Fourth Amendment challenge focuses on one provision of the City's inspection ordinances, which reads as follows:

"[w]here it is necessary to make an inspection to enforce the provisions of this code, or whenever the code official has reasonable cause to believe that there exists in a structure or upon a premises a condition in violation of this code, the code official is authorized to enter the structure or premises at reasonable times to inspect or perform the duties imposed by this code, provided that if such structure or premises is occupied the code official shall present credentials to the occupant and request entry. If such structure or premises is unoccupied, the code official shall first make a reasonable effort to locate the owner, owner's authorized agent or otherperson having charge or control of the structure or premises and request entry. If entry is refused, the code official shall have recourse to the remedies provided by law to secure entry.

ECF No. 24-4, PageID.508 (Lincoln Park Code of Ordinances, § 1482.06(d)) (emphasis added) (adopted from Int'l Prop. Maint. Code, § 104.3, Int'l Code Council (2015), https://www2.bgky.org/assets/files/aqoB3Kn5.pdf). Plaintiffs argue that the last sentence of this ordinance authorizes mandatory, warrantless inspections.

As counsel for the Flynns acknowledged during oral argument, however, the City's inspection ordinances also provide rental-property owners with an opportunity to challenge violation notices they receive. To properly challenge such a notice, the property owner must file a written petition within 20 days of the date he or she receives the notice. ECF No. 24-4, PageID.510 (Lincoln Park Code of Ordinances, § 1482.10). That written petition must state "the grounds of the appeal" and request a hearing. Id. Owners who file petitions that comply with these parameters "shall be granted a hearing on the matter before the Hearing Board on Dangerous Buildings and Code Appeals." Id. (emphasis added). The Board is composed of individuals who are not employed by the City and who possess specialized training in building trades. ECF No. 24-18, PageID.599 (John Meyers Dep. Tr.).

The Flynns own eight residential rental properties in Lincoln Park. Their lawsuit focuses on a single violation the City Building Departmentissued them in connection with the property located at 1542 Morris.¹ See ECF No. 24-3, PageID.482 (Mary Flynn Dep. Tr.). That property was initially registered as a rental property in 2008 and has been continuously occupied by tenants for the past several years. ECF No. 24, PageID.417; ECF No. 24-3, PageID.491. It was re-inspected in 2011 and, finding everything in order, the City issued a new certificate of compliance. Id. But when the property was again inspected in 2014 as part of the process of issuing a new certificate of compliance, the City Building Inspector identified several problems. See ECF No. 24-6 at PageID.519-22 (Letters from City Building Dep't to Plaintiffs). It took Plaintiffs approximately two years from the date of the initial August 2014 inspection to address these issues. See id. The City re-inspected the Morris property on November 14, 2016 and, finding the previous issues resolved, finally issued the property a new certificate of compliance. See id. at PageID.522; ECF No. 24-9, PageID.530 (Letter from Plaintiffs to City Building Dep't). That certificate listed an expiration date of September 24, 2017, approximately three years from the date the Flynns paid the inspection fee but less than one year from the date the City completed its final inspection and deemed the building's complianceissues resolved. See ECF No. 24-6, PageID.523 (Certificate of Compliance). The Flynns assert the certificate should have been valid for three years from the date the City determined the property was in compliance with the ordinance's requirements, not from the date they paid the inspection fee. See ECF No. 1, PageID.6.

When the City notified the Flynns in September and October 2017 that their most recent certificate of compliance was expiring and the Morris property was accordingly due for another inspection, Plaintiffs responded with a letter disputing that the property was due for inspection. ECF No. 24-9, PageID.530. The City responded that the Flynns had been informed as early as August 11, 2014 that a new rental inspection would be required for the Morris property in 2017. ECF No. 24-10. In a letter to the Flynns, the City explained that their "[f]ailure to comply with rental certification in a timely manner [in connection with the previous certificate] does not remove the responsibility to renew within the three year renewal date, commencing from date of payment." Id. The City again urged the Flynns to contact the Building Department to schedule an inspection. Id. More than three months later, the City sent the Flynns a letter stating that the Morris property, because it lacked a valid certificate of compliance, was operating in violation of City ordinances and the Flynns were accordingly being issued a civil infraction ticket, along with a notice to appear in court. ECF No. 24-12, PageID.538 (Notice of Civil Infraction Ticket); ECF No. 24-13 (CivilInfraction Ticket). The City issued that ticket to Mary Flynn on February 7, 2018. ECF No. 24-13.

The Flynns acknowledged in deposition testimony that they never appealed the City's request for an inspection either before or after the ticket was issued. See ECF No. 24-2, PageID.460 (Peter Flynn Dep. Tr.); ECF No. 24-3, PageID.485. But they also claimed to be unaware that any formal appeal process was available to them. ECF No. 24-2, PageID.460; ECF No. 24-3, PageID.485. Mary Flynn appeared in court in Lincoln Park in connection with the ticket and it was subsequently dismissed. ECF No. 1, PageID.7 (25^th Jud. Dist., State of Michigan Register of Action) (indicating ticket was dismissed on March 22, 2018). After the ticket was dismissed, neither of the Flynns paid any fines or were criminally penalized in connection with the dismissed ticket. ECF No. 24-3, PageID.491.

It is undisputed that no rental property of the Flynns' was ever searched by any City Building Inspector or other official without their consent or a valid warrant. See ECF No....