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Sokolov v. Vil. of Freeport

Court of Appeals of the State of New York
Mar 31, 1981
52 N.Y.2d 341 (N.Y. 1981)

Summary

holding unconstitutional an ordinance that "effectively authorizes and, indeed, requires a warrantless inspection of residential rental property."

Summary of this case from Wisoff v. City of N.Y.

Opinion

Argued February 12, 1981

Decided March 31, 1981

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ANDREW J. DI PAOLA, J.

Alan Manning Miller for appellants. Michael Solomon, Village Counsel (V. Roy Cacciatore of counsel), for respondent.


Presented for our determination is the constitutionality of a municipal ordinance which provides, effectively, that a landlord is required to consent to a warrantless inspection of his property in order to obtain a rental permit. We hold today that the imposition of a penalty upon a landlord for renting his premises without first consenting to a warrantless search violates the property owner's Fourth Amendment rights.

The Village of Freeport enacted a rental ordinance (Village Ordinance, art IV) in 1974 which required that landlords obtain a rental permit prior to leasing any part of a residential dwelling. For various reasons the ordinance was held to be unconstitutional in a declaratory judgment action (Sokolov v Incorporated Vil. of Freeport, 82 Misc.2d 1087), and in 1978 the ordinance was recodified in an attempt by the village to overcome the constitutional difficulties. It is this amended ordinance which is the subject of the present appeal.

The amended ordinance provides, in effect, that no one can let or relet a residence rental property within the Village of Freeport without first obtaining a permit from the village. No permit can issue without an inspection of the premises to determine that the property is "safe, clean, sanitary, in good repair, and free from rodents and vermin". Permits must be renewed every two years or each time a vacancy occurs, and an owner cannot rerent his property without submitting to an inspection and obtaining certification that the premises are free from all violations. Furthermore, the owners must immediately notify the department of buildings of the village of any vacancies, and the department must thereafter inspect the property within two business days. In the event that the inspection reveals any violations, the department may issue a notice of violations or a notice to vacate the premises. The village may impose a penalty of $250 per day for each day in which a building is occupied without a rental permit. Thus, in substance, a landlord is subject to a fine of $250 per day for failure to consent to a warrantless administrative inspection.

The appellants, owners of rental property within the Village of Freeport, commenced the present action for a declaration that the rental ordinance is unconstitutional. In addition, it appears that each of the appellants is presently being prosecuted in criminal actions in the Freeport Village Justice Court for failure to obtain rental permits under the ordinance. Supreme Court struck down the ordinance on constitutional grounds as being violative of the owners' Fourth Amendment rights. The Appellate Division reversed, however, on constraint of the decision in Loventhal v City of Mount Vernon ( 51 A.D.2d 732). In that case the Appellate Division upheld an apparently similar ordinance, concluding that it did not have the effect of coercing plaintiffs into consenting to warrantless inspections in derogation of their constitutional rights, and that the proposed inspections were not unreasonably intrusive. We reach an opposite conclusion.

In our examination of the constitutionality of the ordinance here involved, we focus primarily on the holding and the principles set forth in Camara v Municipal Ct. ( 387 U.S. 523). There, the Supreme Court held unconstitutional a San Francisco ordinance which permitted unconsented warrantless inspections of buildings or premises to ensure compliance with the city's housing code. The court found applicable to that situation the governing principle that "except in certain carefully defined classes of cases, a search of private property without proper consent is `unreasonable' unless it has been authorized by a valid search warrant" (387 US, at pp 528-529, supra). The question before the court was thus not whether a search could be made, but whether the public interest justified a search without a warrant. Since the governmental purpose behind the search would not be frustrated by the burden of obtaining a warrant, and because administrative searches of the type there at issue involved significant instrusions upon the interests protected by the Fourth Amendment, the court determined that such searches could not be made without the owner's consent unless a search warrant had first been obtained. Later, in the case of See v City of Seattle ( 387 U.S. 541), the court held that the warrant procedure and the prohibition against unconsented warrantless entry outlined in Camara would be applicable to private commercial premises. Additionally, in Marshall v Barlow's Inc. ( 436 U.S. 307), the court held that Congress could not authorize the unconsented search of the work area of any employment facility within OSHA's jurisdiction for safety hazards without a warrant. It is against this background that we view the present ordinance.

The search procedure authorized by the Freeport ordinance is, to some extent, distinguishable from those provisions previously interpreted in the case law. First, under the Freeport ordinance a warrantless search is not directly authorized, but instead the ordinance provides that an individual will be subject to criminal penalty if he rents or rerents his premises without first obtaining a permit, which in turn can be obtained only if the property owner consents to an inspection. Second, the occurrence and timing of the inspection is not completely unexpected, since the ordinance provides that the inspection must occur within two business days after the property owner has notified the department of buildings of a vacancy in the rental property. We find these differences to be inconsequential, however, and conclude that the rental permit ordinance of the Village of Freeport is unconstitutional insofar as it effectively authorizes and, indeed, requires a warrantless inspection of residential rental property.

The respondent village has advanced several arguments in an attempt to persuade the court to uphold the constitutionality of the ordinance. Initially, it argues that failure to consent to a warrantless inspection is not punishable under the ordinance, but only the renting of the property without a permit. The village thus infers that any searches which are made under the ordinance are made with the consent of the owner. We find this line of reasoning to be unpersuasive, for through an indirect method the property owner is being penalized for his failure to consent to a warrantless search. In this instance the property owner's consent is not voluntarily given (see Schneckloth v Bustamonte, 412 U.S. 218), as it is clearly a product of coercion. A property owner cannot be regarded as having voluntarily given his consent to a search where the price he must pay to enjoy his rights under the Constitution is the effective deprivation of any economic benefit from his rental property.

Nor may it be said that the business of residential rental is of such a nature that consent to a warrantless administrative search may be implied from the choice of the appellants to engage in this business (see United States v Biswell, 406 U.S. 311 [dealer in firearms]; Colonnade Corp. v United States, 397 U.S. 72 [dealer in intoxicating liquor]).

Additionally, we note that the village may not compel the owner's consent to a warrantless inspection upon the theory that these searches are a burden which a property owner must bear in exchange for the right to open his property to the general public for rental. It is beyond the power of the State to condition an owner's ability to engage his property in the business of residential rental upon his forced consent to forego certain rights guaranteed to him under the Constitution (see 3 La Fave, Search Seizure, pp 219-220). The Supreme Court has held, and we think properly so, that "the right to continue the exercise of a privilege granted by the state cannot be made to depend upon the grantee's submission to a condition prescribed by the state which is hostile to the provisions of the federal Constitution" (United States v Chicago, etc., R.R. Co., 282 U.S. 311, 328-329).

Respondent village also seeks to justify the ordinance by urging that the intrusion is minimal because any search of the premises will occur while the premises are vacant. This reasoning is equally unpersuasive. First, we observe that although the inspection is ostensibly to occur while the premises are vacant, such an occurrence is by no means a certainty. The ordinance provides that the search must be conducted within two business days after the department of buildings receives notification of a vacancy. It is not uncommon in residential rental, however, that the lease of an occupying tenant may expire on the last day of one month, while the lease of the succeeding tenant, and his occupancy, will commence on the first day of the following month. Thus, there may be in actuality no time during which the premises are vacant and accessible to unobtrusive inspection. Furthermore, even if the premises were vacant during the inspection, there would nevertheless be a serious intrusion upon the interests of the owner deserving of constitutional protection. The interest for which the owner seeks the protection of a warrant is not necessarily the prevention of possible inconvenience to his tenants, but may be his own interest in "self-protection", an interest found to be of significant importance in Camara (387 US, at p 531, supra).

Finally, respondent seeks to justify the inspection procedure by pointing out that the search is not unexpected by the landlord, but is instead anticipatable because it must be undertaken within the two-day period prescribed in the ordinance. In this regard we merely observe that a search which is well publicized and, in fact, expectable nevertheless may be a serious intrusion into the privacy of an individual.

We note also that the result reached in the present situation finds support in the case law of other States interpreting similar ordinances (see Currier v City of Pasadena, 48 Cal.App.3d 810; see, also, Wilson v City of Cincinnati, 46 Ohio St.2d 138) . An ordinance which compels consent to a warrantless search may not be upheld except in certain carefully limited circumstances.

Although we hold that the rental permit ordinance of the Village of Freeport before us is unconstitutional, we take further note that this holding does no violence to the legitimate code enforcement goals of the village. As was observed in Camara, most citizens will allow inspections of their property without a warrant ( 387 U.S. 523, supra). In addition, and of compelling significance, the Camara opinion expressly provided that the strict standards attending the issuance of a warrant in criminal cases are not applicable to the issuance of a warrant authorizing an administrative inspection. Thus, as the court reiterated in See (387 US, at p 545, supra), "[t]he agency's particular demand for access will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved". We do not believe, however, that the requirement of a warrant for an administrative inspection is a hollow one. It has been postulated that, among other things, the warrant requirement may prevent inspections based upon caprice or spite and prevent administrative inspections as a pretext for police investigations; and the use of a warrant may also lead to appropriate restrictions on the place to be searched (see 3 La Fave, Search Seizure, p 194). The minor and infrequent inconvenience which a warrant requirement may create cannot overshadow the substantial benefits which will result to the individual's dignity and liberty through the preservation of his right to privacy. It must also be emphasized, however, that our holding is not to be construed as preventing prompt inspections in true emergency situations (see Camara v Municipal Ct., 387 U.S. 523, 539, supra).

In Camara (387 US, at pp 534-539, supra), the court held that a search warrant may authorize an area inspection program based upon an appraisal of conditions in the area as a whole, and that probable cause for the issuance of a warrant authorizing an administrative inspection does not require a demonstration of knowledge of conditions in a particular building. The standards articulated as justifying an area inspection include "the passage of time, the nature of the building (e.g., a multi-family apartment house), or the condition of the entire area" (at p 538). This list is not exhaustive, and we believe that another factor to be considered in justifying a search warrant is whether a residential rental property is being introduced onto the marketplace for the first time, without having undergone prior inspection (see See v City of Seattle, 387 US, at pp 545-546, supra). We emphasize our belief, however, that the likelihood of warrant approval in this latter instance does not justify dispensing with the warrant requirement altogether.

The potential danger of capricious enforcement is not absent from the present inspection scheme simply because the ordinance requires a rental permit and an accompanying inspection for all landlords, since the ordinance itself, by providing that the property may be rented if an inspection is not had within two business days of notification to the department of buildings of a vacancy, contemplates that inspections may not necessarily be carried out in all instances.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, Nassau County, declaring the ordinance invalid, reinstated.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur.

Order reversed, with costs, and the judgment of Supreme Court, Nassau County, reinstated.


Summaries of

Sokolov v. Vil. of Freeport

Court of Appeals of the State of New York
Mar 31, 1981
52 N.Y.2d 341 (N.Y. 1981)

holding unconstitutional an ordinance that "effectively authorizes and, indeed, requires a warrantless inspection of residential rental property."

Summary of this case from Wisoff v. City of N.Y.

holding that “[a]n ordinance which compels consent to a warrantless search may not be upheld except in certain carefully limited circumstances”

Summary of this case from Hafez v. City of Schenectady

finding unconstitutional a village ordinance that required a warrantless inspection of residential rental property in order to obtain a permit

Summary of this case from MacPherson v. Town of Southampton

finding "rental permit ordinance . . . unconstitutional insofar as it effectively authorizes and . . . requires a warrantless inspection of residential rental property"

Summary of this case from Mangino v. Incorporated Village of Patchogue

In Sokolov, the New York Court of Appeals explained that the warrant requirement is essential and is not a "hollow" requirement.

Summary of this case from Mamakos v. Town of Huntington

prohibiting the warrantless inspection of residential rental property to check on health conditions

Summary of this case from Palmieri v. Lynch

In Sokolov v. Village of Freeport, 420 N.E.2d 55 (N.Y. 1981), the Court of Appeals of New York applied the principles of Camara to a rental ordinance substantially similar to the Portsmouth RDC in this case.

Summary of this case from Baker v. City of Portsmouth

In Sokolov v. Village of Freeport, 420 N.E.2d 55 (N.Y. 1981), the Court of Appeals of New York applied the principles of Camara to a rental ordinance substantially similar to the Portsmouth RDC in this case.

Summary of this case from Baker v. City of Portsmouth

In Sokolov v. Freeport, 52 N.Y.2d 341, 438 N.Y.S.2d 257, 420 N.E.2d 55 (1981), the plaintiff brought a Fourth Amendment challenge to a Village of Freeport ordinance which mandated that residential rental property within the village could not be let or re-let without first obtaining a permit from the village.

Summary of this case from Hafez v. City of Schenectady

In Sokolov, the New York Court of Appeals held unconstitutional a village ordinance which provided that no one could rent a property within the village without obtaining a permit from the village, and which required landlords to submit to inspections after any tenant moved in or out and before the property could be bought or sold. The ordinance also provided for criminal penalties for its violation.

Summary of this case from Oldfield v. Village of Dansville

In Sokolov v. Freeport, 52 N.Y.2d 341 (1981), the plaintiff challenged the constitutionality of a Village of Freeport ordinance which mandated that residential rental property within the village could not be let or relet without first obtaining a permit from the village.

Summary of this case from Wisoff v. City of Schenectady, New York

In Sokolov, the Court of Appeals of New York faced an ordinance, similar to RIPLA, that required a landlord to consent to a warrantless inspection in order to obtain a permit to rent the property.

Summary of this case from Crook v. City of Madison

reinstating the trial court's declaratory judgment that the village's rental permit ordinance was unconstitutional for authorizing warrantless inspection of residential rental property

Summary of this case from City of Vincennes v. Emmons

In Sokolov v. Village of Freeport, 52 N.Y.2d 341, 346, 438 N.Y.S.2d 257, 420 N.E.2d 55 (1981), the Court of Appeals declared unconstitutional a local ordinance “insofar as it effectively authorizes and, indeed, requires a warrantless inspection of residential rental property” as a condition of obtaining a rental permit.

Summary of this case from People v. Laroche

In Sokolov v. Village of Freeport, 52 N.Y.2d 341, 438 N.Y.S.2d 257, 420 N.E.2d 55, the Court of Appeals examined a local ordinance that required rental permits similar to those required by the Village here. That ordinance, like the one at bar, required site inspections and certifications before a permit or renewal could be issued.

Summary of this case from ATM One, LLC v. Incorporated Village of Hempstead

In Sokolov v. Vill. of Freeport, 420 N.E.2d 55, 52 N.Y.2d 341 (1981), the New York Court of Appeals held an ordinance unconstitutional because it required a landlord to consent to search in exchange for a rental permit.

Summary of this case from Bonneville v. Pierce County

In Sokolov v. Village of Freeport, 52 N.Y.2d 341, 420 N.E.2d 55, 56-57, 438 N.Y.S.2d 257 (1981), the New York Court of Appeals held an ordinance unconstitutional because it required a landlord to consent to search in exchange for a rental permit.

Summary of this case from Bonneville v. Pierce County

stating that "[i]t is beyond the power of the State to condition an owner's ability to engage his property in the business of residential rental upon his forced consent to forego certain rights guaranteed to him under the Constitution."

Summary of this case from City of Vincennes v. Emmons

In Sokolov v. Village of Freeport (52 N.Y.2d 341 [1981]), the Court of Appeals expressly followed Camera, and reinstated a trial court determination holding that a village ordinance requiring warrantless inspection by municipal building inspectors of residential rental property was unconstitutional.

Summary of this case from Losquadro v. Inc. Vill. of Sea Cliff

In Sokolov v Village of Freeport (52 N.Y.2d 341), the New York Court of Appeals, in a decision dated March 31, 1981, held that the business of residential rental is of such a nature that consent to a warrantless administrative search may not be implied from the choice of the appellant to engage in that business.

Summary of this case from People v. Velez
Case details for

Sokolov v. Vil. of Freeport

Case Details

Full title:RICHARD SOKOLOV et al., Appellants, v. VILLAGE OF FREEPORT, Respondent

Court:Court of Appeals of the State of New York

Date published: Mar 31, 1981

Citations

52 N.Y.2d 341 (N.Y. 1981)
438 N.Y.S.2d 257
420 N.E.2d 55

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