Heldstab v. City of Milwaukee
| Decision Date | 20 April 1993 |
| Docket Number | No. 92-2151,92-2151 |
| Citation | 993 F.2d 1549 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. David J. HELDSTAB Plaintiff-Appellant, v. CITY OF MILWAUKEE, Lee C. Jensen, Commissioner, Department of Building Inspection, Grant Langley, City Attorney, et. al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before COFFEY, FLAUM and ILANA DIAMOND ROVNER, Circuit Judges.
David J. Heldstab, the owner of several two- and three-family residences, and the City of Milwaukee have engaged in a long battle over the City's efforts to secure Heldstab's compliance with its building code. In 1984, Lee C. Jensen, Commissioner of the Department of Building Inspection ("DBI"), ordered that Heldstab comply with certain provisions of the code at two of his premises. Heldstab's appeal of this order was denied in 1985. In 1987, the DBI notified Heldstab that he was still in violation of the code and that he should rectify the situation. In January of 1989, the DBI sent a letter to Heldstab warning that he faced a monetary penalty for failure to comply with the code. Heldstab brought suit under 42 U.S.C. § 1983 seeking declaratory, monetary, and injunctive relief.
In a letter dated July 27, 1989, Heldstab wrote to Jensen notifying him that he would no longer allow any warrantless searches on his properties. On November 30, 1989, a DBI inspector, Ron Voss, tried to inspect the interior of one of Heldstab's buildings. Because Voss did not have a search warrant, Heldstab refused to permit the inspection. Voss then conducted an "exterior fire inspection," during the course of which Voss walked on Heldstab's property. As a result of the inspection, Voss sent Heldstab an Order to Correct Condition of Premises ("Order to Correct"), which cited several violations of the building code. One of the violations Voss cited was failure to comply with Ordinance 275-32-3a, which requires that all wood trim be protected with paint or another approved material.
In January of 1990, Heldstab filed an amended complaint. First, he challenged the constitutionality of Milwaukee Ordinances 250-2(2) and 200-19, which, respectively, authorized inspections for code violations and provided for penalties for such violations. 1 Second, he claimed that Ordinance 275-32-3a, which requires that exterior wood trim be painted, violated his right to free speech. He also claimed that the City applied this provision discriminatorily. Third, he contended that Ordinance 200-17, which governs appeals from decisions of the DBI, deprived him of due process during his 1985 appeal. Finally, he claimed that Voss' exterior fire inspection violated his right under the Fourth and Fourteenth Amendments to be free from unreasonable searches. R. 9. The parties filed cross-motions for summary judgment. The district court referred the matter to a magistrate judge, who recommended granting summary judgment in favor of the defendants. R. 22. The district court adopted and followed this recommendation. R. 24-25. Heldstab filed a timely notice of appeal. R. 26.
At the time relevant to this suit, 2 Milwaukee Ordinance 250-2(2)(b) authorized the Commissioner of Building Inspection to "inspect all buildings, structures and premises, except the interior of private dwellings" for code violations. The ordinance also provided that an annual fee shall be charged to the property owner for the required periodic inspections. Ordinance 200-19 provided for fines and imprisonment of up to six months for violations of the code.
In Count I of Heldstab's complaint, he claimed that 250-2 and 200-19 were unconstitutional. He relied on Camara v. Municipal Court, 387 U.S. 523 (1967), and Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). The magistrate distinguished Camara and Barlow's on the basis that they both involved interior inspections, whereas in this case, Voss made solely an "exterior fire inspection." The magistrate concluded that Heldstab had not alleged any violation of his right to a reasonable expectation of privacy protected by the Fourth and Fourteenth Amendments.
Although on appeal Heldstab continues to challenge the constitutionality of 250-2 and 200-19, he merely reiterates his reliance on Camara. As noted by the magistrate, however, Camara invalidated the warrantless administrative search of the interior of a building. Ordinance 250-2(2)(b) authorizes searches of buildings except for the interiors of private dwellings. Thus, it would appear that 250-2(2)(b) does not apply to situations like the one in Camara, yet Heldstab fails to explain why he thinks it does. Without any sort of explanation, his mere citation to Camara is insufficient. United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.) (perfunctory and undeveloped arguments are waived), cert. denied, 112 S.Ct. 141 (1991).
Heldstab also contends that the two ordinances are unconstitutional because, under Barlow's, "enforcement inspectors must operate pursuant to a detailed administrative plan derived from specific neutral criteria," and the defendants have admitted that they have no such plan. Br. 7. The context of these words is important. Barlow's referred to "an administrative plan ... derived from neutral sources" as an example of what would satisfy probable cause for the issuance of an administrative search warrant. Barlow's, 436 U.S. at 321. Because no search warrant was issued in this case, this passage does not apply. To the extent that Heldstab challenges the warrantless exterior inspection, we consider this in part D, infra.
Heldstab raises several other issues: whether his buildings are open to the public, whether the City actually inspects living quarters without a warrant, and whether the defendants had threatened Heldstab with prosecution. Heldstab fails to explain how these issues pertain to the constitutionality of the two ordinances in question here, so we do not address them. Berkowitz, 927 F.2d at 1384.
Milwaukee Ordinance 275-32-1 provides in part that "[t]he general welfare of the residents of the city requires that the exterior of structures ... shall be kept in a good state of repair ... to prevent the blighting of city neighborhoods." To accomplish this purpose, the ordinance specifies that "[a]ll exterior wood surfaces shall be reasonably protected from the elements and against decay, by paint or other approved protective coating applied in a workmanlike manner." 275-32-3a. Heldstab claims that this ordinance violates his rights in several of ways.
Heldstab argues that his choice not to paint the wood trim on his building is a form of speech and that 275-32-3a violates his rights under the First Amendment, as applied to the states by the Fourteenth Amendment. The magistrate assumed for the sake of argument that Heldstab's decision not to paint his exterior wood surfaces was a form of speech but concluded that under the analysis of symbolic speech set forth in United States v. O'Brien, 391 U.S. 367 (1968), the ordinance did not violate his First Amendment rights. We agree.
Heldstab insists that O'Brien does not apply here, claiming that this was a case of "pure speech," i.e., there were no nonspeech elements involved in his refusal to paint his building. He claims that "the very deliberate nature of his expression renders it pure [speech]." Br. 11. We do not agree. Actions can be just as deliberate as speech. Moreover, the Supreme Court has rejected the view that "an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." O'Brien, 391 U.S. at 376. In our view, painting (or not painting) a building is within the realm of action, though, for the sake of argument, we assume in this case that it also can be communicative. Regardless, the ordinance passes constitutional muster.
In O'Brien, the Supreme Court considered whether, consistent with the First Amendment, a protestor could be prosecuted for the symbolic act of destroying his draft card. Under the Court's analysis, when both speech and nonspeech elements are combined in the same course of conduct, an infringement on the speech element is justified if there is a sufficiently important governmental interest in regulating the nonspeech element. Id. In cases of symbolic speech, a restriction is valid if (1) it is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at 377.
Applying this analysis here, we note that the City has the constitutional power to promulgate regulations to enhance the appearance of the City. Berman v. Parker, 348 U.S. 26, 33 (1954). We believe that Ordinance 275-32-3a, by requiring that exterior wood surfaces be painted, furthers the substantial governmental interest in maintaining the appearance of the City. All the Justices in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), agreed that a city has a substantial interest in its appearance. See id. at 507-08 (plurality); id. at 530 (Brennan, J., concurring); id. at 551 n. 23 (Stevens, J., dissenting in part); id. at 560-61 (Burger, C.J., dissenting); id. at 570 (Rehnquist, J., dissenting). Heldstab maintains that there is no evidence that his decorative choice is unsightly. There is evidence, however, that his building had peeling paint. R. 9, exh. H, p. 9. Heldstab also argues that the ordinance is underinclusive...
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Davis v. City of Milwaukee
...from side service walks under facts not fairly distinguishable from the instant matter. See Heldstab v. City of Milwaukee, 993 F.2d 1549 (table), 1992 WL 474171, at *6 (7th Cir. 1992). There, the Court stated that "[t]he exterior of a home is generally something that is knowingly exposed to......