993 F.2d 1549 (7th Cir. 1993), 92-2151, Heldstab v. City of Milwaukee

Docket Nº:92-2151.
Citation:993 F.2d 1549
Party Name: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.
Case Date:April 20, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1549

993 F.2d 1549 (7th Cir. 1993)

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.

No. 92-2151.

United States Court of Appeals, Seventh Circuit

April 20, 1993

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Decided May 10, 1992.

Appeal from the United States District Court for the Eastern District of Wisconsin, 89 C 267, J.P. Stadtmueller, Judge.

E.D.Wis.

AFFIRMED IN PART, REVERSED IN PART.

Before COFFEY, FLAUM and ILANA DIAMOND ROVNER, Circuit Judges.

ORDER

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.

ANALYSIS

  1. Challenge to Milwaukee Ordinances 250-2 and 200-19

    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...

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