Bloomsburg Landlords Ass'n v. Town Of Bloomsburg

• Decision Date: 29 December 1995
• Docket Number: No. 4: CV-94-0148.,4: CV-94-0148.
• Citation: 912 F. Supp. 790
• Parties: BLOOMSBURG LANDLORDS ASSOCIATION, INC., Plaintiff, v. TOWN OF BLOOMSBURG, and Charles J. Felker, Code Enforcement Officer, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

912 F. Supp. 790

BLOOMSBURG LANDLORDS ASSOCIATION, INC., Plaintiff, v. TOWN OF BLOOMSBURG, and Charles J. Felker, Code Enforcement Officer, Defendants.

No. 4: CV-94-0148.

United States District Court, M.D. Pennsylvania.

December 29, 1995.

COPYRIGHT MATERIAL OMITTED

Andrew J. Primerano, Kennedy and Lucadamo, Hazleton, PA, for plaintiff.

John A. Mihalik, Bloomsburg, PA, for defendants.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND

This action was initiated by a complaint filed by plaintiff Bloomsburg Landlords Association, Inc. (Landlords or the association) against the Town of Bloomsburg (Bloomsburg or the town) and Code Enforcement Officer Charles J. Felker. Landlords is a Pennsylvania non-profit corporation organized pursuant to 15 Pa.Cons.Stat.Ann. § 5101 et seq. to promote the commercial interests of its members, who own and lease residential real estate in Bloomsburg, Columbia County, Pennsylvania.

Plaintiff brings this action to protest the enactment of Town Ordinance No. 766,¹ entitled "Regulated Rental Unit Occupancy Ordinance" (the ordinance) on December 14, 1993. Ordinance No. 766 requires any landlord leasing a residential unit to three or more persons who are not "related to one another through blood to the level of second cousins, adoption or marriage" to:

1) Designate a manager who resides within the Bloomsburg local calling area if the owner does not reside within that area;

2) Enter into a written rental agreement which shall include an addendum containing provisions mandated by the town ordinance;

3) Be responsible for regulating the conduct of occupants of all regulated units;² 4) Upon notification by the code enforcement officer of any violations of the town ordinance by occupants of or visitors to the regulated units, specifically for the commission of "disruptive conduct", to take steps to remedy the same, which may include evicting the offending tenants;

5) Obtain a license entitling the owner to offer said properties for lease and pay a licensing fee of $20.00 per occupant;

6) Provide a list of occupants of the residential units to the town upon request; and

7) Allow the residential units to be inspected periodically by the town code enforcement officer.

(Plaintiff's complaint, exhibit "A")

Plaintiff contends that Ordinance No. 766 violates the state and federal constitutional rights of its members. They assert: 1) the violation of their rights under Article I, Section 10(1)³ and the Fourth, Fifth and Fourteenth Amendments to the United States Constitution under section 1983, 42 U.S.C. § 1983 (Count I) and 2) the violation of their rights under Article 8, Section 1 of the Pennsylvania Constitution (Count II).

As redress for these alleged violations, plaintiff seeks: 1) a declaration that Ordinance No. 766 is "unconstitutional, null and void;" 2) a permanent injunction barring defendant or its agents or officials from "enforcing or attempting to enforce said Ordinance;" 3) a preliminary injunction barring the enforcement of the ordinance during the pendency of this action; 4) attorneys' fees and costs pursuant to 42 U.S.C. § 1988; and 5) such other and further relief as the court deems proper.

Plaintiff filed a separate motion for a preliminary injunction, asking the court to enjoin enforcement of the ordinance during the pendency of this action. Following a conference on plaintiff's motion, the parties stipulated that defendant would refrain from implementing certain provisions of the ordinance pending a final decision on the merits. The parties' stipulation eliminated the need for a court ruling on plaintiff's request for a preliminary injunction.

Before the court are cross motions for summary judgment. For the reasons which follow, we do not find that the challenged ordinance violates the federal or state constitutions. Judgment will be granted in favor of the defendants and against the plaintiff on that basis. No permanent injunction will issue.

DISCUSSION

Motion for summary judgment

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)

... The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing ... that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 323 and 325, 106 S.Ct. at 2552 and 2554.

Issues of fact are "`genuine' only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir.1988), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Material facts are those which will affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir.1988).

Ordinance No. 766

Ordinance No. 766 imposes liability on the landlord for tenants' conduct violative of the ordinance. Specifically, it provides that complaints of disruptive conduct by student tenants will be relayed to the landlord, whose responsibility it will be to take appropriate remedial action.

Article II, Part A of the ordinance provides that:

... Every OWNER of a REGULATED RENTAL UNIT shall regulate the conduct and activity of the OCCUPANTS thereof, both contractually and through enforcement, as more fully set forth below.

(Plaintiff's complaint, exhibit "A," Article II, Part B-4.)

Article III, Part F provides, in relevant part:

When POLICE or the CODE ENFORCEMENT OFFICER investigate an alleged incident of DISRUPTIVE CONDUCT, he or she shall complete a DISRUPTIVE CONDUCT REPORT upon a finding that the reported incident did, in his or her judgment, constitute "DISRUPTIVE CONDUCT" as defined herein.... In all cases, the CODE ENFORCEMENT OFFICER shall mail a copy of the DISRUPTIVE CONDUCT REPORT to the OWNER or MANAGER within three working days of the occurrence of the alleged DISRUPTIVE CONDUCT, whether the PERSON making the investigation on behalf of the TOWN as (sic) the CODE ENFORCEMENT OFFICER or POLICE.

(Plaintiff's complaint, exhibit "A," Article III, Part F, p. 15)

"Disruptive conduct" is defined by the ordinance as:

Any form of conduct, action, incident or behavior perpetrated, caused or permitted, by any OCCUPANT or visitor of a REGULATED DWELLING UNIT that is so loud, untimely (as to hour of the day), offensive, riotous, or that otherwise disturbs other PERSONS of reasonable sensibility in their peaceful enjoyment of their PREMISES such that a report is made to POLICE and/or to the CODE ENFORCEMENT OFFICER complaining of such conduct, action, incident, or behavior. It is not necessary that such conduct, action, incident or behavior constitute a criminal offense, nor that criminal charges be filed against any person in order for a PERSON to have perpetrated, caused, or permitted the commission of DISRUPTIVE CONDUCT, as defined herein. Provided, however, that no DISRUPTIVE CONDUCT shall be deemed to have occurred unless the CODE ENFORCEMENT OFFICER or POLICE shall investigate and make a determination that such did occur, and keep written records, including a DISRUPTIVE CONDUCT REPORT, of such occurrences.

(Record document no. 1, exhibit "A," Article I, Part B-4. Capital letters original.)

Article III of the ordinance sets forth the duties of the occupant, and provides, in relevant part:

C. Peaceful Enjoyment.

The OCCUPANT shall conduct himself or herself and require other PERSONS, including, but not limited to, GUESTS on the PREMISES and within his or her REGULATED RENTAL UNIT with his or her consent, to conduct themselves in a manner that will not disturb the peaceful enjoyment of the PREMISES by others, and that will not disturb the peaceful enjoyment of adjacent or nearby DWELLINGS by the PERSONS occupying same.

....

F. Disruptive Conduct.

1. The OCCUPANT shall not engage in, nor tolerate nor permit others on the PREMISES to engage in, DISRUPTIVE CONDUCT, or other violations of the Ordinance.

(Plaintiff's complaint, exhibit "A," Article III, Parts C and F)

Notice of such conduct on the part of tenants triggers an obligation on the part of the building owner to take appropriate remedial steps. The ordinance provides:

1. Within ten days after receipt of written notice from the CODE ENFORCEMENT OFFICER that an OCCUPANT of a REGULATED RENTAL UNIT has violated a provision of this Ordinance, the OWNER shall take immediate steps to remedy the violation and take steps to assure that there is not a reoccurrence of the violation.

2. Within twenty days after receipt of a notice of a violation, the OWNER shall file with

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