City of Pasco v. Shaw
| Citation | 166 P.3d 1157 |
| Decision Date | 13 September 2007 |
| Docket Number | No. 77195-2.,77195-2. |
| Parties | CITY OF PASCO, Respondent, v. Bernard N. SHAW and B. Jean Shaw, husband and wife, and the marital community composed thereof; Columbia Basin Apartment Association, Robert Lee Gaines and Billie Jean Gaines, Manuela Vala, and Maria Galeana, Petitioners. |
| Court | United States State Supreme Court of Washington |
Lucinda Jean Luke, Thomas A Cowan Jr., Attorney at Law, Richland, WA, for Petitioners.
Leland Barrett Kerr, Paine Hamblen Coffin Brooke & Miller LLP, Kennewick, WA, Laura Debacker McAloon, Kirkpatrick & Lockhart Preston Gates Ellis, Spokane, WA, for Respondent.
William R. Maurer, Institute for Justice, Charity Osborn, Attorney at Law, Seattle, WA, for Amicus Curiae Institute for Justice Washington Chapter.
Daniel Brian Heid, Auburn, WA, for Amicus Curiae Washington Association of Municipal Attorneys.
John Maurice Groen, Groen Stephens & Klinge LLP, Diana M. Kirchheim, Pacific Legal Foundation, Bellevue, WA, for Amicus Curiae Rental Housing Association of Puget Sound.
¶ 1 In 1997, the city of Pasco enacted Pasco Ordinance 3231, which requires landlords to submit certification every two years ensuring that their rental units have met all applicable health, safety, and building code requirements. The certification must be signed by a city enforcement officer, a certified private inspector, or a Washington licensed private structural engineer or architect. The petitioners, both landlords and tenants, challenge the constitutionality of Pasco Ordinance 3231, arguing that on its face it violates article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution. The petitioners also argue that the ordinance is unconstitutionally vague.
¶ 2 We hold that Pasco Ordinance 3231 does not require state action and, therefore, neither article I, section 7 nor the Fourth Amendment is implicated. We also recognize that the ordinance does not require any inspection that landlords are not already permitted to undertake by existing law. Finally, we hold that Pasco Ordinance 3231 is not unconstitutionally vague. We affirm the Court of Appeals.
¶ 3 In the 1990s, the city of Pasco faced problems with a number of substandard rental housing units. For example, the landlords involved in this case owned rental units for which there was no working source of heat. Tenants were told they had to provide their own heat via portable electric space heaters. In addition, kitchens contained no vent, hood, fan, or window, despite the fact that natural gas was used to heat them. In one building, windows were not properly installed, allowing weather to enter the wall. Plumbing was in such disrepair that a bucket had to be used to catch water draining from a bathroom sink. One unit was infested with cockroaches. Some units had unsound wall finishes and warped or buckled walls.
¶ 4 One of the Shaws' tenants complained that they were refusing to make necessary repairs to her apartment. For some time, neither the heat nor the air conditioning worked. The doors did not open unless she resorted to using a knife or plastic card. Both the bathroom and kitchen sinks drained into buckets. The shower wall was collapsing and the kitchen and bathroom floors were rotting. When the tenant demanded either repairs, placement into a better rental unit, or refund of her deposit so she could move out, the apartment manager told her that if she continued to complain, he would have her deported.1
¶ 5 The city council sought to take steps to remedy these and similar situations. In July 1997, after public hearings involving testimony from both tenants and landlords, the city council passed Pasco Ordinance 3231. The ordinance regulates business licenses for residential landlords.
¶ 6 The ordinance provides that a landlord must obtain a current business license. As a condition for the issuance of a license, the landlord must provide a certificate of inspection ensuring that:
the applicant's rental dwelling units comply with the standards of the Uniform Housing Code and do not present conditions that endanger or impair the health or safety of a tenant including:
(1) structural members that are insufficient in size or strength to carry imposed loads with safety;
(2) exposure of the occupants to the weather;
(3) plumbing and sanitation defects that directly expose the occupants to the risk of illness or injury;
(4) lack of water, including hot water;
(5) heating or ventilation systems that are not functional or are hazardous;
(6) defective, hazardous, or missing electrical wiring or electrical service;
(7) defective or inadequate exits that increase the risk of injury to occupants;
(8) violations that increase the risk of fire; or
(9) violations of other applicable codes, rules or regulations.
Clerk's Papers (CP) at 296. Landlords must provide a certificate of inspection during a preassigned three-month period every two years. The certificate must be based on the physical inspection of the dwelling not more than 90 days before the date of the certificate. Compliance must be certified by one of the following:
(1) a City of Pasco Code Enforcement Officer;
(2) inspectors certified by the United States Department of Housing and Urban Development for grant-required inspections;
(3) certified private inspectors approved by the City upon evidence of completion of formal training...;
(4) a Washington licensed structural engineer;
(5) a Washington licensed architect;
CP at 297. All certifications must be submitted on forms provided by the city or approved by the federal Department of Housing and Urban Development. The city provides the services of its building inspector free of charge, or the landlord can use a private inspector that meets one of the qualifications listed above. Nothing in the ordinance prevents additional inspections pursuant to RCW 59.18.115 at the request of the tenant. Landlords that fail to comply are guilty of a code infraction, subjecting them to a fine of up to $500. A separate code infraction can be found for each day that the violations continue.
¶ 7 In 1999, the Shaws failed to provide the city of Pasco with a certificate of inspection for some of their rental units. As a result, they were not issued a business license, but they continued to rent the affected units. The city filed an action against the Shaws in superior court. In response, the Shaws asserted that tenants occupying some of their rental units had refused to permit "unauthorized searches of their home." CP at 8. The Shaws argued that absent a warrant, they could not permit a third party to inspect their tenants' homes. They also argued that Pasco Ordinance 3231 violates the Fourth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the Washington Constitution because it requires inspection of rental units even if the tenants do not consent and the ordinance is unconstitutionally vague.
¶ 8 An association of landlords, some tenants, and the Shaws then filed an action in federal district court, challenging the constitutionality of the Pasco ordinance under the Fourth Amendment. The state case was stayed during the pendency of the federal case. The federal district court granted summary judgment to the city, concluding that landlords and their privately engaged inspectors were not state actors and therefore their inspection pursuant to the ordinance did not violate the Fourth Amendment. On appeal, the Ninth Circuit vacated the district court's order, holding that the federal court should not have exercised its jurisdiction until the state court had resolved the challenges. Columbia Basin Apartment Ass'n v. City of Pasco, 268 F.3d 791, 806-07 (9th Cir.2001). The Ninth Circuit ordered the federal district court to stay federal proceedings until state courts determined the validity of the ordinance.
¶ 9 The Franklin County Superior Court then allowed four tenants to intervene in the state case in order to raise constitutional challenges to the ordinance under the Fourth Amendment and article I, section 7. The intervenors filed their own motion for summary judgment, arguing that Pasco Ordinance 3231 violates article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution. The superior court then granted summary judgment to the city, concluding that Pasco Ordinance 3231 does not invade tenants' privacy rights under either the United States or Washington Constitutions. Specifically, the trial court concluded that the ordinance did not transform landlords and their private inspectors into state actors, and limited inspection for the purpose of determining compliance with housing codes did not amount to an unreasonable search.
¶ 10 The Shaws and the tenants petitioned for direct review in this court. We denied direct review and transferred the case to the Court of Appeals. City of Pasco v. Shaw, 127 Wash.App. 417, 421-22, 110 P.3d 1200 (2005). The Court of Appeals affirmed, also concluding that the ordinance is not unconstitutional because the landlords and their private inspectors are not state actors and the tenants' privacy rights are not offended by the required inspections. The Court of Appeals also held that the ordinance is not unconstitutionally vague. Petitioners sought review in this court, which we granted.
¶ 11 The Shaws and the intervenors have challenged the constitutionality of Pasco Ordinance 3231 on its face. In order to prevail, they must show that the ordinance is unconstitutional beyond a reasonable doubt and there are no factual circumstances under which the ordinance could be constitutional. Citizens for Responsible Wildlife Mgmt. v. State, 149 Wash.2d 622, 631, 71 P.3d 644 (2003); Tunstall v. Bergeson, 141 Wash.2d 201, 221, 5 P.3d 691 (2000). Whether the petitioners have met this high burden is a question...
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