Jones v. Wildgen

Decision Date02 June 2004
Docket NumberNo. CIV.A.03-2369-KHV.,CIV.A.03-2369-KHV.
Citation320 F.Supp.2d 1116
PartiesMary Anton JONES, Aaron Kirby, John Bush, Jerry Carbrey, Al Haverty, Joseph Keating, Mark Lehmann, Robert Moody, Aron Olivera, Philip Hemphill and Sandy Warner, Plaintiffs, v. Michael WILDGEN, David Corliss, Barry Walthall, Victor Torres, David Dunfield, Sue Hack, Marty Kennedy, Mike Rundle, Jim Henry, Erv Hodges, all in their individual and official capacities, City of Lawrence, Kansas, Lee Smith, Shawn Murphy, Brian Jiminez, and John Doe, all in their individual and official capacities, Defendants.
CourtU.S. District Court — District of Kansas

Christopher R. P. Miller, Little & Miller Chtd., Lawrence, KS, for Plaintiffs.

Gerald L. Cooley, Randall F. Larkin, Gilliland & Hayes, P.A.US Bank Tower, Lawrence, KS, for Defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

This matter comes before the Court on defendants' Motion To Dismiss (Doc. # 19), filed September 16, 2003, for failure to state a claim under Fed.R.Civ.P. 12(b)(6). For reasons stated below, defendants' motion is sustained.

Standards For Motions To Dismiss Under Rule 12(b)(6)

In ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must assume as true all well pleaded facts in plaintiffs' complaint and view them in a light most favorable to plaintiffs. Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); see Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). The Court must make all reasonable inferences in favor of plaintiffs. Zinermon, 494 U.S. at 118, 110 S.Ct. 975; see also Fed.R.Civ.P. 8(a); Lafoy v. HMO Colo., 988 F.2d 97, 98 (10th Cir.1993). The Court, however, need not accept as true those allegations that are conclusory in nature, i.e. which state legal conclusions rather than factual assertions. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). The issue in reviewing the sufficiency of plaintiffs' complaint is not whether they will prevail, but whether they are entitled to offer evidence to support their claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court may not dismiss a cause of action for failure to state a claim unless it appears beyond a doubt that plaintiffs can prove no set of facts in support of their theory of recovery that would entitle them to relief. See Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir.1991). Although plaintiffs need not precisely state each element of their claims, they must plead minimal factual allegations on those material elements that must be proved. Hall, 935 F.2d at 1110.

Facts

On a motion to dismiss under Rule 12(b)(6), the Court may take judicial notice of certain facts without converting the motion to one for summary judgment. See Cruz v. Melecio, 204 F.3d 14, 21 (1st Cir.2000); Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999); Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994); Davis v. United Student Aid Funds, Inc., 45 F.Supp.2d 1104, 1106 (D.Kan.1998); see also GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir.1997) (if document is referred to in complaint but not attached to it, and is central to plaintiff's claim, defendant may submit indisputably authentic copy to be considered on motion to dismiss). Accordingly, the following facts are taken from plaintiffs' First Amended Complaint (Doc. # 3) filed August 12, 2003 and from portions of the City Code, which defendants filed as exhibits to their motion to dismiss.

The City of Lawrence ("the City") is a municipal corporation under the law of the State of Kansas. The City adopted ordinances which impose occupancy limits on residential rental property in areas which are zoned for single family residences. Ordinance Nos. 7323, 7326 and 7478, codified at Chapter VI, Article 13 of the City Code. The ordinances provide that except for owner-occupied property, no single-family dwelling in an RS (single family) zoning district shall be leased for occupancy by more than three unrelated persons who do not constitute a family. Violations are municipal offenses and may cause an owner's rental license to be revoked. The preamble to Ordinance No. 7326 includes the following findings by the governing body of the City of Lawrence:

[T]he general public health, safety and welfare of the community is preserved and sustained with reasonable regulations designed and enforced to encourage the nuisance-free and peaceable enjoyment of residents in single family neighborhoods; and

[t]he City has extensive regulations to ensure appropriate review of certain multiple family dwelling units prior to construction of such multiple family dwelling units, including but not limited to site plan review for such units, such regulations not being generally applicable to single family structures in single family zoning districts; and

[A]dditional reasonable regulation of the rental of dwellings in single family residential zoning districts is necessary and appropriate for the general public health, safety, and welfare; [and]

[T]he public health and safety of tenants living in rental single family dwellings is enhanced with licensing and regulatory requirements on rental dwellings in single family zoned districts[.]

Ordinance No. 7326 at 1, Exhibit B to Defendants' Memorandum In Support (Doc. # 20) filed September 16, 2003.

Section 6-1302 requires that every owner of a single-family dwelling in an RS zoning district obtain an annual rental licensing permit before leasing it to an unrelated person. The permit is valid for one year if the $25.00 licensing fee is paid and the owner and the property are in compliance with the code. City Code Section 6-1302, Exhibit C to Defendants' Memorandum In Support. The property must be inspected at least once every three years to ensure compliance, Section 6-1304, and the City may revoke a rental permit where violation of any of the following ordinances is found to adversely affect the public safety of tenants or the rights of nearby residents to the quiet enjoyment of their property:

(A) Noise Ordinance;

(B) Environmental Code;

(C) Anti-litter ordinance;

(D) Zoning Code;

(E) Disorderly House Nuisance Ordinance;

(F) Uniform Housing Code.

Section 6-1305 (internal citations omitted).

Under Section 6-1307, public officers may enter, inspect and investigate rental dwellings if they have reasonable cause to believe that the dwellings present unsafe, dangerous or hazardous conditions. Such entry must be "pursuant to the law" and if the building is occupied, the officer must first request entry. If entry is denied, the officer must pursue an administrative search warrant "or other lawful means." Section 6-1307.

Section 6-1308 provides that a rental license may be revoked and that under certain circumstances, the owner may be placed on probation. Specifically, that section provides as follows:

(A) Any person found by the public officer to be in violation of this Article shall be sent a notice of such violation by the public officer. The notice shall be sent by certified mail, postage prepaid, return receipt requested. The notice shall state:

(1) The condition which has caused the violation of this Article;

(2) Whether the proposed enforcement action is to place or continue the permittee or person on a probation status or whether the proposed enforcement action is to revoke the license; and

(3) That the person in violation shall have fifteen (15) days from the date of the notice to request in writing a hearing before the governing body on the violation. The request in writing for a hearing before the governing body shall stay pending enforcement actions.

(B) The placement of the owner on probation status shall be to provide a reasonable period of time for the owner to correct or alleviate conditions giving rise to the notice of violation. The probation status may be conditioned by the City with reasonable reporting requirements and time periods for corrections. The failure to successfully complete the requirements of the probation status shall be grounds for the initiation of the revocation of the license granted pursuant to this Article.

(C) The public officer, or the Governing Body upon the conclusion of a requested hearing, shall have the authority to revoke a license granted pursuant to this Article or place the property owner on probation status. In determining whether to revoke the license or place the property owner on probation status, the public officer or the Governing Body shall take into account mitigating circumstances, including the legal authority of the property owner to order the vacation of the property by tenants whose conduct has caused the violation(s).

Section 6-1308.

Violators are subject to fines from $250.00 to $1,000.00, and each day constitutes a separate municipal offense. Section 6-1309. In addition, if "the public health, safety or welfare is harmed or endangered by continued occupancy or habitation," the City may order disconnection of water, sewer and sanitation services after lawful notice to the customer and the property owner. Section 6-1310.

Plaintiffs Mary Anton Jones and Aaron Kirby are former and current tenants of rental property in RS zoning districts. Plaintiffs John Bush, Jerry Carbrey, Al Haverty, Philip Hemphill, Joe Keating, Mark Lehmann, Robert Moody, Aron Olivera and Sandy Warner own rental property in the City. Pursuant to Rules 23(b)(2), 23(b)(3), and 23(c)(4), Fed.R.Civ.P., each plaintiff brings suit under 42 U.S.C. § 1983 in his or her behalf and on behalf of all others similarly situated, claiming that the ordinances are unconstitutional on their face and as applied.1

Plaintiffs allege that as applied to them and other class members:

33. ... City inspectors issue "notices of violations" to owners whose property allegedly fails to comply with the regulatory...

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