Metro. Omaha Prop. Owners Ass'n v. City of Omaha

• Decision Date: 23 December 2019
• Docket Number: 8:19CV431
• Parties: METROPOLITAN OMAHA PROPERTY OWNERS ASSOCIATION, INC., PIERCE CARPENTER, AND HILLCREST APARTMENTS Plaintiff, v. THE CITY OF OMAHA, NEBRASKA, Defendant.
• Court: U.S. District Court — District of Nebraska

METROPOLITAN OMAHA PROPERTY OWNERS ASSOCIATION, INC.,PIERCE CARPENTER, AND HILLCREST APARTMENTS Plaintiff, v. THE CITY OF OMAHA, NEBRASKA, Defendant.

8:19CV431

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

December 23, 2019

MEMORANDUM AND ORDER

This matter is before the Court on Defendant City of Omaha's Motion to Dismiss, ECF No. 9, and the Application for a Preliminary Injunction, ECF No. 12, submitted by Plaintiffs Metropolitan Omaha Property Owners Association, Inc. (MOPOA), Pierce Carpenter, and Hillcrest Apartments (Hillcrest). For the following reasons, Plaintiffs' Application for a Preliminary Injunction will be denied and the City's Motion to Dismiss will be denied as moot, subject to reassertion.

BACKGROUND

The material facts of the case do not appear to be in dispute. The following facts are those found in the pleadings, briefs, and evidentiary submissions.

Plaintiff MOPOA is a Nebraska nonprofit corporation. MOPOA consists of approximately 1,000 individuals and entities that own and operate real property located in Omaha, Nebraska.

Plaintiff Carpenter is a member of MOPOA and owns rental property in Omaha. Carpenter "sometimes does business under the name of Hillcrest Apartments." Am. Compl. ¶ 9, ECF No. 18 at Page ID # 297.

This action arises out of an earlier lawsuit before this Court, in which MOPOA raised several issues regarding the City's housing code. The parties settled that action, and the Court adopted the terms of the settlement agreement through a consent decree. Consent Decree, Metro. Omaha Prop. Owners Ass'n, Inc. v. City of Omaha (MOPOA I), No. 8:13-cv-230-LSC-FG3 (D. Neb. Mar. 4, 2015), ECF No. 36 (incorporating the terms of the settlement agreement found at ECF No. 35-2). Under the Consent Decree, MOPOA agreed to dismiss its case, and the City agreed to amend certain sections of the Omaha Municipal Code and adopt a set of standard operating procedures which were to serve as the official policy of the City's Permits and Inspection Division.

On or about April 17, 2019, the City enacted the Rental Property Registration and Inspection Ordinance (RPRIO), to take effect January 1, 2020. Omaha, Neb., Ordinance 41,767 (to be codified at Omaha, Neb., Code §§ 48-201 to 48-209). The stated purpose of the RPRIO is to "implement uniform residential rental property registration, and a regular inspection program . . . to address the issue of substandard rental properties, promote greater compliance with health and safety standards, and preserve the quality of the city's neighborhoods and available housing." § 48-201(b). The RPRIO requires all rental dwellings in the City of Omaha and within its three-mile extraterritorial jurisdiction to be registered with the City's Permits and Inspections Division. § 48-204. There are no fees to file a registration application. § 48-205. All registered properties are subject to inspection by the City every ten years, or annually if the property has had prior violationsor was not timely registered. § 48-206. The landlord must pay an inspection fee of $125 for each decennial or annual inspection. § 48-206(g).

This action was initially brought by MOPOA on October 3, 2019, in a three-count Complaint, ECF No. 1, asking the Court to find the RPRIO unconstitutional and in violation of the Consent Decree. On November 27, 2019, the City filed a Motion to Dismiss, ECF No. 9. On November 29, 2019, MOPOA filed an Application for Preliminary Injunction, ECF No. 12. On December 15, 2019, Plaintiffs filed an Amended Complaint, ECF No. 18, joining Carpenter and Hillcrest, and Carpenter and Hillcrest filed a Notice of Joinder regarding the Application for Preliminary Injunction, ECF No. 19.

STANDARD OF REVIEW

Courts in the Eighth Circuit apply the factors set forth in Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc), when determining whether to issue a preliminary injunction or temporary restraining order. See, e.g., Rodgers v. Bryant, 942 F.3d 451, 455 (8th Cir. 2019) (reviewing district court's balancing of the Dataphase factors). Those factors are: "(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest." Dataphase, 640 F.2d at 114. "[N]o single factor is determinative." Home Instead, Inc. v. Florance, 721 F.3d 494, 497 (8th Cir. 2013) (quoting Dataphase, 640 F.2d at 113). "A preliminary injunction is an extraordinary remedy and the burden of establishing the propriety of an injunction is on the movant." Roudachevski v. All-Am. Care Ctrs., Inc., 648 F.3d 701, 705 (8th Cir. 2011) (citing Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003)).

DISCUSSION

Plaintiffs state two claims for relief¹ arising out of the City's enactment of the RPRIO. They generally state these claims are brought under 42 U.S.C. §§ 1983, 1985, and 3613; the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution; and the Court's inherent power to enforce its own orders, judgments, and decrees. Plaintiffs assert the RPRIO is unconstitutional and constitutes a breach of the Consent Decree, and they move for preliminary and permanent injunctive relief.

I. Preliminary Injunction

A. Likelihood of Success on the Merits

"In deciding whether to grant a preliminary injunction, likelihood of success on the merits is most significant." S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012) (quoting Minn. Ass'n of Nurse Anesthetists v. Unity Hosp., 59 F.3d 80, 83 (8th Cir.1995)); see also Home Instead, 721 F.3d at 497 ("[T]he probability of success factor is the most significant." (citing Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013))). With respect to this factor, it is not necessary for the movants to prove they are more likely than not to prevail; the movants need only show a reasonable probability of success, that is, a fair chance of prevailing on the merits. Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013); Dataphase, 640 F.2d at 113. Accordingly, Plaintiffs must demonstrate they have a fair chance of prevailing on the merits of their claim that the RPRIO violates the Fourth Amendment² or the Consent Decree.

1. Fourth Amendment Violation

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The historical governing principle of the Fourth Amendment has been that "except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Camara v. Mun. Ct. of City & Cty. of San Francisco, 387 U.S. 523, 528-29 (1967) (citing Stoner v. California, 376 U.S. 483 (1964); United States v. Jeffers, 342 U.S. 48 (1951); McDonald v. United States, 335 U.S. 451 (1948); Agnello v. United States, 269 U.S. 20 (1925)). Absent an opportunity for pre-compliance review there is an "intolerable risk" that searches authorized by an ordinance may exceed statutory limits or be used as a pretext for harassment. City of Los Angeles v. Patel, 135 S. Ct. 2443, 2452-53 (2015). This prohibition against unreasonable searches and seizures extends to all governmental intrusions—criminal and civil. Marshall v. Barlow's, Inc., 436 U.S. 307, 312-13 (1978) ("If the government intrudes on a person's property, the privacy interest suffers whether the government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards.").

The unconstitutional conditions doctrine³ establishes that "the government may not deny a benefit to a person because he exercises a constitutional right." Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604 (2013) (quoting Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983). Municipalities may not make landlords choose between consenting to warrantless searches or losing the ability to exercise property rights. See Thompson v. City of Oakwood, 307 F. Supp. 3d 761 (S.D. Ohio 2018) (finding the city violated the Fourth Amendment by requiring property owners to submit to a warrantless pre-sale inspection before receiving permission to sell property.); Sokolov v. Vill. of Freeport, 420 N.E. 55, 56 (N.Y. 1981) ("[T]he imposition of a penalty upon a landlord for renting his premises without first consenting to a warrantless search violates the property owner's Fourth Amendment rights.").

To show likelihood of success on their claim, Plaintiffs must show that the RPRIO is facially invalid or that it deprives them of the right to rent out property unless they consent to warrantless searches. To establish that a statute is unconstitutional on its face, a plaintiff must show that "there is no set of circumstances under which the laws would be valid." Calzone v. Hawley, 866 F.3d 866, 870 (8th Cir. 2017) (citing United States v. Salerno, 481 U.S. 739, 745 (1987)). Plaintiffs are unable to make that showing.

Plaintiffs liken the RPRIO to the ordinances struck down in Camara, 387 U.S. 523; MS Rentals, 362 F. Supp. 3d 404; Pund v. City of Bedford, 339 F. Supp. 3d 701 (N.D.Ohio 2018); Thompson, 307 F. Supp. 3d 761; Dearmore v. City of Garland, 400 F. Supp. 2d 894 (N.D. Tex. 2005); and Sokolov, 420 N.E.2d 55. The ordinance at issue in each of these cases required landlords to consent to a warrantless search or face criminal charges or loss of property rights.

The City argues these cases are distinguishable and the RPRIO is more like the ordinances upheld in Mann v. Calumet City, 588 F.3d 949 (7th Cir. 2009...