Rental Hous. Owners Ass'n of S. Alameda Cnty., Inc. v. City of Hayward
| Decision Date | 30 September 2011 |
| Docket Number | No. A128168.,A128168. |
| Citation | 11 Cal. Daily Op. Serv. 13207,133 Cal.Rptr.3d 155,2011 Daily Journal D.A.R. 15677,200 Cal.App.4th 81 |
| Court | California Court of Appeals Court of Appeals |
| Parties | RENTAL HOUSING OWNERS ASSOCIATION OF SOUTHERN ALAMEDA COUNTY, INC., Plaintiff and Respondent, v. CITY OF HAYWARD, Defendant and Appellant. |
OPINION TEXT STARTS HERE
Michael Lawson, City Attorney, Rafael Alvarado, Deputy City Attorney, City of Hayward; Andrea J. Saltzman, Benjamin P. Fay, Rick W. Jarvis, Jarvis, Fay, Doporto & Gibson, Oakland, for Appellant City of Hayward.
James P. McBride, Hayward, Verne A. Perry, for Respondent Rental Housing Owners Association of Southern Alameda County, Inc.
Heidi Palutke for California Apartment Association, Amicus Curiae in support of Respondent Rental Housing Owners Association of Southern Alameda County, Inc.
Following entry of judgment in favor of Rental Housing Owners Association of Southern Alameda County, Inc. (RHOA) on its petition for writ of mandate, the trial court issued a peremptory writ of mandate enjoining the City of Hayward (City) from enforcing the Mandatory Inspection Program (MIP) incorporated in its Residential Rental Inspection Ordinance (ordinance). The trial court concluded the ordinance was unconstitutional on its face because it forced landlords to grant City inspectors access to occupied units without the consent of the tenant, in violation of California Civil Code section 1954 and the Fourth Amendment of the United States Constitution. Accordingly, the trial court enjoined enforcement of Hayward Municipal Code sections 9–5.306 (Entry) and 9–5.401 (Fees/Penalty Charges), and commanded the City to repeal or cure the constitutional and statutory defects in these sections.
In response to the writ, the City amended the ordinance and filed a Return to Writ of Mandate.1 RHOA filed Objections to City's Return to Writ of Mandate, asserting that the amended ordinance failed to cure the constitutional defects identified by the trial court in its earlier judgment. The trial court sustained two of the five objections raised by RHOA. The court found that the amended ordinance was unconstitutional on its face because landlords continued to be responsible for obtaining tenants' consent and could incur fines or penalties when tenants refused to permit entry to officials for inspection.
The City appeals the trial court's order sustaining RHOA's objections to its return to writ of mandate. Having considered the arguments presented, including those of amicus curiae for RHOA, California Apartment Association (CAA),2 we vacate the trial court's order and remand with instructions that the trial court enter a new and different order consistent with this opinion.
A. The Residential Rental Inspection Ordinance
The City initiated its comprehensive rental housing inspection program in 1982 and first implemented the ordinance at issue here in 1989.3 The stated purpose of the ordinance is to “safeguard the stock of decent, safe, and sanitary rental housing units within the City and to protect persons entering or residing in them by providing for inspection of rental housing units and the common areas when certain indicators show that violations of the Hayward Housing and Building Codes may exist in a unit or pursuant to a systematic area-wide inspection program.” (Sec. 9–5.102.) The ordinance is administered under the authority of the Enforcement Official (the City Manager, or his or her designee). (Sec. 9–5.301.)
The ordinance authorizes two types of inspection by City officials of rental housing units, viz., (1) the MIP (section 9–5.302), which targets all rental housing units in specified areas, and (2) a “for cause” inspection (under Section 9–5.303) of a particular rental unit at the request of a tenant who reports a housing code violation at the property. Only the MIP concerns us here.
The MIP, as described in section 9–5.302 of the ordinance, is a part of the City's “effort to encourage conservation of existing rental housing units, motels, and hotels” by requiring owners of these types of structures “to bring these units to Housing and Building Code standards.” (Sec. 9–5.302.) Section 9–5.302 also provides, (Sec. 9–5.302 [italics added].)
The ordinance also delineates the method of entry into units for inspection purposes. Section 9–5.306 provides: [¶] ... (Sec. 9–5.306 [italics added].)
Finally, in regard to Fees and Penalty Charges, the ordinance provides: (Sec. 9–5.401.) The City may recover fees and penalty charges from an owner by way of a special assessment levied against the property on the tax roll after the Enforcement Officer prepares a report, the owner is notified of a hearing on the report, and a hearing is held. (Sec. 9–5.501 to 9–5.503.) At the hearing, “the City Council shall hear and pass upon the report of the Enforcement Official together with any objections or protests thereto” and may correct or revise the report or the fees charged “as it may deem just.” (Sec. 9–5.503.)
RHOA filed its petition for writ of mandate in February 2009. In its petition, RHOA states that it is pursuing the action on behalf of its 200 plus members who own and operate approximately 12,500 dwelling units in the City, representing some 60 percent of the City's rental housing stock.
RHOA challenged the language of the MIP on several grounds. First, RHOA asserted that the portion of the MIP (Section 9–5.302), which states “Owners and managers shall allow for the inspection of these units,” is preempted by Civil Code section 1954 (section 1954). Section 1954 describes circumstances under which a landlord may enter a tenant's unit, and as relevant here, it allows a landlord entry for inspection purposes only at the request of a tenant upon termination of the lease.4 Second, RHOA asserted that the “ shall allow ” language violates the Fourth Amendment of the United States Constitution because it requires landlords to permit entry into residential units absent tenants' consent or a warrant. Third, RHOA asserted that the fee and penalty provisions in Section 9–5.501 violate owners' rights to substantive due process under the state and federal constitutions because owners incur fees and penalties for their refusal to allow City inspections without tenant consent. RHOA requested that the court issue a writ of mandate enjoining the City's enforcement of Sections 9–5.302(MIP) and Section 9–5.501 (Report on Fees/Penalty Charges).
The City opposed RHOA's writ petition. The City argued that RHOA's facial challenge to the MIP fails because the express language of section 9–5.302 does not require landlords to facilitate illegal entry into a tenant's dwelling. Rather, the language of the MIP, in conjunction with section 9–5.306 (Entry), makes clear that enforcement officials must obtain the consent of the Owner or occupant prior to entry. If consent is refused, the City must obtain an inspection warrant.
In reply, RHOA argued that the City's reliance upon the consent required under the “entry” provision of section 9–5.306 was misplaced. According to RHOA, “[t]he conjunction ‘or’ placed between the nouns ‘owner’ and ‘occupant’ ” provides alternativemeans to obtain entry into tenant units. Therefore entry into residential units could be accomplished upon consent of the owner.
The trial court held a hearing on RHOA's writ petition and thereafter issued a statement of decision (SOD) on July 1, 2009. In its SOD, the trial court held that the Ordinance was facially invalid. The court determined that sections 9–5.302 and 9–5.306 violate section 1954 and the Fourth Amendment of the U.S. Constitution because they compel the landlord to provide access to residential units without tenant consent. The trial court further ruled that the penalty provision of the ordinance violates landlords' substantive due process rights because it “prescribes a monetary sanction against the landlord even in these instances where the landlord may not be an obstruction to an inspection without a warrant.” The court entered judgment in favor of RHOA granting the petition for writ of mandate, enjoined the City from enforcing Sections 9–5.306 and 9–5.401 of the ordinance, and issued a peremptory writ of mandate on August 4, 2009, commanding the City to “repeal or cure the Constitutional and statutory defects” identified in the ordinance.
In November 2009, the City Attorney and Director of Development Services submitted a report to the Mayor and City Council proposing amendments to the ordinance. The report informed the City Council of the grounds upon which the trial court issued the writ enjoining enforcement of the ordinance. The report recommended the City Council adopt proposed amendments that establish “a clear process by which the owners and tenants are notified of the inspections and the manner in which entry can be made to conduct the inspections.”
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