Sokolov v. Village of Freeport

Decision Date31 March 1981
Citation438 N.Y.S.2d 257,52 N.Y.2d 341,420 N.E.2d 55
Parties, 420 N.E.2d 55 Richard SOKOLOV et al., Appellants, v. VILLAGE OF FREEPORT, Respondent.
CourtNew York Court of Appeals Court of Appeals

Alan Manning Miller, Carle Place, for appellants.

Michael Solomon, Village Counsel, Hempstead (V. Roy Cacciatore, Freeport, of counsel), for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

Presented for our determination is the constitutionality of a municipal ordinance which provides, effectively, that a landlord is required to consent to a warrantless inspection of his property in order to obtain a rental permit. We hold today that the 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.

The Village of Freeport enacted a rental ordinance (Village Ordinance, art. IV) in 1974 which required that landlords obtain a rental permit prior to leasing any part of a residential dwelling. For various reasons the ordinance was held to be unconstitutional in a declaratory judgment action (Sokolov v. Incorporated Vil. of Freeport, 82 Misc.2d 1087, 372 N.Y.S.2d 304), and in 1978 the ordinance was recodified in an attempt by the village to overcome the constitutional difficulties. It is this amended ordinance which is the subject of the present appeal.

The amended ordinance provides, in effect, that no one can let or relet a residence rental property within the Village of Freeport without first obtaining a permit from the village. No permit can issue without an inspection of the premises to determine that the property is "safe, clean, sanitary, in good repair, and free from rodents and vermin". Permits must be renewed every two years or each time a vacancy occurs, and an owner cannot rerent his property without submitting to an inspection and obtaining certification that the premises are free from all violations. Furthermore, the owners must immediately notify the department of buildings of the village of any vacancies, and the department must thereafter inspect the property within two business days. In the event that the inspection reveals any violations, the department may issue a notice of violations or a notice to vacate the premises. The village may impose a penalty of $250 per day for each day in which a building is occupied without a rental permit. Thus, in substance, a landlord is subject to a fine of $250 per day for failure to consent to a warrantless administrative inspection.

The appellants, owners of rental property within the Village of Freeport, commenced the present action for a declaration that the rental ordinance is unconstitutional. In addition, it appears that each of the appellants is presently being prosecuted in criminal actions in the Freeport Village Justice Court for failure to obtain rental permits under the ordinance. Supreme Court struck down the ordinance on constitutional grounds as being violative of the owners' Fourth Amendment rights. The Appellate Division reversed, 74 A.D.2d 822, 425 N.Y.S.2d 351, however, on constraint of the decision in Loventhal v. City of Mount Vernon, 51 A.D.2d 732, 379 N.Y.S.2d 130. In that case the Appellate Division upheld an apparently similar ordinance, concluding that it did not have the effect of coercing plaintiffs into consenting to warrantless inspections in derogation of their constitutional rights, and that the proposed inspections were not unreasonably intrusive. We reach an opposite conclusion.

In our examination of the constitutionality of the ordinance here involved, we focus primarily on the holding and the principles set forth in Camara v. Municipal Ct., 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930. There, the Supreme Court held unconstitutional a San Francisco ordinance which permitted unconsented warrantless inspections of buildings or premises to ensure compliance with the city's housing code. The court found applicable to that situation the governing principle 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" (387 U.S. at pp. 528-529, 87 S.Ct. at pp. 1730-1731, supra ). The question before the court was thus not whether a search could be made, but whether the public interest justified a search without a warrant. Since the governmental purpose behind the search would not be frustrated by the burden of obtain ing a warrant, and because administrative searches of the type there at issue involved significant intrusions upon the interests protected by the Fourth Amendment, the court determined that such searches could not be made without the owner's consent unless a search warrant had first been obtained. Later, in the case of See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943, the court held that the warrant procedure and the prohibition against unconsented warrantless entry outlined in Camara would be applicable to private commercial premises. Additionally, in Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305, the court held that Congress could not authorize the unconsented search of the work area of any employment facility within OSHA's jurisdiction for safety hazards without a warrant. It is against this background that we view the present ordinance.

The search procedure authorized by the Freeport ordinance is, to some extent, distinguishable from those provisions previously interpreted in the case law. First, under the Freeport ordinance a warrantless search is not directly authorized, but instead the ordinance provides that an individual will be subject to criminal penalty if he rents or rerents his premises without first obtaining a permit, which in turn can be obtained only if the property owner consents to an inspection. Second, the occurrence and timing of the inspection is not completely unexpected, since the ordinance provides that the inspection must occur within two business days after the property owner has notified the department of buildings of a vacancy in the rental property. We find these differences to be inconsequential, however, and conclude that the rental permit ordinance of the Village of Freeport is unconstitutional insofar as it effectively authorizes and, indeed, requires a warrantless inspection of residential rental property.

The respondent village has advanced several arguments in an attempt to persuade the court to uphold the constitutionality of the ordinance. Initially, it argues that failure to consent to a warrantless inspection is not punishable under the ordinance, but only the renting of the property without a permit. The village thus infers that any searches which are made under the ordinance are made with the consent of the owner. We find this line of reasoning to be unpersuasive, for through an indirect method the property owner is being penalized for his failure to consent to a warrantless search. In this instance the property owner's consent is not voluntarily given (see Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, as it is clearly a product of coercion. 1 A property owner cannot be regarded as having voluntarily given his...

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    ...Bonneville cites in which courts found consent conditions unconstitutional are distinguishable. In Sokolov v. Vill. of Freeport, 52 N.Y.2d 341, 438 N.Y.S.2d 257, 420 N.E.2d 55 (1981), the New York Court of Appeals held an ordinance unconstitutional because it required a landlord to consent ......
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