ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
J. DAVID ROELLGEN PAUL B. LEDFORD, P.C.
Emmison, Doolittle, Kolb & Roellgen Vincennes, Indiana
ATTORNEYS FOR AMICI CURIAE: ATTORNEYS FOR AMICI CURIAE:
ANDREW C. CHARNSTROM MICHAEL J. LEWINSKI
MAUREEN E. WARD HILARY G. BUTTRICK
Wooden & McLaughlin, LLP Ice Miller
Indianapolis, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
CITY OF VINCENNES, )
) No. 42A02-0402-CV-193
KEVIN EMMONS, D/B/A )
CHEROKEE RENTALS, )
JEFFREY HENDRIXSON, )
ERIC KLEIN, )
APPEAL FROM THE KNOX SUPERIOR COURT
The Honorable Robert L. Arthur, Judge
Cause No. 42D02-0006-OV-130
November 10, 2004
OPINION - FOR PUBLICATION
The City of Vincennes (the City) appeals from the trial courts order finding
the Vincennes Rental Housing Code (the housing code) unconstitutional in an action by
the City against landlords Kevin Emmons, doing business as Cherokee Rentals, Eric Klein,
and Jeffrey Hendrixson
See footnote (the Landlords) for failure to pay landlord registration fees in
violation of the housing code. We affirm.
The City raises several issues for our review, which we restate as follows:
Whether the Landlords have standing to challenge the constitutionality of the housing code;
Whether the inspection provision of the housing code is unconstitutional; and
If the inspection provision is unconstitutional, whether it can be severed from the
remainder of the housing code.
Facts and Procedural History
Section 156 of the Citys Code of Ordinances concerns rental housing. In
relevant part, it states:
§ 156.03 COMPLIANCE REQUIRED; APPLICATION OF SUBCHAPTER.
(A) No person shall occupy or maintain a rental unit within the
city unless in accordance with the provisions of this subchapter.
* * *
§ 156.04 REGISTRATION OF RENTAL UNITS REQUIRED.
(A) No owner of real estate within the city shall use real estate
for the purpose of erecting or maintaining a rental unit thereon without annually
registering with the Rental Housing Officer. . . .
* * *
(E) The annual registration form shall be accompanied by an annual fee equal
to $18 per rental unit payable to the city.
* * *
(F) It shall be a violation of this subchapter for any owner to
maintain a rental unit which has not been registered in accordance with this
(G) The annual registration fee shall be due on February 1 of each
§ 156.05 INSPECTION.
(A) Each rental unit and premises within the city shall be inspected by
the Rental Housing Officer immediately prior to the expiration of its occupancy permit,
to establish compliance with the Rental Housing Code. Occupancy permits shall be
issued for a two-year period.
(B) No rental unit having an occupancy permit shall be inspected in good
faith more often than once every two years, unless a request for inspection
is made as provided in division (D) of this section.
(C) An occupancy permit shall be issued for each rental unit upon which
a cycle inspection or a complete off-cycle inspection is performed after the effective
date of the ordinance codified in this section, provided all violations cited on
the inspection report, excluding exterior painting, are satisfactorily corrected and the unit reinspected
within 60 days after such report is mailed to the owner or agent.
(D) Off-cycle inspection may be done at the discretion of the Rental Housing
Officer, upon the written, signed request of any resident of the city, any
governmental agency, or the rental units tenant, the tenants legal representative, the owner,
or the owners agent. An off-cycle inspection shall be confined to the
defects complained of, if any, by the person requesting the inspection unless the
Rental Housing Officer determines that the condition of the rental unit or premises
has deteriorated since the last cycle inspection to such an extent that a
complete inspection is required to effectuate the purposes of the Rental Housing Code,
in which case a complete new inspection of the entire rental unit and
premises may be performed. If a complete off-cycle inspection is performed, a
new occupancy permit shall be issued upon compliance, provided all violations excluding exterior
painting are satisfactorily completed, and the unit reinspected, within 60 days after the
receipt of the inspection report by the owner or owners agent.
(E) Unless waived by the landlord or tenant, the following procedure shall be
used to obtain entry to rental units for the purpose of inspection.
The owner of the unit shall be contacted and a date shall be
established for inspection. The owner shall then furnish to the Rental Housing
Officer a current list of tenants in each rental unit. The Rental
Housing Officer shall then send a certified letter with return receipt requested and
a stamped self-addressed postcard to each tenant. If there is evidence that
the tenant received the letter, but no other response is received from the
tenant, consent to enter will be presumed. An official record shall be
maintained of all notices. The landlord shall be responsible for granting access
to the inspector upon presentation of a copy of the official record of
notices and response. If the tenant refuses entry for inspection after proper
notification, the Rental Housing Officer shall not inspect without first obtaining a search
§ 156.06 OCCUPANCY PERMITS.
(A) All rental units and premises inspected and found not to be
in violation of the [housing code] shall be issued an occupancy permit by
the Rental Housing Officer. Upon registration of a rental unit not previously
registered, the Rental Housing Officer shall issue a temporary occupancy permit which shall
be in effect until the unit has been inspected and either an occupancy
permit has been issued or the temporary permit is revoked . . .
* * *
(D) It shall be a violation of this subchapter for any owner
to maintain a rental unit without an occupancy permit.
Addendum to Appellants Brief at 4-7; Vincennes, Indiana Code of Ordinances §§ 156.03
156.06 (emphasis added).
Discussion and Decision
The Landlords each owned real estate in the City which they operated as
rental units. On July 3, 2000, the City filed an information for
ordinance violation against each of the Landlords, alleging that they had failed to
pay the annual landlord registration fee required by section 156.04 for multiple years
in varying amounts.
See footnote Although filed under separate cause numbers, the cases were
treated as consolidated in the trial court because the issues were identical, and
remain consolidated on appeal. By agreement of the parties, the case was
submitted to the court on the parties briefs on the facts in issue.
The Landlords filed their brief first and admitted that landlord registration fees
were owed to the City pursuant to the housing code although they
disputed the amount but contended that the housing code was unconstitutional
due to the unreasonable search provisions. The City responded that the housing
code was a valid exercise of the Citys police powers; that the Landlords
lacked standing to raise the issue of the constitutionality of the search provisions
because the fee provision under which they were charged is separate; and that
if the inspection provision is found unconstitutional, it can be severed from the
remainder of the housing code. The trial court entered an order which
reads as follows: The Court finds the ordinance at issue is un-constitutional
in its present form. The Court finds for the [Landlords] and this
case is dismissed. Appellants Appendix at 49. The City filed a
motion to correct error, which was denied, and this appeal ensued.See footnote
I. Standard of Review
When we review a constitutional challenge to a municipal ordinance, we consider the
ordinance to stand on the same footing as a statute enacted by the
Lex, Inc. v. Bd. of Trustees of Town of Paragon, 808
N.E.2d 104, 110 (Ind. Ct. App. 2004), trans. denied. A municipal ordinance
is cloaked with a presumption of constitutionality. Id. Therefore, we place
the burden on appeal upon the party challenging it to show unconstitutionality.
Id. Before an ordinance will be declared unconstitutional, its fatal defects must
be clearly apparent. Id. at 110-11. An ordinance is not unconstitutional
simply because the court might consider it born of unwise, undesirable, or ineffectual
policies. Id. at 111.
The City first contends that the Landlords have no standing to raise the
constitutionality of the inspection provision of the ordinance.
The issue of standing focuses on whether the complaining party is the proper
one to invoke the courts power. Alexander v. PSB Lending Corp., 800
N.E.2d 984, 989 (Ind. Ct. App. 2003), trans. denied. The standing requirement
assures that litigation will be actively and vigorously contested, as plaintiffs must demonstrate
a personal stake in the litigations outcome in addition to showing that they
have sustained, or are in immediate danger of sustaining, a direct injury as
a result of the defendants conduct. Id. To establish standing, therefore,
a plaintiff must demonstrate a personal stake in the outcome of the lawsuit
and that the injury is a result of the defendants conduct. Id.
[a]lthough the Indiana constitution contains no case or controversy requirement, the federal limits
on justiciability are instructive, because the standing requirement under both federal and state
constitutional law fulfills the same purpose: ensuring that the litigant is entitled
to have the court decide the merits of the dispute or of particular
Schulz v. State, 731 N.E.2d 1041, 1044 (Ind. Ct. App. 2000), trans. denied.
Under the federal test, to establish standing a plaintiff must allege a
personal injury that is fairly traceable to the defendants allegedly unlawful conduct and
is likely to be redressed by the requested relief. Alexander, 800 N.E.2d
at 989.III. Constitutionality of the Ordinance
The City contends that the Landlords do not have standing because any injury
to them is only speculative. We disagree. Before a landlord can
rent property, he must have an occupancy permit, which expires after two years.
And before he can get an initial occupancy permit or renew an
expiring one, the City must conduct an inspection. The inspection concerns the
structural and mechanical aspects of the rental unit. The landlord is responsible
for correcting any violation discovered during the inspection and may be subject to
a one hundred dollar fine for every day the violation continues. Every
two years, rental units are subject to a mandatory inspection, and it is
clearly the Landlords interests which are implicated in the inspection; they therefore have
standing to raise the constitutionality of the ordinance.
The Landlords contend that the search provisions of the ordinance are unconstitutional because
they provide for administrative searches of the Landlords property without their consent or,
in the absence of the Landlords consent, a warrant.
A. Fourth Amendment
The basic purpose of the Fourth Amendment, applicable to the states through the
Fourteenth Amendment, is to safeguard the privacy and security of individuals against arbitrary
invasions by governmental officials. Camara v. Municipal Court, 387 U.S. 523, 528
(1967). [E]xcept in 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. Id. at 528-29.
In Camara, the Supreme Court considered a municipal ordinance which required the owner
of an apartment building to permit an inspection of the building. The
owner refused, arguing that the ordinance which gave city officials the right to
enter violated the Fourth and Fourteenth Amendments because it did not require a
search warrant or probable cause to believe that a violation of the citys
housing code existed. The Supreme Court held that administrative searches of the
kind at issue here are significant intrusions upon the interests protected by the
Fourth Amendment [and] such searches when authorized and conducted without a warrant procedure
lack the traditional safeguards which the Fourth Amendment guarantees to the individual .
. . . Id. at 534.
However, due to the nature of the municipal programs under consideration, which have
as their purpose the prevention of even unintentional conditions hazardous to public health
and safety by securing and enforcing compliance with minimum standards for private property,
the Supreme Court then considered the kind of warrant procedure required for code
enforcement inspections. Concluding that such inspections are reasonable searches of private property
under the Fourth Amendment, the Court held that probable cause to issue an
administrative search warrant exists if reasonable legislative or administrative standards exist for conducting
the inspection. Id. at 538. The standards could be based upon
the passage of time, the nature of the building to be inspected, or
the condition of the surrounding area, and do not have to be based
upon specific knowledge of the particular property. Id.
Subsequent cases addressing this issue have noted that the consent which would obviate
the need for a warrant must be voluntary and cannot be explicitly or
implicitly required. See Makula v. Village of Schiller Park, IL, 1998 WL
246043 at *7 (N.D. Ill., Apr. 30, 1998) (holding that sections of ordinance
governing multi-family dwellings which stated that the Village may require irrevocable consent by
the owner as a condition of obtaining a license and which require an
owner to agree to an administrative search in order to have a license
issued or renewed were unconstitutional under the Fourth Amendment for not meeting the
standards for voluntariness); Sokolov v. Village of Freeport, 420 N.E.2d 55, 57 (N.Y.
1981) (stating that [i]t is beyond the power of the State to condition
an owners ability to engage his property in the business of residential rental
upon his forced consent to forego certain rights guaranteed to him under the
Constitution.); Currier v. City of Pasedena, 121 Cal. Rptr. 913, 916 (Cal. Ct.
App. 1975), cert. denied, 423 U.S. 1000 (1975) (To compel a property owner
to let his property lie vacant and to prohibit him from selling it,
unless he consents to a warrantless search is to require an involuntary consent.
The owners basic right to use and enjoy the fruits of his
property cannot be conditioned on his waiving his constitutional rights under the Fourth
Amendment . . . .).
The housing code at issue herein does not expressly state that the Landlords
consent to an inspection is a required condition of being granted an occupancy
permit; however, neither does it include a warrant procedure in the absence of
the Landlords consent. The housing code only provides a warrant procedure if
the tenant refuses to consent to the search. The housing code thus
implies that the Landlord has consented to an inspection merely by applying for
an occupancy permit and has no right to refuse. In order to
satisfy the requirements of Camara and thus pass muster under the Fourth Amendment,
the housing code must give the Landlords the option to consent and include
a warrant procedure to be followed in the event the Landlords refuse to
consent to a search.
See footnote It does not, and it is therefore unconstitutional
on its face.See footnote
Having determined that the inspection provision of the ordinance is unconstitutional on its
face for failing to include a warrant procedure if the Landlords should refuse
to consent to a search, we also must address the constitutionality of the
ordinance as a whole.
An ordinance is presumed valid.
Chemical Waste Mgmt. of Indiana, L.L.C. v.
City of New Haven, 755 N.E.2d 624, 633 (Ind. Ct. App. 2001).
Rules relating to statutory construction are also applied in construing ordinances. Hopkins
v. Tipton County Health Dept., 769 N.E.2d 604, 608 (Ind. Ct. App. 2002).
If one section of an ordinance can be separated from the other
sections and upheld as valid, it is our duty to do so.
Id. at 608-09. Where the invalid portion is distinctly separable from the
remainder and the remainder is in itself complete, sensible, and capable of execution,
the invalid portion may be rejected and the remainder permitted to stand as
valid. Chemical Waste Mgmt., 755 N.E.2d at 633 (quoting Hobble ex rel.
Hobble v. Basham, 575 N.E.2d 693, 699 (Ind. Ct. App. 1991)). However,
where the invalid provisions of an ordinance are not distinct and separable from
the other sections of the ordinance, the entire ordinance is void. Id.
The housing code as a whole provides that no person shall occupy or
maintain a rental unit within the city unless in accordance with its provisions.
Addendum to Appellants Brief at 4 (Vincennes, Indiana Code of Ordinances §
156.03(A)). It is a violation of the ordinance to maintain a rental
unit without an occupancy permit. Id. at 7 (Vincennes, Indiana Code of
Ordinances § 156.06(D)). An occupancy permit is issued after the premises are
inspected and found not to be in violation of the Rental Housing Code.
Id. (Vincennes, Indiana Code of Ordinances § 156.06(A)). Because the ability
to maintain a rental unit pursuant to the housing code is ultimately tied
to the inspection of the unit, the constitutionally invalid provision of the housing
code is not distinct and separable from the remainder of the housing code,
and the trial court did not err in declaring the housing code as
a whole unconstitutional.
The Landlords, whose interests are at issue, do have standing to raise the
constitutionality of the housing code. Because the housing code fails to provide
a warrant procedure when landlords refuse to give consent to an inspection, that
provision of the housing code is unconstitutional on its face, and because the
inspection provision is not distinctly separable from the remainder of the housing code,
the trial court did not err in declaring the housing code as a
whole unconstitutional. The trial courts order is therefore affirmed.
SHARPNACK, J., and DARDEN, J., concur.
The case against Hendrixson was stayed due to his filing of
a bankruptcy petition.
Footnote: Emmons allegedly failed to pay his landlord registration fees for the
years 1997 through 2000 in the amount of $2,646.00; Klein allegedly failed to
pay his fees for 1997 through 2000 in the amount of $1,440.00; and
Hendrixson allegedly failed to pay his fees for 1996 through 2000 in the
amount of $3,240.00. Appellants Appendix at 14, 58, 102.
Footnote: Because of the constitutional nature of the issues raised herein, we
invited the Indiana Association of Cities and Towns and the Apartment Association of
Indiana to participate as amici curiae. The Indiana Association of Cities and
Towns filed a brief substantively aligned with the City and the Apartment Association
of Indiana filed a brief substantively aligned with the Landlords.
Footnote: The Citys Rental Housing Officer states by affidavit that in the
event consent is not given it is the policy and practice of the
[City] to obtain a warrant. Addendum to Amicus Curiae Brief on Behalf
of the Indiana Association of Cities and Towns at 2. However, he
also states that he has never conducted an inspection without the consent of
the tenant or landlord and has not had occasion to seek a warrant.
Id. Even if the policy and practice of the City had
any legal force and effect, it has never been tested and therefore, there
is no policy and practice of the City in this regard other than
as set forth in the housing code itself, and the housing code as
written unconstitutionally fails to require such a warrant.
We do note, however, that pursuant to
Camara, the regular two-year
inspections provided for in the housing code would be supported by probable cause
based on the passage of time and a warrant should be issued as
a matter of course when requested as based upon a reasonable standard.
The off-cycle inspections, however, would require independent probable cause for the issuance of
a warrant. As the off-cycle inspections are triggered by specific complaints, the
need for and reasonableness of such off-cycle inspections can be determined from the