2 SLO landlords file lawsuit over rental housing inspection program

Two local landlords who oppose San Luis Obispo’s rental housing inspection program have sued the city, calling the ordinance unconstitutional.

Landlords Steve Barasch and Matt Kokkonen, along with their families, filed the lawsuit in county Superior Court on Thursday, alleging that the city has violated the Fourth and Fifth Amendments of the U.S. Constitution by claiming a landlord can’t refuse consent of inspection if the unit is unoccupied without being subject to criminal penalties.

The lawsuit adds that it’s “virtually impossible for the average citizen to determine what kind of penalty he or she can expect for withholding consent to an inspection.”

“A valid consent involves a waiver of constitutional rights and must be voluntary and uncoerced,” the lawsuit states. “The alternatives presented to the property owners is to consent in advance to a warrantless inspection, or to face criminal penalties and/or fines.”

But City Attorney Christine Dietrick told The Tribune on Thursday that the program requires “lawful entry” either by voluntary consent or after a warrant has been served to search the home.

Dietrick said that state law allows for a housing inspection warrant to be issued that’s different from a criminal search warrant, which requires probable cause to search someone’s property.

A housing inspection warrant may be issued in compliance with a legal inspection program, such as the city’s, under a lower threshold, Dietrick said.

“There will be no criminal prosecution merely for failure to give consent,” she said.

Under the program, which was adopted by a majority of the City Council in May 2015, rental homes in San Luis Obispo are subject to routine inspections on a three-year cycle to determine whether they conform to health and safety standards.

The program is designed to protect renters from unsafe conditions such as faulty wiring, blocked entry doors, leaky roofs and malfunctioning smoke detectors, among other health, safety and municipal code violations. The city ratcheted up inspections this summer.

Dietrick said the city would exhaust “all avenues to obtaining legal entry.”

She said she believes the city’s code makes it clear what punitive remedies, including fines or administrative actions to compel compliance, could be applied, noting that processes for appeal are in place to contest those remedies.

In a letter to the plaintiffs’ attorney Saro Rizzo on Sept. 2, Dietrick wrote, “the ordinance read as a whole and given its most logical meaning does not require the owner to consent to a warrantless search at all, let alone under threat of criminal or civil prosecution.”

The lawsuit, which seeks to void the ordinance and for the city to pay for costs, including attorney’s fees, also alleges that the city’s program violates equal protection rights “because it applies a set of rules to owners of certain rental properties” but not others.

Those with rentals in multifamily dwellings of three units or more aren’t subject to inspections, while those with rentals in single-family dwellings, duplexes and second dwelling units are.

“They feel that they are being treated differently,” the lawsuit states.

But Dietrick said Thursday that the multifamily units are subject to a statewide inspection program “that has proven effective to remedy” the types of housing problems the city’s rental inspection program seeks to address.

An effort to repeal the program already has been initiated by Councilman Dan Carpenter, along with local attorneys Stew Jenkins and Dan Knight.

The council will review the program at a meeting in March and consider revamping it.

This story was originally published October 13, 2016 at 8:28 PM with the headline "2 SLO landlords file lawsuit over rental housing inspection program."