Archive for Sunday, December 1, 2013

Privacy enters debate on proposed Lawrence rental inspection program

December 1, 2013


Some Lawrence landlords my want to check their smoke alarm batteries. Some Lawrence tenants may want to check their smoking bongs.

If Lawrence city commissioners approve a new citywide rental licensing program, both types of items may catch the eyes of city building inspectors.

As commissioners consider giving final approval to a citywide rental licensing program, some commissioners and members of the public are expressing concerns the inspections that come with it may create privacy concerns for tenants.

"One of the best arguments against this ordinance is that it could result in scope creep," Mayor Mike Dever said. "You start assuming duties that were never intended. We can't let that happen here."

For example, the program is meant to ensure that rental units meet minimum safety codes — working smoke alarms, good electrical wiring, proper ventilation and the like. But what happens if a building inspector sees a bag of marijuana on a dining room table or drug paraphernalia or some other item that suggests illegal activity?

"I think there is an obligation that if inspectors see something they believe is illegal — while they are not the judge or the jury — it is appropriate to talk to a supervisor about it," City Manager David Corliss said.

Corliss said he could envision some types of information leading to a follow up visit by police, but he doesn't think that would be common. Corliss noted that the city has been inspecting a limited number of single family rental units for more than a decade, and privacy issues haven't been identified as a problem.

"I think we have a good track record with the existing ordinance, and we're going to insist that happen with this one," Corliss said. "We have to. It is not an option."

Commissioners will consider approving the new rental licensing and inspection program at their 6:35 p.m. meeting on Tuesday at City Hall.

Tenant choice

The proposed rental registration and licensing program essentially would cover every rental unit in the city, and as a result, city inspectors would conduct substantially more inspections.

Russell Livingston, a Lawrence resident and landlord, said he thinks the increased scope of the program is likely to erode the privacy rights of tenants.

"There will be some kid out there who gets charged with marijuana possession or a bong or whatever because of this program, and then they won't get to go to law school or something like that," Livingston said.

Livingston is particularly concerned that the city will be asking landlords to get tenants to sign a city-created document that gives consent for the city to enter the apartment and to take pictures and digital images inside. Livingston said city inspectors shouldn't be given such wide authority but instead should have to get permission from the tenant for each photograph needed to document a code violation.

Livingston said he thinks tenants should have the right to opt out of the inspection program. He said some tenants may find a violation of their privacy more troublesome than any health and safety code violation.

"We're doing this for tenant safety," Livingston said. "If the tenant doesn't want their unit inspected for life and safety issues, they should be able to decline that."

As it is currently configured, if a tenant declined to sign the consent form, the city could get an administrative search warrant.

Commissioners mixed

City Commissioner Bob Schumm said he's not interested in violating anyone's privacy, but he does think the licensing and inspection program can do a lot to improve the safety of the city's rental housing stock. He said property inspectors won't be searching under sofa cushions or digging through drawers, for example. He doesn't think the concern of inspectors becoming another set of eyes for law enforcement is likely to happen.

"If we were talking about just going up and knocking on someone's door and saying we're going to do an inspection now, there would be a lot of concern on my part too," Schumm said. "But that's not what we're talking about. We're talking about making an appointment to do an inspection."

How that appointment process will work isn't clear. Corliss said he believed the expectation would be that inspections would be scheduled "hours, if not days, in advance." But the city has created a list of administrative procedures for the proposed program, and they do not provide details on how inspections would be scheduled or what type of notice would be given to tenants.

City Commissioner Mike Amyx said he wants to make sure such details are written down and the public has had a chance to consider them before the program is approved.

"We had better think long and hard about all of this," Amyx said.

Amyx, a landlord for five rental units in the city, said he has a host of concerns about the proposed program, and privacy issues are among them.

"I want people to have quiet enjoyment of their homes," Amyx said. "I don't want to disturb people anymore than we have to."

The Manhattan project

The city of Manhattan ran a rental licensing and inspection program for about two years until it was repealed by its city commission in 2011. Livingston began highlighting some of the potential privacy concerns after he read a 2011 Manhattan city memo about how Manhattan officials had approached the rental inspections.

That memo noted property inspectors had received some training from the Riley County Police Department. But Brad Claussen, the building official for Manhattan and the author of the memo, said the training was not on how the inspectors could become another set of eyes for the police department. Instead, it was related primarily to police officers giving inspectors safety tips on how to deal with a number of unusual circumstances.

But the memo does note that inspectors "have referred a few addresses" to the police department where suspected drugs or paraphernalia were present during the inspection. During the two years of the program, Claussen estimated his department gave the police addresses to follow up on about 10 times.

Several Lawrence residents have been pointing to the repeal of the Manhattan program as evidence that Lawrence's proposed system is unworkable. But Claussen said the city didn't have many problems administering the program, and he said he doesn't think privacy concerns led to its repeal. Instead, he said the philosophy on the Manhattan City Commission simply changed after a local election put new members on the board.

"I think they just thought it was more regulation than they wanted for a business," Claussen said.

After months of debate, Lawrence city commissioners are now reaching the point of deciding what they're comfortable with on the issue. Amyx has expressed consistent concern about the proposed ordinance, but the other four commissioners have given various levels of support to the idea.

Dever said the new batch of privacy concerns is causing him to "struggle" with the issue of an inspection program. But he stopped short of saying that he will pull his support of the program.

"There is reason to believe we have the right people to put the right procedures in place," Dever said. "We just need to make sure we take the time to put the right procedures in place."


RJ Johnson 4 years, 5 months ago

There is a reason the City of Manhattan repealed their inspection program. The City of Lawrence needs to think twice about this before they go throwing a lot of money into a program that is doomed from the beginning.

Fred Whitehead Jr. 4 years, 5 months ago

It clearly the agenda of the"city commission" to establish a "bi brother" situation in Lawrence, these bought and paid-for commissioners have always bent to the desires of the very few who have elected them (When was the last time YOU voted in a city election??).

Private residences with be next.

Richard Heckler 4 years, 5 months ago

20,720 rental properties inhabit Lawrence,Kansas or about 58% of residential is rental property.

There are many many more communities surrounding Lawrence,Ks that have had these regulations in place for many many years. And at significantly larger fees to property owners.

It is my best thinking that inspectors have no right to barge in without consent. All of a sudden property owners are concerned for pot smokers whoaaaaaaaaaaaaaa how times have changed.

My speculation says the greater concern is property owners fear the expense of bringing business properties aka residential rentals up to code. AKA safer environment for tenants.

What if a furnace has been red tagged yet never replaced? What if a roof is in disrepair and might cave in? What if the sewer lines need a roto rooter? What if a porch is falling apart? What if light fixtures need some attention? What if smoke detectors need new batteries? What if plumbing is a disaster?

Richard Heckler 4 years, 5 months ago

Performance Audit: Rental Housing Licensing Program – February 2012 can be procured through City Hall. A ton of information.

Code Enforcement - Tenants are landlords keeping your home up to code?

Addie Line 4 years, 5 months ago

Let's just start doing inspections of all homes, in that case. I can see from the street the safety code issues of a neighbors home. Why should they be immune?

John Graham 4 years, 5 months ago

Addie has a good argument. If concern is people living in substandard housing, then all housing, even occupant owned, should be inspected. If concern is renters living in substandard housing due to "slum lords" refusing to make repairs then make inspections to housing on as needed basis. Mandate rental owners provide tenants with contact info for city inspector's office. If tenant feels their unit is unfit the tenant can call inspector to come out and evaluate the rental unit. That still would force rental owners to keep property up to code and give tenants a resource if they feel their unit is not being taken care of. Tenants couldn't complain about privacy issues since they called for the inspection.

RJ Johnson 4 years, 5 months ago

This should bring up some fourth amendment rights issues on unlawful searches seeing's they (the City of Lawrence) are looking for violations of the law. Correct me if I am wrong here!

Amy Varoli Elliott 4 years, 5 months ago

They are looking for compliance of the law from people operating a business, same way the health department conducts inspections of resturants

RJ Johnson 4 years, 5 months ago

FOURTH AMENDMENT - Searches and Inspections in Noncriminal Cases.—Certain early cases held that the Fourth Amendment was applicable only when a search was undertaken for criminal investigatory pur- poses, 66 and the Supreme Court until recently employed a reason- ableness test for such searches without requiring either a warrant or probable cause in the absence of a warrant. 67 But in 1967, the Court held in two cases that administrative inspections to detect building code violations must be undertaken pursuant to warrant if the occupant objects. 68 ‘‘We may agree that a routine inspection of the physical condition of private property is a less hostile intru- sion than the typical policeman’s search for the fruits and instru- mentalities of crime. . . . But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely ‘peripheral.’ It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.’’ 69 Cer- tain administrative inspections utilized to enforce regulatory schemes with regard to such items as alcohol and firearms are, however, exempt from the Fourth Amendment warrant require- ment and may be authorized simply by statute.

Amy Heeter 4 years, 5 months ago

Privacy issues really? Just put your bong away. The city needs these rentals to be inspected because of all the slumlords in this town. the sfety issues outweigh a persons fear of not being able to use drugs freely.

Richard Heckler 4 years, 5 months ago

What about the attack on market values of neighboring residential as a result of neglected properties and rowdy tenants?

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