An Aurora apartment complex owner is suing the city of Aurora, claiming its process of inspecting apartments is unconstitutional.
DPH Properties LLC, 747 Aurora Ave., filed a lawsuit March 1 challenging the city’s rental property licensing ordinance.
The lawsuit says the ordinance “is alleged to be unconstitutional on its face” because it lacks a procedure to obtain warrants to conduct searches of resident’s rental homes.
It says the city instead resorts to “fines and harassment to achieve entry.”
“The ordinance contains no restrictions on the persons, objects or scope of the warrantless searches,” the lawsuit says. “Anyone living in a non-owner-occupied home is subject to warrantless inspection at any time.”
The attorney for DPH, Matthew Robinson, of Geneva, said the city of Aurora “is fining landlords just based on if a tenant asserts their constitutional rights.”
“Anyone wants to be safe in their home,” Robinson said. “Who wants a code enforcement officer rifling through their home?”
The city of Aurora has yet to file a response to the lawsuit. Last week, Robinson filed for a preliminary injunction against the city to keep it from enforcing the ordinance, and last week, 16th Circuit Court Judge Kevin Busch gave the city a continuance until July 12 to answer the motion for the injunction.
The city is represented by attorneys Anthony Becknek, Jason Guisinger and Colleen M. Shannon, of Chicago-based Klein, Thorpe & Jenkins, Ltd.
The lawsuit names Richard Irvin, as mayor, Ruthy Harris, as property standards manager, and Hernan Magana, as a code inspector.
In an interview, Irvin did not comment directly on the lawsuit, but said the city has to make sure “life and safety” issues are taken care of in apartment dwellings. He added that officials “don’t assume there isn’t a better way to have a process.”
He said the city put as part of the licensing ordinance a lease addendum that tenants sign which allows inspections.
“We put one more step in there,” he said.
One of the things the plaintiffs suing the city are relying on is what they consider a precedent, a court-ordered consent decree from a lawsuit filed against the city of Zion, a city in the north suburbs of Chicago near the border with Wisconsin.
The lawsuit that produced the consent decree came from the Institute for Justice, a national not-for-profit law firm that represents clients who believe their rights are threatened by the government.
The Zion case forced that city to make amendments to its inspection program.
Attorney John Wrench, of the institute, said Zion engaged in “similar conduct” to Aurora.
Wrench wrote a letter late last year to Ruthy Harris, Aurora’s property standards manager, saying the city’s ordinance is “likely unconstitutional.” Citing case law in addition to the Zion case, Wrench said the city’s process of threatening to fine landlords when tenants refuse inspections without a warrant violates the constitution’s Fourth Amendment.
Both the lawsuit filed against the city, and the letter from Wrench to the city, refer to a string of emails that they say show the city threatened the fines against landlords after tenants refused to allow inspectors in without a warrant.
While one landlord filed the lawsuit, all apartment landlords are watching the suit closely.
One landlord, who wanted to remain anonymous, told The Beacon-News that whether or not the ordinance is unconstitutional, the process makes it more difficult for landlords.
He said people often complain that renters do not treat property as their own, so it behooves landlords to do what they can to make renters feel like their unit is their home.
“Anything you do to reinforce the fact that their apartment is their home, you do,” the landlord said. “When you can just come in without a warrant, they feel like second-class citizens. It sends a message that it’s not their home.”
slord@tribpub.com