City of Pasco v. Shaw

*464¶25

Chambers, J.

(concurring) — I cautiously concur because I do not read the majority as eroding the important principles embodied in article I, section 7 of our constitution and as explained in City of Seattle v. McCready, 123 Wn.2d 260, 270, 868 P.2d 134 (1994). Under our state constitution, “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Const. art. I, § 7. Article I, section 7 protects “ ‘those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass’ ” without a warrant issued by a neutral magistrate and supported by probable cause. McCready, 123 Wn.2d at 270 (quoting State v. Boland, 115 Wn.2d 571, 577, 800 P.2d 1112 (1990)). At a minimum, a city ordinance that authorizes inspection “warrants” without probable cause does not provide the “authority of law” as meant by our constitution. Id. at 271-72.

¶26 But the city of Pasco clearly drafted its ordinance with McCready in mind. This ordinance does not require state agents to make the inspections and does not use the fig leaf of probable-causeless “warrants” to authorize home invasions. Instead, Pasco property owners must prove that their rental units are habitable as a condition of doing business in the city and are free to contract with private inspectors. See Pasco Municipal Code 5.78.020(C). On paper, at least, this is a critical difference. Still, we should always be skeptical when any government seeks to invade any person’s home, no matter how well meaning the exercise of police power may be.

¶27 I am cautious because this ordinance potentially invades two privacy interests. The first is that of landlords who are in the business of renting apartments. I recognize that the city of Pasco found substandard housing was a growing problem, requiring increased regulation and enforcement in response. Housing is a heavily regulated industry, and I conclude that landlords have a reduced privacy interest. Many housing code provisions go to the very structure of the buildings rather than to traditionally understood private affairs. See, e.g., WAC 51-50-2106.1.1 *465(seismic requirements); WAC 51-50-1015.1 (exits). But see WAC 51-50-1208.2, .3 (minimum room sizes); WAC 51-50--1101.2.6 (maximum/minimum distance of shelves within toilet compartments from floor). Many industries such as restaurants and day care providers are pervasively regulated, which even in our state may create a reduced expectation of privacy. See generally State v. Thorp, 71 Wn. App. 175, 178, 856 P.2d 1123 (1993) (citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 313, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978)). Courts in Washington have even allowed commercial fishermen to be criminally prosecuted for refusing to allow warrantless searches of their boats because of similar reduced expectation. State v. Rome, 47 Wn. App. 666, 670, 736 P.2d 709 (1987). I conclude that landlords who offer housing for rent should reasonably expect that the government will require that housing be habitable and meet minimum standards.

¶28 The other privacy interest potentially invaded is the privacy interest that was primarily before us in McCready: that of the tenants. In this case, unlike in McCready, it is not necessarily a government agent directly entering the tenants’ homes. Instead, the city of Pasco merely requires the landlord to provide certification that the housing offered to the public meets minimum housing standards and allows certain non-state-agent professionals to provide that certification. PMC 5.78.020. Instead of authorizing state agents to enter the property themselves, the ordinance utilizes the landlord’s authority under the State’s Residential Landlord-Tenant Act of 1973, chapter 59.18 RCW, to enter the tenant’s home. PMC 5.78.020. Importantly, that act does not create a blanket right of entry, and it does provide a mechanism to protect the privacy interests of the tenant. The act requires that the tenant be given at least two days’ written notice of the landlord’s intent to enter the tenant’s home and authorizes entry only at reasonable times. RCW *46659.18.150(5).5 “The landlord has no other right of access except by court order, arbitrator or by consent of the tenant,” with exceptions not relevant to us. RCW 59.18.150(6). Thus, any inspection of an occupied unit performed pursuant to the ordinance should be done with the tenant’s consent or by court order or arbitrator; anything less runs the risk of violating RCW 59.18.150 and article I, section 7 of our state constitution.

¶29 I caution, however, that if and when inspections go beyond reasonable inspections for housing code violations, the complexion of this controversy will change. Cf. State v. Ludvik, 40 Wn. App. 257, 262-63, 698 P.2d 1064 (1985). If inspectors function like the eyes and ears of the State, looking for suspicious activities, they will become government agents. Id. (“[0]fficial involvement is not measured by the primary occupation of the person conducting the search, but the capacity in which he acts at the time.”). If in fact, if not in job title, these inspectors are state actors, conducting warrantless intrusions into the private affairs of tenants, the protections of article I, section 7 will attach. See State v. Swenson, 104 Wn. App. 744, 754-56, 9 P.3d 933 (2000) (state action when the government “knew of and acquiesced in the intrusive conduct” and the private citizen “intended to assist law enforcement efforts” (emphasis added) (quoting State v. Clark, 48 Wn. App. 850, 856, 743 P.2d 822 (1987))).

¶30 Because that is not the case before us and because I agree with the majority that the challengers have failed to demonstrate a facial or as applied violation of the state constitution, I respectfully concur.

Alexander, C.J., concurs with Chambers, J.

The landlord may enter without notice only in the event of an emergency or if it is impractical to give notice. RCW 59.18.150(5).