KENNETH M. CROOK a/k/a KENNETH CROOK a/k/a K. MICHAEL CROOK a/k/a KENNETH MICHAEL CROOK a/k/a MIKE CROOK
CITY OF MADISON, MISSISSIPPI
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/12/2012. TRIAL JUDGE: HON. JOHN HUEY EMFINGER. TRIAL COURT ATTORNEYS: STEVE C. THORNTON, JOHN HEDGLIN.
FOR APPELLANT: STEVE C. THORNTON.
FOR APPELLEE: JOHN HEDGLIN.
CHANDLER, JUSTICE, FOR THE COURT. WALLER, C.J., LAMAR, KITCHENS AND KING, JJ., CONCUR. COLEMAN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND PIERCE, J.; WALLER, C. J., JOINS IN PART. DICKINSON, P.J., NOT PARTICIPATING. COLEMAN, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART. RANDOLPH, P.J., AND PIERCE, J., JOIN THIS OPINION. WALLER, C.J., JOINS THIS OPINION IN PART.
ON WRIT OF CERTIORARI
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
[¶1] The City of Madison enacted an ordinance requiring landlords to obtain a license for each unit of rental property. The ordinance, known as the Rental Inspection and Property Licensing Act (RIPLA) conditions the grant of a license on the landlord's advance consent to property inspections. Kenneth Michael Crook was convicted in municipal court of two counts of violating RIPLA by maintaining a rental unit without a rental license and sentenced to pay a fine of $300 on each count. After a bench trial, the County Court of Madison
County affirmed his convictions. Crook appealed to the Circuit Court of Madison County, which affirmed. Crook then appealed to this Court. We assigned his appeal to the Court of Appeals, which affirmed.
[¶2] At each level of review, Crook argued tat RIPLA's inspection provisions violate the ban on unreasonable searches imposed by the Fourth Amendment of the United States Constitution. The Court of Appeals held that RIPLA is not unconstitutional because it requires the City to obtain a judicial warrant if the landlord or tenant withholds consent to an inspection. We granted Crook's petition for certiorari and now reverse. We hold that RIPLA's inspection provisions are constitutionally defective because, although RIPLA has a warrant provision, that provision allows a warrant to be obtained " by the terms of the Rental License, lease, or rental agreement," which is a standard less than probable cause. Accordingly, we reverse the judgments of the Court of Appeals, the Circuit Court of Madison County, and the County Court of Madison County affirming Crook's convictions. We reverse Crook's convictions and render a judgment of acquittal.
[¶3] The City adopted RIPLA on July 15, 2008, and amended it on May 18, 2010. RIPLA states that its purpose is to " preserve and promote the public health, safety, and general welfare of the City's residents and of the public generally, and to assure the proper maintenance of the City's residential rental housing stock." RIPLA's preamble further illuminates its purpose:
WHEREAS, the City of Madison, Mississippi (" City" ) finds that certain of its residential neighborhoods could experience declining property values, a concomitant loss of City property tax revenue, and a decline in health, safety, and quality of life due to a lack of inspection and preventive and ongoing maintenance for an increasing number of rental properties owned by absentee landlords;
. . .
WHEREAS, the City has a duty and need to enact regulations that establish safe standards related to preventive and ongoing rental property maintenance, and enable the City to effectively license, inventory, inspect, and, if necessary, repair rental properties, in order to protect the overall health, safety, and welfare of the City's residents . . . .
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND BOARD OF ALDERMEN OF THE CITY OF MADISON, MISSISSIPPI, THAT THIS ORDINANCE SHALL GOVERN THE LICENSING, INSPECTION, MAINTENANCE, AND REPAIR OF RENTAL PROPERTIES WITHIN THE CORPORATE LIMITS OF THE CITY.
[¶4] RIPLA makes it a misdemeanor to rent property without both a rental license and a certificate of compliance for each dwelling unit, and each offense is punishable by a fine of $300 per day of noncompliance. A " dwelling unit" is defined as " [a] room or group of rooms occupied or intended to be occupied as a separate living quarters for one (1) Household." The building official is the City official designated to administer and enforce RIPLA.
[¶5] To obtain a rental license, the owner must give advance consent to allow the building official to inspect the property to ensure compliance with RIPLA. The owner also must submit a written application, pay annual licensing fees of $100 per dwelling unit and $100 per dwelling as a
whole, and post a $10,000 bond, collateral, or letter of credit per dwelling unit. The bond serves as a surety for the costs of performing any correction orders issued by the building official.
[¶6] An owner obtains a certificate of compliance after the building official inspects the property and certifies that it complies with RIPLA's requirements, including city housing codes, technical codes, zoning, subdivision, landscape, and environmental ordinances, state and federal housing laws, and applicable judicial and administrative decrees. The owner's advance consent to inspection allows the building official to make inspections " when and as needed" of all portions of a dwelling unit and common areas, whether occupied or unoccupied. If a violation is noted, the building official issues a notice of the violation with a time set for correcting the violation. If correction is not made by the deadline, the City may authorize the building official " to complete the necessary repairs, alterations, or improvements and charge the expenses incurred therfor [sic] to the Owner." If this occurs, the owner must reimburse the City, or forfeit the bond, collateral, or letter of credit. If the repairs exceed the owner's surety, the City will have a privileged lien on the property to secure its expenses.
[¶7] The building official must give the owner reasonable advance notice of the date and time of each inspection, with the owner to notify the tenants of any occupied dwelling units slated for inspection. RIPLA states that the building official is authorized " to enter, inspect, repair, alter, and improve" all property subject to RIPLA. It further states that, by the terms of the rental license, owners and tenants consent to the building official entering the property at reasonable times for inspection and repair to ensure compliance with RIPLA. It also states:
Should a Tenant or Owner refuse entry, the Building Official shall be authorized by virtue of the terms of the Rental License to secure a judicial warrant authorizing entry by the terms of the Rental License, lease, or rental agreement.
B. Crook's Prosecution
[¶8] At the trial, it was established that Crook owned residential property located at 127 Cypress Drive, within the City of Madison, Mississippi. It was undisputed that Duke Swyers lived at the residence from 2007 through 2009, and Tammy Thompson lived there from March 2010 until September 2010. Crook testified that he had option-to-purchase agreements with Swyers and Thompson under which rental payments would go toward the purchase price. He argued that these agreements removed his property from the dictates of RIPLA. However, both Swyers and Thompson testified that they had been renting and never had planned to purchase the property.
[¶9] On August 14, 2008, the City sent notifications letters concerning RIPLA to all owners of rental property in the City. The letter informed the owners of the steps needed to comply with RIPLA. The City sent Crook a copy of the letter based upon City officials' belief that 127 Cypress Drive was rental property. On October 20, 2008, the City sent Crook a letter stating that it had not received his licensing fee and informing him of the consequences of renting property without a rental license. On February 12, 2009, Crook filled out and signed an application for a rental license and paid a $100 licensing fee. The application contained the following statement above Crook's signature: " [a]pplication is hereby made for an inspection to determine if the existing building described is in compliance with codes
and ordinances adopted by the City of Madison." But because Crook never posted a bond, collateral, or letter of credit, the City never issued a rental license for 127 Cypress Drive. On March 11, 2009, Angie Gelston, a code-enforcement officer, filed charges against Crook for violating RIPLA. Gelston alleged Crook, despite notice, had continued to rent 127 Cypress Drive without a license. On March 26, 2010, Crook sent the City a letter requesting return of the licensing fee and stating that he personally would be occupying 127 Cypress Drive, thus removing the property from the scope of RIPLA.
[¶10] On May 20, 2010, the building official, Bill Foshee, sent Crook a letter alleging Crook was in violation of RIPLA for renting the property without a rental license, and that all utilities would be disconnected if Crook did not comply within fifteen days. On June 1, 2010, Crook responded, stating that RIPLA did not apply to the property because Thompson had an option to purchase it and it was not rental property. Foshee reported the violation to the Madison Police Department. On October 6, 2010, Crook was arrested for having rented 127 Cypress Drive without a rental license in violation of RIPLA.
[¶11] On January 13, 2011, the Madison Municipal Court convicted Crook of two counts of violating RIPLA. He appealed to the County Court of Madison County and filed motions to dismiss, alleging that (1) RIPLA is facially unconstitutional and unconstitutional as applied; (2) the arrest warrants were invalid due to lack of probable cause; and (3) RIPLA violates a state statute that bars municipalities from directly or indirectly regulating the amount of rent charged for private residential property. See Miss. Code Ann. 21-17-5(2)(h) (Rev. 2007). The county court denied the motions to dismiss, held a trial, and affirmed his convictions. Crook appealed to the circuit court, which affirmed.
[¶12] Before the Court of Appeals, Crook raised his arguments from the motions to dismiss and also challenged the weight and sufficiency of the evidence by arguing that RIPLA did not apply to his property due to the option contracts. The Court of Appeals affirmed. Crook v. City of Madison, 168 So.3d 1169, 2014 WL 4823656, *11 (Miss. Ct.App. Sept. 30, 2014). The Court of Appeals found that the verdict was not against the overwhelming weight of the evidence. Id. at *10. The Court of Appeals found that the City had presented sufficient evidence that Crook had rented the property to Swyers and Thompson and that the purported option contracts had been attempts to disguise these rental relationships. Id. at *10. But the Court of Appeals found that Crook's arrest for RIPLA violations was improper. Id. at *10. The Court of Appeals held that RIPLA does not violate Mississippi Code Section 21-17-5(2)(h). Id. at *9. The Court of Appeals also held that RIPLA does not violate the Fourth Amendment's prohibition on unreasonable searches because RIPLA mandates that the building official obtain a warrant if the owner or tenant does not consent to an inspection. Id. at *8.
[¶13] This Court granted Crook's petition for certiorari. We limit our review to the Court of Appeals' holding that the warrant provision renders RIPLA constitutional. M.R.A.P. 17(h). Because we find that RIPLA's warrant provision is insufficient to safeguard landlords' and tenants' right of freedom from unreasonable searches, we find RIPLA's inspection provisions to be unconstitutional.
A. Standard of Review
[¶14] Crook argues that RIPLA's inspection provisions are facially ...