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Digest of the Appeal of Aptos Council v. County of Santa Cruz et al.

By | April 14th, 2017|Categories: DK Blog, Governments, Political, Real Estate, Real Property|Tags: , , , , |

INTRODUCTION: The California Sixth Appellate Court heard and gave guidance on the applicability of CEQA [...]

Am I making myself clear?

Over the past few months, there has been much talk about the Rental Housing Inspection in the City of San Luis Obispo. I am a co-proponent with Stew Jenkins and Dan Carpenter for a ballot initiative for its repeal. The ordinance allows the City to send mailers to property owners telling the owner they must secure the consent of the tenant to allow the inspectors to enter the homes of their tenants to inspect for basic building code compliance and habitability. Although the city requires the consent of the tenant, the city does not tell the tenant in an effective way they are under no obligation to give this consent.

It seems prudent to open with a quote that goes to the heart of my point.

“I guess I should warn you, if I turn out to be particularly clear, you’ve probably misunderstood what I’ve said”. Alan Greenspan.

It is hard for me to read articles written by, (I’m sure) well-meaning though misinformed persons, defending the ordinance on grounds that it is a hand full of people with nefarious motives intent on dismantling the benevolent acts of our representatives by asking for the repeal. I have read articles attacking Dan Carpenter for forwarding the ballot initiative saying it is a way to bypass our democracy. I immediately scratch my head, we don’t live in a democracy, we live in a representative republic. The few that make this case forget that a ballot initiative is a means to add accountability to the representative republic, the form of government we live in. It is the legislative version of appealing to a higher court for redress of a wrong the lower court appears to have gotten wrong. Granted, it is not to be taken lightly, gathering the needed petitions for a ballot initiative is a large amount of work and consumes the resources of the City and private citizens in order to fix something the people feel was not decided correctly by our representatives.

Our representatives are elected by the people to make decisions on our behalf. We elect them to do this and as part of the system we put safeguards in place through our constitution for redress when our representatives do not represent our wishes. When the people feel that our representatives have gotten it wrong, a ballot initiative can be called to undo the action, through appeal to the higher body in the legislative process: the people.

The issue of inspections of the homes of tenants has been presented to the public by many officials and media outlets as simply, “council: is protecting the lowly tenant from unscrupulous landlords out to make a killing by providing substandard housing”. Going back to the quote earlier, they have made a very large complex issue of freedom appear simple, and only an inconvenience, not the deprivation of freedom and privacy it is.

What the Ordinance asks you to do is to allow government officials into your home; not because you have done anything wrong; not because you have invited them into the home; not because the home is substandard. Rather, they are asking to come into every rental property to keep tabs on the rental inventory. The ordinance requires that renters allow government officials into their home in contrivance with the Fourth Amendment’s spirit. The founding fathers went to great lengths to secure freedom from the arbitrary search of the home arguably legal or not.

A tenant has a fourth amendment interest of privacy in their home, while they occupy it or have the right to occupy it. The moment the home becomes vacant the fourth amendment right is vested back with the owner. At all times a home is protected by the fourth amendment.

This ordinance requires that owners and tenants ‘voluntarily’ allow officials into their homes. It does not tell the tenant they are not required to do this and that there is no penalty for exercising a constitutional right, period. It instead appears to be written in hopes that no one will ask or have the time to research the request of the city. If there is truly a worrisome issue with the home, probable cause should be shown and a warrant obtained.

This ordinance represents a far bigger issue, it is the overreach of government into the home and losing one of the last places that an individual can truly have privacy and freedom to have their personal effects, papers, quarters and property kept, unmolested. The Constitution was drafted to be a limitation on the government. The declaration of independence was far more than expressly written on the parchment. It was a line in the sand, whereby the citizens are the supreme body of the land, not the crown or the government.

While I think we can all agree the ordinance will catch building code violations and zoning problems of the very few properties with issues, it strips law abiding citizens of another place of privacy and there is yet another loss of freedom that persons have died for and fight daily for. In addition to the legal issues that are becoming apparent as the program is applied, it presents a moral issue. Are we willingly going to become a people that must have the government be the supreme body promulgating how we are going to live? Or are we going to take responsibility for our lives and if we want the government to enter our homes to do it on our own individual terms. The City has qualified building and code enforcement departments that investigate complaints, and there are state laws that prevent landlords from evicting tenants who exercise these purgatives of self-reporting issues.

This loss of yet another privacy and constitutional protection is not a small issue, I argue it goes to the essence of our way of life as Americans. I ask you to consider the idea that a ballot initiative is not a stomping of feet or a temper-tantrum, it is our hard-won republic functioning to ask the people, the supreme body of our land, is this what you wanted when you elected your representatives? This is an opportunity to have your voice heard, clearly and directly, to share your view through your vote.

There is nothing simple about this, it requires introspection to really ask yourself, what do I want my city, state, and country to be.

If I seem to be particularly clear in what the right answer is, I think you may have misunderstood me.

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By | August 31st, 2015|Categories: DK Blog, Uncategorized|0 Comments

About the Author:

Daniel Knight, M.S., Esq. Attorney | Licensed Contractor | Real Estate Broker Expert Witness | Lecturer | CPA Exam Candidate I create solutions to financial & building barriers that keep people from getting the product they want.

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