NILI 2011, LLC et al v. Warren, City of

Filing 64

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION FOR SUMMARY JUDGMENT 55 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NILI 2011, LLC, EETBL, LLC, and
INVESTMENT REALTY SERVICES, LLC
D/B/A SBYC GARNER, LLC

Case No. 15-cv-13392

Plaintiffs,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.

UNITED STATES MAGISTRATE JUDGE
R. STEVEN WHALEN

THE CITY OF WARREN,
Defendant.
/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [55]
I.

Introduction
This case concerns rental ordinances enacted by the City of Warren,

Michigan.

Plaintiffs NILI 2011, LLC, EETBL, LLC, and Investment Realty

Services, LLC doing business as SBYC Garner, LLC filed a Complaint on
September 28, 2015. See Dkt. No. 1. Plaintiffs assert the following claims against
the Defendant City of Warren: violations of procedural due process (Count I);
violations of due process through ordinances that are void for vagueness (Count II);
violations of the Fourth Amendment prohibition on unreasonable searches and
seizures (Count III); assumpsit under Michigan law (Count IV); and violations based

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on municipal liability and 42 U.S.C. § 1983 (Counts V and VIII). Plaintiffs request
injunctive and declaratory relief in Counts VI and VII, respectively.
Defendant filed a Motion for Summary Judgment on August 16, 2017, and
this motion is fully briefed. Dkt. No. 55.
Presently before the Court is the Defendant’s Motion for Summary Judgment
[55]. A hearing on this motion was held on Tuesday, November 7, 2017 at 10:00
A.M. For the reasons that follow, the Court will GRANT IN PART and DENY IN
PART Defendant’s Motion for Summary Judgment [55]. The Court will GRANT
Defendant’s Motion on Counts II and IV, and DENY Defendant’s Motion on Counts
I, III, and V–VIII.
II.

Background
The Plaintiffs are limited liability companies who own rental properties in

Warren, Michigan. Dkt. No. 1, p. 2 (Pg. ID 2). The Defendant is the City of Warren,
located in Macomb County, Michigan. Id.
The City has enacted ordinances covering the maintenance of rental
properties. Id. at p. 3 (Pg. ID 3). These ordinances are largely from the International
Property Maintenance Code (“IPMC”).1 Renting a property in Warren requires
satisfying several requirements. First, in applying for a rental license, rental owners
must certify that they agree to “release the City of Warren, its agents, servants and

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The City contends it has been enforcing the 2009 version. See Dkt. No. 55-6.
2

employees from any and all liability resulting from the required inspections and
observations hereunder.” Dkt. No. 55, p. 27 (Pg. ID 588). Next, a person must
register the property with the City and obtain a certificate of compliance with the
rental code. Dkt. No. 1, p. 5 (Pg. ID 5). To obtain a certificate of compliance, the
rental property must pass an inspection conducted by a City housing code official.
Id. A certificate of compliance is valid for two years. Dkt. No. 55-2, p. 7 (Pg. ID
606).
A City housing code official must personally inspect a property prior to the
issuance of a certificate of compliance. Dkt. No. 60-4, pp. 5–6 (Pg. ID 1492–93).
The City’s procedure for gaining access to a rental property is described in Section
104.3 of the IPMC. Dkt. No. 55-6, p. 12 (Pg. ID 643). Under that section, where a
premises is occupied a code official must request permission from the occupant to
enter. Id. “If entry is refused, the code official shall have recourse to the remedies
provided by law to secure entry.” Id.
The City’s code officials apply the IPMC when inspecting a rental property.
Dkt. No. 1, p. at 3 (Pg. ID 3). The IPMC does not define some key terms, namely
“good repair.” See Dkt. No. 55, p. 21 (Pg. ID 582). Instead, the IPMC provides that
any undefined terms “shall have ordinarily accepted meanings such as the context
implies.” Id.; see also Dkt. No. 55-6, p. 18 (Pg. ID 649). In some instances, the
IPMC offers examples regarding the meaning of an undefined term. For example,
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the IPMC understands the exterior of a building to be in “good repair” where that
building is “structurally sound and sanitary so as not to pose a threat to the public
health, safety or welfare.” Dkt. No. 55-6, p. 21 (Pg. ID 652).
The City’s rental coordinator, Marilyn Tremberth, testified that City
inspectors sometimes apply different, conflicting interpretations of code provisions.
Dkt. No. 60-3, pp. 49–50 (Pg. ID 1354–55). Likewise, a Warren property manager
observed that City inspectors subjectively administer the IPMC and sometimes
require changes not mandated by the IPMC. Dkt. No. 60-4, p. 4 (Pg. ID 1491).
If a premises fails an inspection, the City sends a notice to the rental owner
regarding the violation. Dkt. No. 1, pp. 8–9 (Pg. ID 8–9). The IPMC requires that
certain information be included in this notice, in particular, the right to appeal and
the City’s ability to place a lien on a non-compliant property; the City does not
include this information in its notices. Dkt. No. 55-6, p. 13 (Pg. ID 644); see, e.g.,
Dkt. No. 60, pp. 1–7 (Pg. ID 1283–1289).
The City’s failure of inspection notices do, however, notify rental owners that
they have sixty days to rectify the violations. See Dkt. No. 60-2, p. 3 (Pg. ID 1285).
Before a second inspection can occur, a rental owner must pay a $40 fee, if the
interior of the premises must be re-inspected, and confirm that the violations have
been cured. Id. If the premises fails a second inspection, the City gives the owner
fifteen days to make the necessary repairs. Id. at p. 8 (Pg. ID 1290). The owner
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must schedule a third inspection within fifteen days and, again, a $40 fee is imposed
if the interior of the house must be inspected a third time. Id.
Where a rental owner fails or does not schedule a third inspection, the City
immediately issues the owner a ticket. Id. This ticket subjects owners to fines of up
to $1,000. Id. If a rental owner refuses to pay the fine, the owner must attend a court
proceeding. Id. This proceeding solely concerns “why [rental owners] were unable
to complete inspections within the allotted time.” Id. Put another way, the hearing
only allows rental owners to address whether they possess a certificate of
compliance; it does not allow them to contest the merits of code inspectors’
evaluations of a property. Dkt. No. 1, p. 16 (Pg. ID 16).
The IPMC contains a section detailing an appeal process which allows rental
owners to dispute a code inspector’s decisions—the City did not adopt this section,
however. Id. at p. 8 (Pg. ID 8); see also Dkt. No. 55-6, p. 16 (Pg. ID 647); see also
Dkt. No. 55-2, p. 4 (Pg. ID 603). Instead, the City simply provides this court hearing
after the rental owner receives a fine for non-compliance. See Dkt. No. 1, p. 16 (Pg.
ID 16).
III.

Legal Standard
Under Federal Rule of Civil Procedure 56(c), “summary judgment shall be

granted if ‘there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.’ ” Cehrs v. Ne. Ohio Alzheimer’s
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Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998). A court must view the facts, and
draw reasonable inferences from the facts, in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986). No genuine dispute of material fact exists where the record
“taken as a whole could not lead a rational trier of fact to find for the non-moving
party.” Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The key inquiry is “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at
251–52.
IV.

Discussion
Defendant argues it is entitled to summary judgment on all of Plaintiffs’

claims. Dkt. No. 55, p. 12 (Pg. ID 573). Specifically, Defendant contends there is
no genuine dispute about Plaintiffs’ claims regarding (1) procedural due process; (2)
due process violations based on the void for vagueness doctrine; (3) prohibitions on
unreasonable searches and seizures under the Fourth Amendment; (4) assumpsit
under Michigan law; (5) municipal liability; and (6) 42 U.S.C. § 1983. Defendant
also opposes Plaintiffs’ request for injunctive and declaratory relief.

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The Court agrees with the Defendant that it is entitled to summary judgment
on Counts II and IV. The Court finds that the Defendant is not entitled to summary
judgment on Counts I, III, and V–VIII, however.
A.

Count I: Procedural Due Process
1.

Notice

Defendant contends there is no genuine dispute that it has provided Plaintiffs
with notice that comports with procedural due process. Conversely, Plaintiffs allege
that reasonable minds may disagree about whether the Defendant has violated their
procedural due process rights, as the City’s failed notices of inspection do not
include all the information required by the City’s rental regulations. The Court finds
that the Plaintiffs’ argument has merit.
“ ‘Procedural due process imposes constraints on governmental decisions
which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of
the Due Process Clause of the Fifth or Fourteenth Amendment.’ ” Kaminski v.
Coulter, 865 F.3d 339, 347 (6th Cir. 2017) (quoting Mathews v. Eldridge, 424 U.S.
319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)). As it concerns procedural due
process, “the deprivation of property by state action is not itself unconstitutional;
‘what is unconstitutional is the deprivation of such an interest without due process
of law.’ ” Id. (quoting Christophel v. Kukulinsky, 61 F.3d 479, 485 (6th Cir. 1995)).

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The City’s notices of failed inspection do not include all the information
required by the City’s rental code, but the City correctly notes that this failure “ ‘does
not . . . automatically translate into a deprivation of procedural due process under
the United States Constitution.’ ” Shoemaker v. City of Howell, 795 F.3d 553, 560
(6th Cir. 2015) (quoting DePiero v. City of Macedonia, 180 F.3d 770, 788 (6th Cir.
1999)). Yet there is a genuine dispute about whether the City provides Plaintiffs
with sufficient notice because the City does not notify Plaintiffs of an appeal process.
Indeed, the City does not have an appeal process.
“[N]otice must be ‘reasonably calculated, under all of the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections,’ and ‘must afford a reasonable time for those
interested to make their appearance.’ ” Id. (quoting Mullane v. Cent. Hanover Bank
& Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950)). For example,
the Shoemaker court concluded that a defendant city provided sufficient notice
regarding an ordinance because it had communicated with the plaintiff, mailed and
posted notices of violations on the plaintiff’s doorstep, and the notices specified the
section of the city code at issue. Id. at 560. The court found that a review of the
ordinances or a call to the city would have answered the plaintiff’s questions about
the process for objecting to the alleged violations. Id.

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Here, as Plaintiffs note, the City’s notices of violation do not provide any
information regarding how a renter can oppose the merits of a failed notice of
inspection. See, e.g., Dkt. No. 60-2, pp. 1–2 (Pg. ID 1283–84). And, a simple call
to the City would not lead to answers for Plaintiffs, as it would have for the plaintiff
in Shoemaker. Plaintiffs could not have learned of the City’s appeal procedures
because the City does not have appeal procedures.
To the extent the Defendant argues that the court hearing is an adequate appeal
procedure, this argument lacks merit. The court hearing does not address objections
to the alleged violations in the first instance; it solely assesses whether owners have
a valid certification of compliance, which of course they do not, as the hearing would
not otherwise be necessary. Dkt. No. 1, p. 16 (Pg. ID 16); see also Garner Props.
& Mgmt. v. Charter Twp. of Redford, No. 15-14100, 2017 WL 3412080, at *5 (E.D.
Mich. Aug. 8, 2017) (addressing constitutional challenges to the IPMC and
concluding that reasonable minds may disagree whether a city provided sufficient
notice of an appeal process because plaintiff “attempted to initiate the appeals
process, but, in spite of its best efforts, it was unsuccessful.”)
2.

Mathews Test

For a procedural due process claim, aside from notice, courts must examine
whether pre- and post-deprivation procedures taken together offend the Due Process

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Clause. Shoemaker, 795 F.3d at 559. The following considerations help courts
determine if the process provided is sufficient:
[1] the private interest that will be affected by the official action; [2] the
risk of an erroneous deprivation[;] . . . [3] the probable value, if any, of
additional or substitute procedural safeguards; and [4] the
Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail.
Id. (alteration in original) (quoting Mathews, 424 U.S. at 335).

The

requirements of due process depend on the facts of a given case, and “pre-and
postdeprivation processes should be considered together as a single package.”
Id.
a)

Private Interest Affected

The initial inquiry for a procedural due process claim is “whether the
plaintiffs-appellees were deprived of a constitutionally protected property right; if
they were, we must then ask if the process provided was constitutionally adequate.”
Kaminski, 865 F.3d at 347 (citing Kukulinsky, 61 F.3d at 485). Defendant argues
Plaintiffs were not deprived of a constitutionally protected property interest because
in contravention of the City’s housing code, Plaintiffs have not (1) registered a rental
property; (2) had it inspected; or (3) obtained a certificate of occupancy. Dkt. No.
55, p. 29 (Pg. ID 590). Plaintiffs assert that they have a property interest in the
money they pay from fines, which can reach $1,000 per property, and also the money

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they spend on unnecessary repairs. Dkt. No. 60, pp. 30–31 (Pg. ID 1241–42). The
Court agrees with the Plaintiff.
“[T]he property interest in a person’s means of livelihood is one of the most
significant that an individual can possess.” United Pet Supply, Inc. v. City of
Chattanooga, 768 F.3d 464, 486 (6th Cir. 2014) (quoting Ramsey v. Bd. of Educ. of
Whitley Cty., 844 F.2d 1268, 1273 (6th Cir. 1988)). For instance, the Sixth Circuit
has held that income-generating animals constitute an important property interest,
although the plaintiff in United Pet Supply was not totally deprived of the animals
because they were returned. Id. Likewise, in Shoemaker, the Sixth Circuit found
that a plaintiff had a property interest in the $600 he paid in fines and costs for
violations of an ordinance over a 16-month period. Shoemaker, 795 F.3d at 559.
Here, Plaintiffs’ property interest is not “relatively minor” like that of the
plaintiff in Shoemaker. Moreover, although these fines do not put Plaintiffs at risk
of going hungry or losing their homes, each fine is $1,000, Plaintiffs cannot rent
their properties until these fines are paid, and Plaintiffs must renew their rental
licenses every two years. Compare Goldberg v. Kelly, 397 U.S. 254, 264, 90 S. Ct.
1011, 25 L. Ed. 2d 287 (1970) (holding that a pre-deprivation hearing was necessary
because the welfare benefits at issue provided the ability to secure necessities like
food and clothing).

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b)

Risk of Erroneous Deprivation

A risk of erroneous deprivation is generally minor where the action at issue
entails “little risk of error and is non-discretionary.” Sickles v. Campbell Cty., Ky.,
501 F.3d 726, 730–31 (6th Cir. 2007). Examples of a minor risk of deprivation
include “elementary accounting” and an ordinance restricting vegetation on land to
eight inches tall. Id.; Shoemaker, 795 F.3d at 561. For example, in Garner, a court
in this district held that the IPMC posed a risk of erroneous deprivation. 2017 WL
3412080, at *7. Specifically, the court cited testimony from the defendant that the
IPMC sometimes required subjective interpretation, and testimony from the
defendant’s building supervisor that, in practice, the IPMC was often subjectively
enforced. Id.
The Court finds this reasoning persuasive. Similarly, here, the City’s rental
coordinator, Marilyn Tremberth, testified that individual inspectors sometimes reach
different conclusions about the application of the IPMC. Dkt. No. 60-3, pp. 49–50
(Pg. ID 1354–55). Plaintiffs also present an affidavit from a property manager who
cites specific ways that the City has subjectively applied the IPMC. Dkt. No. 60-4,
p. 4 (Pg. ID 1491).
c)

Probable Value of Additional Safeguards

Defendant contends additional safeguards would provide little value because
the City provides notice and an opportunity to be heard. Dkt. No. 55, pp. 32–33 (Pg.
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ID 593–94). Specifically, the City argues it has already implemented sufficient
safeguards through (1) providing Plaintiffs an opportunity for re-inspection once
violations are identified; (2) granting Plaintiffs sixty days to make corrections; and
(3) after fining Plaintiffs for a failed re-inspection, granting them a hearing. Id. at p.
32 (Pg. ID 593). Yet as the Plaintiffs correctly observe, the City’s process does not
provide an opportunity to contest the merits of code inspectors’ findings. Indeed,
the City describes the hearing as an opportunity “to justify why [Plaintiffs] were
unable to complete inspections within the allotted time.” Id. at p. 34 (Pg. ID 595).
The hearing is not a chance to contest whether there were actual code violations on
Plaintiffs’ property.
The City’s rental coordinator testified that the court proceeding solely
concerned whether a renter has a certificate of compliance, and thus, does not
address the alleged underlying violations. Dkt. No. 60-3, pp. 67–69 (Pg. ID 1372–
74); see also Garner, 2017 WL 3412080, at *8 (concluding that Article VI, § 28 of
the Michigan Constitution provides for judicial review of an administrative agency’s
final orders, but “[plaintiff’s] inability to get a decision on appeal means that there
is no ‘final decision’ for a court to review.”).
d)

Impact of Additional Safeguards on the City

The City asserts that additional safeguards would impose a “significant”
burden through “substantial costs on the City without a corresponding benefit.” Dkt.
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No. 61, p. 10 (Pg. ID 1694). The City, however, provides no insight into the
processes that would be costly and why. The Shoemaker court found that the $600
in fines and fees imposed on the plaintiff was “sufficiently small that added
procedural safeguards would quickly outpace the monies collected as a result of
enforcing the City Code.” Shoemaker, 795 F.3d at 562. Here, Plaintiffs are fined
up to $1,000 for violations, however, and the City offers no evidence as to why
additional safeguards would be costly. Consequently, this consideration weighs in
favor of the Plaintiffs.
3.

Prejudice

The City argues reasonable minds would all agree that Plaintiffs’ properties
were in violation of the code. See, e.g., Dkt. No. 55, p. 17 (Pg. ID 578). The Court
disagrees.
A plaintiff must dispute the charges alleged to raise a genuine dispute
regarding a procedural due process claim. See Shoemaker, 795 F.3d at 563 (holding
that “by not disputing the charges against him, [plaintiff] is precluded from mounting
a procedural-due-process claim against the City, even if a due-process violation had
in fact occurred.” (citing Graham v. Mukasey, 519 F.3d 546, 549–50 (6th Cir.
2008))). For example, based on evidence that the defendant imposed standards not
specified in the code, the Garner court found that the plaintiff raised a question of
fact regarding prejudice. 2017 WL 3412080, at *9.
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Similarly, here Plaintiffs present evidence that the City imposed obligations
not outlined in the code. SBYC Garner, LLC, for example, contends that the code
only required an electrical service of 60 Amp, but the Defendant forced it to
implement a 100 Amp service. Dkt. No. 1, p. 17 (Pg. ID 17). Plaintiffs also present
an affidavit from a Warren property manager who declared that if “[he] do[es] not
do exactly what they demand – even if it not authorized [sic] by the IPMC – Plaintiffs
and all other clients that [he] manage[s] for are faced with multiple fines, fees,
penalties, potential liens against property, and potential bench warrants.” Dkt. No.
60-3, p. 4 (Pg. ID 1491). Reasonable minds then may disagree about whether
Plaintiffs have suffered prejudice.
Based on the above, Plaintiffs raise a genuine issue of material fact regarding
whether Defendant has deprived them of procedural due process.
B.

Count II: Void for Vagueness

Plaintiffs assert reasonable minds may disagree about whether the IPMC is
unconstitutionally vague because the IPMC does not define certain terms. Dkt. No.
1, p. 12 (Pg. ID 12). Specifically, terms like “good repair” and “workmanlike
manner.” Id. According to Plaintiffs, these undefined terms provide code officials
unfettered discretion in interpreting the code, thereby depriving Plaintiffs of notice.
Id. at pp. 12–13 (Pg. ID 12–13). On the other hand, the City argues that the IPMC
gives code officials sufficient guidance, for example, by establishing that undefined
15

terms “shall have ordinarily accepted meaning such as the context implies.” Dkt.
No. 55, p. 21 (Pg. ID 582). The City also contends that the IPMC provides examples
of some undefined terms. See id. (noting that the IPMC describes good repair as a
building exterior that is “structurally sound and sanitary so as not to pose a threat to
the public health, safety or welfare.” (quoting Section 304.1 of the IPMC, Dkt. No.
55-6, p. 21 (Pg. ID 652))). The Court finds that the City’s argument has merit.
“A statute is unconstitutionally vague if it denies fair notice of the standard of
conduct for which the citizen is to be held accountable, or if it is an unrestricted
delegation of power which leaves the definition of its terms to law enforcement
officers.” American-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d
600, 608–09 (6th Cir. 2005); see also Belle Maer Harbor v. Charter Twp. of
Harrison, 170 F.3d 553, 556 (6th Cir. 1999) (applying same standards to ordinance).
“The second prong—providing minimal guidelines to govern the conduct of law
enforcement—constitutes the more important aspect of the vagueness doctrine.”
Belle Maer Harbor, 170 F.3d at 556–57.

A licensing scheme with “narrow,

objective, and definite standards to guide the licensing authority” does not grant city
officials with “undue discretion.” American-Arab Anti-Discrimination Comm., 418
F.3d at 609.
A court addressing a void for vagueness challenge “must first consider
whether the [ordinance] ‘reaches a substantial amount of constitutionally protected
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conduct.’ ” U.S. v. Blaszak, 349 F.3d 881, 887 (6th Cir. 2003) (quoting Belle Maer
Harbor, 170 F.3d at 557). Where an ordinance reaches a substantial amount of
constitutionally protected activity, a court may evaluate the ordinance for its facial
validity. Id. (citing Belle Maer Harbor, 170 F.3d at 557). If an ordinance does not
reach constitutionally protected activity, an ordinance will be assessed “in light of
the facts of the particular case at hand.” Id. (citing Belle Maer Harbor, 170 F.3d at
557).
In support of its argument that the IPMC provides sufficient notice of
prohibited conduct, the Defendant cites Mann v. Calumet City, No. 08-cv-555, 2009
WL 395465, at *1 (N.D. Ill. Feb. 17, 2009). As did the Garner court, this Court also
finds Mann persuasive. In Mann, the court addressed a void for vagueness challenge
to the IPMC. Id. at *13. Relying on Grayned v. City of Rockford, 408 U.S. 104,
110, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972), the Mann court observed that as an
initial matter, due process does not require that regulations satisfy “mathematical
certainty” or “meticulous specificity.” 2009 WL 395465, at *14. Due process
instead allows for “flexibility and reasonable breadth.” Id. Moreover, housing
safety regulations must address a myriad of conditions; thus, extremely precise
housing regulations risk leaving some harmful conditions unregulated. Id.
The plaintiffs in Mann, as the Plaintiffs do here, challenged the IPMC’s use
of “good repair.” The Mann court concluded that regulations using the term “good
17

repair” notify a tenant that a premises must be fit for ordinary, habitable use. Id. In
support, the court cited two cases which held that regulations were not void for
vagueness because their use of “good repair” provided notice that a premises had to
be fit for ordinary, habitable use. See Freeman United Coal Min. Co. v. Fed. Mine
Safety & Health Review Comm’n, 108 F.3d 358, 362 (D.C. Cir. 1997); see also
People v. Sarnoff, 302 Mich. 266, 4 N.W.2d 544, 545–46 (1942). Additionally, the
Mann court concluded the IPMC contains many more specific provisions than “good
repair” provisions. 2009 WL 395465, at *14.
The Court finds persuasive the reasoning of the Mann court and the cases it
relied upon. Accordingly, the City is entitled to summary judgment on its void for
vagueness claim.
C.

Count III: Fourth Amendment

The parties contest whether reasonable minds would all agree that Section
104.3 of the IPMC is facially unconstitutional. That section provides as follows:
Where it is necessary to make an inspection to enforce the provisions
of this code, or whenever the code official has reasonable cause to
believe that there exists in a structure or upon a premises a condition in
violation of this code, the code official is authorized to enter the
structure or premises at reasonable times to inspect or perform the
duties imposed by this code, provided that if such structure or premises
is occupied the code official shall present credentials to the occupant
and request entry. . . . If entry is refused, the code official shall have
recourse to the remedies provided by law to secure entry.

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Dkt. No. 55-6, p. 12 (Pg. ID 643) (emphasis omitted). Plaintiffs assert that this
section is facially unconstitutional because it “allows Code Officials to enter rental
properties for the purpose of inspection or whenever the Code Officials believe the
IPMC has been violated, all without any warrant or prior showing that reasonable
cause exists for the entry.” Dkt. No. 1, p. 24 (Pg. ID 24). Conversely, the Defendant
argues this section does not facially violate the Constitution because if an official is
not granted access to a premises, the official must seek a warrant to enter. Dkt. No.
55, p. 13 (Pg. ID 574). The Court finds that reasonable jurors may disagree about
whether Section 104.3 of the IPMC is facially unconstitutional given the City’s
immediate imposition of a fine following a refusal to grant access to a premises.
“In contrast to an as-applied challenge, which argues that a law is
unconstitutional as enforced against the plaintiffs before the court, a facial challenge
‘is not an attempt to invalidate the law in a discrete setting but an effort ‘to leave
nothing standing[.]’ ” Speet v. Schuette, 726 F.3d 867, 872 (6th Cir. 2013) (quoting
Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir. 2009) (en banc)). As
a result, “[s]ustaining a facial attack to the constitutionality of a state law . . . is
momentous and consequential. It is an ‘exceptional remedy.’ ” Id. (quoting Carey
v. Wolnitzek, 614 F.3d 189, 201 (6th Cir. 2010)). “Generally, the party asserting a
facial challenge to a statute must establish that ‘no set of circumstances exists under
which [it] would be valid.’ ” Liberty Coins, LLC v. Goodman, 748 F.3d 682, 691
19

(6th Cir. 2014) (alteration in original) (quoting U.S. v. Salerno, 481 U.S. 739, 745,
107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987)).
The Fourth Amendment provides that “no Warrants shall issue, but upon
probable cause” and individuals have a right “to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.” U.S. CONST.
amend. IV. “Based on this constitutional text, the Court has repeatedly held that
‘searches conducted outside the judicial process, without prior approval by [a] judge
or [a] magistrate [judge], are per se unreasonable . . . subject only to a few
specifically established and well-delineated exceptions.’ ” City of Los Angeles v.
Patel, 135 S. Ct. 2443, 2452, 192 L. Ed. 2d 435 (2015) (alteration in original)
(quoting Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485
(2009)).

Searches “serv[ing] a ‘special need’ other than conducting criminal

investigations” are referred to as “administrative searches.” Id. (quoting Camara v.
Mun. Court of City & Cty. of S.F., 387 U.S. 523, 534, 87 S. Ct. 1727, 18 L. Ed. 2d
930 (1967)).
As the City’s inspection does not involve a criminal investigation, the
Supreme Court’s administrative search jurisprudence governs the legality of the
ordinance. Under that precedent, “[t]he Court has held that absent consent, exigent
circumstances, or the like, in order for an administrative search to be constitutional,

20

the subject of the search must be afforded an opportunity to obtain precompliance
review before a neutral decisionmaker.” Id.
Two Supreme Court cases explain this doctrine. First, in Camara, the Court
invalidated parts of a housing code that permitted City of San Francisco employees
to enter any premises to perform any function required by the city code. 387 U.S. at
525–26. The Supreme Court reasoned that the administrative searches were a
“significant intrusion[] upon the interests protected by the Fourth Amendment.” Id.
at 534. Specifically, the Court explained that:
when the inspector demands entry, the occupant has no way of knowing
whether enforcement of the municipal code involved requires
inspection of his premises, no way of knowing the lawful limits of the
inspector’s power to search, and no way of knowing whether the
inspector himself is acting under proper authorization.
Id. at 532. Accordingly, a precompliance procedure was necessary for this housing
code to comply with the Fourth Amendment. Id.
Second, the Supreme Court invalidated a Los Angeles ordinance requiring
hotel operators to record and provide police their guest lists, as the ordinance
subjected noncompliant hotel operators to a criminal misdemeanor prior to any
precompliance review. Patel, 135 S. Ct. at 2452. The Supreme Court observed that
“[a] hotel owner who refuses to give an officer access to his or her registry can be
arrested on the spot,” and that “[t]he Court has held that business owners cannot
reasonably be put to this kind of choice.” Id. (citing Camara, 387 U.S. at 533).
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Likewise, Plaintiffs who do not grant city inspectors access face an immediate
fine, regardless of whether the City later obtains a warrant to enter. The City’s rental
coordinator, Marilyn Tremberth, testified that renters who refuse access to officials
are fined immediately. Dkt. No. 60-3, pp. 116–17 (Pg. ID 1421–22). Therefore,
although the plain language of Section 104.3 suggests a code official must have a
warrant to enter a premises where an occupant refuses an official’s entry, the City’s
policy of immediately imposing a fine after an occupant’s refusal establishes a
genuine dispute on this issue. See, e.g., Garner, 2017 WL 3412080, at *12–13
(concluding reasonable minds may disagree about whether this IPMC provision is
facially unconstitutional).
D.

Count IV: Assumpsit

Plaintiffs contend that, in violation of their due process rights, the City is
extracting from them fees, penalties, or both. Dkt. No. 1, p. 24 (Pg. ID 24). Plaintiffs
further allege that “an assumpsit action may be maintained against a municipality
and/or its divisions without regard to government immunity when restitution is being
sought for an illegal or inappropriate assessment that is authorized to become a lien
on property.” Id. at p. 25 (Pg. ID 25). This claim fails as a matter of law.
In 1963, “assumpsit as a form of action was abolished.” Fisher Sand & Gravel
Co. v. Neal A. Sweebe, Inc., 494 Mich. 543, 837 N.W.2d 244, 256 (2013). Although

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“the substantive remedies traditionally available under assumpsit were preserved,”
Plaintiffs cannot assert a claim based on assumpsit. Id. at 256–57.
Therefore, the City is entitled to summary judgment on this claim.
E.

Counts V–VIII: Municipal Liability and 42 U.S.C. § 1983

Plaintiffs allege that they have a raised a genuine dispute about their municipal
liability claim under 42 U.S.C. § 1983 because the City’s rental inspection regime
consisted of policies and customs that violated their constitutional rights. Dkt. No.
1, p. 26 (Pg. ID 26). Plaintiffs do not present new facts with respect to this claim,
and instead incorporate their aforementioned allegations. See id. at pp. 25–27 (Pg.
ID 25–27). Conversely, the City contends that Plaintiffs waived their constitutional
claims because in applying for a rental license, Plaintiffs agreed to “release the City
of Warren, its agents, servants and employees from any and all liability resulting
from the required inspections and observations hereunder.” Dkt. No. 55, p. 27 (Pg.
ID 588). This argument is unavailing.
“A plaintiff raising a municipal liability claim under § 1983 must demonstrate
that the alleged federal violation occurred because of a municipal policy or custom.”
Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)). The Sixth
Circuit has held that:
[a] plaintiff can make a showing of an illegal policy or custom by
demonstrating one of the following: (1) the existence of an illegal
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official policy or legislative enactment; (2) that an official with final
decision making authority ratified illegal actions; (3) the existence of a
policy of inadequate training or supervision; or (4) the existence of a
custom of tolerance or acquiescence of federal rights violations.
Id. (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)). “A
municipality ‘may not be sued under § 1983 for an injury inflicted solely by its
employees or agents.’ ” Id. (quoting Monell, 436 U.S. at 694).
Based on the Court’s prior analysis, Plaintiffs raise a genuine dispute
regarding whether the City had a policy or custom of violating Plaintiffs’ right to
procedural due process and rights under the Fourth Amendment. Moreover, by
signing the waiver in their application for a rental license, Plaintiffs did not
relinquish these constitutional rights. It is well settled that “[t]he waiver of any
constitutional right must be both knowing and voluntary.” Short v. United States,
471 F.3d 686, 698 (6th Cir. 2006). Indeed, “ ‘[c]ourts indulge every reasonable
presumption against waiver’ of fundamental constitutional rights.” Coll. Sav. Bank
v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682, 119 S. Ct.
2219, 144 L. Ed. 2d 605 (1999) (quoting Aetna Ins. Co. v. Kennedy ex rel. Bogash,
301 U.S. 389, 393, 57 S. Ct. 809, 81 L. Ed. 1177 (1937)). As Plaintiffs correctly
argue, they did not intend to forfeit their constitutional rights by applying for a rental
license. Defendant also presents no evidence in support of its argument, and thus,
cannot overcome this reasonable presumption. Therefore, Plaintiffs raise a question
of fact on their municipal liability and Section 1983 claims.
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V.

Conclusion
For the reasons stated herein, the Court will GRANT IN PART and DENY

IN PART Defendant’s Motion for Summary Judgment. The Court will GRANT
Defendant’s Motion for Summary Judgment on Counts II and IV and DENY
Defendant’s Motion for Summary Judgment on Counts I, III, and V–VIII.
IT IS SO ORDERED.
Dated: November 14, 2017

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 14, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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