Letter: Lakewood’s lottery (rental inspections, not gambling, although maybe) begins this month

Would this house – if it were a rental and if it were in Lakewood and not Disneyland – pass the single-family criteria of Lakewood’s Rental Housing Safety Program (RHSP)?

Yes, at least that which pertains to the exterior. While there are no house numbers “not less than 4 inches in height and minimum stroke width of 0.5 inch” as Lakewood’s RHSP mandates, that could be resolved easily enough.

Are “exterior property areas and premises maintained in a clean, safe, and sanitary condition, free from garbage, debris, or conditions that would endanger the health and safety of the residents” Lakewood’s RHSP asks? Heck yes, this is Disneyland. There is no cleaner place on earth.

The chimney, even though it takes a jog or two, appears to be – somewhat – “maintained structurally safe and sound, and in good repair” (Lakewood’s RHSP). This crooked house – officially Goofy’s Playhouse located in Mickey’s Toontown – with its crooked chimney was constructed in 1993 so 25 years is a rather fair test of the chimney’s sustainability, despite its appearance as quite rickety.

Could all of Lakewood’s exterior condition single-family site rental inspection criteria have been addressed from Goofy’s Playhouse sidewalk without a Rental Housing Safety Program, the latter installed at considerable time and expense?

Yes.

Lakewood already had five programs that cover such things, including, but not limited to, “property remains free of inoperable or apparently inoperable vehicles.”

While it’s true that the mailbox is crooked at Goofy’s Playhouse given it has been run into by a green car (great photo-op for small children according to the tour guide), any one of Lakewood’s five programs could have cited the owner and had the green car removed, although at considerable unhappiness – in this “The Happiest Place On Earth” – exhibited by the little ones, not to mention their parents.

Closer to home, when Raneisha Winchester’s leaky roof problem in her Lakewood Laurel Gardens apartment was aired March 16, 2016 by KIRO 7 Investigative Reporter Jesse Jones, did she need Lakewood’s Rental Housing Safety Program (RHSP) to solve her problem?

No.

As a matter of fact, given Lakewood does not expect to inspect every nook and cranny of every rental in the city inside of five years, the individual whose story was seen by thousands could conceivably have kept emptying rain buckets until 2023, waiting to ‘win’ the inspection lottery.

Alternatively, as she did, she complained, a matter of commonsense, and the matter was addressed forthwith.

Could she have, pre-Lakewood’s RHSP, appealed to Lakewood?

Yes.

“The city inspects rental properties if it receives a complaint and if the tenant agrees to allow inspectors in.”

Now, with Ordinance No.644, the tenant no longer must agree to allow inspectors in.

They’re coming in, like it or not.

And who are they, these inspectors?

The RHSP uses private inspectors as well as city inspectors. City inspections are included in the $12 fee per rental unit and are limited to a first-come first-served basis. The City has only three inspectors so the 700 properties per year (limited by law to 700 annually) lottery ‘winners’ to be inspected can’t all be done by those in the city employ. A landlord has nine months to have his property inspected and during that time the landlord can call the City to inspect but if the city staff inspectors are booked, then the landlord must use a private inspector.

Now comes the rather nimble legal gymnastics performed by Lakewood’s legal department.

The following excerpt (p.32) is from City Attorney Heidi Wachter’s briefing to the City Council at its Study Session of February 21, 2015.

“The City Code includes language that is intended to facilitate enforcement efforts in substandard residential rental property. Many cities have programs of similar nature and some of these efforts have resulted in litigation by landlords and property owners against cities, most notably two lawsuits, one involving the City of Seattle in 1994 and the other the City of Pasco in 2007.

“Each of these cities was separately sued for attempting to implement similar provisions around inspection of rental properties. Seattle’s program failed constitutional scrutiny, but Pasco’s Code succeeded. The critical distinction between the two programs is that Seattle mandated that landlords use municipal employees to perform the required inspection while Pasco allowed the landlord to independently certify compliance by having an approved class of inspectors conduct the required inspection. This difference, requiring municipal access to private property versus accepting independent certification, is the difference between an unconstitutional intrusion and a defensible program.

“State legislation passed in the wake of these cases has been compared with the Lakewood Municipal Code. State law regarding entry onto rental housing property is clearly aimed at keeping governmental authorities out of private property absent proper grounds to justify entry. The rental housing inspection program creates a regular inspection process that allows the landlord to comply without admitting the governmental entity onto the property and the warrant process allows governmental entities to gain access when circumstances warrant it. Divergence from this clear statutory intent will be challenging to defend and the proposed Code amendments bring the City more in line with that intent.”

However, upon closer inspection – speaking of inspections – the Pasco ruling clearly states that the inspections could not be conducted – at all – by “a state actor” and defined “a state actor” as “that person functioning as an agent or instrumentality of the state.”

“The trial court concluded that the ordinance did not transform landlords and their private inspectors into state actors.”

The City of Lakewood has on staff three inspectors. Are they not acting as agents of the City? They are not private inspectors after all, but on the city payroll. If – and likely -so, in the case of a landlord ‘winning’ the lottery and a city staffer does the inspection, is this not what the courts have judged illegal?

And what becomes of the inspection results in the case of a city staffer doing the inspection? It goes on file, in its entirety, in City Hall.

Upon the question asked at the Tillicum Woodbrook Neighborhood Association January 4, 2018: ‘Are the inspectors employed as part of the Rental Housing Safety Program required to submit reports to the City?’ Lakewood City Councilman John Simpson said he’d find out and in a follow-up email, having checked with City staff, Simpson said “the answer is, ‘Yes.’”

And what is the status of a private inspector’s report? If the results are also filed at 6000 Main Street, does that not make even the private inspector “a state actor”, a “person functioning as an agent or instrumentality of the state”, a surrogate enforcer of the city, that which the courts ruled in the Pasco case was illegal?

As the court cautioned in the Pasco case, “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” (ph.26).

“If inspectors function like the eyes and ears of the State, looking for suspicious activities, they will become government agents” (ph.29).

Though the majority of the court justices ruled in favor of Pasco’s right to require landlords to employ the services of private inspectors, dissenting opinions were quite scathing in their rebuttal:

“The linchpin of the majority’s argument is that under these facts there is no state action. ? I disagree. Even though the ordinance allows landlords the option to utilize private inspectors approved by the city, private inspectors under the ordinance are simply doing the work of city inspectors. This is state action which invades the tenant’s home without the ‘authority of law’ provided by a warrant. These warrantless residential searches therefore violate our state constitution” (ph.31).

“There is state action if Pasco either ‘instigated, encouraged, counseled, directed, or controlled’ private conduct. Pasco instigates and encourages these searches, dictates their scope, and examines their fruits. The housing code inspection not only occurs at Pasco’s demand, but the ordinance also rigidly lays out who can perform the inspections and the specific scope of the inspection.

“Furthermore, the ordinance requires a landlord to select an inspector that is either directly employed or specifically approved by the city. Given such extensive government involvement, the physical search need not be done by an actual city employee to trigger constitutional protections. ?

“The nonconsensual search of residential rental units invades tenants’ private affairs without either the tenant’s consent or a warrant fulfilling our constitutional requirement of ‘authority of law.’ Holding administrative searches conducted by municipal building inspectors are significant intrusions on individual’s Fourth Amendment interests, and such searches must be conducted with a warrant” (ph.34).

“The majority claims private inspectors are merely furthering the ‘private objective of obtaining a certification needed to maintain a business license.’ The business license requirement is imposed by the government. Moreover, landlords are coerced into complying with these unwanted intrusions into private residential units to further the government’s objective of compliance with health and safety codes. The landlords are not ‘first and foremost furthering their own ends when they engage in the inspections contemplated by the ordinance,’ but are actually furthering the city’s ends. ?

“The inspector’s reports are necessarily delivered to the city, and the city retains full authority to punitively enforce any perceived code violation” (ph.35).

“Moreover, potentially if evidence is seen in plain view indicating a criminal violation by the tenant, this could also be used to support issuance of a criminal search warrant and subsequent prosecution of the tenant. Obviously, this is state action. Pasco caused the inspector’s intrusion, and the inspector assists law enforcement by disclosing the fruits of the physical search of the tenant’s home to the government. But absent a warrant or consent, these inspections clearly are without that ‘authority of law’ mandated by our state constitution” (ph.36).

Meanwhile, on February 15, the Tacoma Pierce County Health Department (TPCHD) will honor Lakewood with the TPCHD highest award – Platinum – for the City having swept all 12,993 rentals into its inspection program, even though the City has acknowledged less than 15% will not meet “life and safety standards. And Lakewood failed to mention in its application that the City opted not to pursue upfront an educational Landlord-tenant outreach effort that could have, should have, utilized and made available all manner of long-existing resources by which to resolve landlord-tenant-city property disputes.

Lakewood also failed to mention, of course, the objections voiced by far the majority of attendees at Lakewood’s public meetings on the issue: “Way too much regulation/expense compared to the problem”; “Another layer of government/taxes”; “Penalizing the majority of the good landlords/owners for the conditions maintained by the minority of the bad landlords/owners”; “Government intrusion into private business.”

And though Lakewood included in its supportive “external stakeholders’ groups, various municipalities, neighborhood associations, cultural centers, community groups, service agencies, business groups, property management companies, property owners, and fire and rescue,” the City did not reference the Rental Housing Association of Washington which was opposed, Sean Martin, External Affairs Director, testifying to that end the night of Lakewood’s July 5, 2016 Public Hearing.

Nevertheless, Lakewood will be featured and honored, accolades will be said and on a shelf somewhere in City Hall an award will be displayed for a program that to-date includes a $200,000- and mounting cost overrun, even as meantime a tsunami – “a nation fed up with expensive, expansive city intrusions” rolls across the country.