on behalf of the of pellets the metropolitan omaha property owners association pierce carpenter and the hillcrest apartments we are here today asking this court to reverse the decision of the district court and enjoying and declare unconstitutional the city of omaha's rental registration ordinance that ordinance requires mandatory inspections of all residential rental properties in the city of all ma as a condition to being able to rent those properties are all to merely asking for the ordinance to be struck down for numerous reasons but i want to start with one in particular because i think there is a fatal flaw in the ordinance that that is clearly dispositive in this case if you read through the ordinance it permits punishment simply and solely for exercising a constitutional right the th amendment right to refuse to consent to a work warrantless search ok have the i have the ordinance here in front of me tell me where it is ok if you look at forty eight to six see it talks about man's and when the and how the landlord and or the tenants are exempted from punishment well if you read through there and if you if you follow d through what could happen if the city of all ma goes to a landlord d under the ordinance and says hey i want to inspect your rental property the property owner could say no you can't have consent at that moment in time the city has the option not the obligation to go to trial to obtain a warrant from the court but here's the key point if the city goes and ultimately obtains that warrant and inspects the property the the property owner is not immunized under the ordinance from punishment instead that the ordinance is written authorizes and permits punishment retroactive punishment o permissible that that could happen because there is no d immunity granted to the land o owner and be it and they have it if it's not an inference because if that was exempted conduct it would specifically say so in the ordinance because there are certain exemptions for example if the city of omaha goes and it's on able to get a warrant and then they cannot punish the landlord but it's the opposite in the event of a warrant can be obtained so the ordinance permits punishment simply for exercising a constitutional right that makes it on enforceable i'm sorry on what i know what you could hear me or not you can hear me ok that standard video conference question but but tell me i'm looking at the language of see i don't see pardon i don't see where it says that but it doesn't it doesn't say directly it it works the opposite it exempts the circumstantial and clear fact negative bedroom's correct yes it is it is but that's that's the appropriate for statutory interpretation because the city intentionally put in there what was exempted what punishment was exempted for example of a landlord can't be can't be punished if the tenant specific exemptions and the acts that would exempt the landlord d from punishment and they have purposely and specifically delegated those items what they do not do is immunize of landlord in the event that th city goes in and tries to obtain a warrant and obtains a warrant under that circumstance the city can as and is empowered under the statute to impose severe and basically unlimited punishment including criminal penalties and because of that ability to retroactively punish somebody from exercising their constitutional rights the ordinance as a whole is fatally flawed without war but that doesn't end our arsenal yes council under the scenario  of the reasons is if you look at the other case law this really isn't a decision either i mean basically the landowners have to capitulate for fear of punishment and in this circumstance the city had its opportunity to provide immunity or what specific acts can not resold and punishment they didn't do that in this case so on its face the statute is constantly in for miscible and if the if this court wants to go further beyond that there are other reasons why including because the statute violates the on constitutional conditions doctrine it is basically well set a lot including from this court that a government entity may not condition the grant of a privilege upon the surrender of a constitutional right that is exactly what the ordinance does in this case the only way someone could rent residential property in the city of omaha is to agree to forfeit their th amendment right to refuse to consent to a warrantless search and then how then this this argument depends on the other argument you just made right you're still doing the same section no i don't think the other argument depends on anything i think the other argument is completely dispositive because the  tell me a different section if you're referring to other language and the ordinance tell me which other section you're talking about where he opposes an unconstitutional demand condition the the entire structure of the ordinance your honor that's how it was designed decisions uncontrolled search and seizure is one of the st and most effective weapons in the arsenal of every arbitrary government so d we think that's what that's where this court should begin its analysis and what right is this ordinance the property absolutely not and that's one of that's one of the problems why this ordinance is fatally flawed it includes language about how the city inspector may go apply for a warrant but it doesn't require the city inspector to read to apply for a warrant so if you look at the case for light upon the district court m s rentals that case actually supports our position because in that there was a mandatory requirement that intitled the owner to pretty compliance review to determine the purpose scope and proprietary of the inspection rehabber they as not permissive to allow the agent of the government to go seek a warrant but instead that they may just search any waters or or be damned and that's exactly how we read it and if you look at the other provisions of the statute there are a lot of instances where it says shout it doesn't say that in this case the city  and you know we could go into that but we have that debate quite frequently because shall may be either permissive or mandatory depending on the context and depending on how it's used was just a plain old rule of grammar and the lawyers at all believe that shall means must are wrong simple solution to that is asked with the city wanted it to say that's what the language should be and the city should have gone step further and said that absolutely no inspection may take place until and unless a warrant is obtained pursu individuals and the simple solution is we shouldn't be arguing about it this is a statute that is imposing upon th amendment rights the language should very simply say shall and the reason why it does not let me interrupt you what about the district court's opinion you previously had a decree and now you've got a district court opinion can't can't your clients all interpret that to say what you're say no absolutely not that would that will not hold up in court but more importantly when do we do ten and sat or landlords  exercise this right so they have to file a lawsuit and say well in this other decision three or four years ago the city acknowledged that maybe the language was improper or they constructed it differently the law is still existed it's still existing as written and there is nothing stopping it other than this court through an injunction from and forcing it without a warrant requirement and our argument is well that one of the reasons it's written that ways because the city designed this law implemented this law to get around the previous restrictions that were in place under the state statute and under the all mommy in this book code as previously written so that's one of the reasons we don't think that's ambiguous we think the city meant to do it and they very easily could have made a mandatory or a requirement and implemented into the language of the ordinance which they did not do do and if you look at the case law that we cited you need some sort of mandatory or a requirement that people could rely on if forth a procedure for conducting an inspection a property code inspection that's another reason why we argue this law is on necessary and it doesn't matter but i'm going to my st point even if that's true even if there is a mandatory an inspection the code official may obtain a warrant or other court order for the inspection in accordance with a clickable law including but not limited nebraska rise that should sections twenty nine dash eight hundred and thirty now some of the conversation that was had with mister bruno i would buy must but i think the fact that it's in accordance with the political law and states of clickable law dictates that a warrant requirement is present and must be obtained if the city wants to inspect a unit in the absence of consent now  the two programs that are available to the r p ario are an annual inspection program and a ten year inspection program to say that the city shall require shall pursue a warrant in the event that consent is not obtained would require the doesn't override all of the other surrounding an existing law it says exactly amendment and the absence of consent from the tenant or the owner that the city must go get a warrant the state statute references the th amendment yes ok and does it talk about an appeal  shit on a not right of time had to and often talks about appeal but the r p r i o does actually provide provisions for a feel for an appeal within that the text of the code so section forty eight dash two hundred and eight is titled enforcement and appeal and it sta that there's a conflict between the two and has repeatedly stated in breach that they bargain for the city's agreement to not enter into or undertake a rental inspection program however what this appellant argues exists does not exist in the four corners of the settlement agreement nothing of a settlement agreement or the consent decree prevents the city from undertaking additional means and methods of conducting inspections as long as those inspections comply with the th amendment in fact what the appellant bargained for in the settlement agreement in the consent decree was that all inspections must be conducted in compliance with the th amendment since the r p r a o requires either consent or a warrant it is in compliance with the th amendment anything else sanctions contempt or something on the consent decree not specifically for sanctions or contempt however the district court that made the decision in this case was the district court that entered the consent decree and approved the settlement agreement so the district court was very familiar with it does the district court pardon my ignorance again do you think the district court thought it was acting on the consent decree or acting on a separate lawsuit tell me what you think i believe the district court thought it was that it actually specifically governor does that include the city council it includes the city council to the extent that that the city council was bound to adopt various code changes pursuant to the consent decree and in the city of omaha twenty department was required to adopt certain standard operating procedures however you see the reason i ask the question is that at least on the state level when you combine your legislators can you buy a future city council's no you cannot your honor so in fact to get the settlement regardless of whether or not there is a constitutional provision regarding the reserve powers doctrine the actual the actual restriction that the appellant's state exists as far as not being able to implement a rental registration program does not exist within the four corners of the settlement agreement actually based their argument on the fact that the stayner operating procedure adopted through the settlement agreement requires certain information to be taken when the city takes a complaint so when someone calls the city of omaha and complains of report reported code violation there is a certain set of information and a certain manner in which they must do that and in order for the city to investigate a purported code violation those provisions must be met nothing in the settlement agreement or in that standard operating procedure prevents the city from inspecting properties outside of the complaint procedure for example through consent or through a warrant or through a they properly valid constitutionally compliant rental registration program is as the court correctly identified the real issue that the pilots have with the rental registration ordinance here is in forty eight to a six subsection c and i think it's clear that the city that does not intend if that occurs the city must put procure a warrant in order to inspect that unit in the event that for example with a ten year inspection program the city has another five years to conduct that inspection the city may opt to not pursue a warrant and inspect that unit and defer that inspection to a later date and time what this allows for is a city to outfit i mentioned earlier provide for an economic use of city resources and it allows the city to make decisions about how it wants to proceed if the word sh in there then any time the city attempts to an inspector unit and said consent is refused the city would then be thereby required to go put get a warrant and required to undertake that inspection it should be the city's discretion as to whether or not it wants to to have that warrant requirement in fact actually this court in rosman the city of columbia heights back in two thousand and one acknowledged that there does the district court in that case construe the or the ordinance to require a search warrant in the so the fact that the ordinance can easily be read to require one and should be construed to require a warrant means accept that there is that the ordinance requires either consent or a warrant in order to inspect the units a raised by poland as well and appellant rapine brief actually they pointed to a case out of florida from last year called the family partnership versus the city of temple terrace and in that case the court found that the ordinance in question the rental registration ordinance did violate the unconstitutional conditions doctrine however the ordinance in question stated specifically and i quote by applying for a permit the property owner consents to periodic inspections of the dwelling units so  the ordinance the text of the ordinance required consent to unworn to warrantless searches in exchange for getting a permit no such language exists within the r p ario no such even remotely similar language exists in the city's ordinance in fact the obligation to inspect if you look through forty eight dash two hundred and six the inspection program place of the burden for inspections to be performed on the city there is no obligation specifically identifying the landlord  property owner as having an obligation under four thousand and eighty six dollars so even if it were even if the property owner were to say refuse consent to inspection for a unit in which it has the right to privacy the city would as we discussed be obligated to get a warrant if the city is unable to get a warrant or the city chooses not to get a warrant the property owner is not penalize by the plain language of the statute lastly i think i to dealing with a pale statute actually the section cited by appellants of being void for vagueness only deals with the actual effectiveness of registration that does not actually deal with a violation of the ordinance as it's presented it simply says that in order to maintain an effective registration you must comply with all relevant to political law so as the court noted the issue really here is the text and context and content in the plain language subsection states and it really comes down to does that section require the city to either get consent or warrants in order to inspect a rental dwelling and i believe the plain language of the statute clearly indicates that it does and in the event the court were to find any ambiguity in that particular section i think the supreme court jurisprudence requires us to construe that statute to not have such an ambiguity and to be constitutional therefore requiring a war meter thank you i think the city is trying to retroactively change the language of the statute to make it constitutional and that is not appropriate for example forty eight to six subsection see what the city is claiming it should say could very easily have been written is followed if the consent is refused and the city still wishes to proceed with an inspection it must obtain a warrant of a lower court order in accordance with applicable that's what it should say that may make it constitutional that is not what it says my nd argument is even if there is a warrant requirement this ordinance still must fail because the city could penalize the landlord d simply consenting to a warrantless search violates the property owners th amendment rights that's a quote from a district court and that's what exactly could happen under this ordinance and why it's unconstitutional i'm going to the last point the consent decree required several constitutional safeguards there needed to be a valid complaint that was signed with a telephone number of the person making it and needed to be a specific accusation of a code violation and then the city could still only inspect either with consent emergency circumstances or with or obtaining a warrant based on probable cause and if you look at our briefings in the evidence we offered in support  it's our allegations that the city specifically designed this ordinance in order to sidestep or get around those contests those constitutional protections and be able to inspect any property they wanted in the city