morning runners frederick stern from the honest the huntington rental code is unconstitutional both on its face and as applied it violates due process the due process clause of the fifth amendment amendment as applicable to the states and pursuant to the fourteenth amendment because it is both question the they're the we have seen what you know yes pete there are you know if there's a warrant requirement or consent to inspect property that's what this ordinance requires correct this what this this ordinance is far more broad than any than any ordinance to which that in that any of the case law has previously approved what this law does is affectively deput the the third party inspector to conduct the same overreaching investigation that the town itself cannot legally undertake without a warrant what i submit your honor that it's that there is no real consent involved because it is what the but the fact of the amount of the truth of the matter is that there is no that there are two reasons why that why that is the why the consent provision is a loser  the the the the inspectors are subject to criminal penalties for failing to disclose for failing to report to the town a violation of and this is this is my problem with the this is one of the you know reaches other constitutional issues as well any violation of any code rule ordinance  local federal and you know from emanating from any level of government a town building inspector is authorized to assess his compliance by the same token the alternative is to have that done by a private by a licensed architect or an engineer who by the terms of the of the ordinance is subject to criminal penalties for failing to report any possible violation of any one of those code provisions from any level of which there's you know with regard to many of which there is no reason to presume he's these people are even going to be aware that this is a way of saying with the point you make you free nobody is willing to do this if you say that  i would submit that the that the you know the  the the court has held that the exercise of one constitutional right naming namely the ability to use to get the economic benefit of your property for in this case to use the property as a rental can't be conditioned on the surrender of another property right and what we're seeing what i'm saying is that the that we're referring specifically to the fourth amendment issue right now i submit by the way i i want to emphasize that that is simply that that's just one of the constitutional defects in play with respect to this this statute the perhaps even more significant is the is the vagueness of the statute because as i indicated it gives gives code enforcement personnel the right to deny rental permit and thus the benefit of the property based upon what is in the mind of any code and any code enforcement officer untrained in the law a violation of any applicable federal state local county rule regulation this is it's it's overbroad and it's it's and this is regardless of the fact that they whether they evoke provision that the code enforcement officer is it whether it's whether the purportedly a provision is even applicable to the to the code enforcement context it's any federal law any federal law has citations violations it's working well i can tell you this that the day i can already we can already point to abuses and this is a this is a new statute the evidence of the opportunities and that the that these that these abuses  actually taken place lie in the fact that the the the code provisions are already being interpreted by the town's director of public safety as authorizing him to collect information as to the location and the occupants of rental properties owned by applicants that where the properties aren't even located in the town of huntington they're not the subject of the applications or simply call it that they have the right to collect information and they're demanding that the that these applicants provide  code is both explicitly and implicitly and explicitly says any code of any kind meaning not of not not even necessarily a building code of what you know and it's obviously a code enforcement officer has no  talking i guess maybe i'm not making myself clear it's i mean any code i mean the criminal code i mean anything that might be that that might conceivably be applicable to the to the property to its occupants to the morning your honor may please the court james clark for the hour police as your honors have already recognized this statute in question here was was not created out of thin air that the town had the benefit of the jurisprudence that has already come from this court and other courts with respect to the constitutionality of these types of statutes that the statute in question was modeled after the statutes including the town of babylon the city of schenectady statutes that this court has already found to be constitutional and there's nothing that's contained in  town's rental permit law that moves away in an unconstitutional manner from the cases that this court and other courts like it that have already found and upheld similar the rental owner is trying to abide by the law as we would hope people would be and you're never going to search that property unless you have on a warrant to let you have probable cause to think that he's not operating lawfully so the warrant is only going to apply in circumstances where you have the basis to think that the owner is not operating lawfully right correct that would raise that would be the premise or lawful owner who plaintiffs say is that because of the exposure to criminal culpability on architects and contractors they don't do this work do you want to respond to that because otherwise all we're left for with with someone who is trying to abide by the law is give your consent or your out as to the issue of the assertion that third party architects engineers other license code inspectors all of whom are able to perform the this section these types of inspections under the statute are are unwilling to to do it there's nothing in the record there's no factual gives property owners in the town and that additional am in you that some of the other statutes that have been upheld don't  typically and i know which at the close look at the place and approve it absolutely this seems to allow for more latitude by less stores if you can get one of these architecture engineers to issue a certificate the town doesn't have to look at the lease premises right correct if if either a license engineer license architect or a license code inspector who's not a town employee can perform an inspection certify that the property is compliant and you've bypassed the inspection process and these of you the town you've you've satisfied that requirement and you can move forward with your application that happens i mean the plaintiffs themselves have to have gone through the process and gotten permits there there's no there's no injury in fact to anybody involved in the case because nobody's been did not denied a permit so what has happened here is that the town is set up the system property owners have different options available to them and as far as the record here is concerned and in practice people person how do these and get a warrant of the must have system was probable cause that there's violations of the code in order to convince a judge to issue a warrant or is it just we haven't got the certificate from anybody here so we want to ward to go and look at these premises no there's a it's a reasonable cause standard so so the warrant would be presumably be issued if the town had an indication that the property was was either being advertised for rent or being rented itself without having gone through the full application process meaning the inspection prior to to letting the premises have to believe that school i i would submit that that that would be the proffer as to the reasonable cause for the warrant whether or not that would be right whether or not that would be sufficient in the mind of a judge i can't speak to that but that would be the one of the ways to pro believe i don't believe in less there was other independent and other independent basis to make such an allegation absent and in inspection i don't know that anybody would have the the ability to to make such a representation in applying for a war saying and we've been told by somebody who is in the premises that there's no smoke detectors while they're there are there are actually set forth a number of different items that can lead to probable cause but including such things as you know if there's multiple electric meters or multiple w for yes your honor your honor as i indicated briefly the code requires that the rental property be in compliance with all current currently applicable county state federal laws codes rules regulations what this what it fails to take into account is the result of which these are the properties that are the subject of those documents are not required to comply with current college what this the effect of this law is to simply wipe all that away and that's that's a violation of due process and that stop was  that's the courts the supreme court's holding in norton v town advice that not that these are property rights vested property rights that cannot be taken away except with after due process finally one one final point granting  did we did allege that among others and and one more that's the as i indicated we have violations of multiple violations we have the the other violations of the fourteenth amendment and the fourth amendment which i'll address now mind that relying on the supreme court's decision in camaron which i mentioned briefly the the town were not no one argues that the town doesn't have a legitimate interest in the public in public safety but in analyzing a similar statute the a warrant in criminal cases are not applicable to the issuance of a warrant authorizing an administrative and its inspection of the protect the agency's particular demand for access will be measured in terms of probable cause for a warrant against a flexible standard a reasonable as reasonable as that the fourth amendment under the u s beat to tell the holding it's mice and the holdings of the supreme court with respect to the issues in this case prohibit the town from conditioning the ability of a property owner to secure a rental permit on consent to a warrant warrantless search or by the you know to a few effectively to require the deputy to be deputy zation of a private professional to do what the town couldn't do itself the town has both the ability and the duty to abstain to a war rights to protect the rights of the homeowners involved each property owner i remind you is already subject to statutory and contractual requirements to provide tenants with safe and habitable living spaces