Along the Fox River in downtown Aurora, Illinois
AURORA, ILLINOIS - An Illinois state appeals panel will allow the owner of an apartment complex and one of their tenants to continue pressing at least part of their challenge to a so-called crime free housing ordinance in the city of Aurora, as they accuse Illinois' second largest city of allegedly illegally compelling landlords to coerce tenants into warrantless apartment inspections.
DPH Aurora Properties and one of its tenants, Belén González, sued west suburban Aurora in March 2024 following a disagreement over whether tenants could deny access to apartment units.
Kane County Circuit Court Judge Kevin Busch granted the city’s motion to dismiss the complaint, prompting a challenge before the Illinois Second District Appellate Court.
Justice Mary Schostok wrote the panel’s opinion, filed July 22; Justices Ann Jorgensen and Joseph Birkett concurred.
According to the panel, Aurora adopted the International Property Maintenance Code in 2018. Among its clauses are that landlords must obtain a license, and that applications for such licenses must include proof that the lease terms show a “crime-free” addendum which, in part, incorporates verification of background checks for every resident age 18 and older.
While the code requires annual inspections for health, sanitary and maintenance compliance, attended by either owners or a licensed agent, it also states inspectors must request entry and if tenants refuse, inspectors have legal remedies, including procuring a warrant.
“Plaintiffs have failed to cite any portion of the city code that mandates fines or punishment merely for refusing entry,” Schostok wrote, further noting the appeals process for tenants or landlords wishing to challenge any code official actions and clarifying the complaint doesn’t allege that process is in any way improper.
However, the panel said the plaintiffs can proceed with their allegations the city applied its ordinance unconstitutionally. They claimed that when tenants refused to allow entry to their apartments, the city imposed a $150 fine with an inspector pledging to initiate an administrative hearing for “failure to comply with the rental ordinance requirement.”
The city argued the fine was for a missed inspection, but the panel noted DPH and González provided emails showing the city had two weeks’ notice not all 21 units had consented, establishing “a question of fact as to whether the missed inspection fine for a ‘no show’ was merely a means to force tenants to consent to the inspections or a penalty for refusing consent.”
Under the 1967 U.S. Supreme Court opinion Camara v. Municipal Court of the City & County of San Francisco, Schostok wrote, governments cannot impose sanctions against tenants or landlords who exercise a Fourth Amendment right to refuse entry. The panel said Judge Busch erred by dismissing the claim, given that the inspector didn’t specifically express intent to pursue an administrative warrant.
The city further argued the claim isn’t ripe because it hasn’t conducted a forced, warrantless inspection. But the panel returned to the relevant legal question of “whether the missed inspection fee was punitive and based on the failure to receive consent to inspect all 21 units.”
DPH and González also said Judge Busch wrongly dismissed their claims regarding the constitutionality of the background check and crime-free lease language, which they insist violated privacy and equal protection rights. The panel sided with the city, noting federal law doesn’t consider background checks unreasonable and determining the complaint doesn’t adequately allege improper disclosure of personal information.
Landlords only have to submit an affidavit attesting to a completed check and not the actual information the check includes, nor does the ordinance require landlords to act based on what the check returns. Tenants must give consent to the checks, undercutting the argument of forced disclosure, and “plaintiffs did not allege in their complaint that the requirement of a background check violated their fundamental right to travel and failed to cite, in their brief on appeal, any authority to support such a proposition. Accordingly, any such argument is thus forfeited,” Schostok wrote.
The panel also rejected the equal protection argument, noting the complaint doesn’t support its conclusions that Aurora homeowners are similarly situated to renters or that DPH and González were treated differently from and other tenants or landlords.
However, it sided with DPH and González in the city’s challenge to their standing for their Fourth Amendment claims. The panel wouldn’t allow the plaintiffs to sue the mayor, property standards manager and code inspector as individuals or to pursue relief under federal law because their claims affect only one set of fines and not a widespread policy.
That decision limits the pursued relief to whatever state law can provide, which the panel further narrowed by finding the complaint didn’t allege any municipal employee acted with malice or bad faith, preserving a degree of tort immunity and eliminating the ability to seek damages for any rights violations and preserving only the pursuit of a court order or injunction.
The matter heads back to Kane County Circuit Court regarding the constitutionality of how the city applied its inspection ordinance in November 2023.
DPH and González are represented by Matthew Robinson, of Geneva.
The city is represented by Klein, Thorpe & Jenkins.
