4 Conn. Cir. Ct. 234 | Conn. App. Ct. | 1966
The defendant is the owner of a tenement house building, as defined by § 19-342 (1) of
Sometime during the month of January, 1964, one of the tenants in the building, Pauline Byrd, who had leased an apartment from the defendant in September, 1963, at 25 Redfield Street, telephoned a complaint to the division of neighborhood improvement of the New Haven redevelopment agency concerning alleged violations in her apartment of the housing code of the city. Within a few days after the receipt of the complaint, Edward DeLouise, director of the division of neighborhood improvement and charged with the responsibility of enforcing the housing code in certain defined areas, within which the defendant’s property fell, sent two accredited representatives of his office to inspect the apartment occupied by the Byrd family. After they had properly identified themselves and announced the purpose of their visit, they were admitted and made the inspection. A list of probable violations were noted. In March, 1964, Pauline Byrd called the division of neighborhood improvement and made another complaint. Again the inspectors were invited in and noted probable violations. The inspectors then proceeded to other apartments in the building and, after identifying themselves and their purpose, were invited to enter; again, they noted probable violations. They proceeded to make an inspection of the common hall
After reviewing the report, the director made a determination that there were probable grounds to believe that the defendant’s property was in violation of the housing code. The probable violations were reduced to writing. The director, in an order dated September 18, 1964, notified the defendant by registered mail “to undertake . . . remedial action for the correction of these violations. Such work to be completed by December 18,1964.” The defendant failed to comply with the terms of the notice; he chose not to avail himself of a hearing before the code enforcement committee, where opportunity is afforded a person affected by such a notice to show cause why it should be modified, extended, withdrawn or varied.
On appeal to the Appellate Division, the defendant has raised many questions; these may be reduced to five: (1) Whether the housing code is a valid exercise of the police power, that is, whether the standards of the code are arbitrary, unreasonable and unrelated to public health, safety and welfare; (2) whether the housing code is null and void because it delegates enforcing authority to the director of the division of neighborhood improvement of the New Haven redevelopment agency in substandard, middle ground and urban renewal areas rather than to the director of public health, who is made the enforcing officer under the code for other areas of the city; (3) whether the city of New Haven possesses authority to establish a monetary fine of $100 for a violation of the code; (4) whether the housing code is unconstitutional as ex post facto legislation; and (5) whether the defendant’s fourth amendment rights to be secure in his home and
An initial question we must decide is whether the housing code of the city of New Haven is a valid exercise of the power granted to municipalities under appropriate statutory authority. That there is a great need in this country for housing codes was recognized by Mr. Justice Frankfurter in Frank v. Maryland, 359 U.S. 360, 371, where he put the problem in this way: “The need to maintain basic, minimal standards of housing, to prevent the spread of disease and of that pervasive breakdown in the fiber of a people which is produced by slums and the absence of the barest essentials of civilized living, has mounted to a major concern of American government. The growth of cities, the crowding of populations, the increased awareness of the responsibility of the state for the living conditions of its citizens, all have combined to create problems of the enforcement of minimum standards . . . .” The need for legislation in this area of government does not stem only from public health; it is also a social and economic need. “The toll exacted by slums and blight has been too frequently recorded. As if by rote, social workers, health officers, and public officials recite the fearful consequences in terms of blighted lives, disease, crime, juvenile delinquency, and hazards to health, safety and morals. The hard truth regarding these consequences, even when supported by cold statistics, may not penetrate the consciousness of one as effectively as an actual inspection of slums .... Equally disturbing to the tranquillity of the thinking citizen is the effect of urban blight on the economic life of the community. The spread of blight rapidly depreciates property
Connecticut, as well as other states, has recognized the need for municipal housing codes.
We hold that the New Haven housing code is a lawful and proper exercise of the police power. It may be invalidated only where the means to achieve its goals are unreasonable, discriminatory or arbitrary. Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546, 553. Unless a clear violation of constitutionality is shown, the presumption of constitutionality must sustain the ordinance. Amsel v. Brooks, 141 Conn. 288, 294, appeal dismissed, 348 U.S. 880; Schwartz v. Kelly, 140 Conn. 176, 179. If any reasonable ground to uphold the ordinance exists, especially where, as here, the apparent aim of the ordinance is to serve the general welfare, courts will assume that the legislative body intended to place it upon that ground and was not motivated by some improper purpose. State v. Gordon, 143 Conn. 698, 703; Legat v. Adorno, 138 Conn. 134, 145; Lyman v. Adorno, 133 Conn. 511, 514. We do not pass upon whether the legislation is wise or is the best remedy; these questions are primarily for legislative, not judicial, consideration. Shelton v. City of Shelton, 111 Conn. 433, 449.
The defendant also questions the reasonableness of the standards as fixed by the board of aldermen
We next consider whether the board of aldermen in enacting the housing code may delegate enforcing authority to the director of the division of neighborhood improvement as well as to the director of public health. The defendant claims that the provisions of title 19 of the General Statutes, entitled
The defendant also questions the authority of the board of aldermen to enact legislation providing for a fine of not more than $100 for failure to comply with its provisions. New Haven Housing Code ¶ 102. The short answer may be found in § 7-148 of the General Statutes, which empowers a municipality to impose fines not to exceed $100 for the violation of any ordinance made under the provisions of chapter 98, entitled “Municipal Ordinances and Regulations.”
The claim is also made and pressed upon us that the housing code has a retroactive impact upon the defendant; therefore, he argues, the ordinance must fail as ex post facto legislation. But mere ownership of substandard housing is not made a crime under the code. What is prohibited by the ordinance is the occupation, or letting to another for occupation of premises falling below minimum standards. The Supreme Court of the United States has addressed itself to the precise issue now raised; the court held that a housing code may constitutionally be applied to structures erected in compliance with earlier standards. “[I]n no case does the owner of property acquire immunity against exercise of the police power because he constructed it in full compliance with the existing laws.” Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 83. The ordinance is not null and void as ex post facto legislation.
By far the most significant question which the defendant raised is whether his fourth amendment rights, made applicable to the states by the four
Of course, the determination of what constitutes a reasonable search is to be made in the light of the facts and circumstances of each case as well as
We turn now to the case at bar. Who may claim the right of privacy! Who has the right of possession and control which furnishes the basis for a claim of privacy?
The tenant acquires from his landlord, unless the lease otherwise provides, exclusive possession and control of the leased premises and, as incidental thereto, the parts of the structure which form an
The implication which necessarily flows from the tenant’s control and possession is that it is the tenant, not the landlord, who has the final word as to the person or persons who may enter upon the demised premises. The landlord has neither the power of exclusion nor the power of selection. To be sure, he may enter for the avowed purpose of
The defendant insists that the inspectors were trespassers. He defines, without benefit of authority, a trespasser as “[a]nyone who entered the premises through the common approaches to the building, other than the tenant or at the invitation of the tenant.” But the inspectors here entered the leased apartment in response to a reported telephoned complaint initiated by a tenant. Other tenants in the building invited the inspectors into their apartments after the inspectors identified themselves and announced the purpose of their mission. They left by means of the common areas, where they had a right to be, as lawful guests of the tenants. See Driskill v. United States, 281 F. 146, 147. Not only did the tenants have the right to invite the inspectors upon the premises but they had a statutory duty to do so. The New Haven housing code, ¶ 200, provides: [‘The owner or occupant of every dwelling, dwelling unit, and rooming unit, or the person in charge thereof, shall give the enforcing officer free access to such dwellings, dwelling unit or rooming unit and its premises, at
The defendant also raised the question of the impropriety of the inspection because it was made without a search warrant. The proceedings which led to the defendant’s conviction did not commence as prosecutorial; originally, only an administrative inspection was involved. The purpose of the inspection was to encourage compliance with the housing code. The aim was preventive, not prosecutorial. Indeed, the power of inspection is a sine qua non to the success of the housing code. “Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts. The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few.” Frank v. Maryland, 359 U.S. 360, 372; comment, “Administrative Inspections and the Fourth Amendment, A Rationale.” 65 Colum. L. Rev. 288, 291; Sogg & Wertheimer, “Urban Renewal: Problems of Eliminating and Preventing Urban Deterioration,” 72 Harv. L. Rev. 504, 545; Stahl & Kuhn, “Inspections and the Fourth Amendment,” 11 U. Pitt. L. Rev. 256, 267-71, 273-76. In Frank, Mr. Justice Frankfurter made a distinction between a criminal proceeding and an administrative inspection, even
The defendant also makes the claim that, since he did not consent to the search of his property, evidence gathered by means of the inspection may not be used in criminal proceedings instituted against him. Courts, however, have upheld a search consented to by one other than the defendant where the other has possession of or control over or equal rights in the premises or objects searched. The question turns on the relationship which the consenter and nonconsenter have in the searched objects or effects.
Consent is valid where given by one in possession and control. Thus, assent to a search by one business partner may bind the other. United States v. Sferas, 210 F.2d 69, cert. denied, 347 U.S. 935. “Where the husband and wife are equally in control and management of the premises, a search of the premises may be made by consent of either.” 79 C.J.S. 824, Searches and Seizures, § 62; United States v. Pugliese, 153 F.2d 497; United States v. Heine, 149 F.2d 485; United States v. Sergio, 21 F.
There is no error.
In this opinion Dearington and Kinmonth, Js., concurred.
Under the housing code of the city of New Haven (1954), as amended September 10, 1962, a code enforcement committee is created (¶ 201), and “[a]ny person affected by any notice which has been issued in connection with the enforcement of any provisions of this Title may request and upon the payment of a ten dollar fee . . . shall be granted a hearing . . . before the code enforcement committee . . . ¶ 203 (a). “At such hearing the petitioner shall bo given an opportunity to be heard and to show why such notice should be modified, extended or withdrawn or a variance granted.” ¶ 203 (c).
The first count charged the defendant with a violation of ¶ 302 (g) in failing “to correct condition causing exterior wood surface throughout to be adequately protected from decay.” The second count charged violations of ¶ 302 (a) in failing to correct conditions to “exterior and public areas”; in failing to repair or
Comment, “Municipal Housing Codes,” 69 Harv. L. Rev. 1115, 1116-17.
Ample statutory authorization for the enactment of a municipal housing code may be found in General Statutes, title 8, chapter 130 part II, entitled “Urban Benewal,” particularly §§ 8-141, 8-143, 8-144 and 8-145; see title 7, “Municipalities,” particularly §§ 7-148, 7-194 (26), (29), (37), (40), (41), (44) and (45).
Section 19-347, the enforcement and penalty provision of title 19, chapter 352, “Tenement and Lodging Houses,” part I, confers enforcing power upon the board of health of a municipality; however, it is further provided that “[n]othing in this part shall be construed to abrogate or impair the powers of a local board of health, or of the courts, or any other lawful authority, to enforce any provision of any city or borough charter or health ordinances and regulations not inconsistent with this part, or to prevent or punish for violations thereof.”
Section 19-372 confers enforcing power upon the local department of health, the fire department, the courts or “any other lawful authority.”
Distinctions such as those between “lessee, licensee, invitee and guest” have been deemed too insubstantial to be relied upon as the basis of determining an interest in the searched premises requisite to maintain a motion to suppress. Jones v. United States, 362 U.S. 257, 266; 47 Am. Jur., Searches and Seizures, § 12 (Sup. 1966, p. 68). Ownership or right to possession qualified as a sufficient quantum of proof of interest in the property searched to provide standing; however, as the quantum of such interest decreases, the problem increases in difficulty. Notes, 74 Harv. L. Rev. 151, 59 Mich. L. Rev. 444, 14 Vand. L. Rev. 418.