WORCESTER – The Worcester City Council will receive a legal opinion it previously requested when it meets on Tuesday on the constitutionality of the city’s rental registry program, officially called its Rental Dwelling Unit Periodic Inspections Program.
The legal opinion, authored by City Solicitor Michael Traynor, includes four main points.
Constitutionality and Implementation
Traynor’s analysis says the program is not unconstitutional as written, “but must be implemented under the statutory and constitutional protections.” For constitutional compliance, inspectors may only enter a unit with the resident’s consent or a court order. An inspector may not enter a dwelling without resident permission, even if the landlord has agreed.
Entrance to the unit without resident approval would violate the Fourth Amendment of the U.S. Constitution.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
~Fourth Amendment of the Constitution of the United States
Inspection Authority
The legal analysis cites sections of of Massachusetts Sanitary Code as the allowing authority for inspections under the program.
The state’s sanitary code is organized in the Code of Massachusetts Regulations under two sections of Department of Public Health regulations, 105 CMR.
Sate regulations under 105 CMR 400.000, the first chapter of the state sanitary code, outlines its general administrative procedures. The authority for inspections can be found at 105 CMR 400.100Â (a). The authority for “systematic, periodic area inspection of dwellings, dwelling units, rooming houses, and rooming units” is under item (b) of the same section.
Chapter two of the state sanitary code, under 105 CMR 410.000, the Minimum Standards of Fitness for Human Habitation, outlines the standards required in state law.
Regulations under 105 CMR 410.910 define penalties for interference with inspections.
Search and Seizure Protections
Beyond the Fourth Amendment, Traynor cited two legal cases which provide precedent for protections against search and seizure.
The first case Traynor cites is a 1967 U.S. Supreme Court Case, Camara v. Municipal Court. The court held that the law cannot require warrantless inspection of property. However, the court also said that “area inspection” might be appropriate with a blanket warrant for that area.
The opinion also cited Commonwealth v. O’Donnell (2017), a Massachusetts state appeals court case, which Traynor says highlights “requiring an administrative warrant absent exigent circumstances or request for inspection; specifying the purpose, place, and objects of the search and be withing the scope of the authorizing ordinance.”
Enforcement Mechanisms
The means for the city to enforce the ordinance creating the program civil actions, including restraining orders, injunctions, and the fines allowable under the ordinance.
Find the full legal analysis provided to the city council.
Editors Note: Traynor cited 105 CMR 410.900 as the section of Massachusetts regulations that govern penalties for interference with inspectors. The correct section is 105 CMR 410.910, as listed above.
