The opinion of the court was delivered by: MCCLURE
This action was initiated by a complaint filed by plaintiff Bloomsburg Landlords Association, Inc. (Landlords or the association) against the Town of Bloomsburg (Bloomsburg or the town) and Code Enforcement Officer Charles J. Felker. Landlords is a Pennsylvania non-profit corporation organized pursuant to 15 Pa. Cons. Stat. Ann. § 5101 et seq. to promote the commercial interests of its members, who own and lease residential real estate in Bloomsburg, Columbia County, Pennsylvania.
Plaintiff brings this action to protest the enactment of Town Ordinance No. 766,
entitled "Regulated Rental Unit Occupancy Ordinance" (the ordinance) on December 14, 1993. Ordinance No. 766 requires any landlord leasing a residential unit to three or more persons who are not "related to one another through blood to the level of second cousins, adoption or marriage" to:
1) Designate a manager who resides within the Bloomsburg local calling area if the owner does not reside within that area;
2) Enter into a written rental agreement which shall include an addendum containing provisions mandated by the town ordinance;
3) Be responsible for regulating the conduct of occupants of all regulated units;
5) Obtain a license entitling the owner to offer said properties for lease and pay a licensing fee of $ 20.00 per occupant;
6) Provide a list of occupants of the residential units to the town upon request; and
7) Allow the residential units to be inspected periodically by the town code enforcement officer.
(Plaintiff's complaint, exhibit "A")
Plaintiff contends that Ordinance No. 766 violates the state and federal constitutional rights of its members. They assert: 1) the violation of their rights under Article I, Section 10(1)
and the Fourth, Fifth and Fourteenth Amendments to the United States Constitution under section 1983, 42 U.S.C. § 1983 (Count I) and 2) the violation of their rights under Article 8, Section 1 of the Pennsylvania Constitution (Count II).
As redress for these alleged violations, plaintiff seeks: 1) a declaration that Ordinance No. 766 is "unconstitutional, null and void;" 2) a permanent injunction barring defendant or its agents or officials from "enforcing or attempting to enforce said Ordinance;" 3) a preliminary injunction barring the enforcement of the ordinance during the pendency of this action; 4) attorneys' fees and costs pursuant to 42 U.S.C. § 1988; and 5) such other and further relief as the court deems proper.
Plaintiff filed a separate motion for a preliminary injunction, asking the court to enjoin enforcement of the ordinance during the pendency of this action. Following a conference on plaintiff's motion, the parties stipulated that defendant would refrain from implementing certain provisions of the ordinance pending a final decision on the merits. The parties' stipulation eliminated the need for a court ruling on plaintiff's request for a preliminary injunction.
Before the court are cross motions for summary judgment. For the reasons which follow, we do not find that the challenged ordinance violates the federal or state constitutions. Judgment will be granted in favor of the defendants and against the plaintiff on that basis. No permanent injunction will issue.
Motion for summary judgment
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)
. . . The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Celotex v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Issues of fact are "'genuine' only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Material facts are those which will affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988).
Ordinance No. 766 imposes liability on the landlord for tenants' conduct violative of the ordinance. Specifically, it provides that complaints of disruptive conduct by student tenants will be relayed to the landlord, whose responsibility it will be to take appropriate remedial action.
Article II, Part A of the ordinance provides that:
... Every OWNER of a REGULATED RENTAL UNIT shall regulate the conduct and activity of the OCCUPANTS thereof, both contractually and through enforcement, as more fully set forth below.
(Plaintiff's complaint, exhibit "A," Article II, Part B - 4.)
Article III, Part F provides, in relevant part:
When POLICE or the CODE ENFORCEMENT OFFICER investigate an alleged incident of DISRUPTIVE CONDUCT, he or she shall complete a DISRUPTIVE CONDUCT REPORT upon a finding that the reported incident did, in his or her judgment, constitute "DISRUPTIVE CONDUCT" as defined herein....In all cases, the CODE ENFORCEMENT OFFICER shall mail a copy of the DISRUPTIVE CONDUCT REPORT to the OWNER or MANAGER within three working days of the occurrence of the alleged DISRUPTIVE CONDUCT, whether the PERSON making the investigation on behalf of the TOWN as (sic) the CODE ENFORCEMENT OFFICER or POLICE.
(Plaintiff's complaint, exhibit "A," Article III, Part F, p. 15)
"Disruptive conduct" is defined by the ordinance as:
Any form of conduct, action, incident or behavior perpetrated, caused or permitted, by any OCCUPANT or visitor of a REGULATED DWELLING UNIT that is so loud, untimely (as to hour of the day), offensive, riotous, or that otherwise disturbs other PERSONS of reasonable sensibility in their peaceful enjoyment of their PREMISES such that a report is made to POLICE and/or to the CODE ENFORCEMENT OFFICER complaining of such conduct, action, incident, or behavior. It is not necessary that such conduct, action, incident or behavior constitute a criminal offense, nor that criminal charges be filed against any person in order for a PERSON to have perpetrated, caused, or permitted the commission of DISRUPTIVE CONDUCT, as defined herein. Provided, however, that no DISRUPTIVE CONDUCT shall be deemed to have occurred unless the CODE ENFORCEMENT OFFICER or POLICE shall investigate and make a determination that such did occur, and keep written records, including a DISRUPTIVE CONDUCT REPORT, of such occurrences.
(Record document no. 1, exhibit "A," Article I, Part B-4. Capital letters original.)
Article III of the ordinance sets forth the duties of the occupant, and provides, in relevant part:
1. The OCCUPANT shall not engage in, nor tolerate nor permit others on the PREMISES to engage in, DISRUPTIVE CONDUCT, or other violations of the Ordinance.
(Plaintiff's complaint, exhibit "A," Article III, Parts C and F)
Notice of such conduct on the part of tenants triggers an obligation on the part of the building owner to take appropriate remedial steps. The ordinance provides:
1. Within ten days after receipt of written notice from the CODE ENFORCEMENT OFFICER that an OCCUPANT of a REGULATED RENTAL UNIT has violated a provision of this Ordinance, the OWNER shall take immediate steps to remedy the violation and take steps to assure that there is not a reoccurrence of the violation.
2. Within twenty days after receipt of a notice of a violation, the OWNER shall file with the CODE ENFORCEMENT OFFICER a report, on a form provided by the TOWN, setting forth what action the OWNER has taken to remedy the violation and what steps he or she has taken to prevent a reoccurrence of the violation. The report shall also set forth a plan as to steps the OWNER will take in the future if the violation reoccurs.
3. The CODE ENFORCEMENT OFFICER shall review the report and, if adequate steps have been taken and the plan is adequate to address future violations, shall approve the plan. The OWNER shall, on his or her initiative, enforce the plan and failure to do so shall be a violation of this Ordinance.
4. In the event that a second violation occurs within a license year involving the same OCCUPANT or OCCUPANTS, the CODE ENFORCEMENT OFFICER may direct the OWNER to evict the OCCUPANTS who violated this Ordinance and to not permit the OCCUPANT to occupy the PREMISES during the subsequent licensing period.
Upon receiving notice of any code violations from the CODE ENFORCEMENT OFFICER, the OWNER shall promptly take action, or cause the necessary action to be taken, to abate the offending condition and eliminate the violation.
(Plaintiff's complaint, exhibit "A," Article II, Parts I and J, pp. 11-12. Bold emphasis added.)
The ordinance attempts to preserve liability of student tenants and their guests for their individual conduct and states that criminal and civil liability for the same is not assigned or transferred to the landlord.
This section shall not be construed as diminishing or relieving, in any way, the responsibility of OCCUPANTS or their GUESTS for their conduct or activity; nor shall it be construed as an assignment, transfer, or projection over onto any OWNER of any responsibility or liability which OCCUPANTS or their GUESTS may have as a result of their conduct or activity under any private cause of action, civil or criminal enforcement proceeding, or criminal law; nor shall this section be construed so as to require an OWNER TO indemnify or defend OCCUPANTS or their GUESTS when any such action or proceeding is brought against the OCCUPANT based upon the OCCUPANT'S conduct or activity. Nothing herein is intended to impose any additional civil/criminal liability upon OWNERS other than that which is imposed by existing law.
This Ordinance is not intended to, nor shall its effect be, to limit any other enforcement remedies which may be available to the TOWN against an OWNER, OCCUPANT, or GUEST thereof.
(Plaintiff's complaint, exhibit "A," Article II, Part A, p. 7)
In the event that the owner does not take steps satisfactory to the town to abate the nuisance, the license required to continue leasing to students may be suspended or revoked. The ordinance provides:
(Plaintiff's complaint, exhibit "A", Article V, Part A.)
The range of sanctions which may be imposed against the landlord includes:
1. Formal Warning - Formal written notification of at least one violation of this Ordinance. Upon satisfactory compliance with this Ordinance and any conditions imposed by the CODE ENFORCEMENT OFFICER and/or the TOWN Council, the formal warning shall be removed when the OWNER applies for License renewal at a time set by the CODE ENFORCEMENT OFFICER or by TOWN Council.
2. Non-Renewal - The denial of the privilege to apply for License renewal after expiration of the License term. The TOWN will permit the OWNER to maintain OCCUPANTS in the PREMISES until the end of the license term but will not accept applications for renewal of the License until a time set by the CODE ENFORCEMENT OFFICER or by TOWN Council.
3. Suspension - The immediate loss of the privilege to rent REGULATED RENTAL UNITS for a period of time set by the CODE ENFORCEMENT OFFICER or TOWN Council. The OWNER, after the expiration of the suspension period, may apply for License renewal without the need to show cause why the OWNER'S privilege to apply for a License should be reinstated. Upon suspension, the OWNER shall take immediate steps to evict the OCCUPANTS.
4. Revocation - The immediate loss of the privilege to rent REGULATED RENTAL UNITS for a period of time set by the CODE ENFORCEMENT OFFICER or the TOWN Council and the loss of the privilege to apply for renewal of the License at the expiration of the time period. Upon the loss of the privilege to rent, the OWNER shall take immediate steps to evict the OCCUPANTS.
(Plaintiff's complaint, exhibit "A," Article V, Part B.)
The considerations which factor into the decision to sanction the landlord include:
3. Whether the OWNER has prior violations of this Ordinance and other ordinances of the TOWN or has received notices of violations ...