GARIS L. PRUITT v. RON HAMPTON and CITY OF ASHLAND
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RENDERED: JUNE 14, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-001437-MR
GARIS L. PRUITT
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
CIVIL ACTION NO. 99-CI-01067
v.
RON HAMPTON and
CITY OF ASHLAND
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI and HUDDLESTON, Judges.
HUDDLESTON, Judge:
Garis Pruitt appeals from a summary judgment
that dismissed his 42 United States Code (U.S.C.) § 1983 action
against Ron Hampton and the City of Ashland.
At issue is whether
an ordinance of the City of Ashland is unconstitutional and whether
Hampton’s entry pursuant to that ordinance into a rental dwelling
owned by Pruitt violated Pruitt’s rights under the Fourth Amendment
to the Constitution of the United States.
Although the facts are not altogether clear at this
point, it appears from the limited record before us that Hampton,
an Ashland Code Enforcer, went to a rental house owned by Pruitt to
investigate a possible sewer leak.
Once there, according to
Hampton, he saw that the property was “unsecured,” and he entered
the house.
Hampton testified in a deposition that his entry was
for the limited purpose of ensuring that no vagrants were in the
house and to secure the open door and windows before leaving.
Pruitt challenges this characterization, pointing to Hampton’s
deposition in which he stated that the only time he had found
vagrants in that neighborhood was when he investigated pursuant to
a specific complaint.
Pruitt also contends that the condemnation
notice posted on the door of his property, citing electrical and
plumbing violations to be corrected, evidenced Hampton’s intent to
inspect upon entry.
The
ordinance
in
question
is
PM-105.3
of
the
BOCA
National Property and Maintenance Code. The section upon which the
circuit court relied reads as follows:
PM-105.3 Right of entry: The code official is authorized
to enter the structure or premises at reasonable times to
inspect
subject
to
constitutional
unreasonable searches and seizures.
restrictions
on
If entry is refused
or not obtained, the code official is authorized to
pursue recourse as provided by law.1
Relying on that section, which incorporates by reference the entire
body of case law under the Fourth Amendment and Section 10 of the
Kentucky Constitution, the circuit court held that “the ordinance
1
Original emphasis.
-2-
is clearly constitutional since it merely states that all entries
must comply with controlling authority.”
Pruitt insists, and we agree, that the circuit court
erred in analyzing and relying on the above language.
In December
1996, the City of Ashland revised its Housing Code when it enacted
Ordinance No. 132, 1996.
Relevant to our inquiry is the following
language extracted from that ordinance:
SECTION 3.
That the following sections of The BOCA
National Property Maintenance Code are hereby revised as
follows:
* * *
PM-105.3 Inspections: In order to safeguard the
safety, health and welfare of the public, the code
official is authorized to enter any structure or premises
at
any
reasonable
inspections
and
Inspections
will
time
for
performing
be
made
the
purpose
of
making
duties
under
this
code.
to
obtain
and
maintain
compliance with the standards of this Code and the
adopting ordinance based upon any one or more of the
following:
1.
A
complaint
received
by
the
code
official
indicating that there may be a violation of
the standards of this Code and the adopting
ordinance.
2.
An
observation
by
the
code
official
of
a
violation of the standards of this Code and
the adopting ordinance.
-3-
3.
A report or observation of a structure that is
unoccupied and unsecured or a structure that
is fire damaged.
4.
The need to determine compliance with a notice
or an order issued by the code official.
5.
Designation by the Board of City Commissioners
and/or
the
Urban
Development
Agency
Renewal
of
an
and
area
Community
where
all
structures, accessory buildings or yards are
to be inspected uniformly or intensively or
for specific violations.
6.
An emergency observed or reasonably believed
to exist.
7.
A request by an owner, or a party of interest,
for an inspection.
When determining legislative intent,2 a court must refer
to
the
language
to
of
the
what
statute
may
have
(or
been
ordinance)
but
was
than
speculating
as
expressed.3
In other words, a court “may not interpret a statute
at variance with its stated language.”4
intended
rather
not
Similarly, in analyzing
the ordinance quoted above, we may not interpret it at variance
with its stated language.
2
That is, the intent of the Ashland City Council.
3
Commonwealth v. Allen, Ky., 980 S.W.2d 278, 280 (1998).
4
Id. (citation omitted).
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Hampton and the City argue that the 1996 ordinance merely
“added on” to the prior ordinance, and that the language cited by
the circuit court in its summary judgment remains in the ordinance,
incorporated by reference in the 1996 amendments.
careful
reading
of
the
incorporation language.
1996
ordinance
fails
to
However, a
uncover
any
In revising the ordinance in 1996, the
Ashland City council clearly intended to replace the language
relied upon by the circuit court with that reproduced above. Thus,
the circuit court erred in relying on the older version of the
ordinance, and, upon remand, must consider the revised ordinance.
The second issue the circuit court resolved was whether
Hampton’s actions in entering Pruitt’s rental property amounted to
a violation of Pruitt’s rights under the Fourth Amendment to the
U.S. Constitution and Section 10 of the Kentucky Constitution, both
of
which
prohibit
unreasonable
searches.
The
circuit
court
determined that Hampton’s entry into the house was not for the
purpose of undertaking an “inspection,” but rather for the limited
purpose of securing the unlocked premises and verifying that there
were no hobos, vagrants, or other unauthorized persons present.
Summary judgment is only proper “where the movant shows
that the adverse party could not prevail under any circumstances.”5
However, “a party opposing a properly supported summary judgment
motion cannot defeat that motion without presenting at least some
affirmative evidence demonstrating that there is a genuine issue of
5
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky.,
807 S.W.2d 476, 480 (1991), reaffirming Paintsville Hosp. Co. v.
Rose, Ky., 683 S.W.2d 255 (1985).
-5-
material fact requiring trial.”6
The circuit court must view the
record “in a light most favorable to the party opposing the motion
for summary judgment and all doubts are to be resolved in his
favor.”7
On appeal, the standard of review is “whether the trial
court correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment as
a matter of law.”8
Since factual findings are not at issue,
deference to the trial court is not required.9
Pruitt
deposition,
which
has
presented
raises
an
entering Pruitt’s property.
evidence,
issue
as
to
by
way
of
Hampton’s
Hampton’s
intent
in
Likewise, Pruitt challenges Hampton’s
characterization of the property as “abandoned” or “unsecured.”
Accordingly, we cannot say that no genuine issue of material fact
exists.
Rather,
there
are
genuine
factual
issues
regarding
Hampton’s intent and the condition of Pruitt’s property, issues
which can only be resolved upon the trial of this action.
Hampton and the City argue that Hampton’s conduct, and
the ordinance which authorized it, do not amount to a violation
under 42 U.S.C. § 1983 because neither implicates the protections
of the Fourth Amendment.
The companion decisions of the United
States Supreme Court in Camara v. Municipal Court of the City and
6
Hubble v. Johnson, Ky., 841 S.W.2d 169, 171 (1992).
7
Steelvest, supra, n. 5, at 480.
8
Id.
9
Scifres v. Kraft,
(1996)(citations omitted).
Ky.
-6-
App.,
916
S.W.2d 779, 781
County of San Francisco10 and See v. City of Seattle11 make it clear
that the actions of a code enforcement officer in entering a
building, be it a residential or commercial structure, and the
ordinance(s) authorizing such entry, fall squarely within the
framework of the Fourth Amendment.
Since it is undisputed that
Hampton did not seek a warrant before entering the property, it
must be decided upon remand whether his actions fit within one of
the exceptions to the Fourth Amendment’s warrant requirement.
Because the circuit court analyzed the wrong ordinance
and improperly concluded that there are no genuine issues of
material fact, the summary judgment is reversed and this case is
remanded for further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Lisa D. Pruitt-Thorner
Catlettsburg, Kentucky
P. Kevin Moore
BOEHL STOPHER & GRAVES LLP
Lexington, Kentucky
10
387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967).
11
387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967).
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