An ordinance authorizing the posting of bright orange
stickers at an "unruly gathering" is both constitutional and not preempted according
to the First Circuit's recent ruling. The First Circuit rejected plaintiffs'
due process claim and refused to find the Rhode Island Residential Landlord and
Tenant Act (L&T Act) preemptive.
To combat against disorderly gatherings of college students,
the Rhode Island town of Narragansett adopted an ordinance authorizing police to
post a bright orange sticker at the entrance of any residence hosting an
"unruly gathering." The stickers admonished that, should police
intervention be required in response to another violation, various parties would
be held jointly and severally liable.
In their lawsuit against the town, plaintiffs contended
that the ordinance conflicted with the L&T Act because it
"requires" a landlord to evict an offending tenant without providing
an opportunity to cure. Eviction was required, the plaintiffs argued, so that
the landlord could avoid liability for subsequent ordinance violations. Plaintiffs
also assert constitutional claims based on due process, overbreadth and
Student Senate v. Town of Narragansett, 2011 U.S. App. LEXIS 141 (1st Cir.
R.I. Jan. 5, 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law],
the First Circuit rejected the preemption argument, holding that the ordinance did
not require a landlord to initiate eviction proceedings. Rather, it allowed an owner
of a previously posted property to avoid liability for a subsequent violation by
actively attempting to evict a tenant. Affording the landlord an "ongoing
eviction" defense was not tantamount to compelling an eviction.
The First Circuit also rejected plaintiffs' constitutional
claims. Plaintiffs argued that the ordinance violated due process because it
allowed police to post the orange sticker without a hearing. To establish a liberty/property interest, plaintiffs focused
on reputational harm; particularly, the ordinance's stigmatizing effects. They asserted
that when an orange sticker was posted, both the landlord and tenants were
publicly branded as criminals. In rejecting this argument, the First Circuit
applied the "stigma plus" standard:
The appellants say that some
landlords have been unable to re-rent posted dwellings. Taking this as true,
the resulting loss of rent is not a viable "plus" factor. Nothing in
the L&T Act (or elsewhere in state law, for that matter) confers on
landlords an entitlement to have rental units fully occupied. . . .
Similarly, the vacancies
that the appellants lament do not result from state action but, rather, from
the actions of third parties. After all, it is prospective tenants, acting
without government compulsion, who decide whether or not to rent particular
dwellings. . . .
The student tenants'
proposed "plus" factor is no more robust. This claim relies on
evictions as a source of harm. It suggests that a tenant has a right to
peaceable enjoyment of a rented dwelling free from eviction and that,
therefore, eviction represents a cognizable "plus" factor. This is
too sanguine a view.
. . . .
[Appellants] complain that
the Ordinance prevents them from living in Narragansett. That is codswallop
pure and simple: the Ordinance does not prevent anyone from living anywhere.
Although the Ordinance creates consequences for those who choose to reside in
the Town but fail to abide by the law, these consequences, whether viewed
singly or collectively, do not constitute harm to any tangible interest enjoyed
by the appellants.