Scott Yanke v. City of Delano

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2274
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Scott Yanke, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the District of
* Minnesota.
City of Delano, Minnesota, *
sued as The City of Delano, by * [UNPUBLISHED]
the City Council of the City, *
*
Defendant-Appellee. *
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Submitted: March 17, 2006
Filed: March 22, 2006
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Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Scott Yanke brought this action under 42 U.S.C. § 1983 challenging a provision
of the Delano City Code that requires property owners to arrange for an inspection of
their plumbing by the city or a licensed plumber if they do not want to pay a monthly
surcharge. Yanke contends that the ordinance is unconstitutional because it requires
illegal searches of private property. The district court1 granted summary judgment in
favor of the city, and Yanke appeals. We affirm.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
On February 4, 2003 the City of Delano enacted Ordinance § 603.02 in
response to significant flooding problems related to the municipal sewer system. This
ordinance requires every property owner in Delano who discharges into the city sewer
system to obtain an inspection either by the city or by a licensed plumber to ascertain
whether there is any prohibited discharge. Failure to obtain a property inspection can
result in a monthly surcharge of $100 until such time as an inspection is done. The
ordinance also allows the city council to grant a waiver where strict enforcement
would cause an undue hardship. Yanke failed to comply with the ordinance and was
assessed a surcharge; his application for a waiver was denied. The city has not
entered Yanke's home without his permission or arranged for anyone else to do so and
it has not commenced criminal proceedings against him. Yanke is the only property
owner in Delano who has not complied with the ordinance.
Yanke brought this action in the district court, complaining that the ordinance
violated the Fourth and Fourteenth Amendments of the United States Constitution and
the state constitution. The district court granted summary judgment to Delano after
concluding that the Fourth Amendment neither applies to private plumbers since they
are not government actors nor prohibits the surcharge for failure to comply with the
ordinance. It concluded that Yanke had not shown any violation of the state or federal
constitution. On his appeal Yanke complains that the district court erred in granting
summary judgment and argues that the Fourth Amendment is implicated because the
private plumbers are acting as agents of the government when conducting an
inspection under the ordinance, and an administrative warrant is required. Our review
of his constitutional challenge is de novo. United States v. Collins, 321 F.3d 691, 694
(8th Cir. 2003).
Whether the Fourth Amendment is implicated under the Delano ordinance
depends on whether the activities of private plumbers are attributable to the city
government. See Skinner v. Railway Labor Executives Ass'n., 489 U.S. 602, 614
(1989). Before a private plumber's acts can be attributed to the city there must be
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some showing that the government instigated or directed the plumber's actions, and
there was no such showing here. See United States v. Luciow, 518 F.2d 298, 300 (8th
Cir. 1975). Under the ordinance it is the property owner not the city who initiates an
arrangement with a private plumber, and property owners have the option to pay a
monthly surcharge if they do not want their premises inspected. See also City of Pasco
v. Shaw, 110 P.3d 1200 (Wash. App. 2005) (upholding a similar city ordinance that
required landlord to provide certificate of inspection or lose rental license). Moreover,
Yanke's home was never searched. We conclude that the Fourth Amendment is not
implicated in these circumstances and that Yanke has shown no constitutional
violation.
Accordingly, the judgment is affirmed.
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