Christopher Regan v. City of Hammond, Indiana
Opinion
The plaintiffs in this case press a dormant commerce clause challenge to a local ordinance that requires a residential property owner who wishes to make repairs to the residence either to obtain a license or to hire a licensed contractor; but a homeowner making repairs to the single-family residence he or she occupies is exempted from this requirement. The plaintiffs argue that this scheme discriminates against interstate commerce and to that extent is contrary to the dormant commerce clause. But the ordinance draws no distinction between in-state or out-of-state property owners and imposes no burden on interstate commerce. We therefore affirm the district court's entry of summary judgment against the plaintiffs.
I.
Plaintiff Christopher Regan lives in Cook County, Illinois, but owns real property in the City of Hammond, Indiana, that he leases or rents to others. The *702 Northwest Indiana Creative Investors Association, Inc. ("NICIA") is a trade association for real estate investors who likewise own and lease real property in Hammond. As landlords, Regan and NICIA members naturally have the need to make periodic repairs and improvements to their Hammond properties. In order to repair or remodel their properties, the Hammond municipal code requires that they either obtain a license from the city or hire a Hammond-licensed general contractor. Hammond, Ind. Municipal Code §§ 150.15, 150.17. In order to obtain a license, a general contractor or landlord must, among other things, submit an application, pass a test and criminal background check, and pay a fee. (General contractors are subject to additional requirements and obtain a broader license.) The code makes an exception for an individual making repairs or improvements to a private, single-family residence in which he resides. Any work he performs will be subject to review and inspection by the city building commissioner (as would licensed work), but he need not obtain a license in order to do the work. §§ 150.15, 150.17.
Regan and NICIA contend that the license requirement, coupled with the exemption, impermissibly burdens interstate commerce by imposing costs on property owners who, like Regan, do not reside in Hammond which locally-domiciled homeowners do not have to pay. That burden, they argue, is inconsistent with the dormant commerce clause. The district court disagreed and entered summary judgment for Hammond.
Regan v. City of Hammond, Ind.
,
II.
The commerce clause gives Congress the power to regulate commerce among the states. U.S. Const. Article I, § 8, cl. 3. This provision "presumes a national market free from local legislation that discriminates in favor of local interests."
C & A Carbone, Inc. v. Town of Clarkstown, N.Y.
,
*703
Park Pet Shop, Inc. v. City of Chicago
,
Our precedents place state and local laws into one of three categories for purposes of commerce clause analysis, depending on the degree to which they affect interstate commerce: (1) laws that expressly discriminate against interstate commerce; (2) laws that, although neutral on their face, bear more heavily on interstate than local commerce; and (3) laws that may have a mild effect on interstate commerce but in practice do not give local firms any competitive advantage over firms located elsewhere.
Park Pet Shop
,
The plaintiffs are landlords, and as the ordinance concerns landlords, it draws no distinction between those who are domiciled in Hammond (or elsewhere in Indiana) and those who are not;
all
landlords are subject to the license requirement. So the landlord who lives in Chicago and owns a rental property in Hammond must obtain a license or hire a licensed contractor, but so must the landlord who lives next door to his Hammond rental. The ordinance imposes no impediment or burden for the non-Hammond landlord that it does not also impose on the Hammond landlord. There is no disparity in classification of local versus non-local landlords nor is there a disparity in how the two are impacted by the ordinance.
See
Park Pet Shop
,
*704 It is only the exception the ordinance makes for occupant homeowners that causes the plaintiffs to complain that the ordinance is inconsistent with the dormant commerce clause, because by definition only a property owner who lives in Hammond can be an occupant of a Hammond residence. The occupant can, if he chooses, save himself the expense of obtaining a license or hiring a licensed contractor to make improvements to his property; and he is the only property owner who is given that option. But the exception is tied to occupancy of the property rather than the owner's domicile; a Hammond-based landlord will not qualify for the exception even if his tenant lives next door to him in the adjoining unit of a side-by-side duplex.
The premise of the plaintiffs' commerce clause challenge is that all owners of residential property in Hammond are participants and competitors in the national housing market, so that to give an occupant homeowner an exemption from the license requirement is to discriminate in favor of the occupant against the non-occupant homeowner, including in particular the landlord who is not domiciled in Hammond. But occupant homeowners are not similarly situated with landlords, as the district court recognized. The owner-occupant of a single-family home typically is not deriving rental income from his property, which means that he or she is not in meaningful competition with landlords. Yes, both own property, and both may ultimately sell that property in the national market, but during the term of their ownership, they are using the property for different purposes. Moreover, the occupant also bears the consequences of repairs or improvements made to his home in a way that a landlord does not. Of course, all repairs and improvements are reviewed by the Hammond building commissioner for compliance with municipal codes, so one may presume the alterations by the occupant owner are good enough to pass inspection; but compliance with local regulations does not ensure that the craftsmanship is sound, effective in resolving any problems that necessitated repairs, or sufficient to prevent future problems. And as between the occupant and the landlord, it is the former who will be without heat, water, a working kitchen, a watertight roof, or a sound staircase if the repairs or improvements are not made properly. The occupant and the landlord alike ultimately may suffer the economic consequences of bad work (a tenant might withhold rent or abandon the lease), but only the occupant actually experiences the deterioration in living conditions with its attendant hardships and dangers. In the district court's words, "While resident homeowners will bear the risk of their own poor craftsmanship, building contractors and landlords impose the risk of faulty construction upon current or future tenants."
Given the material distinctions between occupant owners and landlords, the exception for occupant owners does not make the ordinance one that discriminates against non-Hammond property owners, so as to trigger a presumption of invalidity. "[L]aws that draw distinctions between entities that are not competitors do not 'discriminate' for purposes of the dormant commerce clause."
Selevan v. N.Y. Thruway Auth.
,
And for the same reasons that occupant homeowners are not similarly situated to landlords, the license requirement and exemption easily survive deferential review. Hammond has an obvious interest in the safety and habitability of the homes in which its residents live, and the ordinance is a legitimate exercise of its authority to promote that interest. The license requirement serves to ensure not only that whoever performs the work, be it the property owner or a contractor, is familiar with the local code requirements and is therefore capable of completing work in a sound manner that complies with those requirements, but that he lacks a criminal background that may place the property's owner or occupant in jeopardy of fraud. Insofar as the exemption for occupant homeowners is concerned, it is reasonable for the city to think that such homeowners, who have a keen interest in the adequacy of repairs and improvements made to their own homes, will also endeavor to comply with all local requirements.
III.
Hammond's licensing ordinance does not discriminate based on the domicile of a homeowner in name or effect and has the support of a rational basis; it therefore poses no problem under the dormant commerce clause. The district court property granted summary judgment to Hammond.
AFFIRMED.
Reference
- Full Case Name
- Christopher REGAN and Northwest Indiana Creative Investors Association, Inc., Plaintiffs-Appellants, v. CITY OF HAMMOND, INDIANA, Defendant-Appellee.
- Cited By
- 12 cases
- Status
- Published