MPH 503 Week 3 Legal Authority Write-Up Example

Legal Authority Write-Up: Who May Lawfully Require Riverton Landlords to Provide Cooling, and Where That Authority Could Be Taken Away

Student Name

Chamberlain University

MPH 503: Advocacy in Public Health Policy and Law

Instructor Name

Month Day, Year

Legal Authority Write-Up: Who May Lawfully Require Riverton Landlords to Provide Cooling, and Where That Authority Could Be Taken Away

The Action, Stated Narrowly

The action is a proposed Riverton housing code change obliging the owner of any residential rental unit to provide and maintain cooling equipment able to keep at least one habitable room at or below 82 degrees Fahrenheit, with repairs completed within 72 hours during an excessive heat warning, enforced through the city's existing housing code inspection process. The question is narrow: may the Riverton city council adopt this requirement, and if so, what could prevent or undo it? Riverton is a composite southwestern city of roughly 640,000 people; the legal principles described are general features of American public health law, and the state-specific provisions are stated as the working group understands them, pending confirmation by the city attorney.

State Power Established First

Authority to regulate housing for health and safety begins with the states. The federal Constitution leaves to the states the general power to protect health, safety and welfare, usually called the police power, and courts have long upheld reasonable public health regulation of private property under it (Gostin & Wiley, 2016). Requiring a landlord to provide a basic condition of safe habitation, as housing codes already do for heat, water and sanitation, falls squarely within this power. A cooling requirement has a documented health basis: working air conditioning was strongly protective in heat wave studies (Semenza et al., 1996). No federal law sets indoor temperature standards for private rental housing, so there is no federal requirement for the city to conflict with.

Delegation and Its Conditions

Cities hold only the power their state gives them. The composite state's constitution grants home rule to charter cities, allowing them to legislate on municipal affairs, and the state's general statutes separately authorize cities to adopt housing codes for health and safety. Riverton is a charter city under that provision. Its existing housing code, adopted under that authority, already imposes habitability duties on landlords, including the 68-degree heating requirement. Two conditions attach. A city ordinance must not conflict with state general law on a matter of statewide concern, and it must be a reasonable exercise of the delegated power. A temperature standard for rental units fits the same category as the existing heating standard, which has not been challenged since its adoption.

Preemption in Both Directions

Preemption is the question most likely to decide the matter. For residential rentals, the state landlord-tenant act establishes a floor of habitability requirements, which every landlord in the state must meet. It expressly preempts local rent control, providing that cities may not regulate rents. It does not expressly address local habitability codes, and it states that landlords must comply with applicable building and housing codes, language that assumes such codes exist and may be stricter than the act. Under the usual analysis, there is therefore no express preemption of a cooling standard, no direct conflict, since a landlord can comply with both the act and the ordinance, and a weak case for field preemption, since the act itself points to local codes.

Preemption also runs forward in time. A state legislature can preempt a local ordinance after it is adopted, and in recent years states have increasingly passed laws blocking local public health measures, often broad ceiling preemption that forbids any local requirement stricter than state law (Pomeranz & Pertschuk, 2017). A statewide landlord association could seek such a bill. That risk does not stop the city from acting now, but it shapes how the ordinance should be written and defended.

Likely Challenges and How They Fare

A landlord group could challenge the ordinance on several grounds, and each is worth anticipating. A regulatory takings claim would argue that the cost of cooling deprives owners of their property's value; courts rarely accept this for habitability requirements, which leave owners full economic use of their buildings, and the one-room standard limits cost further. A vagueness claim might target how the 82-degree standard is measured; the ordinance should specify the measurement method, such as a reading taken at the center of the room at a set height, and the conditions under which it applies. An equal protection argument that the rule singles out rental housing would face rational basis review, under which protecting tenants who cannot install permanent cooling themselves is a legitimate reason. And a claim that the ordinance impairs existing leases would be weak, since leases already incorporate compliance with applicable housing codes. Drafting with these challenges in mind is cheaper than defending against them afterward (Gostin & Wiley, 2016).

Rulemaking Against Legislation

A rule adopted by the city's Neighborhood Services Department would not be enough. The department's rulemaking authority covers procedures for enforcing the existing housing code, such as inspection timelines and notice forms. A new substantive duty on landlords, such as providing cooling, changes what the code requires and therefore needs an ordinance adopted by the council. The county health department's nuisance authority could reach a dangerous condition in a single building during an emergency, but it cannot create a standing requirement for all rental housing. Legislation is the right instrument, and it also gives the requirement the visibility and democratic legitimacy that a rule would lack if it were later challenged.

The Level to Address

The level to address is the Riverton city council, through its Housing and Neighborhoods Committee. The council has the delegated authority, the existing housing code provides the vehicle and the state act appears to leave habitability standards to cities. A second level needs attention for defensive reasons: the state legislature, where a preemption bill could be introduced. The campaign should monitor legislative filings each session and be ready to show legislators that the ordinance is narrow, health-based and consistent with the state act's own reference to local housing codes.

What Remains to Be Confirmed

Three points depend on readings that the city attorney should confirm before the ordinance is drafted: that the state act contains no express preemption of habitability standards, that no state energy or building code provision addresses residential cooling in a way that would conflict, and that the city's charter grants housing code authority without a separate voter approval requirement. If any of these readings is wrong, the level to address moves from the council to the legislature.

References

Gostin, L. O., & Wiley, L. F. (2016). Public health law: Power, duty, restraint (3rd ed.). University of California Press.

Pomeranz, J. L., & Pertschuk, M. (2017). State preemption: A significant and quiet threat to public health in the United States. American Journal of Public Health, 107(6), 900-902. https://doi.org/10.2105/AJPH.2017.303756

Semenza, J. C., Rubin, C. H., Falter, K. H., Selanikio, J. D., Flanders, W. D., Howe, H. L., & Wilhelm, J. L. (1996). Heat-related deaths during the July 1995 heat wave in Chicago. New England Journal of Medicine, 335(2), 84-90. https://doi.org/10.1056/NEJM199607113350203