The Virginian-Pilot: Norfolk’s Airbnb rules may not pass muster

Planning to rent out your home to visitors through an online booking service such as Airbnb? If you live in Norfolk, you might just be inviting Big Brother into your living room.

That’s the conclusion we can draw from Norfolk’s new ordinance requiring property owners to register with the city and submit to warrantless inspections if they plan to rent rooms to visitors. If there’s good news for property owners, it’s that the city’s overbearing ordinance is almost certainly unconstitutional and therefore vulnerable to a challenge in the courts.

It’s worth examining how Norfolk came to this sorry pass. Last year, city officials enacted an ordinance requiring property owners who use online home-sharing platforms to register with the city and submit to inspections of their property. Specifically, new registrants are being required to sign a right-of-entry statement to “allow any law enforcement officer to enter the property to inspect it for compliance.”

The broadness of wording in that phrase should be a red flag. Unlike similar ordinances around the country, the right-of-entry granted to city officials in Norfolk is not limited by time or manner restrictions, nor does it require suspicion of a violation. Instead, it authorizes officers to search a property at any time, ostensibly for the purpose of ensuring compliance with zoning and other city regulations.

So why are Norfolk and other cities so intent on harassing homeowners who just want to make a little extra money by hosting paying guests? The standard justification for these laws is public health and safety.

For many decades, cities have established building and fire codes aimed at identifying infirmities in a single building that might expose entire neighborhoods or cities to disease or conflagration. These codes are enforced through regular inspections by city officials. And on the whole, these health and safety standards are a net benefit.

The problem arises when enforcement of those standards stretches beyond what is permissible under the Constitution. The principle that a person’s home is his castle and may only be entered with permission or through due process of law is an important American value for which many a patriot has fought and bled. It was codified in the Constitution’s Fourth Amendment. If any government agent wants to inspect your property, they need a warrant issued by a judge. The Norfolk ordinance disregards that fundamental constitutional principle of due process.

To be sure, the Supreme Court has held that warrants for safety code inspections can be issued under a more relaxed standard of evidence than is required for criminal investigations. But the process still requires a judge to determine if the search is supported by cause and limited in scope.

The Fourth Amendment prevents the government from giving its officers the unbridled discretion to enter homes and businesses, one of the principal causes of the American Revolution. Unity of both oversight and execution in the search function within one branch of government is a recipe for abuse, which is why we involve the judiciary — the branch most insulated from political pressures — to administer the issuance of warrants.

Norfolk’s ordinance attempts to skirt this limitation by requiring homeowners to consent in advance to inspections of their property by “any law enforcement officer” when they register their home. City officials might have assumed that clever dodge would satisfy the Fourth Amendment’s requirements — but it’s unlikely to survive a constitutional challenge.

We all agree that the government can pass reasonable laws providing for public safety. But those laws must respect the constitutional rights of the people. Norfolk’s ordinance flies in the face of the Fourth Amendment by coercing property owners to waive their right to be free of unreasonable searches.

A homeowner’s decision to rent a room doesn’t entitle the city to subject him or her to a system of Orwellian surveillance and intrusion by government officials. If Norfolk wishes to implement a system of home inspections to ensure code compliance, there is a method for doing so legally, and it starts with obtaining warrants signed by a judge.

City officials should go back to the drawing board to develop a home-sharing ordinance that will pass constitutional muster — before the city meets with a costly and time-consuming legal challenge.

Daniel Woislaw is an attorney with the Pacific Legal Foundation, located in Arlington.

This op-ed was originally published by The Virginian-Pilot on December 8, 2019.