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Metro Property Rights Action Committee: proposed changes in state legislation
Metro Property Rights Action Committee: proposed changes in state legislation
Note: Proposed deletions are indicated by a line under the text. Proposed additions are in bold red font. There are also comments following the text in orange font.
proposal #1
504B.441 RESIDENTIAL TENANT MAY NOT BE PENALIZED FOR COMPLAINT.
A residential tenant may not be evicted, nor may the residential tenant's obligations under a lease be increased or the services decreased, if the eviction or increase of obligations or decrease of services is intended as a penalty for the residential tenant's or housing-related neighborhood organization's complaint of a violation. The burden of proving otherwise is on the landlord if the eviction or increase of obligations or decrease of services occurs within 90 days after filing the complaint, unless the court finds that the complaint was not made in good faith. After 90 days the burden of proof is on the residential tenant. If a tenant has not paid the full rent due or has otherwise violated lease requirements when the landlord files a case for eviction, the burden of proving intent shall fall upon the tenant.
If a tenant has not paid the full rent due or has otherwise violated lease requirements when the landlord files a case for eviction, the burden of proving intent shall fall upon the tenant.
Comment: The landlord has no knowledge of the complaint. The tenant does. How can the burden of proving a negative be on the landlord? If there are legitimate reasons for evicting the tenant such as rent nonpayment, complaints to authorities should not be allowed to interfere with contractual obligations.
proposal #2
504B.285 EVICTION ACTIONS; GROUNDS; RETALIATION DEFENSE; COMBINED ALLEGATIONS.
Subd. 2. Retaliation defense. It is a defense to an action for recovery of premises following the alleged termination of a tenancy by notice to quit for the defendant to prove by a fair preponderance of the evidence that:
(1) the alleged termination was intended in whole or part as a penalty for the defendant's good faith attempt to secure or enforce rights under a lease or contract, oral or written, under the laws of the state or any of its governmental subdivisions, or of the United States; or
(2) the alleged termination was intended in whole or part as a penalty for the defendant's good faith report to a governmental authority of the plaintiff's violation of a health, safety, housing, or building code or ordinance.
If the notice to quit was served within 90 days of the date of an act of the tenant coming within the terms of clause (1) or (2) the burden of proving that the notice to quit was not served in whole or part for a retaliatory purpose shall rest with the plaintiff.
The burden of proving that the notice to quit was served for a retaliatory purpose shall rest with the defendant.
Comment: Again, the landlord should not be required to prove a negative. The tenant should instead be required to present a substantial reason for his or her belief that the landlord is retaliating against the tenant for complaining to a government authority or lease violations. The tenant has greater knowledge of the complaint than the landlord does.
proposal #3
504B.211 RESIDENTIAL TENANT'S RIGHT TO PRIVACY.
Subdivision 1. Definitions. For purposes of this section, "landlord" has the meaning defined in section 504B.001, subdivision 7, and also includes the landlord's agent or other person acting under the landlord's direction and control.
Subd. 2. Entry by landlord. Except as provided in subdivision 5, a landlord may enter the premises rented by a residential tenant only for a reasonable business purpose and after making a good faith effort to give the residential tenant reasonable notice under the circumstances of the intent to enter. A residential tenant may not waive and the landlord may not require the residential tenant to waive the residential tenant's right to prior notice of entry under this section as a condition of entering into or maintaining the lease.
Subd. 3.Reasonable purpose. For purposes of subdivision 2, a reasonable business purpose includes, but is not limited to:
(1) showing the unit to prospective residential tenants during the notice period before the lease terminates or after the current residential tenant has given notice to move to the landlord or the landlord's agent;
(2) showing the unit to a prospective buyer or to an insurance representative;
(3) performing maintenance work;
(4) allowing inspections by state, county, or city officials charged in the enforcement of health, housing, building, fire prevention, or housing maintenance codes;
(5) the residential tenant is causing a disturbance within the unit;
(6) the landlord has a reasonable belief that the residential tenant is violating the lease within the residential tenant's unit;
(7) prearranged housekeeping work in senior housing where 80 percent or more of the residential tenants are age 55 or older;
(8) the landlord has a reasonable belief that the unit is being occupied by an individual without a legal right to occupy it; or
(9) the residential tenant has vacated the unit.
Subd. 4.Exception to notice requirement. Notwithstanding subdivision 2, a landlord may enter the premises rented by a residential tenant to inspect or take appropriate action without prior notice to the residential tenant if the landlord reasonably suspects that:
(1) immediate entry is necessary to prevent injury to persons or property because of conditions relating to maintenance, building security, or law enforcement;
(2) immediate entry is necessary to determine a residential tenant's safety; or
(3) immediate entry is necessary in order to comply with local ordinances regarding unlawful activity occurring within the residential tenant's premises.
Subd. 5. Entry without residential tenant's presence. If the landlord enters when the residential tenant is not present and prior notice has not been given, the landlord shall disclose the entry by placing a written disclosure of the entry in a conspicuous place in the premises.
Subd. 6. Penalty. If a landlord substantially violates subdivision 2, the court residential tenant is entitled to may impose a penalty which may include a rent reduction up to full rescission of the lease, recovery of any damage deposit less any amount retained under section 504B.178, and up to a $100 civil penalty for each violation. If a landlord violates subdivision 5, the residential tenant is entitled to court may impose up to a $100 civil penalty for each violation. A residential tenant shall follow the procedures in sections 504B.381, 504B.385, and 504B.395 to 504B.471 to enforce the provisions of this section.
If a tenant refuses to allow the landlord access to a rental unit for purposes described in subdivision 3, the court may impose up to a $100 civil penalty upon the tenant for each violation.
Subd. 7.Exemption. This section does not apply to residential tenants and landlords of manufactured home parks as defined in section 327C.01.
History: 1999 c 199 art 1 s 23
Comments: (1) If the purpose of the penalty is to discourage unauthorized entry by landlords, a fine paid to the court would serve as effective a deterrent as a penalty paid to the tenant. The latter creates a perverse incentive for tenants to make false claims. (2) A month’s free rent or waiver of the damage deposit is an excessive penalty for such an offense, which is subject to various interpretations. For instance, the tenant may have given verbal permission to enter his or her unit. (3) Tenants sometimes refuse to allow landlords access to their units to make requested repairs so that they can present maintenance issues in court. There should be a comparable penalty for the tenant’s failure to respect state law.
proposal #4
504B.271 TENANT'S PERSONAL PROPERTY REMAINING IN PREMISES.
Subdivision 1.Abandoned property. (a) If a tenant abandons rented premises, the landlord may take possession of the tenant's personal property remaining on the premises, and shall store and care for the property. The landlord has a claim against the tenant for reasonable costs and expenses incurred in removing the tenant's property and in storing and caring for the property.
(b) The landlord may sell or otherwise dispose of the property 28 days after the landlord receives actual notice of the abandonment, or 28 days after it reasonably appears to the landlord that the tenant has abandoned the premises, whichever occurs last.
(c) The landlord may apply a reasonable amount of the proceeds of a sale to the removal, care, and storage costs and expenses or to any claims authorized pursuant to section 504B.178, subdivision 3, paragraphs (a) and (b). Any remaining proceeds of any sale shall be paid to the tenant upon written demand.
(d) Prior to a sale, the landlord shall make reasonable efforts to notify the tenant of the sale at least 14 days prior to the sale, by personal service in writing or sending written notification of the sale by first class and certified mail to the tenant's last known address or usual place of abode, if known by the landlord, and by posting notice of the sale in a conspicuous place on the premises at least two weeks prior to the sale. If notification by mail is used, the 14-day period shall be deemed to start on the day the notices are deposited in the United States mail.
Subd. 2.Landlord's punitive damages. If a landlord, an agent, or other person acting under the landlord's direction or control, in possession of a tenant's personal property, fails to allow the tenant to retake possession of the property within 24 hours after written demand by the tenant or the tenant's duly authorized representative or within 48 hours, exclusive of weekends and holidays, after written demand by the tenant or a duly authorized representative when the landlord, the landlord's agent or person acting under the landlord's direction or control has removed and stored the personal property in accordance with subdivision 1 in a location other than the premises, the tenant shall recover from the landlord punitive damages in an amount not to exceed twice the actual damages or $1,000, whichever is greater, in addition to actual damages and reasonable attorney's fees.
In determining the amount of punitive damages the court shall consider (1) the nature and value of the property; (2) the effect the deprivation of the property has had on the tenant; (3) if the landlord, an agent, or other person acting under the landlord's direction or control unlawfully took possession of the tenant's property; and (4) if the landlord, an agent, or other person under the landlord's direction or control acted in bad faith in failing to allow the tenant to retake possession of the property.
The provisions of this subdivision do not apply to personal property which has been sold or otherwise disposed of by the landlord in accordance with subdivision 1, or to landlords who are housing authorities, created, or authorized to be created by sections 469.001 to 469.047, and their agents and employees, in possession of a tenant's personal property, except that housing authorities must allow the tenant to retake possession of the property in accordance with this subdivision.
Subd. 3.Storage. If the landlord, an agent, or other person acting under the landlord's direction or control has unlawfully taken possession of a tenant's personal property the landlord shall be responsible for paying the cost and expenses relating to the removal, storage, or care of the property.
Subd. 4. Remedies additional. The remedies provided in this section are in addition to and shall not limit other rights or remedies available to landlords and tenants. Any provision, whether oral or written, of any lease or other agreement, whereby any provision of this section is waived by a tenant, is contrary to public policy and void. The provisions of this section also apply to occupants and owners of residential real property which is the subject of a mortgage foreclosure or contract for deed cancellation and as to which the period for redemption or reinstatement of the contract has expired.
History: 1999 c 199 art 1 s 35; 2010 c 315 s 8,9
Comment: It is uncalled for to place punitive damages upon the landlord for the failure to comply with detailed requirements - e.g., “allow(ing) the tenant to retake possession of the property within 24 hours after written demand by the tenant or the tenant's duly authorized representative” - in the case of property abandoned by tenants. The tenant, not the landlord, was responsible for the property abandonment. Most landlords are only too eager to be rid of tenants’ property left in apartments after they move out. This provision, giving the tenant up to $1,000 plus attorney’s fees for violations of legal minutiae, creates a perverse incentive for tenants not to remove their belongings on a timely basis but instead play games in the courts.
TENANT REMEDIES ACTION
504B.395 PROCEDURE.
Subdivision 1. Who may bring action. An action may be brought in district court by:
(1) a residential tenant of a residential building in which a violation, as defined in section 504B.001, subdivision 14, is alleged to exist;
(2) any housing-related neighborhood organization with the written permission of a residential tenant of a residential building in which a violation, as defined in section 504B.001, subdivision 14, clause (1) or (2), is alleged to exist;
(3) a housing-related neighborhood organization that has within its geographical area an unoccupied residential building in which a violation, as defined in section 504B.001, subdivision 14, clause (1) or (2), is alleged to exist; or
(4) a state, county, or local department or authority, charged with the enforcement of codes relating to health, housing, or building maintenance.
Subd. 2.Venue. The venue of the action authorized by this section is the county where the residential building alleged to contain violations is located.
Subd. 3.When action may be brought. (a) After a residential building inspection has been made under section 504B.185, an action may not be brought under sections 504B.381, 504B.385, or 504B.395 to 504B.451 until the time granted under section 504B.185, subdivision 2, has expired and satisfactory repairs to remove the code violations have not been made.
(b) Notwithstanding paragraph (a), an action may be brought if the residential tenant, or neighborhood organization with the written permission of a tenant, alleges the time granted under section 504B.185, subdivision 2, is excessive.
Subd. 4.Landlord must be informed. A landlord must be informed in writing of an alleged violation at least 14 days before an action is brought by:
(1) a residential tenant of a residential building in which a violation as defined in section 504B.001, subdivision 14, clause (2) or (3), is alleged to exist; or
(2) a housing-related neighborhood organization, with the written permission of a residential tenant of a residential building in which a violation, as defined in section 504B.001, subdivision 14, clause (2), is alleged to exist. The notice requirement may be waived if the court finds that the landlord cannot be located despite diligent efforts.
Subd. 5.Summons and complaint required. The action must be started by service of a complaint and summons. The summons may be issued only by a judge or court administrator.
Subd. 6.Contents of complaint. (a) The complaint must be verified and must:
(1) allege material facts showing that a violation or violations exist in the residential building;
(2) state the relief sought; and
(3) list the rent due each month from each dwelling unit within the residential building, if known.
(b) If the violation is a violation as defined in section 504B.001, subdivision 14, clause (1), the complaint must be accompanied by:
(1) a copy of the official report of inspection by a department of health, housing, or buildings, certified by the custodian of records of that department stating:
(i) when and by whom the residential building concerned was inspected;
(ii) what code violations were recorded; and
(iii) that notice of the code violations has been given to the landlord; or
(2) a statement that a request for inspection was made to the appropriate state, county, or municipal department, that demand was made on the landlord to correct the alleged code violation, and that a reasonable period of time has elapsed since the demand or request was made.
History: 1999 c 199 art 1 s 59
504B.425 JUDGMENT.
(a) If the court finds that the complaint in section 504B.395 has been proved, it may, in its discretion, take any of the actions described in paragraphs (b) to (g), either alone or in combination.
(b) The court may order the landlord to remedy the violation or violations found by the court to exist if the court is satisfied that corrective action will be undertaken promptly.
(c) The court may order the residential tenant to remedy the violation or violations found by the court to exist and deduct the cost from the rent subject to the terms as the court determines to be just.
(d) The court may appoint an administrator with powers described in section 504B.445, and:
(1) direct that rents due:
(i) on and from the day of entry of judgment, in the case of petitioning residential tenants or housing-related neighborhood organizations; and
(ii) on and from the day of service of the judgment on all other residential and commercial tenants of the residential building, if any,
shall be deposited with the administrator appointed by the court; and
(2) direct that the administrator use the rents collected to remedy the violations found to exist by the court by paying the debt service, taxes, and insurance, and providing the services necessary to the ordinary operation and maintenance of the residential building which the landlord is obligated to provide but fails or refuses to provide.
(e) The court may find the extent to which any uncorrected violations impair the residential tenants' use and enjoyment of the property contracted for and order the rent abated accordingly. If the court enters judgment under this paragraph, the parties shall be informed and the court shall determine the amount by which the rent is to be abated.
(f) After termination of administration, the court may continue the jurisdiction of the court over the residential building for a period of one year and order the landlord to maintain the residential building in compliance with all applicable state, county, and city health, safety, housing, building, fire prevention, and housing maintenance codes.
(g) The court may grant any other relief it deems just and proper, including a judgment against the landlord for reasonable attorney fees, not to exceed $500, in the case of a prevailing residential tenant or neighborhood organization. The $500 limitation does not apply to awards made under section 549.211 or other specific statutory authority.
504B.445 ADMINISTRATOR.
Subdivision 1.Appointment. The administrator may be a person, local government unit or agency, other than a landlord of the building, the inspector, the complaining residential tenant, or a person living in the complaining residential tenant's dwelling unit. If a state or court agency is authorized by statute, ordinance, or regulation to provide persons or neighborhood organizations to act as administrators under this section, the court may appoint them to the extent they are available.
Subd. 2.Posting bond. A person or neighborhood organization appointed as administrator shall post bond to the extent of the rents expected by the court to be necessary to be collected to correct the violation or violations. Administrators appointed from governmental agencies shall not be required to post bond.
Subd. 3.Expenses. The court may allow a reasonable amount for the services of administrators and the expense of the administration from rent money. When the administration terminates, the court may enter judgment against the landlord in a reasonable amount for the services and expenses incurred by the administrator.
Subd. 4.Powers. The administrator may:
(1) collect rents from residential and commercial tenants, evict residential and commercial tenants for nonpayment of rent or other cause, enter into leases for vacant dwelling units, rent vacant commercial units with the consent of the landlord, and exercise other powers necessary and appropriate to carry out the purposes of sections 504B.381 and 504B.395 to 504B.471;
(2) contract for the reasonable cost of materials, labor, and services including utility services provided by a third party necessary to remedy the violation or violations found by the court to exist and for the rehabilitation of the property to maintain safe and habitable conditions over the useful life of the property, and disburse money for these purposes from funds available for the purpose;
(3) provide services to the residential tenants that the landlord is obligated to provide but refuses or fails to provide, and pay for them from funds available for the purpose;
(4) petition the court, after notice to the parties, for an order allowing the administrator to encumber the property to secure funds to the extent necessary to cover the costs described in clause (2), including reasonable fees for the administrator's services, and to pay for the costs from funds derived from the encumbrance; and
(5) petition the court, after notice to the parties, for an order allowing the administrator to receive funds made available for this purpose by the federal or state governing body or the municipality to the extent necessary to cover the costs described in clause (2) and pay for them from funds derived from this source.
The municipality shall recover disbursements under clause (5) by special assessment on the real estate affected, bearing interest at the rate determined by the municipality, but not to exceed the rate established for finance charges for open-end credit sales under section 334.16, subdivision 1, clause (b). The assessment, interest, and any penalties shall be collected as are special assessments made for other purposes under state statute or municipal charter.
Subd. 5.Termination of administration. At any time during the administration, the administrator or any party may petition the court after notice to all parties for an order terminating the administration on the ground that the funds available to the administrator are insufficient to effect the prompt remedy of the violations. If the court finds that the petition is proved, the court shall terminate the administration and proceed to judgment under section 504B.425, paragraph (e).
Subd. 6.Residential building repairs and services. The administrator must first contract and pay for residential building repairs and services necessary to keep the residential building habitable before other expenses may be paid. If sufficient funds are not available for paying other expenses, such as tax and mortgage payments, after paying for necessary repairs and services, the landlord is responsible for the other expenses.
Subd. 7.Administrator's liability. The administrator may not be held personally liable in the performance of duties under this section except for misfeasance, malfeasance, or nonfeasance of office.
Subd. 8.Dwelling's economic viability. In considering whether to grant the administrator funds under subdivision 4, the court must consider factors relating to the long-term economic viability of the dwelling, including:
(1) the causes leading to the appointment of an administrator;
(2) the repairs necessary to bring the property into code compliance;
(3) the market value of the property; and
(4) whether present and future rents will be sufficient to cover the cost of repairs or rehabilitation.
History: 1999 c 199 art 1 s 68; 2004 c 275 s 3
504B.451 RECEIVERSHIP REVOLVING LOAN FUND.
The Minnesota Housing Finance Agency may establish a revolving loan fund to pay the administrative expenses of receivership administrators under section 504B.445 for properties for occupancy by low- and moderate-income persons or families. Landlords must repay administrative expense payments made from the fund.
504B.455 REMOVAL OF ADMINISTRATOR.
Subdivision 1.Petition by administrator. The administrator may, after notice to all parties, petition the court to be relieved of duties, including in the petition the reasons for it. The court may, in its discretion, grant the petition and discharge the administrator upon approval of the accounts.
Subd. 2.Petition by a party. A party may, after notice to the administrator and all other parties, petition the court to remove the administrator. If the party shows good cause, the court shall order the administrator removed and direct the administrator to immediately deliver to the court an accounting of administration. The court may make any other order necessary and appropriate under the circumstances.
Subd. 3.Appointment of new administrator. If the administrator is removed, the court shall appoint a new administrator in accordance with section 504B.445, giving all parties an opportunity to be heard.
History: 1999 c 199 art 1 s 70
504B.461 TERMINATION OF ADMINISTRATION.
Subdivision 1.Events of termination. The administration shall be terminated upon one of the following:
(1) certification is secured from the appropriate governmental agency that the violations found by the court to exist at the time of judgment have been remedied; or
(2) an order according to section 504B.445, subdivision 5.
Subd. 2.Accounting by administrator. After the occurrence of any of the conditions in subdivision 1, the administrator shall:
(1) submit to the court an accounting of receipts and disbursements of the administration together with copies of all bills, receipts, and other memoranda pertaining to the administration, and, where appropriate, a certification by an appropriate governmental agency that the violations found by the court to exist at the time of judgment have been remedied; and
(2) comply with any other order the court makes as a condition of discharge.
Subd. 3.Discharge of administrator. Upon approval by the court of the administrator's accounts and compliance by the administrator with any other order the court may make as a condition of discharge, the court shall discharge the administrator from any further responsibilities pursuant to section 504B.381 and sections 504B.395 to 504B.471.
History: 1999 c 199 art 1 s 71
Comment: The tenant remedies action statute interferes with property rights and discriminates against small businesses. For instance, if 3M were found to be manufacturing an inferior product, can one imagine that government would seek the power to replace its CEO with an “administrator”? No, only politically vulnerable small businesses are subject to such indignities under state law. The proper remedy for shoddy commercial products is for customers not to buy them. The same should be true of the rental-housing industry. Let the customers (the tenants) decide whether or not to rent from us. Unless the housing threatens public health or safety, government should not have a role in such decisions.
Furthermore, neighborhood organizations or city government should not have the standing to replace the management of privately owned businesses, effectively gaining access to their owners’ checkbooks through the administrator. We are for reasonable regulation, not socialism.
"Is there anything the city of Duluth can do to force seriously negligent landlords to fix up their problem properties?
Not much, say city officials and housing activists, who for years have complained that while ordinances allow building inspectors to haul property owners into court, endless continuances and cheap fines offer little incentive for landlords to fix anything.
Yet a slate of obscure state laws written in the 1980s and ‘90s offers far tougher remedies, including one allowing the city itself standing as a litigant in civil cases against slumlords.
In town last week to explain this was Andy Dawkins, a one-time St. Paul mayoral candidate and former state representative who knows more than anyone else about the laws, because he wrote them. He also put them to work as St. Paul’s chief of Neighborhood Housing and Property Improvement for three years under Mayor Randy Kelly until January, when both men left office.
“I was in the position to enforce the laws I wrote. How many people ever get the chance to do that?” Dawkins said Wednesday on a whirlwind visit to Duluth to meet with groups including the mayor, the City Council president, housing, police and fire officials and community activists, and members of the News Tribune’s editorial page staff.
The way it works is instead of tenants having to take their landlords to court for code violations, the city can file a civil case on behalf of itself. “the city doesn’t represent the tenants. (It) represents the city’s interest,” Dawkins said of a law dubbed the Tenant Remedies Act. “A judge can appoint an administrator to take the property away from the owner temporarily to get the job done, and take the assessments out of property taxes.”
His other previously unused laws allow for expedited evictions of problem tenants and the shutdown of nuisance properties, such as drug and prostitution dens.
It’s not free; a fund is needed to provide money to get the repairs done before the assessments are collected. In St. Paul, the first city to try out the laws (Minneapolis has recently followed), it was $200,000. A similar amount would be needed in Duluth, but not to worry, Dawkins said. he’s identified possible statewide funders and local resources also may be available.
Dawkins called the St. Paul program a success, saying of “several hundred” cases, 31 went to court and 10 were settled via third parties. More important, the program sent shivers down the spines of other slumlords who fixed their properties, fearing the threat of action. “Voluntary compliance shot way up,” he said.
His Duluth audiences were ecstatic. Housing activists began dreaming of rat-free properties and city counselors mulled over wording of a resolution to jump-start the program.
But there were a few things Dawkins didn’t completely disclose. He told only a few of his listeners about the existence of three federal RICO lawsuits, filed by disgruntled landlords against Dawkins, former Mayor Kelly and other St. Paul officials, accusing them of racketeering by targeting certain properties. And if leadership by example means anything, Dawkins also failed to tell his Duluth audiences anything about his own problem property - a St. Paul bungalow used as a law office cited repeatedly for code violations before his 2002 appointment, complete with a washing machine and toilet on the lawn.
“That’s just what Andy was talking about (regarding other property owners),” longtime housing activist and St. Louis County Commissioners Steve O’Neil said after learning of Dawkins’ personal woes.
Reached in St. Paul over the weekend, Dawkins acknowledged owning the bungalow with another lawyer. “I’m an absentee owner,” he said. “I’m not on the property. Indeed, the homeless people had kind of taken over our backyard and even ran a hose from a spigot so they could take a shower. The other lawyers said ‘You want me practicing law or want me with a shotgun warding off people?’”
He also confirmed the violations. “Yes, there had to be a notice sent - it never got to me, I wasn’t aware of it. Somebody drops their junk vehicle, washing machine, toilet, you don’t get to it for a couple of days.”
That’s exactly the sort of claims landlords in the suit and others are making in accusing Dawkins and his staff of overzealous enforcement.
“You don’t hold (the landlord) responsible for a tenant that throws garbage on the ground,” said Jim Swartwood, publisher of a Twin Cities landlords’ publication, the Watchdog. Swartwood accuses Dawkins of retaliating against him with code violations after he wrote unflattering articles.
Dawkins dismisses Swartwood as “a slumlord” (Swartwood says he’s not) and the lawsuits as “frivolous”, saying a judge will likely dispose of them as baseless in a summary judgment hearing. Yet, 22 months after the first one was filed, in May 2004, that has yet to happen.
A lightning rod for controversy, Andy Dawkins isn’t the story in Duluth, and officials and activists here say they still see merit in the Tenant Remedies Act. Duluth’s slum housing is legendary, and something must be done about it.
But it would be wise to wait until the RICO suits against St. Paul have been decided before adopting the program here. Duluth needs effective action to repair problem properties, not costly litigation."
From DuluthNewsTribune.com March 6, 2006 "Our View: Before acting on slumlord law, Duluth needs St. Paul verdict - Official touting tougher enforcement had problem property of his own"
Note: Proposed deletions are indicated by a line under the text. Proposed additions are in bold red font. There are also comments following the text in orange font.
proposal #1
504B.441 RESIDENTIAL TENANT MAY NOT BE PENALIZED FOR COMPLAINT.
A residential tenant may not be evicted, nor may the residential tenant's obligations under a lease be increased or the services decreased, if the eviction or increase of obligations or decrease of services is intended as a penalty for the residential tenant's or housing-related neighborhood organization's complaint of a violation. The burden of proving otherwise is on the landlord if the eviction or increase of obligations or decrease of services occurs within 90 days after filing the complaint, unless the court finds that the complaint was not made in good faith. After 90 days the burden of proof is on the residential tenant. If a tenant has not paid the full rent due or has otherwise violated lease requirements when the landlord files a case for eviction, the burden of proving intent shall fall upon the tenant.
If a tenant has not paid the full rent due or has otherwise violated lease requirements when the landlord files a case for eviction, the burden of proving intent shall fall upon the tenant.
Comment: The landlord has no knowledge of the complaint. The tenant does. How can the burden of proving a negative be on the landlord? If there are legitimate reasons for evicting the tenant such as rent nonpayment, complaints to authorities should not be allowed to interfere with contractual obligations.
proposal #2
504B.285 EVICTION ACTIONS; GROUNDS; RETALIATION DEFENSE; COMBINED ALLEGATIONS.
Subd. 2. Retaliation defense. It is a defense to an action for recovery of premises following the alleged termination of a tenancy by notice to quit for the defendant to prove by a fair preponderance of the evidence that:
(1) the alleged termination was intended in whole or part as a penalty for the defendant's good faith attempt to secure or enforce rights under a lease or contract, oral or written, under the laws of the state or any of its governmental subdivisions, or of the United States; or
(2) the alleged termination was intended in whole or part as a penalty for the defendant's good faith report to a governmental authority of the plaintiff's violation of a health, safety, housing, or building code or ordinance.
If the notice to quit was served within 90 days of the date of an act of the tenant coming within the terms of clause (1) or (2) the burden of proving that the notice to quit was not served in whole or part for a retaliatory purpose shall rest with the plaintiff.
The burden of proving that the notice to quit was served for a retaliatory purpose shall rest with the defendant.
Comment: Again, the landlord should not be required to prove a negative. The tenant should instead be required to present a substantial reason for his or her belief that the landlord is retaliating against the tenant for complaining to a government authority or lease violations. The tenant has greater knowledge of the complaint than the landlord does.
proposal #3
504B.211 RESIDENTIAL TENANT'S RIGHT TO PRIVACY.
Subdivision 1. Definitions. For purposes of this section, "landlord" has the meaning defined in section 504B.001, subdivision 7, and also includes the landlord's agent or other person acting under the landlord's direction and control.
Subd. 2. Entry by landlord. Except as provided in subdivision 5, a landlord may enter the premises rented by a residential tenant only for a reasonable business purpose and after making a good faith effort to give the residential tenant reasonable notice under the circumstances of the intent to enter. A residential tenant may not waive and the landlord may not require the residential tenant to waive the residential tenant's right to prior notice of entry under this section as a condition of entering into or maintaining the lease.
Subd. 3.Reasonable purpose. For purposes of subdivision 2, a reasonable business purpose includes, but is not limited to:
(1) showing the unit to prospective residential tenants during the notice period before the lease terminates or after the current residential tenant has given notice to move to the landlord or the landlord's agent;
(2) showing the unit to a prospective buyer or to an insurance representative;
(3) performing maintenance work;
(4) allowing inspections by state, county, or city officials charged in the enforcement of health, housing, building, fire prevention, or housing maintenance codes;
(5) the residential tenant is causing a disturbance within the unit;
(6) the landlord has a reasonable belief that the residential tenant is violating the lease within the residential tenant's unit;
(7) prearranged housekeeping work in senior housing where 80 percent or more of the residential tenants are age 55 or older;
(8) the landlord has a reasonable belief that the unit is being occupied by an individual without a legal right to occupy it; or
(9) the residential tenant has vacated the unit.
Subd. 4.Exception to notice requirement. Notwithstanding subdivision 2, a landlord may enter the premises rented by a residential tenant to inspect or take appropriate action without prior notice to the residential tenant if the landlord reasonably suspects that:
(1) immediate entry is necessary to prevent injury to persons or property because of conditions relating to maintenance, building security, or law enforcement;
(2) immediate entry is necessary to determine a residential tenant's safety; or
(3) immediate entry is necessary in order to comply with local ordinances regarding unlawful activity occurring within the residential tenant's premises.
Subd. 5. Entry without residential tenant's presence. If the landlord enters when the residential tenant is not present and prior notice has not been given, the landlord shall disclose the entry by placing a written disclosure of the entry in a conspicuous place in the premises.
Subd. 6. Penalty. If a landlord substantially violates subdivision 2, the court residential tenant is entitled to may impose a penalty which may include a rent reduction up to full rescission of the lease, recovery of any damage deposit less any amount retained under section 504B.178, and up to a $100 civil penalty for each violation. If a landlord violates subdivision 5, the residential tenant is entitled to court may impose up to a $100 civil penalty for each violation. A residential tenant shall follow the procedures in sections 504B.381, 504B.385, and 504B.395 to 504B.471 to enforce the provisions of this section.
If a tenant refuses to allow the landlord access to a rental unit for purposes described in subdivision 3, the court may impose up to a $100 civil penalty upon the tenant for each violation.
Subd. 7.Exemption. This section does not apply to residential tenants and landlords of manufactured home parks as defined in section 327C.01.
History: 1999 c 199 art 1 s 23
Comments: (1) If the purpose of the penalty is to discourage unauthorized entry by landlords, a fine paid to the court would serve as effective a deterrent as a penalty paid to the tenant. The latter creates a perverse incentive for tenants to make false claims. (2) A month’s free rent or waiver of the damage deposit is an excessive penalty for such an offense, which is subject to various interpretations. For instance, the tenant may have given verbal permission to enter his or her unit. (3) Tenants sometimes refuse to allow landlords access to their units to make requested repairs so that they can present maintenance issues in court. There should be a comparable penalty for the tenant’s failure to respect state law.
proposal #4
504B.271 TENANT'S PERSONAL PROPERTY REMAINING IN PREMISES.
Subdivision 1.Abandoned property. (a) If a tenant abandons rented premises, the landlord may take possession of the tenant's personal property remaining on the premises, and shall store and care for the property. The landlord has a claim against the tenant for reasonable costs and expenses incurred in removing the tenant's property and in storing and caring for the property.
(b) The landlord may sell or otherwise dispose of the property 28 days after the landlord receives actual notice of the abandonment, or 28 days after it reasonably appears to the landlord that the tenant has abandoned the premises, whichever occurs last.
(c) The landlord may apply a reasonable amount of the proceeds of a sale to the removal, care, and storage costs and expenses or to any claims authorized pursuant to section 504B.178, subdivision 3, paragraphs (a) and (b). Any remaining proceeds of any sale shall be paid to the tenant upon written demand.
(d) Prior to a sale, the landlord shall make reasonable efforts to notify the tenant of the sale at least 14 days prior to the sale, by personal service in writing or sending written notification of the sale by first class and certified mail to the tenant's last known address or usual place of abode, if known by the landlord, and by posting notice of the sale in a conspicuous place on the premises at least two weeks prior to the sale. If notification by mail is used, the 14-day period shall be deemed to start on the day the notices are deposited in the United States mail.
Subd. 2.Landlord's punitive damages. If a landlord, an agent, or other person acting under the landlord's direction or control, in possession of a tenant's personal property, fails to allow the tenant to retake possession of the property within 24 hours after written demand by the tenant or the tenant's duly authorized representative or within 48 hours, exclusive of weekends and holidays, after written demand by the tenant or a duly authorized representative when the landlord, the landlord's agent or person acting under the landlord's direction or control has removed and stored the personal property in accordance with subdivision 1 in a location other than the premises, the tenant shall recover from the landlord punitive damages in an amount not to exceed twice the actual damages or $1,000, whichever is greater, in addition to actual damages and reasonable attorney's fees.
In determining the amount of punitive damages the court shall consider (1) the nature and value of the property; (2) the effect the deprivation of the property has had on the tenant; (3) if the landlord, an agent, or other person acting under the landlord's direction or control unlawfully took possession of the tenant's property; and (4) if the landlord, an agent, or other person under the landlord's direction or control acted in bad faith in failing to allow the tenant to retake possession of the property.
The provisions of this subdivision do not apply to personal property which has been sold or otherwise disposed of by the landlord in accordance with subdivision 1, or to landlords who are housing authorities, created, or authorized to be created by sections 469.001 to 469.047, and their agents and employees, in possession of a tenant's personal property, except that housing authorities must allow the tenant to retake possession of the property in accordance with this subdivision.
Subd. 3.Storage. If the landlord, an agent, or other person acting under the landlord's direction or control has unlawfully taken possession of a tenant's personal property the landlord shall be responsible for paying the cost and expenses relating to the removal, storage, or care of the property.
Subd. 4. Remedies additional. The remedies provided in this section are in addition to and shall not limit other rights or remedies available to landlords and tenants. Any provision, whether oral or written, of any lease or other agreement, whereby any provision of this section is waived by a tenant, is contrary to public policy and void. The provisions of this section also apply to occupants and owners of residential real property which is the subject of a mortgage foreclosure or contract for deed cancellation and as to which the period for redemption or reinstatement of the contract has expired.
History: 1999 c 199 art 1 s 35; 2010 c 315 s 8,9
Comment: It is uncalled for to place punitive damages upon the landlord for the failure to comply with detailed requirements - e.g., “allow(ing) the tenant to retake possession of the property within 24 hours after written demand by the tenant or the tenant's duly authorized representative” - in the case of property abandoned by tenants. The tenant, not the landlord, was responsible for the property abandonment. Most landlords are only too eager to be rid of tenants’ property left in apartments after they move out. This provision, giving the tenant up to $1,000 plus attorney’s fees for violations of legal minutiae, creates a perverse incentive for tenants not to remove their belongings on a timely basis but instead play games in the courts.
TENANT REMEDIES ACTION
504B.395 PROCEDURE.
Subdivision 1. Who may bring action. An action may be brought in district court by:
(1) a residential tenant of a residential building in which a violation, as defined in section 504B.001, subdivision 14, is alleged to exist;
(2) any housing-related neighborhood organization with the written permission of a residential tenant of a residential building in which a violation, as defined in section 504B.001, subdivision 14, clause (1) or (2), is alleged to exist;
(3) a housing-related neighborhood organization that has within its geographical area an unoccupied residential building in which a violation, as defined in section 504B.001, subdivision 14, clause (1) or (2), is alleged to exist; or
(4) a state, county, or local department or authority, charged with the enforcement of codes relating to health, housing, or building maintenance.
Subd. 2.Venue. The venue of the action authorized by this section is the county where the residential building alleged to contain violations is located.
Subd. 3.When action may be brought. (a) After a residential building inspection has been made under section 504B.185, an action may not be brought under sections 504B.381, 504B.385, or 504B.395 to 504B.451 until the time granted under section 504B.185, subdivision 2, has expired and satisfactory repairs to remove the code violations have not been made.
(b) Notwithstanding paragraph (a), an action may be brought if the residential tenant, or neighborhood organization with the written permission of a tenant, alleges the time granted under section 504B.185, subdivision 2, is excessive.
Subd. 4.Landlord must be informed. A landlord must be informed in writing of an alleged violation at least 14 days before an action is brought by:
(1) a residential tenant of a residential building in which a violation as defined in section 504B.001, subdivision 14, clause (2) or (3), is alleged to exist; or
(2) a housing-related neighborhood organization, with the written permission of a residential tenant of a residential building in which a violation, as defined in section 504B.001, subdivision 14, clause (2), is alleged to exist. The notice requirement may be waived if the court finds that the landlord cannot be located despite diligent efforts.
Subd. 5.Summons and complaint required. The action must be started by service of a complaint and summons. The summons may be issued only by a judge or court administrator.
Subd. 6.Contents of complaint. (a) The complaint must be verified and must:
(1) allege material facts showing that a violation or violations exist in the residential building;
(2) state the relief sought; and
(3) list the rent due each month from each dwelling unit within the residential building, if known.
(b) If the violation is a violation as defined in section 504B.001, subdivision 14, clause (1), the complaint must be accompanied by:
(1) a copy of the official report of inspection by a department of health, housing, or buildings, certified by the custodian of records of that department stating:
(i) when and by whom the residential building concerned was inspected;
(ii) what code violations were recorded; and
(iii) that notice of the code violations has been given to the landlord; or
(2) a statement that a request for inspection was made to the appropriate state, county, or municipal department, that demand was made on the landlord to correct the alleged code violation, and that a reasonable period of time has elapsed since the demand or request was made.
History: 1999 c 199 art 1 s 59
504B.425 JUDGMENT.
(a) If the court finds that the complaint in section 504B.395 has been proved, it may, in its discretion, take any of the actions described in paragraphs (b) to (g), either alone or in combination.
(b) The court may order the landlord to remedy the violation or violations found by the court to exist if the court is satisfied that corrective action will be undertaken promptly.
(c) The court may order the residential tenant to remedy the violation or violations found by the court to exist and deduct the cost from the rent subject to the terms as the court determines to be just.
(d) The court may appoint an administrator with powers described in section 504B.445, and:
(1) direct that rents due:
(i) on and from the day of entry of judgment, in the case of petitioning residential tenants or housing-related neighborhood organizations; and
(ii) on and from the day of service of the judgment on all other residential and commercial tenants of the residential building, if any,
shall be deposited with the administrator appointed by the court; and
(2) direct that the administrator use the rents collected to remedy the violations found to exist by the court by paying the debt service, taxes, and insurance, and providing the services necessary to the ordinary operation and maintenance of the residential building which the landlord is obligated to provide but fails or refuses to provide.
(e) The court may find the extent to which any uncorrected violations impair the residential tenants' use and enjoyment of the property contracted for and order the rent abated accordingly. If the court enters judgment under this paragraph, the parties shall be informed and the court shall determine the amount by which the rent is to be abated.
(f) After termination of administration, the court may continue the jurisdiction of the court over the residential building for a period of one year and order the landlord to maintain the residential building in compliance with all applicable state, county, and city health, safety, housing, building, fire prevention, and housing maintenance codes.
(g) The court may grant any other relief it deems just and proper, including a judgment against the landlord for reasonable attorney fees, not to exceed $500, in the case of a prevailing residential tenant or neighborhood organization. The $500 limitation does not apply to awards made under section 549.211 or other specific statutory authority.
504B.445 ADMINISTRATOR.
Subdivision 1.Appointment. The administrator may be a person, local government unit or agency, other than a landlord of the building, the inspector, the complaining residential tenant, or a person living in the complaining residential tenant's dwelling unit. If a state or court agency is authorized by statute, ordinance, or regulation to provide persons or neighborhood organizations to act as administrators under this section, the court may appoint them to the extent they are available.
Subd. 2.Posting bond. A person or neighborhood organization appointed as administrator shall post bond to the extent of the rents expected by the court to be necessary to be collected to correct the violation or violations. Administrators appointed from governmental agencies shall not be required to post bond.
Subd. 3.Expenses. The court may allow a reasonable amount for the services of administrators and the expense of the administration from rent money. When the administration terminates, the court may enter judgment against the landlord in a reasonable amount for the services and expenses incurred by the administrator.
Subd. 4.Powers. The administrator may:
(1) collect rents from residential and commercial tenants, evict residential and commercial tenants for nonpayment of rent or other cause, enter into leases for vacant dwelling units, rent vacant commercial units with the consent of the landlord, and exercise other powers necessary and appropriate to carry out the purposes of sections 504B.381 and 504B.395 to 504B.471;
(2) contract for the reasonable cost of materials, labor, and services including utility services provided by a third party necessary to remedy the violation or violations found by the court to exist and for the rehabilitation of the property to maintain safe and habitable conditions over the useful life of the property, and disburse money for these purposes from funds available for the purpose;
(3) provide services to the residential tenants that the landlord is obligated to provide but refuses or fails to provide, and pay for them from funds available for the purpose;
(4) petition the court, after notice to the parties, for an order allowing the administrator to encumber the property to secure funds to the extent necessary to cover the costs described in clause (2), including reasonable fees for the administrator's services, and to pay for the costs from funds derived from the encumbrance; and
(5) petition the court, after notice to the parties, for an order allowing the administrator to receive funds made available for this purpose by the federal or state governing body or the municipality to the extent necessary to cover the costs described in clause (2) and pay for them from funds derived from this source.
The municipality shall recover disbursements under clause (5) by special assessment on the real estate affected, bearing interest at the rate determined by the municipality, but not to exceed the rate established for finance charges for open-end credit sales under section 334.16, subdivision 1, clause (b). The assessment, interest, and any penalties shall be collected as are special assessments made for other purposes under state statute or municipal charter.
Subd. 5.Termination of administration. At any time during the administration, the administrator or any party may petition the court after notice to all parties for an order terminating the administration on the ground that the funds available to the administrator are insufficient to effect the prompt remedy of the violations. If the court finds that the petition is proved, the court shall terminate the administration and proceed to judgment under section 504B.425, paragraph (e).
Subd. 6.Residential building repairs and services. The administrator must first contract and pay for residential building repairs and services necessary to keep the residential building habitable before other expenses may be paid. If sufficient funds are not available for paying other expenses, such as tax and mortgage payments, after paying for necessary repairs and services, the landlord is responsible for the other expenses.
Subd. 7.Administrator's liability. The administrator may not be held personally liable in the performance of duties under this section except for misfeasance, malfeasance, or nonfeasance of office.
Subd. 8.Dwelling's economic viability. In considering whether to grant the administrator funds under subdivision 4, the court must consider factors relating to the long-term economic viability of the dwelling, including:
(1) the causes leading to the appointment of an administrator;
(2) the repairs necessary to bring the property into code compliance;
(3) the market value of the property; and
(4) whether present and future rents will be sufficient to cover the cost of repairs or rehabilitation.
History: 1999 c 199 art 1 s 68; 2004 c 275 s 3
504B.451 RECEIVERSHIP REVOLVING LOAN FUND.
The Minnesota Housing Finance Agency may establish a revolving loan fund to pay the administrative expenses of receivership administrators under section 504B.445 for properties for occupancy by low- and moderate-income persons or families. Landlords must repay administrative expense payments made from the fund.
504B.455 REMOVAL OF ADMINISTRATOR.
Subdivision 1.Petition by administrator. The administrator may, after notice to all parties, petition the court to be relieved of duties, including in the petition the reasons for it. The court may, in its discretion, grant the petition and discharge the administrator upon approval of the accounts.
Subd. 2.Petition by a party. A party may, after notice to the administrator and all other parties, petition the court to remove the administrator. If the party shows good cause, the court shall order the administrator removed and direct the administrator to immediately deliver to the court an accounting of administration. The court may make any other order necessary and appropriate under the circumstances.
Subd. 3.Appointment of new administrator. If the administrator is removed, the court shall appoint a new administrator in accordance with section 504B.445, giving all parties an opportunity to be heard.
History: 1999 c 199 art 1 s 70
504B.461 TERMINATION OF ADMINISTRATION.
Subdivision 1.Events of termination. The administration shall be terminated upon one of the following:
(1) certification is secured from the appropriate governmental agency that the violations found by the court to exist at the time of judgment have been remedied; or
(2) an order according to section 504B.445, subdivision 5.
Subd. 2.Accounting by administrator. After the occurrence of any of the conditions in subdivision 1, the administrator shall:
(1) submit to the court an accounting of receipts and disbursements of the administration together with copies of all bills, receipts, and other memoranda pertaining to the administration, and, where appropriate, a certification by an appropriate governmental agency that the violations found by the court to exist at the time of judgment have been remedied; and
(2) comply with any other order the court makes as a condition of discharge.
Subd. 3.Discharge of administrator. Upon approval by the court of the administrator's accounts and compliance by the administrator with any other order the court may make as a condition of discharge, the court shall discharge the administrator from any further responsibilities pursuant to section 504B.381 and sections 504B.395 to 504B.471.
History: 1999 c 199 art 1 s 71
Comment: The tenant remedies action statute interferes with property rights and discriminates against small businesses. For instance, if 3M were found to be manufacturing an inferior product, can one imagine that government would seek the power to replace its CEO with an “administrator”? No, only politically vulnerable small businesses are subject to such indignities under state law. The proper remedy for shoddy commercial products is for customers not to buy them. The same should be true of the rental-housing industry. Let the customers (the tenants) decide whether or not to rent from us. Unless the housing threatens public health or safety, government should not have a role in such decisions.
Furthermore, neighborhood organizations or city government should not have the standing to replace the management of privately owned businesses, effectively gaining access to their owners’ checkbooks through the administrator. We are for reasonable regulation, not socialism.
"Is there anything the city of Duluth can do to force seriously negligent landlords to fix up their problem properties?
Not much, say city officials and housing activists, who for years have complained that while ordinances allow building inspectors to haul property owners into court, endless continuances and cheap fines offer little incentive for landlords to fix anything.
Yet a slate of obscure state laws written in the 1980s and ‘90s offers far tougher remedies, including one allowing the city itself standing as a litigant in civil cases against slumlords.
In town last week to explain this was Andy Dawkins, a one-time St. Paul mayoral candidate and former state representative who knows more than anyone else about the laws, because he wrote them. He also put them to work as St. Paul’s chief of Neighborhood Housing and Property Improvement for three years under Mayor Randy Kelly until January, when both men left office.
“I was in the position to enforce the laws I wrote. How many people ever get the chance to do that?” Dawkins said Wednesday on a whirlwind visit to Duluth to meet with groups including the mayor, the City Council president, housing, police and fire officials and community activists, and members of the News Tribune’s editorial page staff.
The way it works is instead of tenants having to take their landlords to court for code violations, the city can file a civil case on behalf of itself. “the city doesn’t represent the tenants. (It) represents the city’s interest,” Dawkins said of a law dubbed the Tenant Remedies Act. “A judge can appoint an administrator to take the property away from the owner temporarily to get the job done, and take the assessments out of property taxes.”
His other previously unused laws allow for expedited evictions of problem tenants and the shutdown of nuisance properties, such as drug and prostitution dens.
It’s not free; a fund is needed to provide money to get the repairs done before the assessments are collected. In St. Paul, the first city to try out the laws (Minneapolis has recently followed), it was $200,000. A similar amount would be needed in Duluth, but not to worry, Dawkins said. he’s identified possible statewide funders and local resources also may be available.
Dawkins called the St. Paul program a success, saying of “several hundred” cases, 31 went to court and 10 were settled via third parties. More important, the program sent shivers down the spines of other slumlords who fixed their properties, fearing the threat of action. “Voluntary compliance shot way up,” he said.
His Duluth audiences were ecstatic. Housing activists began dreaming of rat-free properties and city counselors mulled over wording of a resolution to jump-start the program.
But there were a few things Dawkins didn’t completely disclose. He told only a few of his listeners about the existence of three federal RICO lawsuits, filed by disgruntled landlords against Dawkins, former Mayor Kelly and other St. Paul officials, accusing them of racketeering by targeting certain properties. And if leadership by example means anything, Dawkins also failed to tell his Duluth audiences anything about his own problem property - a St. Paul bungalow used as a law office cited repeatedly for code violations before his 2002 appointment, complete with a washing machine and toilet on the lawn.
“That’s just what Andy was talking about (regarding other property owners),” longtime housing activist and St. Louis County Commissioners Steve O’Neil said after learning of Dawkins’ personal woes.
Reached in St. Paul over the weekend, Dawkins acknowledged owning the bungalow with another lawyer. “I’m an absentee owner,” he said. “I’m not on the property. Indeed, the homeless people had kind of taken over our backyard and even ran a hose from a spigot so they could take a shower. The other lawyers said ‘You want me practicing law or want me with a shotgun warding off people?’”
He also confirmed the violations. “Yes, there had to be a notice sent - it never got to me, I wasn’t aware of it. Somebody drops their junk vehicle, washing machine, toilet, you don’t get to it for a couple of days.”
That’s exactly the sort of claims landlords in the suit and others are making in accusing Dawkins and his staff of overzealous enforcement.
“You don’t hold (the landlord) responsible for a tenant that throws garbage on the ground,” said Jim Swartwood, publisher of a Twin Cities landlords’ publication, the Watchdog. Swartwood accuses Dawkins of retaliating against him with code violations after he wrote unflattering articles.
Dawkins dismisses Swartwood as “a slumlord” (Swartwood says he’s not) and the lawsuits as “frivolous”, saying a judge will likely dispose of them as baseless in a summary judgment hearing. Yet, 22 months after the first one was filed, in May 2004, that has yet to happen.
A lightning rod for controversy, Andy Dawkins isn’t the story in Duluth, and officials and activists here say they still see merit in the Tenant Remedies Act. Duluth’s slum housing is legendary, and something must be done about it.
But it would be wise to wait until the RICO suits against St. Paul have been decided before adopting the program here. Duluth needs effective action to repair problem properties, not costly litigation."
From DuluthNewsTribune.com March 6, 2006 "Our View: Before acting on slumlord law, Duluth needs St. Paul verdict - Official touting tougher enforcement had problem property of his own"
posted by Bob at 11:29 AM
Friday, January 14, 2011
Wednesday, December 15, 2010
My Dad adopted me when I was 6 months of age and loved me as his own. He was a Chippewa Indian. A great man loved by many. Photo was taken in Maiden Rock WI in the early 60'sMonday, November 15, 2010
Saint Paul Federal Fair Housing Lawsuits/ City loses appeal for ENBANC hearing.
There maybe copy errors.
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No: 09-1209 Thomas J. Gallagher, et al. Appellants v. Steve Magner, individually and as a supervisor of City of St. Paul's Department of Neighborhood Housing and Property Improvement, et al. Appellees
No: 09-1528 Frank J. Steinhauser, III, et al. Appellants v. City of St. Paul, a municipal corporation, et al. Appellees
No: 09-1579 Sandra Harrilal Appellant Bee Vue and Lamena Vue Steven R. Johnson, doing business as Market Group and Properties Appellant v. Steve Magner, individually and as a supervisor of City of St. Paul's Department of Neighborhood Housing and Property Improvement, et al. Appellees
______________________________________________________________________________
Appeal from U.S. District Court for the District of Minnesota - Minneapolis
(0:05-CV-01348-JNE)
Appellate Case: 09-1209 Page: 1 Date Filed: 11/15/2010 Entry ID: 3724013
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ORDER
The petition for rehearing en banc is denied. The petition for rehearing by the
panel is also denied.
COLLOTON, Circuit Judge, with whom RILEY, Chief Judge, LOKEN, GRUENDER and SHEPHERD, Circuit Judges, join, dissenting from denial of rehearing en banc.
The panel opinion in this case holds that the owners of rental property in St. Paul, Minnesota, have presented a submissible case that the City of St. Paul violated the Fair Housing Act (“FHA”), Title VIII of the Civil Rights Act of 1968, by aggressively enforcing the City’s housing code. Gallagher v. Magner, 619 F.3d 823 (8th Cir. 2010). Even though there is insufficient evidence to infer that the City acted with intent to discriminate against any person in violation of the FHA, id. at 833, the panel reasoned that the City can be liable for its enforcement of the housing code, because enforcement of the housing code increased costs for property owners, the increased costs reduced the supply of “affordable housing” in the City, and the reduction of supply had a “disparate impact” on racial minorities. Id. at 835.
I would grant the City’s petition for rehearing en banc. The petition raises important questions concerning whether “aggressive” enforcement of a housing code is the sort of facially neutral policy that can trigger disparate-impact analysis under the FHA, whether the plaintiffs have shown that particular aggressive enforcement practices actually caused a disparate impact on racial minorities seeking to rent property in St. Paul, and whether the property owners have presented sufficient evidence that a less aggressive enforcement program known as “PP2000” – which had a success rate of only seventy percent with the limited sample of properties included in the program (R. Doc. 219, Attach. 4, at 34-35) – would be equally effective as, and no more costly than, the “heavy enforcement” Appellate Case: 09-1209 Page: 2 Date Filed: 11/15/2010 Entry ID: 3724013
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and “code to the max” approach that was adopted citywide by the responsible policymakers and challenged by the property owners in this litigation. See generally Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 660-61 (1989); Oti Kaga, Inc. v. S.D. Hous. Dev. Auth., 342 F.3d 871, 883 (8th Cir. 2003); cf. Smith v. City of Jackson, 544 U.S. 228, 240 (2005) (concluding that Wards Cove’s pre-1991 explanation of disparate-impact analysis remains applicable to a statute with identical text as Title VII that was not amended along with Title VII in 1991).
In addition to these questions, the panel’s expansive rationale raises significant threshold issues concerning the application of disparate-impact analysis in this context. These issues likely warrant supplemental briefing by the parties and careful consideration by the court.
First, it would be useful for the en banc court to examine the basis for disparate-impact analysis under the FHA. In applying disparate-impact analysis, the panel opinion never mentions the text of the governing statute. The provisions cited by the panel provide that:
[I]t shall be unlawful –
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.
42 U.S.C. § 3604(a)-(b).
The Supreme Court has not decided whether the FHA allows for recovery based on a disparate-impact theory. Town of Huntington v. Huntington Branch, NAACP, 488 U.S. 15, 18 (1988) (per curiam). In 1974, a panel of this court, also without discussing the text of 42 U.S.C. § 3604, held that a plaintiff advancing a claim under the FHA need prove only that the conduct of a defendant had a “discriminatory effect,” and thereby introduced disparate-impact analysis under the
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FHA. United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974). The court relied on the “purpose” of the FHA and reasoned by analogy to the Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424, 430-31 (1971), which applied disparate-impact analysis to a claim of employment discrimination under Title VII of the Civil Rights Act. See Black Jack, 508 F.2d at 1184.
Since then, the Supreme Court has acknowledged that the “opinion in Griggs relied primarily on the purposes of the Act.” Smith, 544 U.S. at 235 (plurality opinion); id. at 243 (Scalia, J., concurring in part and concurring in the judgment) (agreeing with all of the plurality’s reasoning, but resolving the case based on deference to the reasonable views of the administering federal agency). Significantly, however, the Court explained that the holding in Griggs also “represented the better reading of the statutory text,” because the language of § 703(a)(2) of Title VII prohibits actions directed at employees that “deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race.” Id. at 235 (plurality opinion) (internal quotations omitted); see also Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 991 (1988) (concluding that subjective employment practices may be analyzed under the disparate-impact approach of Title VII because they “may be said to ‘adversely affect [an individual’s] status as an employee, because of such individual’s race, color, religion, sex, or national origin’”) (alteration in original) (quoting 42 U.S.C. § 2000e-2(a)(2)).1
1Section 703(a) of Title VII provides as follows:
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
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In 2005, the Supreme Court held that a disparate-impact theory is cognizable under the Age Discrimination in Employment Act (“ADEA”). The Court emphasized that § 703(a)(2) of Title VII at issue in Griggs, and § 4(a)(2) of the ADEA, include “identical text,” namely, a prohibition on “limiting, segregating, or classifying employees in any way which would . . . adversely affect [an individual’s] status as an employee, because of such individual’s” race or age. Smith, 544 U.S. at 236 (plurality opinion). But the Court cited “key textual differences” between § 4(a)(1) of the ADEA, which makes it unlawful “to fail or refuse to hire . . . any individual . . . because of such individual’s age,” and does not encompass disparate-impact liability, and § 4(a)(2), which does authorize recovery based on disparate impact. Id. at 235-36 & n.6 (omissions in original) (internal quotations omitted).2 The Supreme Court also has said that another important civil rights statute, Title VI of the Civil Rights Act, forbids only intentional discrimination, and does not prohibit actions taken with non-discriminatory motive that have a disparate impact on racial groups. See Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001). In contrast to Title VII and the ADEA, the text of Title VI does not proscribe activities that would “adversely affect” a person because of a protected characteristic. See 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to
42 U.S.C. § 2000e-2(a).
2Section 4(a)(1)-(2) of the ADEA provides as follows:
It shall be unlawful for an employer –
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.
29 U.S.C. § 623(a)(1)-(2).
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discrimination under any program or activity receiving Federal financial assistance.”).
The FHA likewise does not include text comparable to that relied on in Smith and appearing in § 703(a)(2) of Title VII and § 4(a)(2) of the ADEA. Rather, the text of 42 U.S.C. § 3604(a) makes it unlawful to “make unavailable or deny . . . a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” This language appears similar to § 4(a)(1) of the ADEA, which the Court in Smith said does not support a claim based on disparate impact alone. 544 U.S. at 236 n.6 (plurality opinion).
To be sure, most of the circuits have applied disparate-impact analysis under the FHA, and perhaps that approach is justified. Some district courts have ruled after the Supreme Court’s decision in Smith that disparate-impact analysis remains applicable to the FHA. E.g., Nat’l Comm. Reinvestment Coalition v. Accredited Home Lenders, 573 F. Supp. 2d 70, 77-79 (D.D.C. 2008). But there has been little consideration in this circuit of the textual basis for this theory of liability, and virtually no discussion of the matter by any court of appeals since the Court in Smith explained how the text of Title VII justified the decision in Griggs. The district court and the parties understandably have taken disparate-impact analysis as a given under circuit precedent, but recent developments in the law suggest that the issue is appropriate for careful review by the en banc court.
Second, if disparate-impact analysis should be applied to claims under the FHA based on the “purpose” of the statute, see Black Jack, 508 F.2d at 1184, then it seems appropriate to consider whether the purpose of the statute extends to declaring a city liable for disparate impact caused by its “aggressive” enforcement of a housing code. The Seventh Circuit, while applying a disparate-impact theory to evaluate a city’s refusal to rezone property when such refusal had the consequence of perpetuating segregation in housing, refused at the same time to conclude that every action that produces discriminatory effects is illegal. Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977). “Such a per se rule,” the court thought, “would go beyond the intent of Congress and would lead courts into untenable results in specific cases.” Id.; see Knapp v. Eagle Prop. Mgmt. Corp., 54 F.3d 1272, 1280 (7th Cir. 1995) (explaining that “disparate impact analysis is not appropriate in certain contexts”). The Tenth
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Circuit in Reinhart v. Lincoln County, 482 F.3d 1225 (10th Cir. 2007), “recognize[d] that one court has suggested that a disparate-impact claim based solely on increased costs is not cognizable under the FHA,” id. at 1230 (citing Hemisphere Bldg. Co. v. Vill. of Richton Park, 171 F.3d 437, 440 (7th Cir. 1999)), but found it unnecessary to decide the point. This case appears to present that unresolved question.
This court has applied disparate-impact analysis in certain contexts under the FHA, such as where a city adopted a zoning ordinance that prohibited the construction of any new multiple-family dwellings likely to be occupied by racial minorities, thus perpetuating a history of segregated housing, see Black Jack, 508 F.2d at 1184-85, and where a landlord refused to rent an apartment to a qualified minority applicant despite offering to rent the same type of unit to comparable white applicants. See Smith v. Anchor Bldg. Corp., 536 F.2d 231, 233 (8th Cir. 1976). But whether the panel’s application of disparate-impact analysis to a city’s aggressive housing code enforcement is dictated by the purpose of the FHA is an important question of first impression.
For these reasons, I would grant the City’s petition for rehearing en banc.
______________________________
November 15, 2010 Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit. ____________________________________ /s/ Michael E. Gans
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UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No: 09-1209 Thomas J. Gallagher, et al. Appellants v. Steve Magner, individually and as a supervisor of City of St. Paul's Department of Neighborhood Housing and Property Improvement, et al. Appellees
No: 09-1528 Frank J. Steinhauser, III, et al. Appellants v. City of St. Paul, a municipal corporation, et al. Appellees
No: 09-1579 Sandra Harrilal Appellant Bee Vue and Lamena Vue Steven R. Johnson, doing business as Market Group and Properties Appellant v. Steve Magner, individually and as a supervisor of City of St. Paul's Department of Neighborhood Housing and Property Improvement, et al. Appellees
______________________________________________________________________________
Appeal from U.S. District Court for the District of Minnesota - Minneapolis
(0:05-CV-01348-JNE)
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ORDER
The petition for rehearing en banc is denied. The petition for rehearing by the
panel is also denied.
COLLOTON, Circuit Judge, with whom RILEY, Chief Judge, LOKEN, GRUENDER and SHEPHERD, Circuit Judges, join, dissenting from denial of rehearing en banc.
The panel opinion in this case holds that the owners of rental property in St. Paul, Minnesota, have presented a submissible case that the City of St. Paul violated the Fair Housing Act (“FHA”), Title VIII of the Civil Rights Act of 1968, by aggressively enforcing the City’s housing code. Gallagher v. Magner, 619 F.3d 823 (8th Cir. 2010). Even though there is insufficient evidence to infer that the City acted with intent to discriminate against any person in violation of the FHA, id. at 833, the panel reasoned that the City can be liable for its enforcement of the housing code, because enforcement of the housing code increased costs for property owners, the increased costs reduced the supply of “affordable housing” in the City, and the reduction of supply had a “disparate impact” on racial minorities. Id. at 835.
I would grant the City’s petition for rehearing en banc. The petition raises important questions concerning whether “aggressive” enforcement of a housing code is the sort of facially neutral policy that can trigger disparate-impact analysis under the FHA, whether the plaintiffs have shown that particular aggressive enforcement practices actually caused a disparate impact on racial minorities seeking to rent property in St. Paul, and whether the property owners have presented sufficient evidence that a less aggressive enforcement program known as “PP2000” – which had a success rate of only seventy percent with the limited sample of properties included in the program (R. Doc. 219, Attach. 4, at 34-35) – would be equally effective as, and no more costly than, the “heavy enforcement” Appellate Case: 09-1209 Page: 2 Date Filed: 11/15/2010 Entry ID: 3724013
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and “code to the max” approach that was adopted citywide by the responsible policymakers and challenged by the property owners in this litigation. See generally Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 660-61 (1989); Oti Kaga, Inc. v. S.D. Hous. Dev. Auth., 342 F.3d 871, 883 (8th Cir. 2003); cf. Smith v. City of Jackson, 544 U.S. 228, 240 (2005) (concluding that Wards Cove’s pre-1991 explanation of disparate-impact analysis remains applicable to a statute with identical text as Title VII that was not amended along with Title VII in 1991).
In addition to these questions, the panel’s expansive rationale raises significant threshold issues concerning the application of disparate-impact analysis in this context. These issues likely warrant supplemental briefing by the parties and careful consideration by the court.
First, it would be useful for the en banc court to examine the basis for disparate-impact analysis under the FHA. In applying disparate-impact analysis, the panel opinion never mentions the text of the governing statute. The provisions cited by the panel provide that:
[I]t shall be unlawful –
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.
42 U.S.C. § 3604(a)-(b).
The Supreme Court has not decided whether the FHA allows for recovery based on a disparate-impact theory. Town of Huntington v. Huntington Branch, NAACP, 488 U.S. 15, 18 (1988) (per curiam). In 1974, a panel of this court, also without discussing the text of 42 U.S.C. § 3604, held that a plaintiff advancing a claim under the FHA need prove only that the conduct of a defendant had a “discriminatory effect,” and thereby introduced disparate-impact analysis under the
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FHA. United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974). The court relied on the “purpose” of the FHA and reasoned by analogy to the Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424, 430-31 (1971), which applied disparate-impact analysis to a claim of employment discrimination under Title VII of the Civil Rights Act. See Black Jack, 508 F.2d at 1184.
Since then, the Supreme Court has acknowledged that the “opinion in Griggs relied primarily on the purposes of the Act.” Smith, 544 U.S. at 235 (plurality opinion); id. at 243 (Scalia, J., concurring in part and concurring in the judgment) (agreeing with all of the plurality’s reasoning, but resolving the case based on deference to the reasonable views of the administering federal agency). Significantly, however, the Court explained that the holding in Griggs also “represented the better reading of the statutory text,” because the language of § 703(a)(2) of Title VII prohibits actions directed at employees that “deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race.” Id. at 235 (plurality opinion) (internal quotations omitted); see also Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 991 (1988) (concluding that subjective employment practices may be analyzed under the disparate-impact approach of Title VII because they “may be said to ‘adversely affect [an individual’s] status as an employee, because of such individual’s race, color, religion, sex, or national origin’”) (alteration in original) (quoting 42 U.S.C. § 2000e-2(a)(2)).1
1Section 703(a) of Title VII provides as follows:
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
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In 2005, the Supreme Court held that a disparate-impact theory is cognizable under the Age Discrimination in Employment Act (“ADEA”). The Court emphasized that § 703(a)(2) of Title VII at issue in Griggs, and § 4(a)(2) of the ADEA, include “identical text,” namely, a prohibition on “limiting, segregating, or classifying employees in any way which would . . . adversely affect [an individual’s] status as an employee, because of such individual’s” race or age. Smith, 544 U.S. at 236 (plurality opinion). But the Court cited “key textual differences” between § 4(a)(1) of the ADEA, which makes it unlawful “to fail or refuse to hire . . . any individual . . . because of such individual’s age,” and does not encompass disparate-impact liability, and § 4(a)(2), which does authorize recovery based on disparate impact. Id. at 235-36 & n.6 (omissions in original) (internal quotations omitted).2 The Supreme Court also has said that another important civil rights statute, Title VI of the Civil Rights Act, forbids only intentional discrimination, and does not prohibit actions taken with non-discriminatory motive that have a disparate impact on racial groups. See Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001). In contrast to Title VII and the ADEA, the text of Title VI does not proscribe activities that would “adversely affect” a person because of a protected characteristic. See 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to
42 U.S.C. § 2000e-2(a).
2Section 4(a)(1)-(2) of the ADEA provides as follows:
It shall be unlawful for an employer –
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.
29 U.S.C. § 623(a)(1)-(2).
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discrimination under any program or activity receiving Federal financial assistance.”).
The FHA likewise does not include text comparable to that relied on in Smith and appearing in § 703(a)(2) of Title VII and § 4(a)(2) of the ADEA. Rather, the text of 42 U.S.C. § 3604(a) makes it unlawful to “make unavailable or deny . . . a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” This language appears similar to § 4(a)(1) of the ADEA, which the Court in Smith said does not support a claim based on disparate impact alone. 544 U.S. at 236 n.6 (plurality opinion).
To be sure, most of the circuits have applied disparate-impact analysis under the FHA, and perhaps that approach is justified. Some district courts have ruled after the Supreme Court’s decision in Smith that disparate-impact analysis remains applicable to the FHA. E.g., Nat’l Comm. Reinvestment Coalition v. Accredited Home Lenders, 573 F. Supp. 2d 70, 77-79 (D.D.C. 2008). But there has been little consideration in this circuit of the textual basis for this theory of liability, and virtually no discussion of the matter by any court of appeals since the Court in Smith explained how the text of Title VII justified the decision in Griggs. The district court and the parties understandably have taken disparate-impact analysis as a given under circuit precedent, but recent developments in the law suggest that the issue is appropriate for careful review by the en banc court.
Second, if disparate-impact analysis should be applied to claims under the FHA based on the “purpose” of the statute, see Black Jack, 508 F.2d at 1184, then it seems appropriate to consider whether the purpose of the statute extends to declaring a city liable for disparate impact caused by its “aggressive” enforcement of a housing code. The Seventh Circuit, while applying a disparate-impact theory to evaluate a city’s refusal to rezone property when such refusal had the consequence of perpetuating segregation in housing, refused at the same time to conclude that every action that produces discriminatory effects is illegal. Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977). “Such a per se rule,” the court thought, “would go beyond the intent of Congress and would lead courts into untenable results in specific cases.” Id.; see Knapp v. Eagle Prop. Mgmt. Corp., 54 F.3d 1272, 1280 (7th Cir. 1995) (explaining that “disparate impact analysis is not appropriate in certain contexts”). The Tenth
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Circuit in Reinhart v. Lincoln County, 482 F.3d 1225 (10th Cir. 2007), “recognize[d] that one court has suggested that a disparate-impact claim based solely on increased costs is not cognizable under the FHA,” id. at 1230 (citing Hemisphere Bldg. Co. v. Vill. of Richton Park, 171 F.3d 437, 440 (7th Cir. 1999)), but found it unnecessary to decide the point. This case appears to present that unresolved question.
This court has applied disparate-impact analysis in certain contexts under the FHA, such as where a city adopted a zoning ordinance that prohibited the construction of any new multiple-family dwellings likely to be occupied by racial minorities, thus perpetuating a history of segregated housing, see Black Jack, 508 F.2d at 1184-85, and where a landlord refused to rent an apartment to a qualified minority applicant despite offering to rent the same type of unit to comparable white applicants. See Smith v. Anchor Bldg. Corp., 536 F.2d 231, 233 (8th Cir. 1976). But whether the panel’s application of disparate-impact analysis to a city’s aggressive housing code enforcement is dictated by the purpose of the FHA is an important question of first impression.
For these reasons, I would grant the City’s petition for rehearing en banc.
______________________________
November 15, 2010 Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit. ____________________________________ /s/ Michael E. Gans
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posted by Bob at 9:33 PM
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