## Facts

- Calumet City enacted a point-of-sale ordinance requiring a home inspection for building-code compliance before a sale could be completed.
- If an owner refused consent, inspectors were required to seek an administrative warrant before conducting the inspection.
- The ordinance imposed timelines: inspection within 28 days of notice of the proposed sale; warrant sought within 10 days if consent was refused; and compliance notice within three days after the inspection.
- If the property did not comply, the City could require repairs as a condition of sale, and owners had a right to appeal repair orders.
- Homeowners alleged they were prevented from selling, or experienced delays in selling, because of the ordinance.
- Two homeowner suits (including a putative class action) were filed in federal district court as facial constitutional challenges; both complaints were dismissed under Rule 12(b)(6), and the appeals were consolidated.

## Issues

1. Whether a point-of-sale inspection ordinance that conditions the sale of a home on a code-compliance inspection is facially invalid under the Fourteenth Amendment’s procedural due process requirements.
2. Whether the ordinance, on its face, imposes an unconstitutional restriction on property alienation or amounts to a taking or other substantive constitutional violation.
3. What plaintiffs must show to succeed on a facial challenge to a municipal ordinance, and whether that standard was satisfied at the pleading stage.

## Decision

- The Seventh Circuit affirmed dismissal for failure to state a claim.
- The court held the ordinance was not facially unconstitutional because it could be applied constitutionally in many circumstances.
- The court relied on the ordinance’s procedural protections, including the administrative-warrant requirement, time limits for inspection and notice, and an appeal process for repair orders.
- The court indicated that any constitutional defects would depend on specific enforcement and would be addressed, if at all, through as-applied challenges rather than facial invalidation.

## Legal Principles

- Facial challenges are disfavored where a law has substantial constitutional applications and can be implemented in a manner consistent with constitutional limits.
- A facial challenger generally must show the law is invalid in all, or nearly all, applications; hypothetical problematic enforcement does not suffice.
- Administrative inspections for building-code enforcement may be conducted under the Fourth Amendment through an administrative-warrant procedure when consent is refused.
- Procedural due process is evaluated in light of the process provided; structured timelines, required warrants, and avenues for administrative appeal weigh against a facial due process claim.
- Conditioning transfer of property on compliance with building and safety codes is a common regulatory measure and, without more, does not facially establish a taking or unconstitutional restraint on alienation.

## Conclusion

The Seventh Circuit upheld Calumet City’s pre-sale inspection regime against a facial constitutional attack, concluding that the ordinance’s warrant requirement, deadlines, and appeal rights supplied adequate process and that any unconstitutional enforcement would need to be shown through an as-applied claim.


Mann v. Calumet City, 588 F.3d 949 (7th Cir. 2009)