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Court: NY Attorney General Attempt to Force Section 8 on Landlords Unconstitutional

Court: NY Attorney General Attempt to Force Section 8 on Landlords Unconstitutional

The challenged law forced landlords to consent to warrantless government searches of their property and business records. Ithaca’s Jason Fane prevails, calls ruling “a victory for the rights of small business owners and the civil liberties of every citizen.”

A New York state judge struck down part of the state’s Human Rights Law requiring landlords to accept Section 8 vouchers. In an eight-page decision, the judge found the law violated the Fourth Amendment to the U.S. Constitution.

New York Attorney General Letitia James brought the original action against landlord Jason Fane and his companies on October 31, 2022, seeking more than $300,000 in penalties and a set-aside of “five percent of his residential housing units exclusively for Section 8 vouchers.”

New York Attorney General Letitia James today sued a landlord, Jason Fane, his company Ithaca Renting Company (Ithaca Renting), and his related entities for denying housing to low-income tenants. An investigation by the Office of the Attorney General (OAG) found that Mr. Fane and his real estate agents refused to accept Section 8 vouchers at his properties, in violation of New York’s housing laws against source of income discrimination. The lawsuit alleges that agents at Ithaca Renting repeatedly told renters they do not accept government assistance vouchers. Through her lawsuit, Attorney General James is seeking to require Mr. Fane to stop denying housing to New Yorkers with Section 8 vouchers, pay civil penalties, and set aside five percent of his residential housing units exclusively for Section 8 vouchers.

“All New Yorkers deserve access to fair and decent housing, regardless of their station in life,” said Attorney General James. “Denying housing to New Yorkers based on their source of income is not only illegal, but it’s also worsening the housing crisis. We are taking action to protect vulnerable tenants, keep New Yorkers in their homes, and enforce the law.”

Section 8 “is the federal government’s program for assisting low-income families, the disabled, and the elderly afford housing.”

The federal government does not mandate landlord participation in the program but requires landlords who choose to participate to submit their property for inspection to ensure habitability and to allow the government to inspect their business records.

The challenged law barred landlords from discriminating against prospective tenants “based on their ‘lawful source of income,'” including Section 8 vouchers, thus making the Section 8 program—and its property and business records inspections—mandatory for New York landlords.

Jason Fane (pictured), a landlord based in Ithaca, New York, challenged the law on several grounds. He argued the law, by requiring him to submit to warrantless inspections of his property and business records, violated the Fourth Amendment.

[Jason Fane – Photo Supplied]

Fane also argued the state law conflicted with federal law and was preempted by the latter, that the state law imposed an unlawful retroactive penalty, and that the law amounted to a regulatory taking.

Fane ultimately prevailed on his Fourth Amendment claim.

One of Fane’s companies hailed the decision in a press release as “a victory for the rights of small business owners and the civil liberties of every citizen.”

“The Constitution protects everyone’s rights to be free from unreasonable government interference – regardless of whether you are a tenant or property owner,” the press release continued.

The judge rejected the state’s argument that landlords have a lower expectation of privacy in their rental dwellings merely because landlords open those dwellings to the public for rental.

The judge cited caselaw that “specifically held that laws which authorize inspections of residential rental properties without either the consent of the owner or a valid search warrant violate the Fourth Amendment, and specifically noted that a property owner cannot be indirectly compelled to consent to a search.”

The judge also rejected the state’s argument that “businesses have little to no expectation of privacy [in] their business records, especially in regulatory regimes” like that imposed by the law. The judge recognized that some businesses with “a history of government oversight” have no expectation of privacy in their business records.

However, this exception to the Fourth Amendment, the judge noted, did not apply to “renting residential apartment units” because that “is not a closely regulated industry” like “liquor sales, firearms dealing, mining, or operating an automobile junkyard,” industries whose business records fall outside the Fourth Amendment’s ambit

The judge’s opinion:

The press release:


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Fantastic news, and well done by Bond, Schoeneck and King, lawyers for Ithaca Renting.

AF_Chief_Master_Sgt | June 27, 2023 at 7:56 pm

I love it when Marxists are bitch slapped by judges.

James particularly. An affirmative action person to be sure.

    henrybowman in reply to AF_Chief_Master_Sgt. | June 27, 2023 at 9:12 pm

    “(We have decreed that) All New Yorkers deserve access to fair and decent housing, regardless of their station in life,” said Attorney General James.

    And also that it’s now your duty to provide that, for absolutely no riskbcompensation. And remember to keep voting Democrat.

      Tionico in reply to henrybowman. | June 29, 2023 at 1:53 am

      Yes, all New Yorkers deserve ACCESS to decent housing. But if they are too lazy/incompetent to earn the money it takes to RENT such places, then they deserve what they DO get. Or shift off to some other place where housing is cheaper.

      Good tosee Lettie James get her knocks and slaps. She is a terror of a judge. Dyed in the wool socialist… particularly when it comes to hading out favours that don’t cost HER a dime. The wretch oughtta be impeached for even bringing this case to trial. Hope the folks at Ithaca get all their costs reimbursed as part of the judgement.

    The Gentle Grizzly in reply to AF_Chief_Master_Sgt. | June 28, 2023 at 10:01 am

    He is also a bitter woman who likely despises anyone not black.

I disagree. She won her election. The voters are getting exactly what they voted for… Someone who promised to go after Trump (even though that case is falling apart) and who’s theories lead to ridiculous filings like this.

Gooder and harder, New York.

Do the Section * vouchers also cover insurancw for damage done to the properties? Just thinking how the Projects looks over the years.

    MajorWood in reply to alaskabob. | June 27, 2023 at 9:15 pm

    This is the current situation in Portland where they are using financial leverage, brought on by the WuFlu, to coerce motel and hotel owners to house the homeless and/or outright buying the properties to do this. There have already been fires and murders in these places and after a few years none will ever be suitable for occupancy by normal humans. Imagine letting a pack of wolves live in your house believing that it will be the same as having a few pet dogs. The homeless stuff isn’t about the homeless. They are simply a vehicle to justify graft. Portland is now building a 96 unit complex, for only $55M. You do the math.

    JohnSmith100 in reply to alaskabob. | June 27, 2023 at 9:18 pm

    Originally whole neighborhoods Projects destroyed whole neighborhoods, the they came up with Section 8, accomplishing the same for a fraction of the price. The housing problem is not about real estate, it is about people with a crap culture.

      artichoke in reply to JohnSmith100. | June 27, 2023 at 9:54 pm

      Projects concentrated the problem, Section 8 dispersed it. All the research justifying Section 8 was about the benefits to the families receiving benefits. Nobody even asked the question about its impact on “receiving” neighborhoods — that’s how they got to the decision to go ahead.

        The Gentle Grizzly in reply to artichoke. | June 28, 2023 at 10:09 am

        When one is getting benefits at the expense of others, the last concern should be with their feelings.

      JohnSmith100 in reply to JohnSmith100. | June 28, 2023 at 3:53 pm

      Sorry for the botched post, carpel tunnel.

    Lucifer Morningstar in reply to alaskabob. | June 29, 2023 at 8:15 am

    The Landlord/Owner is left on the hook for any damages done to the properties by section 8 renters. And from what I’ve seen how they sometimes leave the properties that can run into the thousands of dollars to properly rehabilitate a dwelling once they are evicted leave.

How refreshing. A NY State Judge makes this ruling to uphold the liberty interest of property owners.

    gonzotx in reply to CommoChief. | June 27, 2023 at 11:10 pm

    Must be a landlord himself

      CommoChief in reply to gonzotx. | June 28, 2023 at 7:21 am

      Or just a property owner who doesn’t want unwanted guests quartered in his home, which would be the next step in the program with Mayor Adams attempting to use a ruling favorable to the AG as basis to do so.

      Insufficiently Sensitive in reply to gonzotx. | June 28, 2023 at 9:25 am

      Must be a landlord himself

      More likely, the judge (unlike that hyper-politicized Letitia James) has read the Constitution and applied it correctly.

How many Sect. 8’s go to illegals? How many are pulled from low income AMERICANS, particularly veterans?

    gonzotx in reply to Dimsdale. | June 27, 2023 at 11:12 pm

    Section . 8 is a nightmare .
    Thugs, robberies, murders are norm…

    And they are dispersing them all over America, bringing the hood rats to suburbs and you are not allowed to fight this crap

    This is o amas dream

Lucifer Morningstar | June 27, 2023 at 9:33 pm

Section 8 “is the federal government’s program for assisting low-income families, the disabled, and the elderly afford housing.”

That’s a load of horse poop. There’s only one group that benefits the most from Section 8. And they don’t list them there. I’ll let you guess who we’re talking about.

Subotai Bahadur | June 27, 2023 at 9:39 pm

Wait a minute! What is this concept that the owners of property are anything but agents of the government and income sources? Let alone them having the protection of the Bill of Rights? I thought that in practice the law and the Constitution only protected foreign invaders, criminals, and politicians [with more than a little bit of overlap].

And the sad thing is that for a certain percentage of readers I have to note that the above is /sarc.

Subotai Bahadur

industries whose business records fall outside the Fourth Amendment’s ambit

Am I the only person shocked by this statement? I don’t recall an exception in the US Constitution for certain businesses.

    henrybowman in reply to randian. | June 28, 2023 at 1:33 am

    It’s right there, next to the exception for certain guns, and certain hate words.

    Tionico in reply to randian. | June 29, 2023 at 2:17 am

    There are a few industries that for various reasons are required to be subject to government inspection and monitoring. firearms sales, banking, maybe public utilities,
    But not even these should be, per the constitution. Especially firearms sales. I remember well shopping in some stores when I was growing up, in California no less, where I as a fifteen year old kid could have plopped down thirty or fifty bucks and walked out with an M 1911 handgun or an M 1 Garand. Totally normal no one would have given it a second thought.
    And far fewer folks were getting shot using firearms, too.

healthguyfsu | June 28, 2023 at 12:52 am

Am I to read this as he only prevailed on unlawful search and seizure but not on the right to refuse section 8 vouchers?

    henrybowman in reply to healthguyfsu. | June 28, 2023 at 1:39 am

    Statists love to swing the words “public accommodation” around like a blackjack.
    Your right to keep and bear arms is a collective right, not a personal right (they claimed pre-Heller)
    But your right of association is a personal right, not a commercial/economic right.
    You can’t run a country club for men, but you can run a gym for women.
    That’s the sort of patchwork BS you get when you let lawyers “interpret” the constitution for you.

      Tionico in reply to henrybowman. | June 29, 2023 at 2:25 am

      uote” But your right of association is a personal right,”

      It sure is and I make regular use of it to decide which of my firearms I will take with me when choose to go somewhere or stay at home. I also use that right to decide which of the guns I see out there are ones with which I desire to build/maintain a long term personal relationship. And no dingbat Noo Yawk Judge will have one word to say about it all.

Steven Brizel | June 28, 2023 at 8:22 am

This is a great decision but will it stand up if appealed to NY’s woke appellate courts?

Section 8 is for slum lords who do not maintain the property, but that’s okay because the typical section-8 renter destroys the property, anyway.

This AG would scream and deny anyone attempting to see her departments records.

A FOIA would be delayed and would have to go to court.

inspectorudy | June 28, 2023 at 10:30 am

After I retired from flying I became a home inspector and inspecting Section 8 housing was like a world I didn’t know existed. In one “Home,” I went into the kitchen was so filthy that I put on my under-the-house gloves. The sink was full of old opened tin cans along with roach-covered pizza boxes. On the stove was a frying pan with hardened grease and food debris in it. It appears that they just heat it up every day for a new fried meal. The bedrooms were all filled with trash and old containers. Beds were mattresses on the floor with no sheets or blankets. The one toilet was unflushed. There wasn’t a clean spot in the entire house. The foundation had a six-foot vertical crack in it that was so bad that the was above it was leaning outward. The water had been turned off due to nonpayment of the water bill. It was also in a neighborhood where I carried a gun during the inspection. There were several bros standing near my truck when I came out. Section 8 is a nasty joke and this house was an example of how the tenants are not responsible for anything that happens to their house even if it’s their fault. This reinforces everything bad about our society and what we continue to fund. A Section 8 project near you is like the first stage of cancer. I just saw Bloppo’s comment and he is correct.

    JohnSmith100 in reply to inspectorudy. | June 28, 2023 at 2:15 pm

    Barely human, often inhuman trash resides in Section 8 housing. I have commented in the past few days how those poor misunderstood people picked up cheap housing in cities, where hard working people lost most or all their equity. Whole cities become ghettoes, neighborhoods varying only in degree of ghettos-ness. My parents were cheated of equity in this manner, Section 8 is doing the same. Spreading these people out is not good, concentrating them in walled off projects would be a better solution.

    The Gentle Grizzly in reply to inspectorudy. | June 28, 2023 at 4:18 pm

    I did several “public housing “ projects in my lighting energy audit days. One apartment Luke you described, next door was clean and tidy.

    I also did a project in the Los Angeles area is Southbay. Many of the apartment buildings in those communities run anywhere from eight to about 20 units. We put in Brand New energy efficient, lighting fixtures. After a few weeks, landlords would call up and complain that some of the lights were not working. I will go out to investigate and find that either phone apps of cells have been polled, or the entire light fixture smashed to pieces. The common denominator of the temperature fixtures was: they were in corners that without light would become very dark. This is word drug dealing went on.

Jason Fane (pictured)
Well, he’s obviously Mafia (I mean, look at him!). So, this just proves he’s a right-wing greedy criminal, right?

Used to deliver pizzas to two different hotels that went section 8.

First one originally consisted of a lake front high-end restaurant / event venue with a sizable adjacent hotel suitable for event guests. Many a wedding or 50th anniversary or other such event when I was kid.

Time passes. There is subsidence in the hotel building. Formally level hallways are now not. Not sure how they stayed open (bribery?) but they did for 2 decades like this. Fewer guests at each half, eventually they make a deal with the state to accept section 8 in the hotel part and work-release cooks from the local county jail at the restaurant and hotel. This formerly grande dame landmark shut down once the owners had squeezed the last bit of income out of it.

Other hotel didn’t immediately go full section 8, they tried having one wing as such, many police callouts, maintenance work had to be done in pairs, they had to ban the S8 guests from hanging in the lobby or any non S8 area. Once the reviews and repeat guests wised up to the situation they lost most regular business. There were 7 hotels within walking distance of the nearest intersection, this one no longer exists – damage was so extensive it was cheaper to tear it down than repair.

Not every S8 recipient is “livin the gansta life” – but there’s no legal way to filter out the ones who are and only accept the elderly SSN and disabled and just plain poor with self respect.

Lord knows it’s been tried. Local small apt complex across from a school was on its last legs – lots of petty crime, drugs, shootings – including at memorial meets for previous shooting victims. Used to be an Italian neighborhood, one elder guy with money who grew up there decided no one should have to live like that, bought the complex, and spent quite a bit refurbishing the residences. Reopened it as affordable housing – with (part time) security – that WOULD take S8, but required all renters to sign an agreement that any resident having a gun or dealing drugs meant eviction. Place cleaned up nice, drug and gun calls for police – gone.

THEN a grandma let her grandson move in after his parents kicked him out so he wouldn’t be homeless. Whereupon her drug dealing gun toting saint of a grandson resumed his business dealings. Eviction notice filed. “Oh, how cruel, you’ll evict a poor grandma just because she let a family member deal drugs and bring in illegal weapons? You MONSTER!”

The press vilified the landlord for a policy that kept his renters safe – in fact the local ACLU sued him. The landlord eventually had to throw up his hands and surrender – yes, you can deal drugs here and grandma won’t suffer for it. Today the complex is like any other complex in that part of the city, run down, the occasional shooting report and residents smoking wacky tobacy when they answer the door.

JohnSmith100 | June 28, 2023 at 2:22 pm

Cities are cesspools, people should get out of them, I remember when Toronto was a nice crime free city, then they let the Muslims in.

The Gentle Grizzly | June 28, 2023 at 4:25 pm

I’m old, and am asking this question of those older than me, if we have any. Here goes: before all of these federal government programs like section 8 and EBT etc. were things really this bad and poor neighborhoods? I’m referring to the time before what they called urban renewal. It was also known among others as Negro removal. Was it really this bad? I know there have always been people with greasy frying pans on the stove, and mattresses on the floor. It happens. But once if this widespread, and was the dope dealing and all the gun fire, really this prevalent in the neighborhoods were such things take place today?

No!!!! Letitia “I’m a gonna get me some Trump” James doesn’t know the law and couldn’t care less? Who knew

Not sure I’m older, born in ’57, but every good intention or happenstance has a downside.

Growing up was warned cops could be brutal, if you so much as mouthed off they would beat the shit out of you (if Italian) or just shoot you (if black). Not Italian (Catholic so Italian adjacent) but saw it – one HS teacher was walking with a cane for a year after police took offense at his language. Both are rare now, but now blacks shooting blacks is a weekly thing in my midsized hometown city. So if you’re black, Numerically, not a win.

Birth control (and abortion) meant young folks had much more freedom to “date” without getting trapped into marriage (theoretically) – War on Poverty made living as a single mom possible. With single motherhood no longer a such a dire fate and young folks propensity to mess up birth control – like everything else – and over time social pressure against single mom hood has lessened resulting in ever more single moms. Resulting in ever more single moms. The single MOST powerful statistical indicator of “you’re gonna be poor” is no longer race – its now do you only have one parent. And the majority of black kids are in that category – something unthinkable before the 60s. So, if you’re black, numerically not a win.

Urban renewal…. many good intentions. When they built the interstate highway thru Syracuse, the South Side had many high end mansions and was the richer neighborhood. The highground they built I-81 on was mansion central – they tore down the rich neighborhood for a wonder. But every other major project they destroyed working class black neighborhoods to build “affordable housing” for displaced blacks. Yes, tge very blacks they were displacing. More well off displaced blacks went suburban, now that racial housing discrimination was being outlawed. So the new concentrated “affordable housing” was pretty exclusively the poorer black demographic – no more black doctors or lawyers, or other high earners to leaven the dough. “Pioneer Homes” is now more commonly known as “Brick City” and is not a place anyone prefers to live in or hang out in after dark. If you were black, and poor, numerically not a win.

Don’t mistake me, I’m not pinning for the “good olde days” – less abusive cops, less race restrictions, more civil rights recognition – lot of good things we needed and want to keep. But not every change since Johnson held office has benefited those most in need of a better life.