Farmers Branch rental ban blocked from implementation


by By STEPHANIE SANDOVAL / The Dallas Morning News

Posted on August 15, 2009 at 4:44 PM

Updated Friday, Oct 16 at 11:20 AM

So far, the third time is not the charm for Farmers Branch.

U.S. District Judge Jane Boyle issued a temporary restraining order Friday barring the city from implementing its latest ordinance aimed at halting housing rentals to illegal immigrants.

Under the new measure, which city attorneys said would have gone into effect today, apartment and home renters would have to obtain a city occupancy license by stating that they were U.S. citizens or were in the country legally.

The city would then check the information from noncitizens against a federal database to confirm that they were here legally. If not, their license could be revoked and they could be evicted.

"This is an important question," Judge Boyle said.

In granting the restraining order, she said that the measure could cause irreparable harm to apartment complexes by driving prospective tenants away and that the measure might be struck down at trial.

The city's chief building inspector, Jim Olk, had said earlier in the week that the licensing process would be delayed until Monday. But Michael Jung, an attorney for the city, said Farmers Branch planned to launch the permit system online today.

The status checks would have had to wait, however, because the city has yet to receive permission to use the federal database.

Judge Boyle agreed with the plaintiffs' attorneys that the database appears to provide information only on a person's immigration status - which may not necessarily correlate to whether he or she is in the country legally, the determining factor in the ordinance on whether a person can rent in Farmers Branch.

The judge's order blocks implementation until a hearing can be held on a preliminary injunction. The injunction would bar the city from acting until the legal challenges over the ordinance are resolved.

Mayor Tim O'Hare said he wasn't surprised by the judge's decision, though he thought it was wrong.

"I think the will of the people of Farmers Branch is not being carried out," he said. "I think you'll ultimately see this matter resolved by the U.S. Supreme Court."

Former City Council member Junie Smith, one of the plaintiffs fighting the city's measure, had a far different reaction.

"Tell the world I'm ecstatic," she said. "I'm doing cartwheels down the hall."

The request for a restraining order was part of a lawsuit brought by Ms. Smith and three apartment complexes in Farmers Branch. They contend that the law is intended to discourage low-income Hispanics from living in the city, that it would ban rentals to some immigrants not subject to federal deportation, and that it violates the supremacy clause of the U.S. Constitution, which gives only the federal government authority to regulate immigration.

The licensing requirement of Ordinance 2952 "goes far beyond and deviates from federal immigration laws," attorney James Renard said. "There is no federal equivalent of such a scheme."

The city's attorneys have denied any attempt at discrimination. They say the law is aimed at illegal activity and applies to all ethnic groups, not just Hispanics.

They argued Friday that allowing implementation would not cause irreparable harm to the apartments.

"All that's about to happen is, quite frankly, some paper shuffling," Mr. Jung said. He noted that because of a hearing and appeals process in the ordinance, no license denials or revocations would take place for at least two months, plenty of time for the court to decide whether to issue a preliminary injunction.

The city's attorneys included Kris Kobach, professor of immigration and constitutional law at the University of Missouri-Kansas City. He helped the city's lawyers at Strasburger & Price draft Ordinance 2952 and represented the city of Hazleton, Pa., which has also had a rental ban struck down.

Mr. Kobach argued that the Farmers Branch ordinance goes hand in hand with federal law, particularly against harboring illegal immigrants.

Mr. Jung argued that the ordinance addressed all the legal concerns raised about two predecessor ordinances.

"It puts minimal burden on landlords, puts minimal burden on tenants," he said. "We believe it is fully constitutional."