The ACLU of Delaware has challenged a Dewey Beach ordinance that violates rental property owners' and residents' Fourth Amendment rights.

Ordinance 423 allows town representatives to enter and inspect a rental property without either a warrant or the prior permission of the resident when a building code violation is suspected. The ordinance was recently contested by Dewey Beach rental property owner Dell Tush, whose rental license application was withheld after she crossed out language in the application related to the ordinance.

ACLU-DE legal director Richard Morse sent to Dewey Beach Mayor Diane Hanson explaining the unconstitutionality of the ordinance and urging the town to repeal it.

This violates the law that prohibits the government from entering and inspecting property without obtaining either the voluntary consent of the resident or a warrant issued by a judge,” Morse wrote.

In addition, because the requirement appears in a rental application, enforcing it would violate the law providing that only the resident, not the owner or landlord, may grant consent for a search.

Dewey Beach should not be violating the law,” wrote Morse. “Please confirm that you will act to have the ordinance repealed and the rental license application changed.”

Town officials have announced their intention to review the ordinance and to invite commentary from Morse during that process.