STATE COLLEGE MOVES TO CLOSE TWO FRATERNITY HOUSES

Tim Burke, Manley Burke, tburke@manleyburke.com

Two fraternities at Penn State, Tau Kappa Epsilon and Phi Kappa Tau, face the prospect of losing the right to occupy their fraternity houses for six months due to violations of the Borough of State College Rental Properties Regulations.

If that penalty is imposed, the fraternity houses would be the first fraternity houses to face such a penalty under Code provisions that were initially adopted in the mid-1990s.

The State College regulations do not appear to be aimed exclusively at fraternities and sororities.  In fact, a suspension has been imposed on only one property previously.  It was not a fraternity house.  The State College regulations provide that if a rental property has a series of violations found against it in a one-year period, enough to rack up ten points under the provisions of the ordinance, a six-month suspension of the right to rent the property may be imposed at the end of the current lease term.  For these fraternities, that would mean that at the end of this semester, their house could be closed for six months.

The ordinance, as amended in 2004, provides that one point is assigned for each offense related to Maintenance Code violations, refuse, sidewalk obstruction, grass and weeds, recycling and dogs.  Two points are assigned for disorderly conduct, alcohol possession or consumption by a minor, drugs, simple assault, harassment, open lewdness, indecent exposure, Fire Code offenses resulting in a fine, occupancy limits and student home violations.  Three points are assigned for each offense involving furnishing of alcohol to a minor, aggravated assault, rape, statutory sexual assault, certain other sexual misconduct and possession with the intent to deliver illegal drugs.

The regulations require that a property owner be given notice any time during a year when five points are accumulated.  That notice must warn the property owner of the potential of suspension.  The law requires the property owner to provide a correction plan that must be submitted within 30 days of the notice and provides for a meeting with the Borough Manager to discuss the issues involved and how to avoid suspension.  The ordinance also contains appeal rights in the event suspension is, in fact, initiated.  A property owner may defend against the suspension by demonstrating that offending tenants have been evicted from the property.

In essence, it appears that the ordinance attempts to address the due process requirements of the Constitution.  That strengthens the Borough’s position when it comes to enforcing the terms of the regulations.

Fraternal Law first reported on an earlier version of the ordinance involved in March of 1996.¹  At that time, even the Borough Solicitor, the attorney for the community, had been quoted in local press as suggesting that the ordinance may be subject to a constitutional challenge.  The concern about the constitutionality of the ordinance may be why the Borough has moved slowly and only actually enforced the rental suspension against one prior property owner.  It may also explain why the Borough has developed this series of due process safeguards.

According to newspaper reports, Phi Kappa Tau has been cited within the past year for violating rules related to snow removal, trash collection, excessive weeds, disorderly conduct and furnishing alcohol to minors.  Tau Kappa Epsilon was cited for disorderly conduct and Fire Code violations.

Adam Smeltz, in an article for Centre Daily, quoted Borough Councilman Tom Daubert as saying, “Our intent wasn’t to get fraternities.  Primarily, it was to make rental housing owners follow the laws…. It made someone responsible for what was going on.  If the owner didn’t take it in hand, then we would take it in hand.”

Borough officials appear to be carefully following their process and are in communication with the two fraternities.  In an article in Penn State’s Daily Collegian, Kelsey Maxin writes that Borough Planning Director Carl Hess said, “’The Borough does not want to revoke permits, it just wants tenants to correct their behavior.’  At the Intervention Meeting [which occurs after the five-point notice], he said they come up with ways properties can fix their behavior.  He said properties that rack up five points usually take a proactive approach and change their behavior, no longer having any problems.”

In a later Centre Daily article, Adam Smeltz reported that the Tau Kappa Epsilon Chapter had recently had, under the threat of suspension, obtained a new local Chapter Advisor.  They had not had one, according to the article, for a decade.  The new Chapter Advisor, a 1978 Penn State graduate, lives five doors away from the fraternity house.

Bill Knickerson, the Advisor, is quoted as saying, “We are optimistic, and we are looking forward to getting Teke back to its glory days, the way we remember.”  Knickerson and the Chapter Advisor for Phi Kappa Tau, as well as Phi Kappa Tau’s national organization, are all working with Borough officials to ensure compliance in hopes that the Borough will not exercise the suspension option.

On November 2^nd, as this issue was going to print, State College announced its intention to suspend the rental permits of both houses.  Appeals, provided for in the ordinances, are planned.  If those are not successful, some 45 fraternity men may be out of a house when the suspension becomes effective on December 23^rd .

A legal challenge to the ordinance may attack the due process issue and the penalty being imposed on the property owner rather than on the wrong-doing tenants.

As we have reported in Fraternal Law in previous issues, chapters occupying fraternity houses, particularly those which are off-campus in residential neighborhoods, need to exercise great care to be good neighbors.  If they allow their yards to accumulate trash and high weeds, if they disturb the neighborhood with repeated loud parties, engage in illegal conduct disruptive to the neighborhood, the community, and ultimately local officials, will look for ways to control the problem.  On occasion, the control methods used can be excessive and drastic.  At best, they can lead to fines and litigation.  At worst, as here, the very continued existence of the house can be jeopardized.  At Penn State, these two fraternities may have the right to occupy their house jeopardized because they failed to do the simple things that responsible neighbors are expected to do – cut their grass, shovel their sidewalk, obey the law and respect their neighbors.

¹  Fraternal Law No. 56.