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Code Enforcement penalties getting rolled back

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Fresno City Hall apparently needs a crash course on its own blighted building laws.

This ignorance – hubris? – by city officials cost city coffers nearly $45,000.

Then, again, that $45,000 or so remains in the pockets of Fresno property owners.

Administrative hearing officer Ed Johnson has overturned two code enforcement cases dealing with vacant houses in older Fresno neighborhoods.

The city claimed that a house in the 1500 block of North Pacific Avenue (about a half-mile west of Fresno High School) and a house in the 400 block of West Geary Street (near Hyde Park in Southwest Fresno) are owned by, well, if not slumlords then slum-enablers.

Both houses are allegedly plagued by exterior defects of such seriousness and scale that they constitute illegal blight, the city claims. The owners were duly warned to fix things, but refused. The only option was to fine them, the city claims.

That’s what city officials did.

Elizabeth Yebonessa Olivares and Ohaged Mondol, owner of the Pacific Avenue house, were hit with a $15,000 bill.

Donna Barela, owner of the Geary Street house, was hit with fines totaling $30,000.

Both property owners appealed to Johnson, who acts as judge and jury in such cases.

Johnson tossed the entire Olivares-Mondol fine out of court.

“I find it is very likely that the penalties as applied are excessive, and it is very likely that the citation of conduct ex post facto offends due process,” Johnson said in his written decision. “Further, there is insufficient evidence the cited conditions rise to the level of a violation, which standing alone, is fatal to the citation.”

Johnson tossed all but $450 of the Barela fine.

The Barela fines, Johnson said, “raise substantial questions of constitutional excessiveness. Fines must not be grossly disproportional to the gravity of the offense.”

What we have here is a code enforcement mess. I’m guessing it will only get bigger.

We all know a rough outline of the story’s context.

Mayor Ashley Swearengin took office in January 2009 vowing to slow sprawl and revitalize Fresno’s older neighborhoods. This journey has taken Fresno down many paths. There have been impressive successes over the past seven years.

Code enforcement is a big part of Swearengin’s revitalization formula. Code enforcement is a complex idea – the use of government power to make people behave in a prescribed manner on their own property.

One thing led to another, and by 2015 there was a new Blighted Vacant Building law on the books. The city’s initial focus is on houses and apartment complexes. The idea – decaying empty houses are a cancer on neighborhoods, especially in poorer parts of town.

The sin isn’t that the house is empty. The sin is that the empty house is left to slowly decay in plain sight. All sorts of social pathologies and economic damage are spawned by this blight, the city says.

The new law has a number of no-nos. A landlord who ignores a City Hall warning is subject to a $250 fine per violation per day. Someone getting such a fine can appeal to an administrative hearing officer.

One other thing – the preferred term in many circles (including parts of city hall) is not landlord. It’s “slumlord.” I’ll stick with landlord.

Landlord appeals started making their way to Johnson’s desk in February. Johnson almost immediately saw potential trouble. At $250 per violation per day, the total bill to a landlord could grow in a hurry. Johnson asked the City Attorney’s Office: Do these big bills violate the U.S. Constitution’s protection against excessive fines?

Johnson said he would delay decisions on a handful of appeals until he heard from the City Attorney.

The City Attorney said the fines are legal. Johnson said he would make up his own mind.

The Olivares-Mondol and Barela appeals are Johnson’s first major decisions in this New World of the Blighted Vacant Building law.

Johnson’s implied recommendation to city officials is unmistakable: Reform your code enforcement process.

Both decisions were signed by Johnson on Wednesday. Each is 17 pages. Let’s take a close look at the Olivares-Mondol case, using Johnson’s decision as our source.

The trouble began on Oct. 15, 2015 when the city sent a notice (officially called a “Notice and Order”) to the owners. Two violations were alleged: 1.) they had used plywood instead of Lexan (a brand name for a hard, see-through material) for covering the windows as a security measure; 2.) they had allowed paint on the house exterior to peel and become oxidized.

City code prohibits the use of plywood to secure windows in vacant houses if the windows can be seen from the street. Nor does city code like peeling paint.

The owners were given until Nov. 14 to fix things. Things weren’t fixed. The city issued a citation on Nov. 20.

There were two violations, each for 30 days. In essence, that’s 60 violations. The fine is $250 per violation. The result: Olivares and Mondol were told to pay $15,000.

“At the hearing,” Johnson said in his decision, the “appellant testified that she had purchased the property with the intent that it would be owner occupied by herself, her military husband, her one-year old and her expectant child.”

The appellant said she was working hard to fix things, but, because of all the rain, needed more time. She said city officials had told her that Lexan was not needed if the windows were intact and locked.

“Appellant testified that she would likely have to sell the property if the fines were imposed and additional compliance time was not granted,” Johnson said. “She testified that she had verbally requested additional time but was denied, and she did not know the request had to be in writing.”

City officials argued that the house had been owned by the appellant since 2010. The place was vacant the entire time. The city felt there had been “ample time to bring the property into compliance.” The city wanted the windows covered with Lexan. The city wanted the oxidized and peeling paint removed.

The city’s stance was that “these conditions demonstrated that (the) appellant remained out of compliance” with the notice.

Johnson explored three questions:

1.) Was the property in violation?

2.) Was the citation properly issued?

3.) Were the fines properly authorized?

Take the peeling paint, for example. Johnson said the city relied on a city code section that defines a violation as “conditions to an extent that endangers the life, limb, health, property, safety, or welfare of the public ….”

Keep in mind that we’re dealing with peeling paint on a portion of a house.

The city, Johnson said, “did not present any evidence that the condition of the exterior walls was an endangerment of any kind.”

The Blighted Vacant Building law deals with peeling paint in considerable detail. But, Johnson said, the city had used a different law to cite Olivares-Mondol.

Johnson moved to the Lexan issue.

Swearengin was adamant during debate on the Blighted Vacant Building law that security coverings for windows visible from the street must be of a clear material rather than plywood. The clear coverings were deemed to be more pleasing aesthetically. They also would allow public safety officials to see inside the empty building.

Johnson said Olivares-Mondol had unbroken glass windows with locks on the front of their house. Yet, the city still wanted Lexan over the windows.

If that’s the situation, Johnson said, “every front-facing window for every vacant property that is for sale anywhere in the city would be required to be boarded up with Lexan. That is an absurd result and a legislature does not intend absurd results.

“Further, if high-income property owners were not required to board their vacant high-value for-sale properties, while lower income property owners are required to board their lower-value properties, it raises issues of constitutional equal protection. This Hearing Officer does not believe that was the intent.”

Olivares-Mondol had done nothing wrong with their front windows, Johnson said.

Johnson dug deep into whether the city properly issued the citation. Here we get into discussion of the U.S. Constitution’s Fifth and Fourteenth Amendments dealing with due process.

One the things that bothered Johnson was the way the fine was computed.

The scenario apparently goes like this: The city issues a citation. The city tells the property owner to fix things through a Notice and Order. The city gives the owner a 30-day compliance period. The owner doesn’t fix things. At the end of 30 days, the city goes back to Day 1 of the compliance period and computes the fine from that date.

“This converts the ‘compliance period’ into a ‘violation period’ retroactively,” Johnson said. “While it could be argued that conduct during this period is unlawful but within a ‘grace period,’ converting a grace period into a penalty period ex post facto seems to this Hearing Officer to offend basic fairness.”

Johnson dug even deeper into whether the fines were authorized. He cited case law that supports both sides. Yes, the courts give cities considerable authority to fine property owners who don’t follow common sense laws designed to maintain public order in a complex society. At the same time, the courts are well aware that abuse of this power is a quick and destructive way of separating a citizen from her property through outrageous fines.

Bottom line: Johnson saw the Olivares-Mondol fines as outrageous.

“The penalty exceeds penalties for similar and more serious violations,” Johnson said. “Blighted buildings are deemed to be a public nuisance. Other nuisance conditions are not similarly treated.

“For example, the first time administrative citation penalty for 10 acres of dried grass at the height of the worst fire season in memory, which the City has declared to be a nuisance and ‘otherwise noxious or dangerous,’ is $200.

“Yet the penalty for a first time administrative citation for a blight violation for peeling paint and the use of plywood instead of Lexan, which is also declared to be a nuisance, is $15,000.”

In conclusion, Johnson said the city in the Olivares-Mondol case is using heavy artillery that is better suited for really big code enforcement crises. He didn’t mention Summerset Village Apartments, but that’s probably what he had in mind when he said of five-figure penalties:

“While those fines may be appropriate for larger projects that have deliberately ignored health and safety issues, and caused significant risks to the public, here, single family, soon-to-be owner occupied dwellings, whose owners are proceeding in good faith with substantial progress to improve the property and neighborhood, albeit not at the ordered pace, should not fall under the sweep of such drastic measures and fines.”

The Barela case on West Geary in many ways produced a decision like the Olivares-Mondol decision.

There were four alleged violations: 1.) the use of plywood instead of Lexan for boarding purposes; 2.) the presence of a damaged/cracked exterior wall; 3.) missing address identification numbers; 4.) the presence of rubbish and trash.

That’s four violations for 30 days – 120 total violations at $250 each.

I’ll handle the Barela decision with two examples.

Barela said a neighbor put the trash on her property. She even got a signed notarized statement from the neighbor to that effect. Still, Barela was fined $7,500 for the alleged trash violation.

As to the lack of address identification numbers, the city said that creates a safety hazard because first responders might not be able to locate the building.

Johnson said “the argument that a lack of address numbers is itself a safety hazard is unpersuasive.”

I bumped into Jennifer Clark, director of the city’s Development and Resource Management Department, at City Hall on Thursday. The code enforcement division is part of her shop.

Clark said she is aware of Johnson’s decisions, but it’s too early to say what the city will do next.

Appellants can go to Superior Court if they don’t like a hearing officer’s decision. I’m assuming City Hall can do the same thing.

City officials have made no secret that they don’t like many of Johnson’s decisions. They’ve said he sides too often with the appellants, thus costing the city big bucks.

The City Council recently authorized the hiring of a second hearing officer. He is Michael Flores, a former deputy city attorney at City Hall.

Johnson’s three-year contract expires in the fall.

I sense he doesn’t expect to be rehired.

George Hostetter
George Hostetter is The Sun’s Fresno Civic contributor – covering the City of Fresno, County of Fresno, and Fresno Council of Governments.

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