City Hall beats back Eighth Amendment "Excessive Fines" roadblock


It’s official: Fresno can continue to levy huge fines on landlords who refuse to fix their vacant houses.


That’s my take on a major decision from Administrative Hearing Officer Michael Flores involving an Eighth Amendment/excessive fines hearing.

Or, as I prefer to call it, the “Ed Johnson Doesn’t Know Squat” case.

Flores on July 17 issued a 25-page ruling on about 20 properties that had run afoul of the city’s Blighted Vacant Building Ordinance.

As I’ve written about earlier for CVObserver, the Code Enforcement Division occasionally gets a property owner who ignores all warnings to get his building up to code. The result after a torturous administrative process can be fines in the $20,000 to $30,000 range, or higher.

The bill gets bigger in a hurry if the city has to step in and fix the blighted building. This cost is added to the fine. I wrote in April about a code enforcement case in which the owner of a vacant house initially faced a bill of $337,350.

I don’t know the size of the bills on the 20 or so properties. However, they were big enough to catch someone’s attention.

The Constitution’s Eighth Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

Landlords can appeal their fine. That’s where the administrative hearing officer comes into play. Such an appeal can include the city’s bill for any cleanup at the property, usually called an abatement.

Combine the fine with the abatement and you’ve got what the city calls an assessment.

Once or twice a year, the hearing officer holds several days of hearings on all of the outstanding assessments. The total amount of money at stake in these assessment hearings can top $1 million.

The properties in Flores’ decision emerged from the September 2016 assessment hearings. How that came to pass is a tale we’ll tackle later in the story. For now, it’s sufficient to spotlight the fundamental task that was before Flores: Is the assessment, in particular the fine, on each of the 20 properties so big that it violates the Eighth Amendment?

Maybe, Flores wrote in his decision, and maybe not. Most important of all, Flores wrote, the owners of the properties failed to raise the Constitutional issue at the correct point in the appeal process.

“In the end,” Flores wrote, “it is the Hearing Officer’s belief that with every right afforded to the citizens of this Country, there is a corresponding responsibility. In this instance, when the City alleges that a property owner is in violation of a law, and proposes (through a citation) to penalize that owner for that violation, the property owner has a right to due process, and can dispute that allegation before he must pay that penalty. However, those property owners have the corresponding responsibility to reserve the right to dispute that allegation or in this case, the amount of the penalty, by litigating that dispute in a timely manner. In this case, the property owners, for whatever reason, ignored that responsibility or opportunity….In this case, because the property owners could not provide the Hearing Officer with a valid reason for failing to appeal the imposition of a penalty by the City during the time period allowed them by the law, the Hearing Officer declines to give them another opportunity to do so.”

Is that what they mean when they say a case is decided by a “technicality”?

As Flores acknowledged in his conclusion, “there is a long timeline in this matter, with many convoluted issues, both legal and otherwise….”

I won’t tackle everything in this case. But I do want to circle back to Johnson, an administrative hearing officer at City Hall until last fall. It’s Johnson – or, to be more precise, the absence of Johnson – in this matter that most interests me.

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