As Code Enforcement grows, so does its elephant in the room

City Attorney Doug Sloan is finally in the spot he’s apparently wanted all along: Smack in the middle of the controversy over blighted housing in Fresno.

That means the City Council, like it or not, is right there with him.

This became clear in the course of two days last week.

First, Independent Administrative Hearing Officer Ed Johnson on June 23 handed down a lengthy decision on the appeal of a blighted vacant building citation. Long story short – Johnson said the landlord was guilty, but reduced the $60,000 fine to a mere $1,250 because City Hall thoroughly botched the citation process.

Nothing new there. The city, in Johnson’s view, has been unable for months to follow its own due process rules.

Second, the City Council on June 24 unanimously approved Mayor Ashley Swearengin’s $1.1 billion budget for the fiscal year beginning July 1. The spending plan includes a major commitment to tougher enforcement of local and state housing codes. The focus here is on deteriorating vacant residential buildings and substandard rental units.

The Mayor promises victory over slumlords.

Toward that end, Swearengin’s budget adds six positions to the Code Enforcement Division. The employees in this division respond to tenant or neighbor complaints. They investigate. They write citations. If necessary, they testify at landlord appeal hearings.

Cost of the six new positions: $378,600.

Swearengin’s budget also adds four positions devoted to code enforcement in the City Attorney’s Office. There will be one Supervising Deputy City Attorney, one Deputy City Attorney III, one legal assistant and one legal secretary II.

Cost of the four new positions: $273,100.

Swearengin and the council are spending $651,700 to strengthen the city’s already formidable code enforcement team. The reason: City officials say blighted buildings and abysmal housing units are destructive of the civic order. Fresnans can’t thrive if they live in misery. The city is obligated – make that “mandated” – to use its policing power to see that things are fixed and the bad guys punished.

But something odd is going on. Swearengin and the council have pursued such a course for a good 18 months, ever since city officials were assured that the Great Recession was truly in the rearview mirror. The city seemingly has all the assets on its side. The city makes the rules. The city employs the code enforcement officers. The city has attorneys coming out its ears. The city hires the administrative hearing officers. The city does the investigation and writes the citations. The city has convinced the public that it has a monopoly on virtue. The city has convinced the public that a cited landlord is actually a slumlord.

Yet, as far as appeals of the much-publicized Blighted Vacant Building Ordinance are concerned, the city keeps losing.

How is this possible?

To help tackle that question, let’s take a look at Hearing Officer Johnson’s June 23 decision.

The appeal deals with a house at 138 Roosevelt Ave, on the northwest edge of the Downtown triangle formed by Highway 41, Highway 99 and Highway 180.

It’s an odd area. To the west are the Union Pacific railroad tracks and the City Yard, To the north is 180, which turns this piece of Roosevelt into a dead-end street. Roosevelt has space for only four houses on one side of the street. A car-repair shop, its lot full of cars, sits on the corner of Roosevelt and Divisadero Street.

Three of the four houses are occupied and well maintained. The fourth is 138 Roosevelt, a narrow two-story affair that must have been something special when the neighborhood was still farmland. A boarded-up building (a garage? a guest house?) sits between 138 Roosevelt and the repair shop.

The entire place has been a headache to City Hall for years. The first notice of violation was issued in April 2004. There have been a dozen official legal milestones since then. For example, there was talk of giving the house a local historic designation in mid-2005. Later that same year the house was damaged by fire. The city got the OK in 2010 to demolish the house.

Code inspectors got serious about 138 Roosevelt in early 2016. A “notice and order” to remove public nuisance violations was issued on Feb. 18. There were eight violations:

· The use of plywood instead of a clear Lexan-type material for outside security purposes.

· Boarded/damaged doors.

· Oxidized/peeling paint.

· Missing address numbers on the front of the house.

· Damaged/improperly installed windows.

· Damaged/missing window screens.

· A deteriorated wall on the house’s southeast exterior.

· Overgrown landscaping.

The city returned in late March to see if the owner had fixed things within the required 30 days. He hadn’t. The owner was cited for all eight violations for each of the 30 days – 240 violations total. Each violation cost $250.

Total fines: $60,000.

The owner appealed. Johnson’s decision doesn’t identify the owner.

I attended the June 15 hearing at City Hall. The owner didn’t show up. However, as Johnson’s decision noted, the owner’s brother, Paul Antaramian, did appear and spoke during the public comment period.

Independent Administrative Hearing Officer Michael Flores originally got the case. But Flores said he had a conflict of interest, so Johnson got the case. Johnson’s decision doesn’t identify Flores’ conflict.

Johnson in his decision listed four areas for review.

First, were the eight alleged violations legitimate? Johnson said yes to six. He tossed the violation concerning missing address numbers on a technicality. He tossed the violation concerning overgrown landscaping because the city didn’t properly cite the owner.

Johnson’s affirmation of the other violations wasn’t always ringing. For example, the city cited the state Health and Safety Code in the “damaged/improperly installed windows” violation.

Johnson noted that this specific piece of state code addresses mold. This piece of the state code also says the condition, to be a violation, must endanger the public’s life, health, property or welfare.

“City was questioned as to why this condition rose to the level of an endangerment of the public,” Johnson wrote in his decision. “City testified that they observed mold around the inside of the window frames of the windows that were damaged or missing. It was not clear how this endangered the public, although City argued in general that this was a blighted building that affected the general welfare of the public, and here there was evidence of significant mold conditions, and mold, in general, could affect public health. A bare preponderance of evidence supports the City’s argument.”

This wasn’t the only time Johnson used the phrase “bare preponderance of evidence.”

Second area for review: Was the “notice and order” properly issued?

In a word, no.

“City argued that the Notice and Order properly applied the Blighted Vacant Building Ordinance to the noted property conditions,” Johnson wrote. “This Hearing Officer has addressed this specific issue in four previous Decision and Orders and has four times announced that this argument is without merit. None of these Decisions has been appealed.”

I take that to read: You guys in code enforcement have been slapped down by me four times previously, yet you insist on doing the same stupid things a fifth time. Who’s in charge over there?

The Blighted Vacant Building Ordinance is the key to fining a slow-poke landlord $250 per day for every violation. This is the way a fine grows real big real fast. If this is what you want, Johnson told the city, then be sure to cite the Blighted Vacant Building Ordinance throughout the official notice to the landlord.

Johnson said the city didn’t do this.

“There are now, including this Decision and Order, nine separate Decisions from two different Hearing Officers with the same findings,” Johnson wrote.

Third area for review: Was the citation properly issued; were the fines authorized?

No, again.

Johnson’s beefs are many, but several stand out.

Johnson doesn’t like the city’s interpretation of the 30-day compliance period. For instance, let’s say John Doe is given 30 days to fix his blighted building. Doe sits on his hands for all 30 days. The city then fines Doe going back to Day 1 of the 30-day period rather than starting the fines on the day after the 30-day period.

“This converts the ‘compliance period’ into a ‘violation period’ retroactively,” Johnson wrote.

And that’s not fair under the U.S. Constitution’s due process protections, he added.

Nor does Johnson like the idea of a city hall using the city’s power to hit a property owner with $60,000 in fines for things like mold around window sills and the lack of address numbers on the front door.

The way Fresno City Hall operates, Johnson wrote, “blight penalties are potentially limitless.” Johnson said the Constitution’s protection against excessive fines has something pertinent to say in this regard.

Johnson in the end said the owner of 138 Roosevelt should be fined a total of $1,250, not $60,000.

Yet, even here Johnson was careful to give City Hall its due.

“It should be noted that much higher fines may also have been justified by this analysis, perhaps even the City-imposed $60,000, had the City properly issued the Notice and Order and the Citation.”

Fourth and final area for review: Is a compliance hearing required?

This question goes back to the City Council’s action on April 21. The council at that time passed an emergency amendment to an existing law. At the time I called it the “Hearing Officer Law.”

In a nutshell, the council and the Administration were angry. Their Blighted Vacant Building Ordinance wasn’t cleaning up neighborhoods as fast as they had hoped.

The problem: Landlords at appeal hearings were getting socked with orders, citations and fines for blighted buildings – but many property owners remained slow to act. No one, it seemed, had the hammer to make the landlord act.

The “Hearing Officer Law” requires an administrative hearing officer like Johnson or Flores to hold another hearing 30 days after the appeal hearing. This second hearing would do two things. The specter of returning to a hearing officer within a month would inspire the landlord to get moving. And should the landlord remain a slug, the hearing officer at this second hearing could double the fines and send the matter to Superior Court for prosecution.

We’re talking possible jail time, Mr. Landlord.

As to 138 Roosevelt, that original $60,000 fine could have become $120,000.

Johnson at the June 15 hearing refused to set a date for the compliance hearing.

“A hearing officer is an officer of the court, not an officer of the code enforcement division,” Johnson wrote. “This Hearing Officer is sworn to uphold the constitution, not violate it. The emergency ordinance would require this Hearing Officer to cross the line from neutral fact finder, where both the appellant and the City are parties to the action and treated equally, to a role of prosecutor where the Hearing Officer is advocating for only one of the parties, the City. This Hearing Officer declines to cross that line.”

Johnson suggested that the city amend the emergency ordinance to have a different hearing officer handle the compliance hearing.

As to 138 Roosevelt, Johnson wrote that the city has long had authority to simply demolish the house (regardless of its possible historic value). Johnson said movement by City Hall in this direction is more likely to spur the owner to fix things than a $60,000 fine “that the City would likely never collect.”

Just in case none of the hints in the body of his decision hit home, Johnson concluded his 21-page decision with eight specific recommended reforms to code enforcement. The last one was in bold type:

“Given the continuing disinclination of staff to follow simple Hearing Officer Decision and Order recommendations, this Hearing Officer urges the City to file a petition for a Writ of Administrative Mandamus for this Decision and Order so that a superior court judge can issue a definitive ruling on the numerous complex legal issues raised by this and similar cases.”

In other words, Johnson is telling City Hall: Let’s have a higher authority weigh in once and for all on who is right – Ed Johnson or the people writing these notices, orders and citations.

It’s here that we circle back to City Attorney Sloan and the City Council.

Sloan and his team of lawyers provide leadership at City Hall for all things legal. The city attorney, per the City Charter, is hired and fired by the council.

I’m inclined to think that all notices, orders and citations issued by the Code Enforcement Division are thoroughly checked the City Attorney’s Office before they’re issued. Therefore, if Johnson is right and these legal documents are a disaster, then the fault lies not with code enforcement officers but with the City Attorney’s Office and the City Council. The buck stops there.

I’m not saying the City Attorney’s Office and the City Council are wrong. Maybe Johnson and Flores are wrong. But somebody in the near future has to decide who deserves a job and who doesn’t.

That’s why I said at the start of this story that I think Sloan all along wanted to get to this point. I think Sloan is convinced he can boot Johnson and Johnson’s notion of justice out the front door of City Hall. All Sloan needs is a crisis. The crisis is here.

Flores will watch and get the message.

One thing is for sure. Taxpayers are spending a lot money on code enforcement. They deserve a City Council that gets off its fanny.