The Fresno City Council on Thursday might tweak its handling of code enforcement appeals.
Makes me wonder if we’re headed for the day when a landlord claims the city’s filing fee is unconstitutionally excessive for a landlord who wants to claim the city’s fines are unconstitutionally excessive.
The issue before the Council is a resolution from City Attorney Doug Sloan connected to a court case – Lippman v. City of Oakland. I wrote about the case in CVObserver on Feb. 2 (thanks to a tip from my friend and Collegian colleague Dan Waterhouse).
In a nutshell, the First District Court of Appeal said a landlord’s appeal of a code enforcement action must be heard by a panel, not a solitary hearing officer.
Appeals at Fresno City Hall are heard by a solitary hearing officer – Michael Flores.
Thursday’s resolution (on the consent calendar) is an attempt to bring Fresno’s appeal process into compliance with the court.
I’m no lawyer. I thought the Lippman decision gave cities three options for creating a hearing panel. But it appears I’m wrong. According to Sloan’s resolution, the Lippman decision means “hearings on state building code violations must be heard initially or on appeal by a panel, rather than a single administrative officer….”
I read that to mean that, yes, a landlord angry about his code-enforcement fine has a legal right to have his appeal heard by a panel of hearing officers rather than just one hearing officer. However, a city can make that landlord jump through a preliminary hoop – a full hearing in front of a single hearing officer – before the landlord gets to exercise his legal right to a hearing in front of a panel.
Sloan’s rather brief resolution says any appeal before a panel will be a “secondary appeal.” The panel will consist of three hearing officers who are experts in building codes and regulations.
“The Hearing Officer who rendered the initial decision shall not participate in the panel appeal,” the resolution states.
All appeals to the panel will be based only on written briefs. There will be no oral arguments. The panel has 45 days to deliver a written decision. The city or the landlord may appeal to the panel.
City Hall is very aggressive in its enforcement of building code. It’s not unusual for landlords to face fines totaling tens of thousands of dollars. Ed Johnson, the city’s independent administrative hearing officer before Flores, openly questioned whether some of the fines violated the U.S. Constitution’s prohibition of excessive fines.
I find it interesting that the Lippman decision actually allows cities such as Fresno to continue to using a single hearing officer for code appeals – as long as it’s understood that such appeals are merely the first round.
I also find it interesting how Fresno City Hall plans to enable landlords to advance to the second round of appeals should they so desire.
It costs money for a landlord to make his case in front of Flores. The fee is $35 if he owns a single-family residence; $55 if he owns a property of three or more units; $75 if he owns a commercial apartment complex or a commercial business.
If the landlord wants to advance to the second round and have his appeal considered by a panel of three officers, the fee (regardless of type of structure) is $480.
I’ve heard of SLAPP – strategic lawsuit against public participation.
I had never heard of a strategic fee against public participation.