by Gary Taylor

City of Council Bluffs v. Limmer
(Iowa Court of Appeals, February 5, 2014)

Limmer owns several rental properties in Council Bluffs.  in December 2010 he certified to the city that he had inspected one of his properties located on Avenue C and that it was in compliance with all of the city’s rental standards, including smoke detectors.  However, on February 2, 2011 a fire occurred at the Avenue C property and one occupant was injured. The city fire inspector inspected the property that day and found no smoke detectors present.  This was reported back to the city, and on February 15 other city officials also inspected the property and found several other code violations in addition to the absence of smoke detectors.  The next day a notice of violation was issued by the city housing inspector to Limmer setting forth a number of violations of the “International Property Maintenance Code (IPMC) and/or city code.”  Then on February 23 the fire marshall’s office issued four citations including the one at issue in this case, which cited Limmer for “unlawfully and willfully” violating city code and the IPMC by not providing smoke detectors.  The housing inspector did not learn of the fire marshall’s citations until later.  In May Lemmer notified the housing inspector that he had corrected the deficiencies, and when she re-inspected the properties she agreed.

At trial over the fire marshall’s citations, the housing inspector testified that the fire marshall’s citations had been issued without her knowledge, and that it was not unusual for her to receive complaints about Lemmer’s properties and to find upon inspection that they did not meet code, but that she personally had never dealt with Limmer without giving him a minimum of 30 days to bring his property into compliance.

The fire marshall’s office representative testified he believed Iowa Code 364.1 gave him the authority to issue the citations “to preserve the rights, privileges, and property of the city or its residents and to preserve and improve the peace, safety, health, welfare, comfort and convenience of its residents.”  Lemmer countered that the “more specific” language of the IPMC procedures “trump the more general grant of authority conferred by the Iowa Code.”

The Court of Appeals disagreed with Lemmer.  After reviewing relevant provisions of Iowa Code and the IPMC, the court concluded that the fire marshall representative had the authority, as a “legal officer” under the IPMC, to issue a citation with a civil penalty for a violation of the city code, even though the housing inspector had already issued a notice of violation for the same offense.  The fire marshall’s office was not required to provide a notice of violation prior to issue the citation because under the IPMC it is only the code official who is first required to first issue a notice.  The Iowa Code, the City Code, and the IPMC all include language permitting a city or designated city officer to seek an additional form of relief to correct a violation or punish a violator.  “There simply is no conflict between the internal sections of the IPMC, the IPMC and the City Code, or the IPMC and the Iowa Code.”