Fire marshall permitted to issue citation under International Property Maintenance Code

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.”

Code enforcement official subject to suit for unlawful inspections

by Victoria Heldt

Jacob v. Killian
(Federal Sixth Circuit Court of Appeals, September 12, 2011)

In October of 1999, Killian, a code enforcement officer for the Township of West Bloomfield, charged Jacob for having “blight” and “junk vehicles” in his yard.  He issued the violation after learning of 10 similar prior complaints regarding Jacob’s property.  Jacob pled guilty to the charge, subject to a plea agreement in which he agreed to clean up the area and remove the fence supports within 14 days.  Killian returned to inspect Jacob’s property pursuant to the agreement and discovered he had not complied with the terms.  Subsequently, Jacob served a 30-day jail sentence over portions of October and November 1999.

Jacob sued Killian, claiming that Killian continued to enter and inspect the curtilage of his property without a warrant after Jacob’s incarceration, and that this activity was a violation of his 4th Amendment rights.  Killian argued that he should be granted a summary judgment based on qualified immunity.  The principle of qualified immunity protects government officials who perform discretionary functions from civil liability so long as their behavior does not violate clearly established constitutional rights.  The district court denied his request.

On appeal, Killian argued that Jacob lacked sufficient evidence to support the claim that Killian ever entered his backyard after the incarceration (except for on January 7, 2000, which is relevant to a separate claim).  Jacob had testified that he saw Killian enter his property several times and saw him take photographs on some of the occasions.  The Court noted that Killian had previously admitted to inspecting the property on June 26, 2001, which supports Jacob’s testimony.  Additionally, the Court found that Jacob’s testimony itself is enough evidence to defeat a request for summary judgment.

Killian then argued that he should be granted qualified immunity since he completed the inspections of the property pursuant to an order.  The Court stated that the “just following orders” defense holds no merit in the court system.  Furthermore, Killian never provided any actual evidence that he was ordered by his superior within the Township to inspect Jacob’s property subsequent to Jacob’s incarceration.

Killian submitted a picture taken on January 7, 2000 of Jacob’s property as evidence that he never entered the protective curtilage of Jacob’s home.  He admitted that he visited the property on that date, but that the scenery in the picture proves that he never encroached on a constitutionally protected area.  The Court decided not to address this claim since the issues regarding the other incidents in the case would still prevent a favorable ruling for Killian.

Next, Killian alleged that Jacob consented to the inspections as a term of his probation.  The Court determined that this claim had no merit, because Jacob was never actually put on probation.  The terms of his plea bargain stated he would be put on probation if he complied with the terms of the agreement and evaded time in jail.  Jacob was found to be in violation of the agreement and served a 30-day jail sentence; therefore, he was never put on probation.  Additionally, the Court noted that even if Jacob had received probation, it would not mean that he waved his fourth amendment rights regarding entrance onto his property.

After denying Jacob’s request for attorney’s fees or sanctions against Killian, the Court affirmed the district court’s denial of summary judgment.





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