The Tennessee General Assembly passed enabling legislation this year which would permit municipalities to appoint local hearing officers to hear cases involving local codes issues, including building, plumbing, residential, and property maintenance code. Zoning regulations do not appear to be included within the text of the act (although it is not clear why zoning was excluded; perhaps it will be added in the future) which may be found that Tenn. Code Ann. § 6-54-1001, and following.
Here is a list of the codes specifically referred to by the Act:
(1) Locally adopted building codes;
(2) Locally adopted residential codes;
(3) Locally adopted plumbing codes;
(4) Locally adopted electrical codes;
(5) Locally adopted gas codes;
(6) Locally adopted mechanical codes;
(7) Locally adopted energy codes;
(8) Locally adopted property maintenance codes; and
(9) Ordinances regulating any subject matter commonly
found in the above mentioned codes.
The hearing officer is to be appointed for a four-year term by the “local governing body” and serves at the pleasure of the appointing authority. The officer may be a building inspector, a plumbing inspector, an electrical inspector, an attorney, engineer, or architect, or an administrative law judge working for the State of Tennessee.
Certainly, permitting the appointment of local hearing officers for codes matters is a reasonable approach to reducing the backlog of cases which frequently obstruct local municipal courts. There are three concerns however which I have based upon the language of the Act.
First, and perhaps most importantly, it appears that the hearing officer is supposed to made a preliminary decision about the “appropriateness” of the alleged violation in advance of the hearing. “Upon determining that a violation does exist, the hearing officer has the authority to levy a fine upon the alleged violator...” I think a better approach would be to have the inspector suggest a fine, and have the hearing officer get involved only at the time of a hearing. In fact, a hearing is set only after a fine is levied according to the language of the act. Tenn. Code Ann. § 6-54-109(c). It is true that some state and federal agencies delegate the authority to an inspector to impose a fine upon of finding a violation. Those agencies normally are dealing with issues concerning life safety. Much of the enforcement action in these codes matters has little or nothing to do with life safety. Surely, a violation of the building code could be a life safety issue. But usually, the cases involve old junk cars, various types of debris, and other nuisance type situations. It doesn’t seem necessary to vest municipal codes officials with the same degree of authority as state and federal regulators looking into life safety issues.
Second, the hearing officer seems to be required to make a preliminary finding that the citation is valid. After citing the defendant, the citation must be transmitted to the hearing officer within two days. The hearing officer has seven days within which to make a determination of “appropriateness,” which is likely to be just a check to make sure of jurisdiction. But it surely seems suspect to have the same officer who will preside over the hearing to decide whether the citation was “appropriately” issued.
Third, the timing seems a bit quick. Apparently, a fine can be levied at the time that “appropriateness” is found with dispensation given if the property owner corrects the violation. The hearing officer can give the property owner between 10 and 120 days to correct the violation.
But once a fine has been levied, the hearing officer must give notice by certified mail, within seven days, of the fine and the time frame within which a remedy may be provided. That same notice sets a date for the hearing. The hearing date can be no more than 30 days after the issuance of the citation. The defendant must make a written request for the hearing within seven business days of the receipt of the hearing notice. I’m not sure that in any of the major metropolitan areas of the state that a hearing can be accomplished with anything close to this speed. Furthermore, to the extent that an attorney is going to get involved, it won’t be possible to be ready for a hearing within that short period of time. At the end of this complicated series of notifications, there may be less than a week left before the date assigned for hearing by the hearing officer. Again, it may be that the time limits should be adjusted to allow more time to prepare and defend these charges.
But it seems irregular that the hearing officer can review the “appropriateness” of the citation without notice or opportunity to be heard by the defendant, and the same hearing officer can preside over hearing to determine presumably whether the defendant is guilty of the alleged infraction.
With regard to the hearing itself, while I assume that the burden of proof would be on the city, the statute does not address that point.
The Act allows for a $500 a day fine in the case of nonresidential properties. That is in all probability one of the main reasons for this new statute. It avoids the Constitutional limitation of $50 on fines unless imposed by a jury.
Finally, the method of appeal is strikingly similar to the common law writ of certiorari. Unfortunately, this means that the hearing officer (who is not a judge and not subject to the judicial canon of ethics), will make a determination about the facts of any particular case, and the parties will never be able to get a Judge to review the actual factual findings. Because under the provisions for appeal, the court only gets to review whether or not the decision is arbitrary and capricious. This may be constitutionally suspect. At some point in the process, a defendant who is being fined $500 a day by a municipal government ought to have the right to have a real judge listen to the evidence and make a determination about the facts and law as applied to the case.
I did not know of any municipality which has yet adopted this procedure. It certainly will be interesting to see how the statute gets utilized and whether these problems come to the fore.