Smith v. City of Riverside CA4/2 ( 2015 )

Filed 7/8/15 Smith v. City of Riverside CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JOHNNIE SMITH,
Plaintiff and Appellant, E060886
v. (Super.Ct.No. RIC1202101)
CITY OF RIVERSIDE, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Craig G. Riemer, Judge.
Affirmed.
Bill S. Vaughan for Plaintiff and Appellant.
Cristina L. Talley, City Attorney, Rahman Gerren, Deputy City Attorney for
Defendant and Respondent.
Plaintiff and appellant Johnnie Smith appeals from the denial of his writ of
administrative mandamus brought pursuant to Code of Civil Procedure section 1094.5.
In 1970, Smith purchased property located at 6969 Arbor Drive in Riverside (Property).
In 2009, defendant and respondent City of Riverside (City) received an anonymous tip
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that a garage on the Property had been converted to a dwelling (Garage) and might not be
permitted. An inspector came to the Property and observed the Garage. After a review
of the permits pertaining to the Property, the City determined the Garage was not
permitted. Smith was cited for the violation and a hearing before the City’s Community
Development Department/Code Enforcement Division was conducted in September
2010. The hearing officer upheld the violation. An administrative civil penalties hearing
was conducted in May 2011. Smith was not present. The hearing officer determined the
violation found in September 2010 had not been remedied, and fines and fees were
imposed.
In February 2012, Smith filed a writ of prohibition. The trial court construed the
writ as a writ of administrative mandamus. The trial court denied the writ of mandate.
Smith now contends on appeal as follows: (1) There is insufficient evidence to
support the findings of the administrative hearing officers and the trial court; (2) the trial
court should have charged the City for its unreasonable delay in contesting the converted
dwelling, e.g. laches; and (3) his Fourth Amendment rights were violated when the City
inspected the Property without a warrant.
Substantial evidence supports the finding by the administrative hearing officer that
the conversion of the Garage was not permitted and was in violation of Riverside
Municipal Code section 16.04.510. Further, Smith has not shown laches, and there was
no Fourth Amendment violation. We affirm the denial of Smith’s writ of mandate.
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FACTUAL AND PROCEDURAL HISTORY
A. FINDINGS OF THE ADMINISTRATIVE HEARING OFFICERS
On March 12, 2013, the City filed an administrative record. The City provided a
background report prepared by Code Enforcement Officer Todd Solomon. According to
a background report, the City’s Code Enforcement Division received a citizen complaint
that on the Property there were trash cans in public view, too many renters, subjects
living in a motor home, and a garage conversion that was not permitted.
Code Enforcement Officer Robert Plum inspected the Property on May 5, 2010.
The Property had a 1,101-square-feet dwelling and the Garage was in the back. Officer
Plum posted a notice of violation of Riverside Municipal Code section 16.04.510
instructing Smith to obtain building permits for all non-permitted construction or return
the Garage to its original condition. Smith did not apply for a new permit for the Garage.
An administrative citation was prepared on June 8, 2010, notifying Smith he had to
obtain the proper permits for the Garage by July 8, 2010. It notified Smith that he could
be responsible for fines up to $1,000 each day the violation continued.
Several permits for the address of 6969 Arbor Drive were included in the
administrative record. First, an application in 1954 for the “residence” on the Property to
have a septic tank and cesspool. In addition, a building permit granted on June 24, 1963,
for a garage extension was included (1963 permit). The 1963 permit stated it was for an
addition of 18 feet to be added to the existing garage. There was an inspection on July 8,
1963, of the footings, and on August 1, 1963, of the framing. There was a notation,
“Working, ok 8/21/63.”
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Another permit for connection of the Property to the sewer system was included.
It was approved on June 5, 1978 (1978 permit). It only listed an address of “6969
Arbor.” Another document with the words “R.T. 6-1-78 Thomas” had a drawing that
showed two rectangles and a line going to both rectangles.
In addition, photographs of the Property were included that depicted the front
dwelling and the Garage.
A hearing was held on September 2, 2010. The hearing has not been made part of
the record. According to the hearing order sent to Smith on September 10, 2010, the
administrative hearing officer upheld the citation on September 3, 2010. The hearing
officer found as follows: “Officer Plum testified and presented evidence in the form of
photos and other documents establishing the existence of a code violation for failure to
have required building permits for a garage conversion to living space on this parcel. The
sole question presented was whether or not the violation existed on June 8, 2010, the day
of the citation. Photographs depicted that rather than a garage door, there was a regular
door, windows where a garage door would have been based on the aerial photo of the
parcel. There was no concrete driveway in this 1950’s home, but that was not unusual.
Permits shown by City staff indicated that a previous septic tank hookup was changed to
a regular sewer hookup in 1976 for the primary residence. Appellant Smith offered
building permits records, ostensibly to support his claim that the garage conversion that
was done legally in 1964. However, the permits seemed to indicate otherwise, stating it
was an ‘an addition of 18 ft. to a private garage.’ It did not state it was to change the
nature of the garage to a living quarters. Mr. Smith acknowledged it was indeed a living
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space in the garage; however his contention that an ‘addition’ would only be built for
living quarters was not persuasive. Further, he claimed that he purchased the property in
the present condition. However, that does not absolve the city code violation.” Included
in the administrative record was a letter from Smith to the City dated June 18, 2010,
advising the City he was appealing and that he had submitted three building permits.
On November 10, 2010, the Property was again inspected. The dwelling and
Garage were vacant. On November 18, 2010, Officer Solomon found the Garage vacant
with an open rear door and window. Officer Solomon called for an exigent board-up on
the Garage. Officer Solomon issued an administrative citation assessing a fee of $200.
Smith again was advised to obtain a permit for the Garage conversion. On December 7,
2010, no permit for the Garage had been pulled and Officer Solomon issued another
citation for a fee of $500, warning Smith he must get a permit for the Garage conversion.
On January 10, 2011, Officer Solomon issued another citation for the Garage
conversion and fee totaling $500. On February 17, 2011, an administrative civil penalties
notice and order was sent to Smith. He was advised he must correct the violations on the
Property by March 19, 2011, and that he was subject to fees and fines. The fees would
commence on March 19, 2011, if he did not correct the violations.
On March 23, 2011, Smith sent an indecipherable legal notice and demand to the
City citing the Uniform Commercial Code. The City advised Smith that it did not protect
him and that the hearing order issued on September 3, 2010, remained in effect. A notice
of hearing for May 5, 2011, was sent to Smith.
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According to the summary of evidence from the May 5, 2011, hearing, Officer
Solomon presented documents and photographs, along with testimony, depicting code
violations on the Property, including the illegal conversion of the Garage.1 Despite
numerous notices of violations, Smith did not correct the illegal conversion of the
Garage. The hearing officer noted, “No owner or party of interest was present at this
properly and timely noticed Administrative Hearing.” The administrative hearing officer
found, “Based on the records, photographs and information submitted by City staff, it
was established the following City code violation continues to exist on this residential
property: RMC Section 16.04.510 (Lack of Required Building Permits for
Construction/Garage Conversion). Therefore, the City has met their burden of proof and
established the existence of the above City code violation in support of this request for
civil penalties and related costs. This property constitutes a ‘Public Nuisance’ as defined
in the relevant City statutes.” The hearing officer awarded all civil penalties and
administrative costs to the City due to Smith’s failure to remedy the violation. A fine of
$100 each day commencing on March 11, 2011, until the violation was corrected, was
imposed. The City was awarded $1,991.56 in administrative costs.
On February 25, 2013, Smith filed in propria persona a second amended writ of
prohibition in the Riverside County Superior Court, which is essentially indecipherable.
Prior to the hearing on his writ of prohibition, Smith filed an affidavit and objections to
the administrative record. Many of the objections were incomprehensible.
1 A transcript of the hearing was not made part of the administrative record.
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B. FIRST HEARING IN THE TRIAL COURT
On September 20, 2013, the writ of prohibition was heard. Smith had since
retained counsel, Bill Vaughan. The trial court clarified it could only review the evidence
to determine whether the hearing officer abused his discretion in finding the violation.
The trial court stated that if Smith were not represented by counsel, the writ of
prohibition would have been dismissed based on it being incomprehensible.
Vaughan was ordered to provide additional briefing. Vaughan was to make any
objections to the administrative record and augment the record as needed. Vaughan was
also advised to cite to the precise legal issues and factual issues that must be decided by
the trial court.
The City was ordered to file a supplemental brief addressing whether the City’s
inspections of the Property violated the Fourth Amendment. The trial on the writ of
prohibition was continued.
C. NEW BRIEFING
On December 19, 2013, Vaughan made a request for judicial notice of a grant
deed recorded on June 30, 1970, for the Property. The deed showed that Smith purchased
the property on that date.
Vaughan presented new briefing. Smith sought to revoke and dismiss all civil
penalties, citations and costs associated with the Property. Smith sought a writ to direct
the City to refrain from any further harassment. Smith also sought payment of his
attorney fees.
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Vaughan alleged that when Smith purchased the Property, the Garage was a
separate dwelling unit. Relying on the 1963 permit, Vaughan argued that the prior owner
obtained a permit from the City to remodel, enlarge and convert the Garage into a
dwelling. The City signed off on the renovation by stating “Working, ok.” The 1963
permit showed the conversion was approved. After buying the property, Smith applied
for a permit to allow him to connect the Garage to the public sewage system. Smith had
a vested property right in that he relied on the permits.
Relying only on the “Affidavit of Smith” from the writ of prohibition and
photographs in the administrative record, Vaughan insisted that the City had invaded the
Property without a warrant. This violated Smith’s Fourth Amendment rights. All of the
violations and fees were as a result of this illegal entry.
Vaughan also argued that the City’s actions were barred by the doctrine of laches.
Smith was prejudiced by the City’s delay in enforcing the violation. Vaughan also
alleged that the administrative record supported that a garage was not required in the
County of Riverside between the years of 1963 to 1978. Vaughan requested damages
and attorney’s fees. Vaughan attached exhibits that were already in the administrative
record.
The City filed a supplemental brief addressing the Fourth Amendment issue. The
City alleged that the code violation was called in by a citizen. The code enforcement
officer observed the violation from the sidewalk and Smith’s driveway, both of which
were open to the public. There was no Fourth Amendment violation.
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The City also filed a response to the additional briefing filed by Vaughan. The
City argued that Smith had failed to timely appeal the administrative hearing order and
that a writ of prohibition did not provide the relief sought by Smith. The City argued that
judicial review of the administrative hearing order was governed by Code of Civil
Procedure section 1094.6 and provided that a writ of mandate shall be filed within 90
days of the issuance of the final order. Even if the trial court allowed Smith to amend to
a writ of mandate, it would be barred by the statute of limitations.
Vaughan filed a reply to the City’s supplemental arguments. Vaughan noted that
the photographs of the Garage and the Property showed that they had entered the
Property. Further, all City and county ordinances allowing entry did not preempt the
Fourth Amendment. Vaughan also filed a reply addressing the statute of limitations.
Vaughan argued that the City had waived the argument by failing to raise it earlier.
D. RULING
A hearing was held on January 31, 2014. Initially, the trial court noted that based
on Smith’s brief, Smith was raising two issues. One, the administrative hearing orders
that were issued were invalid because they relied upon evidence that was obtained in
violation of the Fourth Amendment; and two, the hearing officer abused his discretion by
ignoring the evidence of the prior permits. Smith was objecting to the administrative
hearing orders from both the 2010 and 2011 hearings. In addition, Vaughan asked the
trial court to consider the writ of prohibition as a writ of mandate.
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The trial court first addressed the timeliness argument raised for the first time by
the City. The trial court rejected the City’s timeliness argument on the ground that Smith
was not properly notified of the time constraints.
The trial court then addressed the merits. The trial court first noted that Smith was
directed to object to any improper evidence presented in the City’s administrative record
or to augment the record with any necessary documents. Smith had done neither.
Further, Vaughan had only cited in the brief to Smith’s affidavit, which was not part of
the administrative record.
As to the Fourth Amendment issue, the trial court noted that the inspection was as
a result of a citizen complaint. The trial court asked Vaughan what evidence proved that
the Garage could not be observed from the street. Smith referred to photographs taken
inside the Garage. The City argued that the inspector could go to the driveway of the
Property and observe the Garage and there was a limited expectation of privacy in a
driveway. The City argued that the first inspection only involved walking up the
driveway. The entry onto the property did not occur until November 18, 2010, when it
was found vacant.
The trial court found the violation that was upheld on September 3, 2010, was
prior to the City’s entry onto the Property. Smith argued that there was an “inspection”
of the Property on April 28, 2010. The trial court agreed that there was some type of
inspection on April 28, 2010, but that did not mean the inspectors entered the Property.
The word “inspected” did not mean entry. The trial court stated, “[a]nd the September
3rd order, it seems to me, is the crucial factual determination that led to all of the
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consequences that Mr. Smith is complaining about. That, basically, is the judgment here.
Everything else that happened were efforts to enforce that judgment.” The trial court did
not find a Fourth Amendment violation.
The trial court then addressed the permits that appeared in the administrative
record. The trial court questioned how the City would be aware of the unpermitted
Garage from the sewage application for the address of 6969 Arbor. Smith argued that the
extension of the line to the Garage in the application put the City on notice of the Garage.
The trial court then addressed the 1963 permit and believed it only approved an
18-foot expansion of the existing garage. Smith admitted that no evidence in the record
contained the term “conversion.” The trial court stated, “I’m not seeing how these—how
those documents are so clearly for approval of conversion of the garage into residential
area as opposed to an expansion of the garage, that the administrative hearing officer was
[ab]using his discretion by construing these as simply being an expansion.”
The trial court then addressed laches for the City’s failure to bring this
enforcement. Again, the trial court denied the claim finding the violation was ongoing.
The trial court ruled, “The point of view here is that you’ve got to show me that
the administrative hearing officer abused his discretion or otherwise proceeded contrary
to law. And I don’t see it. I don’t see . . . that a constitutional violation has been proven
with respect to the fundamental judgment here which is the administrative hearing order
. . . dated September 3rd 2010. I don’t think that you’ve demonstrated to me that the
hearing officer who conducted that hearing and reached that decision abused his
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discretion and otherwise acted contrary to law and I don’t think the laches argument
works. So the court is going to deny the petition for writ of mandate.”
DISCUSSION
A. STANDARD OF REVIEW
Neither party provides an appropriate statement of the standard of review in this
case. In West Chandler Boulevard. Neighborhood Association v. City of Los Angeles
(2011) 198 Cal. App. 4th 1506, the court provided a succinct recitation of the standard of
review as follows: “‘Section 1094.5 makes administrative mandamus available for
review of “any final administrative order or decision made as the result of a proceeding in
which by law a hearing is required to be given, evidence is required to be taken and
discretion in the determination of facts is vested in the inferior tribunal, corporation,
board or officer.”’ [Citation.] ‘[I]mplicit in section 1094.5 is a requirement that the
agency which renders the challenged decision must set forth findings to bridge the
analytic gap between the raw evidence and ultimate decision or order.’ [Citation.] [¶] In
reviewing an agency’s decision under . . . section 1094.5, the trial court determines
whether (1) the agency proceeded without, or in excess of, jurisdiction; (2) there was a
fair hearing;[2] and (3) the agency abused its discretion. [Citation.]’ [Citation.] ‘Abuse
of discretion is established if the respondent has not proceeded in the manner required by
law, the order or decision is not supported by the findings, or the findings are not
supported by the evidence.’ [Citation.] ‘The trial court and appellate court apply the
2 Riverside Municipal Code section 1.17.140 provides for a hearing.
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same standard; the trial court’s determination is not binding on us.’” (Id. at pp. 1517-
1518, fn. omitted; see also Carson Harbor Village, Ltd. v. City of Carson Mobilehome
Park Rental Review Bd. (1999) 70 Cal. App. 4th 281, 287 [we review the administrative
record to determine whether the agency findings were supported by substantial evidence];
Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60
Cal. App. 4th 1109, 1117 (Galante Vineyards) [appellate court reviews for substantial
evidence when trial court also performed substantial evidence review].)
“‘“In applying the substantial evidence standard, ‘the reviewing court must resolve
reasonable doubts in favor of the administrative findings and decision.’”’” (Galante
Vineyards, supra, 60 Cal.App.4th at p. 1117.)
B. SUBSTANTIAL EVIDENCE
Smith argues that despite the 1963 permit not containing the word “conversion,”
substantial evidence established that the conversion of the Garage was approved by the
City in 1963. In addition, the Garage was inspected and approved by the City to connect
to the sewer line in 1976 and 1978. As such, the evidence does not support that he
committed a violation of the Riverside Municipal Code. Further, the City could not
revoke the existing permits even if new regulations required a garage. Finally, Smith had
a vested property right because he purchased the Property in reliance on the permitted
Garage conversion. The substance of these arguments is that the 1963 permit resulted in
the conversion of the Garage to a dwelling and it was permitted. We conclude substantial
evidence supports the administrative order finding the violation. As such, the order
imposing the fees and fines was supported by substantial evidence.
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Riverside Municipal Code section 16.04.510 provides: “It is unlawful for any
person to erect, construct, enlarge, alter, repair, move, use, occupy or maintain any
building, structure, equipment, or portion thereof in the City or cause the same to be done
contrary to or in violation of any provision of this Title or any provisions of the building
code, building code standards, housing code, mechanical code, dangerous buildings
abatement code, fire code and fire code standards (hereinafter referred to as the ‘adopted
codes’), as such codes have been adopted in this Title or as they may be duly amended, or
any other applicable law or ordinance. (Ord. 6844 § 24, 2006; Ord. 6262 § 20, 1996;
Ord. 5551 § 10, 1987; Ord. 5259 § 16, 1985; Ord. 4853 § 45, 1980; Ord. 4192 § 1, 1975;
Ord. 3495 § 1 (part), 1968; prior code § 9.110)”3
Here, the evidence established that the conversion of the Garage was completed
without the proper permits. The 1963 permit on its face allows for an expansion of the
garage by 18 feet. The 1963 permit provides that the building was used as a “private
garage.” The 1963 permit did not authorize removal of the garage door. The 1963
permit cannot be construed to convert the Garage to a dwelling. There is no evidence in
the administrative record that the Garage had its own address or was ever considered to
be a dwelling by the City.
Smith contends that the trial court erroneously focused on what was not in the
administrative record or on the 1963 permit. However, Smith was directed to object to
the administrative record or augment the record if he believed it was incomplete. Smith
3 Riverside Municipal Code (as of July 6, 2015).
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chose not to challenge the administrative record and cannot now complain about the state
of the evidence.
Smith additionally claims that the City approved of the conversion of the Garage
when it inspected and approved the connection of the Garage to the public sewage system
in 1978. However, the evidence does not support such a conclusion. The permit to
connect lists only the address of 6969 Arbor. The attached drawing does not establish
that the inspector observed the converted Garage and ignored it. We cannot simply
speculate as to what occurred in 1978. It is equally plausible that the conversion of the
Garage had not been completed at that time but was actually converted after the sewage
system was approved. Smith is the only party who claimed the conversion occurred prior
to his purchase of the Property; this is not evidence that can be considered. Smith may in
fact have obtained the sewer line in anticipation of converting the Garage. There is no
evidence in the record to support the City approved of the Garage conversion.
Smith makes two other arguments. He contends there was no requirement in
Riverside County for a garage between the years of 1963 to 1978. However, this ignores
the fact that there was no permit obtained to convert the Garage to a dwelling.
Finally, Smith argues he had a vested property right in reliance on the permits. He
insists he would not have purchased the Property if he knew the Garage was not
permitted. “It has long been the rule in this state and in other jurisdictions that if a
property owner has performed substantial work and incurred substantial liabilities in
good faith reliance upon a permit issued by the government, he acquires a vested right to
complete construction in accordance with the terms of the permit. [Citations.] Once a
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landowner has secured a vested right the government may not, by virtue of a change in
the zoning laws, prohibit construction authorized by the permit upon which he relied.”
(Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal. 3d 785,
791.)
Again, this argument presumes that the 1963 and 1978 permits could be relied
upon to allow conversion of the Garage to a dwelling. No person could reasonably rely
upon the permits to find that the converted Garage was approved by the City. Further,
nothing in the administrative record establishes when the Garage conversion occurred.
Smith cannot rely on his own affidavit to show that when he purchased the Property, the
Garage had been converted. Smith cannot establish, based on the evidence in the
administrative record, that he had a vested right in the Garage conversion.
Based on the foregoing, substantial evidence supported that Smith violated
Riverside Municipal Code section 16.04.510. As such, the evidence supported the
administrative order issued on September 3, 2010, finding the violation and the May 5,
2011, order imposing fees and fines based on Smith’s failure to remedy the violation.
C. LACHES
Smith contends that the trial court erred by failing to apply laches. He insists that
the City was aware of the converted Garage since 1963 and did nothing for 50 years to
enforce the code violation. In addition, for the first time, Smith argues that he was
entitled to variance relief.
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“‘Laches is an equitable defense. It consists of a failure on the part of a plaintiff to
assert his rights in a timely fashion accompanied by a period of delay with consequent
results prejudicial to the defendant.’ [Citation.] ‘Delay is not a bar unless it works to the
disadvantage or prejudice of other parties.’” (Cedars-Sinai Medical Center v. Shewry
(2006) 137 Cal. App. 4th 964, 985.)
Initially, Smith’s argument presumes that the Garage was already converted in
1963. However, as previously stated, the 1963 permit only authorized an addition to the
existing garage. Nothing in the record provides when the conversion actually took place.
Only Smith’s self-serving affidavit that the Garage was converted when he purchased the
Property in 1970 provides a possible date of the conversion. It is impossible, based on
the administrative record, to which Smith did not object, to determine how long the
Garage had been in violation of the code, and therefore, there is insufficient evidence that
the City delayed in asserting their right to enforce the code violation. As noted by the
City, it did not have notice until the citizen complaint.
Further, Smith has not shown prejudice. Smith essentially had an unpermitted
garage that he used as a dwelling for some period of time.
Finally, although not addressed by the City, Smith’s additional argument that he
was entitled to a variance is not well taken. A variance to a zoning ordinance can be
granted if it would create “unnecessary hardship.” (Walnut Acres Neighborhood
Association v. City of Los Angeles (2015) 235 Cal. App. 4th 1303, 1305.) Smith never
raised this issue in the administrative hearing or before the trial court. He cannot raise
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this claim for the first time in this appeal. (See Bardis v. Oates (2004) 119 Cal. App. 4th
1, 13, fn. 6.)
D. FOURTH AMENDMENT
Smith contends that the trial court erred by rejecting his argument that all of the
entries onto the Property violated this Fourth Amendment rights. As such, his writ of
mandate should have been granted because the violation, and the fees and fines, were all
based on this illegal entry.4
“The Fourth Amendment provides that, ‘The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the persons
or things to be seized.’ The basic purpose of this Amendment, as recognized in countless
decisions of this Court, is to safeguard the privacy and security of individuals against
arbitrary invasions by governmental officials.” (Camara v. Municipal Court of City and
County of San Francisco (1967) 387 U.S. 523, 528.) In Camara, a case involving the
entry onto private property to determine if it complied with the building code, the United
States Supreme Court held, “Thus, as a practical matter and in light of the Fourth
Amendment’s requirement that a warrant specify the property to be searched, it seems
likely that warrants should normally be sought only after entry is refused unless there has
4 We note that the City’s response to the argument is woefully inadequate. The
City makes a new claim of waiver without citation to any authority. The City
conclusively argues that the Property was vacant and had to be boarded up.
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been a citizen complaint or there is other satisfactory reason for securing immediate
entry.” (Id. at pp. 539-540.)
This case provides some support for Smith’s argument that a warrant was required
to enter his Property for inspections. However, we need not decide whether a warrant
was required because the City did not argue below, and has not argued on appeal, that the
Fourth Amendment did not apply to the entry onto the Property. The City argued below
that the initial inspection, which supported the administrative hearing order on September
3, 2010, involved the inspector standing in the driveway and outside the Property. The
Garage, and as a result, the violation, was in plain view. The trial court agreed that there
was no evidence of entry to support the original administrative hearing order. We agree.
Smith relies on the photographs in the administrative record to support his claim
that the violation was discovered by entry onto the Property. In the record, only a few of
the photographs were taken prior to the September 3, 2010, hearing on the violation. In
photographs dated May 5, 2010, there are pictures of the Garage that are clearly taken
from outside of a fence. The remaining photographs before November 2010 were of the
notice posted on the dwelling. According to the background report, Officer Plum
inspected the Property on April 28, 2010, posted a notice on May 5, 2010, and inspected
the Property on June 7, 2010.
The evidence supports that the violations on the Property were observed without
entry onto the Property. As such, the decision by the administrative hearing officer on
September 3, 2010, did not involve inadmissible evidence in violation of the Fourth
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Amendment. The code violation was not a result of evidence obtained in violation of
Smith’s Fourth Amendment rights.
Smith contends that the inspector had to open the fence in the backyard in order to
view the Garage.5 However, the photographs that include a chain link fence can clearly
be interpreted to show that the inspector was not on the Property.
Finally, Smith contends that even if the original administrative order was not
based on an illegal entry, all subsequent entries onto the Property that supported the fines
and fees imposed on May 5, 2011, was invalid. However, once the violation was first
observed and found to be valid, entry onto the Property was not required to confirm the
violation continued. In fact, there was no dispute that Smith refused to return the Garage
back to its original state. As such, since the violation was found to be true at the
September 3, 2010, hearing, and there is no doubt that the violation continued, the
administrative hearing officer did not have to rely on the subsequent searches in imposing
the fees and fines.
5 Smith states, “for a better view of these premises go to Google Earth on the
internet.” This evidence was clearly not part of the administrative record.
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DISPOSITION
The judgment is affirmed. The City is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
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