City of Jackson v. Mohamed Shehata ( 2006 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
MAY 16, 2006 Session
CITY OF JACKSON v. MOHAMED SHEHATA
Direct Appeal from the Circuit Court for Madison County
No. C-04-528 Donald H. Allen, Judge
No. W2005-01522-COA-R3-CV - Filed July 31, 2006
A businessman purchased a house in Jackson, Tennessee for the use of his employees. While he did
not live at the residence, the businessman allowed the employees to park the equipment used in the
furtherance of his business at the residence. The equipment consisted of parking lot sweepers,
pickup trucks, and trailers holding lawn-care equipment. The house is located in an area of the city
zoned for residential use only. After receiving complaints from the neighbors, the city discussed the
situation with the businessman in an effort to have him remove the equipment. When he failed to
do so, the city sent him a letter asking that he remove the equipment or face further action. When
this did not produce results, the city issued the businessman a citation for violation of the applicable
residential zoning ordinance. The city court ruled that the businessman’s conduct violated the
ordinance. The businessman appealed to the circuit court, which likewise entered a ruling in favor
of the city. The businessman has appealed to this Court arguing that the applicable ordinance is
impermissibly vague and that the citation failed to notify him that storing business equipment at the
residence constituted a violation of the ordinance. We affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.
Danny R. Ellis, Jackson, TN, for Appellant
Lewis L. Cobb, Sara E. Barnett, Jackson, TN, for Appellee
OPINION
I.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
Mohamed Shehata (“Mr. Shehata” or “Appellant”) was born in Egypt but migrated to the
United States approximately eighteen years ago. Mr. Shehata owns and operates a property
management business, a lawn-care business, and a parking lot sweeping business. At some point,
he purchased a residence located at 23 Leebark Cove in Jackson, Madison County, Tennessee.
Leebark Cove is zoned by the City of Jackson (“City” or “Appellee”) for single-family residential
uses, and approximately ten single-family homes are situated in the cove.
Mr. Shehata does not live at the residence he purchased on Leebark Cove. Instead, the home
is occupied by approximately six individuals, some of whom are Mr. Shehata’s cousins. At the time
of the events giving rise to this litigation, all of the individuals living in the residence were in the
United States legally pursuant to temporary employment visas. Each of the individuals worked for
Mr. Shehata at either his lawn-care business or parking lot sweeping business. Mr. Shehata allowed
them to live at the residence as part of their compensation package or out of deference to his family
members, and he paid all of the utilities for the home.
Mr. Shehata owns several vehicles used in the lawn-care and parking lot sweeping
businesses. These consist of pickup trucks, trailers attached to the trucks for hauling lawn-care
equipment, and parking lot sweepers. The parking lot sweepers weigh 9000 pounds, seat two to
three people, are equipped with flashing yellow lights on the cab, and display commercial license
plates issued by the State of Tennessee. The employees do not own their own personal vehicles,
which Mr. Shehata attributed to the fact that the employees are in the United States temporarily
pursuant to their employment visas. Accordingly, Mr. Shehata allowed the employees to park the
trucks, trailers, and parking lot sweepers at the residence on Leebark Cove. In addition to using the
vehicles to travel to and from work, Mr. Shehata asserted that the employees were free to use the
vehicles, including the parking lot sweepers, for personal use. Mr. Shehata stated that the pickup
trucks and trailers holding the lawn-care equipment are gone from the residence during the daytime
hours, while the parking lot sweepers leave the residence around 8:30 p.m. and return in the morning.
Sammy Elgin (“Mr. Elgin”), a resident of Leebark Cove, complained to his councilman,
David Cisco (“Councilman Cisco”), about the noise and congestion generated by the vehicles parked
at Mr. Shehata’s residence. According to Mr. Elgin, the character of the neighborhood changed after
Mr. Shehata’s employees moved into the residence. He complained that the employees parked the
vehicles in the driveway, the yard, and adjacent to the roadway disrupting access to the cove.
Further, he complained of the constant movement of vehicles at the residence and noted that parking
lot sweepers had loud diesel engines and made a beeping sound when they backed out of the
driveway. Mr. Elgin began documenting the activity at the residence both day and night by taking
photographs over a significant period of time.
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Councilman Cisco subsequently drove by the residence to verify that the vehicles at issue
were in fact being housed at the residence. Councilman Cisco stated that, in addition to the pick-up
trucks, trailers, and parking lot sweepers, he noted six to eight sedans parked at the residence as well.
In turn, he contacted Paul George (“Mr. George”), an employee with the City’s planning department,
to request that Mr. George investigate and ascertain Mr. Shehata’s compliance with local zoning
ordinances. Mr. George likewise went to the residence and observed the vehicles parked there.
As an employee of the City’s planning department, Mr. George is responsible for drafting
and interpreting the City’s zoning ordinances. Mr. George stated that, since the area was zoned for
residential uses only, he determined that Mr. Shehata was violating the ordinance by storing business
equipment at the residence. Specifically, Mr. George interpreted the ordinance to preclude the
storage of a parking lot sweeper and landscaping equipment at the residence. Mr. George conceded
that the other vehicles parked at the residence did not violate the applicable ordinance. Thereafter,
Mr. George discussed the perceived violation with Mr. Shehata and asked that he store the vehicles
at another location zoned for commercial uses. According to Mr. George, a citizen dissatisfied with
his interpretation of an ordinance may appeal that interpretation to the City’s Board of Zoning
Appeals. Mr. Shehata, however, did not pursue such action. Mr. Shehata acknowledged that he
spoke with Mr. George about the perceived violation, but he maintained that Mr. George told him
the matter was a “gray area.”
On March 16, 2004, Mr. George sent a letter to Mr. Shehata informing him of the following:
We have noticed that you have parking lot sweeping equipment
stored at [23] Leebark Cove that is associated with your business.
Since the property is within an RS-1 (Single Family Residential)
District, storage of this type of equipment is prohibited by the City of
Jackson Zoning Ordinance. Furthermore, we have received several
complaints from neighbors that other business related activities
associated with you [sic] business are taking place at this address,
which is also prohibited.
I am aware that you have some of your employees living at this
address, which is allowed by the Zoning Ordinance. However,
business activities or storage of business related equipment and
materials are prohibited at this address and will need to be
discontinued immediately upon your receipt of this letter to avoid
further action by the City of Jackson.
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When Mr. Shehata refused to comply with the City’s request, he received a citation to appear in the
City Court of Jackson for “Violation of City Zoning & Abandoned Vehicle Codes.”1 The City Court
of Jackson ultimately ruled in favor of the City and ordered Mr. Shehata to pay a fine for violating
the ordinance.
Mr. Shehata subsequently filed an appeal to the Circuit Court of Madison County.2
Approximately one month before the trial got underway in the circuit court, Mr. Shehata erected a
fence on the property to block the neighbors’ view of the vehicles and equipment. After conducting
a bench trial, the circuit court verbally entered its findings of fact and conclusions of law, which it
subsequently incorporated into the final judgment. The trial court determined that the intent behind
the ordinance at issue was to maintain the residential character of the neighborhood. Further, the
court found Mr. Shehata’s testimony to the effect that the employees could use the parking lot
sweepers for personal use not to be credible. Instead, the trial court held that the parking lot
sweepers and lawn-care equipment were used solely for business purposes. The trial court did find
that the City failed to prove that Mr. Shehata was operating a business out of the residence on
Leebark Cove. The Court concluded, however, that the ordinance at issue did prohibit the storage
of the parking lot sweepers and lawn-care equipment at the residence. The court held that, even
though Mr. Shehata built a fence on the property, the ordinance continued to be violated by virtue
of the fact that the equipment remained on the premises. Finally, the trial court concluded that Mr.
Shehata continued to violate the ordinance in spite of the March 16, 2004 letter informing him of the
City’s interpretation of the ordinance to prohibit the storage of such equipment in a residential
neighborhood. In its final judgment, the circuit court ruled in favor of the City and ordered Mr.
Shehata to pay $17,500, with $5,000 of that amount being suspended contingent upon Mr. Shehata
1
The citation charged Mr. Shehata with violations of city ordinances for having an abandoned vehicle parked
at the premises. Counsel for the City subsequently noted that prosecution of these violations had been abandoned,
apparently due to Mr. Shehata’s removal of the offending vehicle. Accordingly, only Mr. Shehata’s violation of the
residential zoning ordinance is at issue.
2
Section 53 of the Charter of the City of Jackson provides that a party may appeal the decision of the City Court
of Jackson to the Circuit Court of Madison County.
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removing the offending vehicles from the property.3 Mr. Shehata timely filed an appeal to this
Court to contest the trial court’s ruling.4
II.
ISSUES PRESENTED FOR REVIEW
On appeal, Mr. Shehata presents the following issues for our review:
1. Whether the trial court erred when it concluded that the zoning ordinance at issue was not
impermissibly vague so that the Appellant had notice that his conduct constituted a violation
of the ordinance; and
2. Whether the trial court erred when it ruled that the Appellant violated the applicable zoning
ordinance.
For the reasons set forth more fully herein, we affirm the judgment of the trial court.
III.
DISCUSSION
On appeal, Mr. Shehata argues that the applicable zoning ordinances are impermissibly
vague as they do not define “business equipment” or “business activity” so as to place him on notice
of what is prohibited by the ordinances. Interpretation of zoning ordinances, like statutes, is question
of law, and we will review such issues de novo without affording a presumption of correctness to
the trial court’s legal conclusions. City of Knoxville v. Entm’t Res., LLC, 166 S.W.3d 650, 655
(Tenn. 2005).
Article V, Section 2 of the Zoning Ordinance of the City of Jackson governs an RS Single
Family Residential District and provides that “[u]ses are limited to single family residences and such
3
Article VIII, Section 5 of the Zoning Ordinance of the City of Jackson provides that “[a]ny person . . . who
violates . . . any of the provisions of this Ordinance shall, upon conviction thereof, be subject to a fine of fifty (50) dollars
or imprisoned for not more than thirty (30) days or both.” This provision further provides that “[e]ach day such violation
continues shall be considered a separate offense.” The Tennessee Constitution provides: “No fine shall be laid on any
citizen of this state that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the
fine at the time they find the fact, if they think the fine should be more than fifty dollars.” T EN N . C O N ST . art 6, § 14.
“Because the ordinance at issue prescribes that each day in violation constitutes a separate offense, the appropriate fine
is fifty dollars per day for each [day] the appellant was found to be in violation [of the ordinance].” Town of Nolensville
v. King, 151 S.W .3d 427, 433 (Tenn. 2004).
4
“[T]he law now appears settled that proceedings for a municipal ordinance violation are civil in nature, at least
in terms of technical application of procedure and for pursuing avenues of appeal.” City of Chattanooga v. Davis, 54
S.W .3d 248, 259 (Tenn. 2001). Thus, even though the city cited M r. Shehata for violating the city ordinance and the
lower courts imposed a fine, an appeal of the lower court’s decision properly lies in this Court. See City of Chattanooga
v. Robards, No. E2003-01340-COA-R3-CV, 2004 Tenn. App. LEXIS 704, at *6 n.6 (Tenn. Ct. App. Oct. 28, 2004).
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nonresidential uses as are intended primarily to provide service to the district.” JACKSON , TENN .,
ZONING ORDINANCE , art. V, § 2(A) (2002). The ordinance further provides that property and
buildings lying within such district shall only be used for certain enumerated purposes, to include
use as a detached single family dwelling and accessory uses, provided such accessory uses “are
incidental to the principal use and do not include any activity commonly conducted as a business.”
Id. § 2(B)(3). The Board of Zoning Appeals is empowered to grant a variance for, among other
things, a customary home occupation to be conducted on the property within such districts. Id. §
2(C)(7). The ordinance considers a home occupation to be an accessory use to a residence, but it
provides: “No person who is not a resident of the dwelling may be employed in connection with the
home occupation at the dwelling unit or on the property where said home occupation is located.”
Id. art. VI, § 7(A). The ordinance governing home occupations further provides: “Machinery that
causes objectionable noise, odor, vibration, interferes with radio, telephone or television reception
or produces other obnoxious effects to neighboring properties is prohibited and cannot be approved
by the Board of Zoning Appeals as [a] special exception.” Id. § 7(F). “Vehicles associated with the
home occupation shall be limited to one (1) with a maximum axle load capacity of one and one-half
tons.” Id. § 7(H). “No traffic shall be generated by such home occupation in greater volumes than
would normally be expected in a residential neighborhood.”5 Id.
Leebark Cove is zoned an RS-1 Single Family Residential District. “This district is intended
primarily to be single family residential with a low population density.” Id. art. V, § 3(A). Property
and buildings lying within such district shall only be used for, among other things, “[a]ny use
permitted in an RS Single Family Residential District.” Id. § 3(B)(1). The Board of Zoning Appeals
may permit as a special exception “[a]ny use permitted as a special exception in a RS Single Family
Residential District.” Id. § 3(C)(1).
The parties do not dispute that Mr. Shehata’s residence is located within a residential district
and that the parking lot sweepers, pickup trucks, and the trailers holding lawn-care equipment are
used in the furtherance of his businesses. The City concedes that the words “business equipment”
and “business activity” cannot be found when one reviews the language of the aforementioned
zoning ordinances applicable to Mr. Shehata’s property. We also note that conspicuously absent
from the ordinances relied upon by the City is any provision expressly regulating the storage of
vehicles used in the furtherance of a business conducted off premises.
“Due process of law requires, among other things, notice of what the law prohibits.” City
of Knoxville v. Entm’t Res., LLC, 166 S.W.3d 650, 655 (Tenn. 2005); see also Davis-Kidd
Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 531–32 (Tenn. 1993). “[A] statute which either
forbids or requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first essential of due
5
As previously noted, the City initially charged Mr. Shehata with conducting a home occupation in violation
of the ordinance. The City abandoned this effort, apparently when it learned that Mr. Shehata did not live at the
residence. Accordingly, the trial court determined, and the parties do not dispute, that Mr. Shehata was not operating
a business out of the residence on Leebark Cove.
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process of law.” Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). As the United States
Supreme Court has noted:
Vague laws offend several important values. First, because we
assume that man is free to steer between lawful and unlawful conduct,
we insist that laws give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not providing fair
warning. Second, if arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for those who apply
them. A vague law impermissibly delegates basic policy matters to
policeman, judges, and juries for resolution on an ad hoc and
subjective basis, with the attendant dangers of arbitrary and
discriminatory application.
Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972) (footnotes omitted). Thus, “[i]f an
ordinance is so vague that persons of common intelligence must necessarily guess at its meaning,
it will not pass constitutional scrutiny.” Hutsell v. Jefferson County Bd. of Zoning Appeals, No.
E2004-00968-COA-R3-CV, 2005 Tenn. App. LEXIS 243, at *7 (Tenn. Ct. App. Apr. 26, 2005).
Zoning ordinances, being in derogation of the common law, must be strictly construed in
favor of a property owner’s right to the free use of his property. City of Oak Hill v. State ex rel. First
Christian Church, 492 S.W.2d 915, 916 (Tenn. 1973); City of Knoxville v. Brown, 260 S.W.2d 264,
267 (Tenn. 1953); Red Acres Imp. Club, Inc. v. Burkhalter, 241 S.W.2d 921, 923 (Tenn. 1951);
Tenn. Manufactured Hous. Ass’n v. Metro. Gov’t of Nashville & Davidson County, 798 S.W.2d 254,
260 (Tenn. Ct. App. 1990). In evaluating the zoning ordinances at issue in this case, we are mindful
of the following:
Local land use planning decisions are basically legislative in
character and are best left to local legislative bodies. Fallin v. Knox
County Bd. of Comm’rs, 656 S.W.2d 338, 342-43 (Tenn. 1983);
Robertson County v. Browning-Ferris Indus. of Tennessee, Inc., 799
S.W.2d 662, 667 (Tenn. Ct. App. 1990). Thus, courts reviewing
either zoning ordinances or the administrative decisions
implementing zoning ordinances are inclined to give wide latitude to
the responsible local officials. They will not substitute their judgment
for that of the local officials and will invalidate an ordinance or
administrative decision only when it is illegal, arbitrary, or capricious.
McCallen v. City of Memphis, 786 S.W.2d 633, 641-42 (Tenn. 1990).
Courts should construe zoning ordinances using the same
principles used to construe statutes. Tennessee Manufactured Hous.
Ass’n v. Metropolitan Gov’t, 798 S.W.2d 254, 260 (Tenn. Ct. App.
1990); 3 R. Anderson, American Law of Zoning § 18.02 (3d ed.
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1986) (“Anderson”); 4 E. Yokley, Zoning Law & Practice § 25-7 (4th
ed. 1979) (“Yokley”). Thus, when the language of an ordinance is
clear, the courts should enforce the ordinance as written even if
hardship results. If, however, the ordinance lacks precision, the
courts should call upon their arsenal of interpretational rules,
presumptions, and aids to arrive at the ordinance’s meaning and
intent. Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct.
473, 494 N.E.2d 1364, 1368 (1986).
Zoning ordinances should be free from vague terms and
imprecise language because of the importance of the property
interests involved. Anderson § 18.01. However, they need not be
unerringly accurate. Maurer v. Austin Square, Inc., 6 Ohio App. 2d
41, 215 N.E.2d 724, 726 (1966). If a zoning ordinance does not
define a term, the term should be given its natural and ordinary
meaning, and the ordinance should be construed to carry out its
general purpose. Jagendorf v. City of Memphis, 520 S.W.2d 333, 335
(Tenn. 1974); Anderson § 18.13; Yokley § 25-6. However, any
ambiguity in a zoning ordinance should be resolved in favor of an
owner’s unrestricted use of his or her property. State ex rel. Morris
v. City of Nashville, 207 Tenn. 672, 680, 343 S.W.2d 847, 850
(1961); State ex rel. Wright v. City of Oak Hill, 204 Tenn. 353, 356,
321 S.W.2d 557, 559 (1959); Anderson §§ 18.04, 18.05.
The meaning of a zoning ordinance and its application to a
particular circumstance are, in the first instance, questions for the
local officials to decide. Sokol v. City of Lake Oswego, 100 Or. App.
594, 786 P.2d 1324, 1325 (1990). Thus, the courts attach great
significance to the local officials’ prior interpretations of an
ordinance, see Anderson § 18.09, but attach little weight to
after-the-fact statements by local officials concerning their intentions
or motivations for enacting an ordinance. See Levy v. State Bd. of
Examiners for Speech Pathology & Audiology, 553 S.W.2d 909, 912
(Tenn. 1977); Davidson County v. Rogers, 184 Tenn. 327, 333-34,
198 S.W.2d 812, 815 (1947); Anderson § 18.07 n. 70.
The courts, however, must ultimately take responsibility for
construing statutes and ordinances. Neff v. Cherokee Ins. Co., 704
S.W.2d 1, 3 (Tenn. 1986); Anderson § 18.09. While they may defer
to fairly debatable interpretations of ambiguous statutes and
ordinances, they will not hesitate to set an interpretation aside if it is
arbitrary and capricious, if it is contrary to the drafters’ intent, or if it
undermines the statute’s or ordinance’s validity.
Whittemore v. Brentwood Planning Comm’n, 835 S.W.2d 11, 15–16 (Tenn. Ct. App. 1992).
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Turning to the present case, we cannot say that the zoning ordinances applicable to Mr.
Shehata’s property did not place him on notice of the fact that storing parking lot sweepers and
trailers holding lawn-care equipment on his property in Leebark Cove would violate the ordinance.
When we interpret statutes, we employ numerous presumptions; one being that, when the legislative
body enacts legislation, it is presumed to act with the purpose of achieving a desired goal. 82 C.J.S.
Statutes § 310 (1999). “The most basic principle of statutory construction is to ascertain and give
effect to the legislative intent without unduly restricting or expanding a statute’s coverage beyond
its intended scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). Another presumption we
employ when interpreting legislative enactments is that such enactments are presumed to be
constitutional. Fairbank v. United States, 181 U.S. 283, 287 (1901); City of Oakland v. McCraw,
126 S.W.3d 29, 39 (Tenn. 2003).
We also must remain cognizant of the overriding purpose for enacting residential zoning.
A fundamental purpose of zoning legislation may be to create and maintain residential districts to
exclude businesses. 8 Eugene McQuillin, THE LAW OF MUNICIPAL CORPORATIONS § 25.96, at
328–29 (3rd ed. 2000); 101A Zoning and Land Planning § 58 (2005). We cannot supply omissions
in a zoning ordinance, 82 C.J.S. Statutes § 320 (1999), but “[a]bsolute precision in drafting
prohibitory legislation is not required since prosecution could then easily be evaded by schemes and
devices,” State v. Wilkins, 655 S.W.2d 914, 916 (Tenn. 1983). “Courts do not void enactments on
vagueness grounds merely because they could have been drafted with greater readability.”6 Hutsell
v. Jefferson County Bd. of Zoning Appeals, No. E2004-00968-COA-R3-CV, 2005 Tenn. App.
LEXIS 243, at *7 (Tenn. Ct. App. Apr. 26, 2005) (citing Wilkins, 655 S.W.2d at 916).
While the ordinance at issue is not a model for clear and precise drafting, a person of
common intelligence can be expected to understand that the ordinances at issue would prohibit the
storage of the vehicles and equipment of the magnitude at issue in a residential neighborhood. Mr.
Shehata attempts to argue on appeal that, despite the size of the parking lot sweepers, his employees
are permitted to use them for personal use. He contends that they are similar in size to a sport utility
vehicle, and he maintains that his employees using them for personal use is no different than a
plumber driving his company truck to and from work each day. The trial court found Mr. Shehata’s
testimony in this regard to be lacking in credibility and determined that, based upon the proof before
the court, the parking lot sweepers and lawn-care equipment were used solely for business purposes
and not personal use. We find no clear and convincing evidence in the record before this Court to
warrant a departure from the trial court’s determination of credibility. See Wells v. Tenn. Bd. of
Regents, 9 S.W.3d 779, 783 (Tenn. 1999). Moreover, the resolution of this case is limited to the
facts before the Court. We are not prepared to issue an advisory opinion as to what types of
equipment may or may not comply with the ordinance, other than to say that the parking lot sweepers
and lawn-care equipment at issue in this case necessarily exceed the size and magnitude of a single
plumber’s truck or van.
6
Of course, it is advisable for a municipality to draft its zoning ordinances to be as clear as possible.
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Mr. Shehata offers an additional argument on appeal which actually undermines his reliance
on the vagueness doctrine. He contends that, while he did not apply for a variance to conduct a
customary home occupation and could not receive one because he does not live at the residence on
Leebark Cove, the provision governing home occupations permits the storage of a vehicle with a
“maximum axle load capacity of one and one-half tons.” JACKSON , TENN ., ZONING ORDINANCE , art.
VI, § 7(H) (1967). Mr. Shehata fails to mention, however, the other portions of the home occupation
ordinance, which provides that “[n]o traffic shall be generated by such home occupation in greater
volumes than would normally be expected in a residential neighborhood,” Id. § 7(H), and
“[m]achinery that causes objectionable noise, odor, vibration . . . or produces other obnoxious effects
to neighboring properties is prohibited and cannot be approved by the Board of Zoning Appeals as
[a] special exception,” Id. § 7(F). The provisions in that portion of the ordinance governing home
occupations coupled with the overriding purpose for creating a residential zone evinces a clear
intention on the part of the City to prohibit the storage of the equipment at issue in a residential
neighborhood. Accordingly, we find Mr. Shehata’s vagueness argument to be without merit.
Next, Mr. Shehata argues that the trial court erred when it ruled that he violated the
applicable zoning ordinance because he had no notice that the City was charging him with violating
the applicable ordinance for storing business equipment at the residence. He argues that the original
citation only charged him with unlawfully conducting business activity at his residence. He
maintains that, upon appealing the case to the circuit court, the City abandoned its original position
and attempted to prove that he was violating the statute by storing business equipment at his
residence. Mr. Shehata urges this Court to view the issuance of a citation as a criminal matter and
rule that, since he was not provided with notice of the charges against him, his conviction must be
overturned. We find this argument to be without merit.
The citation issued to Mr. Shehata does reference a violation of Article V, Section 3 of the
Zoning Ordinance, which governs an RS-1 Single Family Residential District. In the narrative
portion of the citation, however, it states: “The above individual has been notified about illegally
conducting business activities at this address and has not corrected the problem.” We do not have
the benefit of a transcript of the hearing before the City Court of Jackson to ascertain what proof was
presented during that proceeding. Our supreme court has stated that, “at least in terms of technical
application of procedure and for pursuing avenues of appeal,” proceedings to adjudicate a violation
of municipal ordinance are civil in nature, therefore, the rules governing civil practice will control.
City of Chattanooga v. Davis, 54 S.W.3d 248, 259–60 (Tenn. 2001).
It is true that the City appears to have abandoned its argument that Mr. Shehata was
conducting business out of his residence on Leebark Cove when the case was appealed to the circuit
court. We cannot find, however, that Mr. Shehata was blind-sided by this change in positions to
such an extent that he suffered some form of prejudice. We note that Mr. George testified that he
discussed the storage of the equipment at the residence with Mr. Shehata on several occasions.
When the discussions failed to produce results, he sent a letter to Mr. Shehata prior to the issuance
of the citation specifically stating that “business activities or storage of business related equipment
and materials are prohibited at this address and will need to be discontinued immediately upon your
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receipt of this letter to avoid further action by the City of Jackson.” (emphasis added). Thus, “it did
not require any undue strain on [his] mental processes to figure out the reasons for the [citation].”
Richards v. Lewisburg Alcoholic Beverage Comm’n, 543 S.W.2d 852, 853 (Tenn. 1977) (holding
that a written notice for review of a beer permit should have stated the ground for revocation, but the
permit holder could ascertain the reason for the revocation by virtue of the fact that her husband
previously had been arrested for selling beer to minors).
Moreover, since this matter is in the nature of a civil proceeding, we find that, even if Mr.
Shehata had no notice of the basis for the citation prior to the commencement of the hearing in the
circuit court, the issue of whether the storage of equipment constituted a violation of the ordinance
has been tried by consent of the parties. See TENN . R. CIV . P. 15.02 (2005) (“When issues not raised
by the pleadings are tried by express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.”); Clayborne v. Toshiba Am., Inc., No. 01-A-01-
9406-CH-00242, 1995 Tenn. App. LEXIS 112, at *4 n.1 (Tenn. Ct. App. Feb. 22, 1995) (holding
that the parties tried by consent the issue of whether the use of a parcel of property constituted a
violation of the applicable zoning ordinance). Accordingly, we hold that the trial court did not err
in this regard.
IV.
CONCLUSION
We hold that the trial court did not err when it determined that the Appellant had notice that
his conduct violated the zoning ordinance at issue. Nor did the trial court err when it found the
Appellant to be in violation of that ordinance. Accordingly, we affirm the ruling of the trial court.
Costs of this appeal are to be taxed to the Appellant, Mohamed Shehata, and his surety, for which
execution, if necessary, may issue.
___________________________________
ALAN E. HIGHERS, JUDGE
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