Kenneth M. Crook v. City of Madison, Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-KM-00081-COA
KENNETH M. CROOK A/K/A KENNETH APPELLANT
CROOK A/K/A K MICHAEL CROOK A/K/A
KENNETH MICHAEL CROOK A/K/A MIKE
CROOK
v.
CITY OF MADISON, MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 12/12/2012
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: STEVE C. THORNTON
ATTORNEY FOR APPELLEE: JOHN HEDGLIN
DISTRICT ATTORNEY: MICHAEL GUEST
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
TRIAL COURT DISPOSITION: AFFIRMED CONVICTION OF TWO
COUNTS OF VIOLATING A CITY
ORDINANCE OF THE CITY OF MADISON
AND FINE OF $300 ON EACH COUNT
DISPOSITION: AFFIRMED - 03/25/2014
MOTION FOR REHEARING FILED: 04/08/2014 - DENIED; AFFIRMED -
09/30/2014
MANDATE ISSUED:
EN BANC.
ISHEE, J., FOR THE COURT:
MODIFIED OPINION ON MOTION FOR REHEARING
¶1. The motion for rehearing is denied. We withdraw our original opinion and substitute
this modified opinion.
¶2. In 2011, Kenneth Michael Crook was convicted of two counts of violating a city
ordinance in the City of Madison (the City) and sentenced to pay a fine of $300 on each
count. Crook appealed the judgment to the Madison County Circuit Court, which affirmed
Crook’s conviction and sentence. Aggrieved, Crook now appeals the circuit court’s
judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶3. On July 15, 2008, the City adopted an ordinance entitled “Rental Inspection and
Property Licensing Act” (RIPLA). An amended version was later adopted on May 18, 2010.
The stated purpose of RIPLA is “to preserve and promote the public health, safety, and
general welfare of the City’s residents . . . and to assure the proper maintenance of the City’s
residential rental housing stock.” RIPLA requires owners of single-household or multiple-
household dwellings located in the City to obtain a rental license in order to rent a property.
¶4. To obtain the rental license, owners must submit a written application with a licensing
fee of $100 per rental unit to the City’s building official. Further, owners must post a
$10,000 bond, collateral, or letter of credit per rental unit as surety for any future correction
orders that may be issued by the building official pursuant to RIPLA. The rental license is
valid for one year. Upon obtaining a rental license, owners must be issued a current and
valid certificate of compliance that must be displayed at each rental property.
¶5. As a condition to the issuance of the rental license, owners must consent to inspections
of all portions of the premises and dwelling by the building official. The purpose of the
inspections is to ensure compliance with RIPLA provisions. The building official must
provide the owner with reasonable advance notice of the date and time of the inspection. If
an owner or a tenant refuses entry, the building official must obtain a judicial warrant
authorizing entry. Any person who violates any provision of RIPLA is guilty of a
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misdemeanor and must pay a fine of $300 per day for a violation of each offense.
¶6. Crook owns residential property located at 127 Cypress Drive in Madison, Mississippi
(Cypress Drive property). On August 14, 2008, the City’s building and permit department
sent a letter to all owners of rental property in the City informing them of the newly adopted
RIPLA. The letter outlined the requirements of RIPLA, including the steps needed to be
taken to ensure compliance.
¶7. At the time, the City believed Crook’s Cypress Drive property was a rental property,
so he received a copy of the letter. Subsequently, Crook was sent another letter on October
20, 2008, from the City stating that it had not received a licensing fee from Crook for the
Cypress Drive property. This letter informed Crook of the consequences that would occur
should a RIPLA violation be found.
¶8. On February 12, 2009, Crook filled out an application for a rental license and paid the
$100 licensing fee. Crook, however, never posted a $10,000 bond, collateral, or letter of
credit as surety. Therefore, Crook was not issued a rental license. On March 11, 2009,
Angie Gelston, a code-enforcement officer for the City, filed charges against Crook at the
Madison Police Department for violating RIPLA. Gelston alleged that Crook had continued
to rent the Cypress Drive property without a rental license despite notifications that to do so
was in violation of RIPLA. Crook sent the City a letter on March 26, 2010, requesting the
return of the licensing fee and stating that he would be personally occupying the Cypress
Drive property, thereby removing it from the reach of RIPLA.
¶9. On May 20, 2010, Bill Foshee, the City’s director of building and permits and code
enforcement, sent a letter to Crook alleging that Crook was in violation of Section 8 of
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RIPLA for renting the Cypress Drive property without a current rental license. Foshee also
informed Crook that he had fifteen days from the date of the letter to comply with RIPLA or
all utilities would be discontinued pending compliance.
¶10. Crook responded to Foshee on June 1, 2010, stating that RIPLA was not applicable
or enforceable since the Cypress Drive property was no longer being used for rental
purposes. Crook avered that he had entered into an option-to-purchase contract with Tammy
Thompson. Subsequently, Foshee reported the violation to the Madison Police Department
and an arrest warrant was issued for Crook. Crook was arrested on October 6, 2010, for
renting the Cypress Drive property without a license in violation of RIPLA.
¶11. On January 13, 2011, Crook was convicted in Madison Municipal Court on two
counts of violating RIPLA. Crook appealed his charges to the County Court of Madison
County. Crook filed a motion to dismiss, alleging: (1) RIPLA was unconstitutional, and thus
invalid; (2) the warrants issued for his arrest were invalid for lack of probable cause; and (3)
RIPLA violated state law. At trial, Crook, Gelston, Foshee, Thompson, and Duke Swyers
testified.
¶12. Crook testified that Swyers resided at the Cypress Drive property from approximately
November 2007 to November 2009. He maintained that Swyers wanted to buy the house
from the very beginning. Crook stated that he and Swyers had an oral agreement for a
purchase price and that rental payments would go towards a down payment on the property.
Crook admitted, however, that there was never a written contract, and the agreement to
purchase subsequently ceased when Swyers moved out in November 2009. Subsequently,
Crook stated, he entered into a written option-to-purchase agreement with Thompson on
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March 13, 2010. He asserted that he informed Thompson that he had no intention of renting
the Cypress Drive property.
¶13. Gelston testified that she had driven by the Cypress Drive property on several
occasions and that Crook was not the person occupying the home. Rather, she observed
other people living in the home. She could not testify, however, that anyone occupied the
home on March 11, 2009, the date she signed her affidavit, but stated she knew it was a rental
home based on prior conversations with Crook and the incomplete application for the rental
license. Foshee testified that he had also been to the Cypress Drive property numerous times
and saw vehicles in the driveway, but that he never saw Crook or anyone else at the home.
He stated that he knew Crook was renting the Cypress Drive property on July 1, 2010,
because he had been contacted by Crook’s tenant, Thompson.
¶14. Thompson testified that she entered into an option-to-purchase contract with Crook
in March 2010. She maintained, however, that she never intended to purchase the home and
Crook knew of her intentions. She admitted under oath that Crook instructed her not to tell
anyone it was a rental property and that Crook would sometimes ask to spend the night on
the couch, so he could give the appearance that he was occupying the home. Duke Swyers
testified that from 2007 to 2009, he rented the Cypress Drive property from Crook. He stated
that he had discussed entering into an option-to-purchase contract with Crook in October
2008, but ultimately decided against it. Further, he maintained that he never signed any
purchase agreement or verbally agreed to purchase the home.
¶15. After a bench trial on June 22, 2011, the county court upheld Crook’s convictions.
Crook was then sentenced to pay a fine of $300 plus court fees. Crook appealed the
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judgment to the Madison County Circuit Court. The circuit court upheld the judgment of the
county court on December 12, 2012. Aggrieved, Crook now appeals, arguing: (1) RIPLA
is constitutionally defective because it contains an unconstitutional condition; (2) RIPLA is
void because it violates Mississippi law; (3) the arrest warrants issued were not supported by
probable cause; and (4) the trial court’s decision was based on insufficient evidence and was
against the overwhelming weight of the evidence.
STANDARD OF REVIEW
¶16. “The standard of review for a judgment entered following a bench trial is well settled.
In a bench trial, the trial judge is ‘the jury’ for all purposes of resolving issues of fact.”
Sendelweck v. State, 101 So. 3d 734, 738-39 (¶19) (Miss. 2012). “The Mississippi Supreme
Court has stated that: for review of the findings of a trial judge sitting without a jury, the
appellate court will reverse only where the findings of the trial judge are manifestly
erroneous or clearly wrong.” Id. at 739 (¶19) (internal citations omitted).
DISCUSSION
I. RIPLA and the Fourth Amendment
¶17. This Court applies a de novo standard of review when addressing constitutional
issues. Johnson v. Sysco Food Servs., 86 So. 3d 242, 243 (¶3) (Miss. 2012). “Because there
is a strong presumption that a legislative enactment is valid, the party challenging a statute’s
constitutionality must prove his or her case beyond a reasonable doubt.” Fulgham v. State,
47 So. 3d 698, 700 (¶8) (Miss. 2010). Crook alleges that RIPLA imposes an unconstitutional
condition that makes the ordinance invalid. This is a case of first impression in Mississippi.
¶18. It is well settled that the unconstitutional-conditions doctrine provides that the
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government “may not deny a benefit to a person on a basis that infringes his constitutionally
protected interests . . . .” Perry v. Sindermann, 408 U.S. 593, 597 (1972). If it could, the
“exercise of those [interests] would in effect be penalized and inhibited.” Id.
¶19. Crook contends that section 7 of RIPLA is constitutionally defective by the inclusion
of the following:
7. INSPECTION AND CERTIFICATION
....
b. Owner consent to inspection. The [o]wner, as a condition to
the issuance of the [r]ental [l]icense, shall consent and agree to
permit and allow the [b]uilding [o]fficial to make the following
inspections of the [p]remises, [d]welling, [d]welling [u]nits, and
[r]ental [u]nits when and as needed to ensure compliance with
the provisions of RIPLA:
i. Access to inspect all portions of the [p]remises
and [d]welling, including common areas, storage
areas, community buildings, athletic facilities,
club rooms, equipment rooms, parking areas, and
other common facilities.
ii. Access to inspect all unoccupied
[d]welling [u]nits.
iii. Access to inspect any [r]ental [u]nit when a
complaint is filed by a [t]enant of such [r]ental
[u]nit or any [c]ity department to the effect that
such [r]ental [u]nit may be existing in violation of
any provision of RIPLA.
iv. Access to inspect any [r]ental [u]nit upon
termination of a lease or rental agreement,
reletting of such [r]ental [u]nit, or sale of the
[d]welling or any part of the [d]welling containing
such [r]ental [u]nit.
Crook argues that owners of rental property in the City are given two options under these
7
terms of RIPLA: (1) owners can give advance consent to warrantless inspections and receive
a rental license; or (2) owners can refuse the advance consent, not receive a rental license,
and thus, subject themselves to criminal penalties for renting property without a license. He
asserts that the provision requiring consent in advance to warrantless inspections prohibits
owners from engaging in an otherwise lawful activity unless they agree to waive their Fourth
Amendment rights. Hence, Crook maintains that this is an unconstitutional condition that
makes RIPLA constitutionally defective.
¶20. The City argues that the provision is not invalid because sections 7 through 8 of
RIPLA include the following provisions:
7. INSPECTION AND CERTIFICATION
....
d. Right of Entry. For the purpose of making inspections
and repairs required and authorized by the provisions of
RIPLA, the [b]uilding [o]fficial is hereby authorized to
enter, inspect, repair, alter, and improve all [p]remises,
[d]wellings, [d]welling units, and [r]ental [u]nits in
accordance with the provisions of RIPLA.
....
iii. Should a [t]enant or [o]wner refuse entry,
the [b]uilding [o]fficial shall be authorized
by virtue of the terms of the [r]ental
[l]icense to secure a judicial warrant
authorizing entry by the terms of the
[r]ental [l]icense, lease, or rental
agreement.
....
8. NOTICE AND ORDERS
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a. Notice of inspection. The [b]uilding [o]fficial shall
provide reasonable advance notice to the [o]wner as to
the date and time of inspection. If such notice indicates
that one (1) or more [r]ental [u]nits will be inspected, the
[o]wner shall provide a copy of such notice to each
affected [t]enant.
The City asserts that the advance-consent provision challenged by Crook is valid since
RIPLA contains express provisions for notice to the owner and the tenant of any requests for
future inspections and, upon failure of the owner or the tenant to consent to such an
inspection, the security of a judicial warrant in order to authorize entry. The City argues that
the requirement of advance notice coupled with a warrant procedure provides owners and
tenants with an opportunity to refuse entry, even with the advance-consent provision, and
therefore makes RIPLA constitutional and valid.
¶21. Crook claims that the warrant-procedure provision in RIPLA is not applicable to the
advance-consent provision. He contends that the warrant-procedure provision does not come
into effect until the rental license has been obtained and the building official demands entry
on the basis of the rental license.
¶22. The City also argues that Crook has failed to establish that RIPLA is unconstitutional
under either a facial challenge or an as-applied challenge. To successfully assert a facial
challenge, “the challenger must establish that no set of circumstances exist[s] under which
the Act would be valid.” United States v. Salerno, 487 U.S. 739, 745 (1987). In any as-
applied challenge, the challenger must demonstrate “a realistic danger of sustaining a direct
injury as a result of the statute’s operation or enforcement.” Id.
¶23. The City argues that Crook lacks an expectation of privacy in the premises since the
9
property is a rental property. The City also argues that since the inspection provisions
specifically were never applied to Crook, his alleged injury is contingent and abstract rather
than impending. Therefore, the City contends that his as-applied challenge fails for lack of
ripeness. Hence, the City maintains that Crook lacks the requisite standing to bring a
constitutional claim.
¶24. In regard to his facial challenge, Crook contends that there are no circumstances in
which an owner could obtain a rental license without giving advance consent, unless the City
simply failed to enforce RIPLA as written. The City counters that the advance-notice
provision and warrant-procedure provision provide a protection for owners. In reference to
his as-applied challenge, Crook contends that the City’s enforcement of RIPLA places him
in realistic danger of sustaining a direct injury in the form of criminal prosecution for
violating the ordinance by renting property without a license.
A. Standing
¶25. The requirements for a party to have standing to sue have been addressed by the
Mississippi Supreme Court:
It is well settled that “Mississippi's standing requirements are quite liberal.”
This Court has explained that while federal courts adhere to a stringent
definition of standing, limited by Art. 3, § 2 of the United States Constitution
to a review of actual cases and controversies, the Mississippi Constitution
contains no such restrictive language. Therefore, this Court has been “more
permissive in granting standing to parties who seek review of governmental
actions.” In Mississippi, parties have standing to sue “when they assert a
colorable interest in the subject matter of the litigation or experience an
adverse effect from the conduct of the defendant, or as otherwise provided by
law.”
Burgess v. City of Gulfport, 814 So. 2d 149, 152-53 (¶13) (Miss. 2002) (quoting State v.
10
Quitman, 807 So. 2d 401, 405 (¶11) (Miss. 2001)). “‘Colorable,’ when used to describe a
claim or action, means ‘appearing to be true, valid, or right.’” Schmidt v. Catholic Diocese
of Biloxi, 18 So. 3d 814, 826 n.13 (Miss. 2009). “Further, for a plaintiff to establish standing
on grounds of experiencing an adverse effect from the conduct of the defendant/appellee, the
adverse effect experienced must be different from the adverse effect experienced by the
general public.” Hall v. City of Ridgeland, 37 So. 3d 25, 33-34 (¶24) (Miss. 2010) (quoting
Burgess, 814 So. 2d at 153 (¶14)).
¶26. We find that Crook’s arrest and subsequent convictions for renting a property without
a license in violation of RIPLA involve a colorable interest in the subject matter of this
litigation, as well as exemplify his unique experience of an adverse effect from the conduct
of the City. This satisfies the standing requirement. Therefore, we will address Crook’s
argument that RIPLA is unconstitutional.
B. Constitutionality
¶27. Crook cites to Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967), the
first in a long line of cases concerning municipal ordinances that require consent to future
inspections. In Camara, a tenant in San Francisco, California, refused to allow an inspection
of the premises without a search warrant. Id. at 526. The tenant was arrested after being
charged with violating a lawful inspection, as permitted by the San Francisco Housing Code.
Id. at 527. The Supreme Court held “that administrative searches of the kind at issue here
are significant intrusions upon the interests protected by the Fourth Amendment, [and] that
such searches when authorized and conducted without a warrant procedure lack the
traditional safeguards which the Fourth Amendment guarantees . . . .” Id. at 534.
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¶28. While Camara does not involve an ordinance with an advance-consent provision, this
decision regarding an administrative search led to an outgrowth of municipalities creating
ordinances with advance-consent provisions and warrant-procedure provisions. Crook also
cites to Dearmore v. City of Garland, 400 F. Supp. 2d 894 (N.D. Tex. 2005). In Dearmore,
the City of Garland, Texas, imposed an ordinance similar to RIPLA. Id. at 897. The
ordinance provided that owners of residential property must obtain a license in order to rent
the property. Id. As a condition of the license, owners were to consent to an inspection of
the property from the City of Garland once a year, and failure to do so was an offense. Id.The ordinance, however, also provided authorization for the City of Garland to obtain a
search warrant if consent to the inspection was refused or could not be obtained. Id.
¶29. The court stated:
[T]he property owner is being penalized for his failure to consent in advance
to a warrantless search of unoccupied property. The property owner’s consent
thus is not voluntary at all. A valid consent involves a waiver of constitutional
rights and must be voluntary and uncoerced. The alternatives presented to the
property owner are to consent in advance to a warrantless inspection, or to face
criminal penalties; thus consent is involuntary. On the other hand, if the owner
does not consent to the warrantless search, he does not receive a permit. The
whole purpose of receiving a permit is to rent the property for commercial
purposes. Without a permit, the owner cannot engage in lawful commercial
activity. The owner is thus faced with equally unavailing situations.
Id. at 902-03 (internal citations omitted). Subsequently, the district court enjoined the City
of Garland from enforcing any provision of the ordinance that required a person renting
property to allow inspection of the property as a condition of issuing a permit, or penalized
a person for refusing an inspection. Id. at 906. The City subsequently amended the
ordinance, removing the provisions related to consent and clarifying the circumstances under
12
which the City of Garland may seek a warrant. Dearmore v. City of Garland, 519 F.3d 517,
520 (5th Cir. 2008). The ordinance in Dearmore differed from RIPLA in that an owner’s
failure to consent to an inspection was an offense. In contrast, RIPLA does not state that
refusal of an inspection would result in a penalty. Crook also cites to the unpublished
decision of Makula v. Village of Schiller Park, 1995 WL 755305 (N.D. Ill. 1995), as
expressing the same theory of law presented in Dearmore.
¶30. Crook contends that the court’s application of the unconstitutional-conditions doctrine
in Dearmore is clear: a coerced advance consent made the ordinance constitutionally
defective. Crook references several other cases in which courts found similar ordinances
unconstitutional because they forced owners to consent in advance to inspections. See, e.g.,
Brower v. Village of Bolingbrook, 735 F. Supp. 768, 776 (N.D. Ill. 1995); Hometown Coop.
Apartments v. City of Hometown, 495 F. Supp. 55, 60 (N.D. Ill. 1980); State v. Finnell, 685
N.E.2d 1267, 1269-72 (Ohio 1996); Wilson v. Cincinnati, 346 N.E.2d 666, 671 (Ohio 1976);
Sokolov v. Village of Freeport, 420 N.E.2d 55, 57-59 (N.Y. 1981); Pashcow v. Town of
Babylon, 410 N.Y.S.2d 192, 193 (N.Y. Sup. Ct. 1976). Nonetheless, unlike RIPLA, the
ordinances in the above cases did not provide a warrant procedure.
¶31. There have been several cases that have ruled that ordinances requiring owners to
consent to an inspection as a condition of obtaining a license are not facially unconstitutional
if the ordinances contain a provision for obtaining a warrant upon an objection to the
inspection. See, e.g., Mann v. Calumet City, Ill., 588 F.3d 949, 951 (7th Cir. 2009); Tobin
v. City of Peoria, 939 F. Supp. 628, 634 (C.D. Ill. 1996); Hometown Coop. Apartments v.
City of Hometown, 515 F. Supp. 502, 504 (N.D. Ill. 1981).
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¶32. In Hometown, 515 F. Supp. at 503, the City of Hometown, Illinois, had a point-of-sale
ordinance that had recently been amended following an earlier district court judgment. The
prior ordinance had been found unconstitutional “insofar as it failed to provide for a warrant
as a prerequisite for the point[-]of[-]sale inspection.” Id. (citing Hometown, 495 F. Supp. at
60). Subsequently, the City of Hometown amended the ordinance to provide that, absent
consent, no entry shall be made without the procurement of a warrant. Id. After its review
of Camara, 387 U.S. 523, Currier v. City of Pasadena, 48 Cal. App. 3d 810 (Cal. Ct. App.
1975), and Wilson, 346 N.E.2d 666, the district court stated:
By providing for a warrant procedure in cases in which a new owner or lessee
of property refuses to consent to an inspection by the building department, the
City of Hometown has remedied the fatal flaw in its earlier point[-]of[-]sale
inspection ordinance. The property owner is no longer forced to choose
between consenting to a warrantless search or subjecting himself or herself to
substantial fines for failure to procure a certificate of inspection. If the
property owner or tenant refuses to consent to the inspection, the city must
procure a warrant in order to gain access to the property. To this extent, the
Hometown ordinance is now in accord with the [F]ourth [A]mendment
proscription [against] unreasonable searches and seizures.
Hometown, 515 F. Supp. at 504.
¶33. In Tobin, a rental ordinance was challenged by several rental property owners in the
City of Peoria, Illinois. The City of Peoria enacted an ordinance requiring owners of rental
properties to register their properties and have them inspected for compliance with the City’s
housing, environmental, and building codes. Tobin, 939 F. Supp. at 630. Subsequently, the
owners challenged the ordinance on the premise that it was unconstitutional on its face and
as applied because it forced them to consent to warrantless administrative searches of their
rental properties in violation of the Fourth Amendment. Id. at 631. The court, however,
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found “that the plain language of the [i]nspection [o]rdinance can be read as incorporating
a warrant requirement into the inspection procedure, thereby successfully defeating a claim
that it is unconstitutional on its face.” Id. at 633.
¶34. In Mann, Calumet City, Illinois, enacted an ordinance that forbade the sale of a house
without an inspection. Subsequently, residents of Calumet City who were prevented from
or delayed in selling their houses by the ordinance brought suit. Mann, 588 F.3d at 951. The
court stated: “‘[P]oint[-]of[-]sale’ ordinances . . . are common and have withstood
constitutional attack in all cases that we know of in which the ordinance avoided invalidation
under the Fourth Amendment by requiring that the city's inspectors obtain a warrant to
inspect a house over the owner's objection.” Id. at 951. Further, the court acknowledged the
state’s need to regulate property and enact building codes and zoning regulations in order to
prevent the deterioration of property values. Id. at 952. Subsequently, the Court upheld the
ordinance as constitutional and concluded that “[w]e cannot think of what more could
reasonably be required to protect the homeowner's rights, including his Fourth Amendment
rights, which the ordinance’s warrant provisions fully protect.” Id. at 953. We agree.
¶35. Under section 7, “INSPECTION AND CERTIFICATION,” RIPLA provides for the
advance-consent provision and details the instances in which access for an inspection might
be warranted. However, building officials have a duty, by virtue of the rental license, to
secure a judicial warrant authorizing entry in the event that either the tenant or owner refuses
entry. Further, in section 8, “NOTICE AND ORDERS,” owners are afforded advance notice
as to the date and time of any inspection. Since RIPLA incorporates a warrant-requirement
provision into its inspection procedure, we find that Crook’s claim that it is unconstitutional
15
is without merit.
II. RIPLA Void for Violation of Mississippi Law
¶36. Crook next argues that RIPLA violates Mississippi Code Annotated section 21-17-
5(2)(h) (Supp. 2013). The section states, in pertinent part:
Unless such actions are specifically authorized by another statute or law of the
State of Mississippi, this section shall not authorize the governing authorities
of municipalities to . . . without prior legislative approval, regulate, directly or
indirectly, the amount of rent charged for leasing private residential property
in which the municipality does not have a property interest.
Crook contends that the provision in RIPLA requiring that owners post a $10,000 bond,
collateral, or letter of credit as surety indirectly regulates the amount of rent charged for
leasing residential property. Crook argues that by mandating this surety amount, the
ordinance imposes an added cost to every rental house, and accordingly, increases the
amount charged for rent. The City, however, contends that the bond requirement does not
amount to regulation and that there is statutory authority supporting the adoption of RIPLA.
We agree.
¶37. At trial, Dr. Charles Dennis, a retired finance professor with the University of
Southern Mississippi, gave expert testimony in support of Crook’s argument that the bond
provision set forth in RIPLA indirectly regulates the amount of rent. Prior to reaching his
opinion, Dr. Dennis reviewed Mississippi Code Annotated section 21-17-5(2)(h) (Supp.
2013) and RIPLA. Dr. Dennis stated that “the ordinance will do one of two things, either
lower the profit of the landlord or increase the rent paid by the renter.” However, Dr. Dennis
stated that if the surety requirement were to affect the rental rate, no one could tell how
much. Further, Dr. Dennis acknowledged that rental prices are determined by the market and
16
that there are innumerable factors that affect the market.
¶38. We find that this testimony only puts forth proof that the surety requirement could be
one of many factors that would affect the rental market, but not that it, directly or indirectly,
regulates the amount of rent. RIPLA does not set a minimum or maximum rental rate, does
not establish a formula to aid in establishing rental rates, and does not require the landlord
to submit rental rates.
¶39. Further, the adoption of surety requirements is supported by Mississippi statutory law.
In particular, Mississippi has adopted various statutes that require a surety or similar
collateral to ensure compliance with regulatory obligations. See, e.g., Miss. Code Ann. § 21-
19-35 (Rev. 2007); Miss. Code Ann. § 73-29-13 (Rev. 2012); Miss. Code Ann. § 73-4-29(Rev. 2012); Miss. Code Ann. § 73-60-13 (Rev. 2012); Miss. Code Ann. § 27-65-21 (Rev.
2013); Miss. Code Ann. § 27-57-7 (Rev. 2013). As such, we find that RIPLA is not in
violation of the statute prohibiting municipalities from regulating rental rates. This issue is
also without merit.
III. Crook’s Arrest
¶40. Crook argues that his arrest warrants were based on insufficient affidavits that lacked
fact-specific knowledge. However, Crook’s argument is moot since the real issue is whether
or not Crook’s arrest was proper. On October 6, 2010, Crook was arrested for renting the
Cypress Drive property without a rental license in violation of RIPLA. He was handcuffed,
placed in a police patrol car, and transported to the City’s jail, where he was photographed,
booked, and held until he could post a bond.
¶41. RIPLA, section 15, provides the following procedure regarding violations of the
17
ordinance:
15. VIOLATIONS
a. Any [p]erson who violates any provision of RIPLA shall
be deemed guilty of a misdemeanor, and upon conviction
thereof, shall be punished by a fine in a sum not to
exceed three hundred dollars ($300) per day for each
offense. A separate offense shall be deemed committed
upon each day during or on which a violation occurs or
continues.
At the time of his arrest, the City had good cause to believe that Crook was in violation of
RIPLA. However, Crook had not yet answered to the courts and had not yet been convicted
for the alleged violations. The effect of a violation of RIPLA could be analogous to that a
misdemeanor speed-limit violation. It is only upon conviction of a misdemeanor speed-limit
violation that jail time becomes a possibility. Miss. Code Ann. § 63-9-11 (2) (Rev. 2013).
Hence, the person would have been summoned to appear in court, at which point the court
would have the authority over that person to adjudicate the case on the merits or issue an
arrest warrant for failure to appear.
¶42. Likewise, here the City should have approached the court to set a hearing on the
matter and noticed Crook to appear on that date. If Crook failed to appear, the court could
then issue a citation for contempt. Since these actions were not taken, we find that Crook’s
arrest on October 6, 2010, was improper.
IV. Sufficiency of the Evidence and Weight of the Evidence
¶43. Finally, Crook argues that, based on the testimony presented at trial, the evidence was
insufficient to sustain a conviction and that the verdict was against the overwhelming weight
of the evidence. In order for the evidence to be found sufficient to sustain a conviction, the
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evidence must show “beyond a reasonable doubt that [the] accused committed the act
charged, and that he did so under such circumstances that every element of the offense
existed[.]” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citing Carr v. State, 208
So. 2d 886, 889 (Miss. 1968)). This Court will reverse a conviction only if the evidence
“point[s] in favor of the defendant on any element of the offense with sufficient force that
reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was
guilty.” Id. (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)).
¶44. At trial, Crook testified that he had a verbal option-to-purchase agreement with
Swyers and a written option-to-purchase contract with Thompson. However, the testimonies
of Gelston and Foshee reflect that the alleged agreements with Swyers and Thompson were,
in fact, attempts to disguise rental relationships. Further, both Swyers and Thompson
testified that the nature of their occupancy at the Cypress Drive property was rental and that
this was understood by Crook. We cannot say that the evidence was insufficient.
¶45. Regarding weight of the evidence, a judgment will not be disturbed unless “it is so
contrary to the overwhelming weight of the evidence that to allow it to stand would sanction
an unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18) (citing Herring v. State, 691 So.
2d 948, 957 (Miss. 1997)). As previously stated, the testimony at trial reflected that the
agreements Crook had with both Swyers and Thompson were rental in nature. It is well
settled that “[t]he trial judge has the sole authority to determine the credibility of the
witnesses when sitting as trier of fact in a bench trial.” Walker v. State, 913 So. 2d 411, 413
(¶9) (Miss. Ct. App. 2005) (citing Rice Researchers Inc. v. Hiter, 512 So. 2d 1259, 1265
(Miss. 1987)). We cannot find that the verdict was against the weight of the evidence. These
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issues are without merit. Therefore, the circuit court’s judgment is affirmed.
¶46. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS AND FAIR, JJ., CONCUR.
MAXWELL AND JAMES, JJ., CONCUR IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.
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