Lau v. City Of Las Vegas

IN THE SUPREME COURT OF THE STATE OF NEVADA
SOPHIE LAU, AN INDIVIDUAL: No. 82720
JEFFREY LAU, AN INDIVIDUAL;
GOOD EARTH ENTERPRISES, INC., A
CALIFORNIA CORPORATION; AND
LIG LAND DEVELOPMENT, LLC, A
CALIFORNIA LIMITED LIABILITY FILED
COMPANY,
APR 2 7 2022
Appellants/Cross-Respondents,
vs. A. BROWN
ENE COIJ:“
CITY OF LAS VEGAS, A POLITICAL
SUBDIVISION OF THE STATE OF
NEVADA; CAROLYN GOODMAN, AS
MAYOR OF THE CITY OF LAS VEGAS;
CITY OF LAS VEGAS DEPARTMENT
OF BUILDING & SAFETY, CODE
•ENFORCEMENT DIVISION, A
DEPARTMENT OF THE CITY OF LAS
VEGAS; VICKI OZUNA, CODE
ENFORCEMENT MANAGER; EMILY
WETZSTEIN, CODE ENFORCEMENT
ASSISTANT; KEVIN MCOSKER,
DIRECTOR, BUILDING AND SAFETY
DEPARTMENT; AND JOHN BOYER,
AS CITY COUNCIL DESIGNEE,
Respondents/Cross-Appellants.
ORDER AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
This is an appeal and cross-appeal from a district court final
judgment from a petition for judicial review in an administrative matter.
Eighth Judicial District Court, Clark County; Jessica K. Peterson, Judge.
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Appellants/cross-respondents Sophie and Jeffrey Lau through their various
entities, the other named appellants (collectively referred to as the Laus),
owned three dilapidated and unsafe properties. Respondent/cross-
appellant The City of Las Vegas declared two of the properties—the El Cid
Hotel and the El Cid Annex property—imminent hazards and boarded the
buildings. The City then issued dangerous building notices and orders for
each of the properties that required the Laus to do certain things to address
the safety concerns and to demolish the buildings. The Laus opposed the
abatement fees and fines assessed against them at a hearing before the City
Council Designee. The Designee concluded in his written decision that the
Laus lacked standing because their various entities were not registered
foreign corporations in Nevada. The Laus filed a petition for judicial review,
which the district court granted in part and reduced the penalties assessed
against the Laus.
As an initial matter, we must address the Designee's conclusion
that the Laus lacked standing to challenge the abatement fees and fines
because their entities were not registered foreign corporations. NRS
80.055(6) permits an unregistered foreign corporation to defend any action
or proceeding brought against it. Because the underlying administrative
action concerned liens against the Laus properties and fees and penalties
sought against them, they could oppose those liens, fees, and penalties
regardless of whether their entities were registered foreign corporations.
While the Designee erred in reaching this conclusion, because the Laus had
the opportunity to present their case and the Designee very clearly stated
that the Laus's standing did not affect his ultimate decision in this matter,
we conclude the Designee's erroneous conclusion regarding the Laus's
standing does not warrant reversal.
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ict
Now, we turn to the Designee's decision on the merits. The
appellate court's role in reviewing an administrative agency's decision is
identical to that of the district court, and therefore, the appellate court gives
no deference to the district court's decision. Elizondo v. Hood Mach., Inc.,
129 Nev. 780, 784, 312 P.3d 479, 482 (2013). An agency's legal conclusions
are reviewed de novo, while the agency's factual findings are reviewed for
clear error or an abuse of discretion, with a focus on whether the findings
are supported by substantial evidence. Id.; State, Dep't of Taxation v. Masco
Builder Cabinet Grp., 127 Nev. 730, 735, 265 P.3d 666, 669 (2011).
First, we conclude the Designees finding that the Laus violated
the requirement to have security at the buildings is supported by
substantial evidence. The relevant dangerous building notices required the
Laus to "[Mire a licensed security firm to provide 24 hour security to prevent
access into the substandard/dangerous building." Because the evidence in
the record indicates that access into the buildings was not prevented by the
'We conclude the Laus's argument that the Designee abused his
discretion by considering evidence not presented at the hearing and by
permitting the City to supplement the record after the hearing lacks merit.
See, e.g., NRS 233B.123 (providing that in regards to a hearing subject to
the Administrative Procedure Act, "[p]arties must be notified either before
or during the hearing . . . of the material noticed, . . . and they must be
afforded an opportunity to contest the material so noticed." (emphasis
added)); NRS 233B.131(3)(a) (permitting an agency to modify its findings
and decision "[a]fter receipt of any additional evidence); City of North Pole
v. Zabek, 934 P.2d 1292, 1299 (Alaska 1997) (permitting post-hearing
supplementation of the record in a City hearing).
Further, to the extent the Laus contend that their due process rights
were violated because they were not afforded a fair opportunity to be heard
as they were not provided all relevant evidence before the hearing, they
have waived this argument because the Designee twice offered to continue
the hearing to remedy this issue and they rejected both offers.
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security the Laus hired, substantial evidence supports the Designee's
finding that the Laus failed to comply with this requirement. See Wright v.
State, Dep't of Motor Vehicles, 121 Nev. 122, 125, 110 P.3d 1066, 1068 (2005)
(explaining that "substantial evidence need not be voluminous and . . . [t]he
burden on appeal is on the party opposing the administrative decision"
(internal quotations omitted)).
Second, the language in the City's orders regarding the
demolition of the buildings lacks clarity. Regarding the El Cid Hotel
building, the City ordered that by January 18, 2019, the Laus must:
Contact City Code Enforcement and propose and
agree upon an action plan and timeframe
acceptable to [the] City for you to hire a Nevada
• licensed contractor to obtain all required
demolition permits no later than sixty (60) days
• from the date of this Notice, demolish the building,
and remove all demolition debris, refuse, and waste
from the Property.2
Because of the use of commas and the fact the 60-day requirement was only
placed in the clause concerning the permits, the 60-day requirement only
applied to obtaining permits. See, e.g., Thompsen v. Hancock, 49 Nev. 336,
341, 245 P. 941, 942 (1926) (explaining that the placement of a comma can
indicate that a constricting term only applies to the last antecedent before
the comma). Therefore, because the rest of the requirements in the order
had to be completed by January 18, as written the City was requiring the
building be demolished and the refuse removed within 10 days. However,
such an interpretation of the order would be absurd. See J.E. Dunn Nw.,
Inc. v. Corus Constr. Venture, LLC, 127 Nev. 72, 80, 249 P.3d 501, 506 (2011)
order regarding the El Cid Annex building is identical, except
2 The
compliance was required by January 22, 2019, instead of January 18, 2019.
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("This court seeks to avoid interpretations that yield unreasonable or
absurd results." (internal quotations omitted)). Therefore, there was not a
specific date placed on when the buildings had to be demolished and the
refuse removed.
In light of the ambiguities in the City's order, we are unable to
determine if substantial evidence supports the Designee's findings that the
Laus failed to comply with the demolition requirements. The evidence
demonstrates that the Laus did not agree to a demolition timeline until
February 20, 2019, when they were supposed to have done so by January
18, 2019, for the El Cid Hotel and January 22, 2019, for the El Cid Annex
property. Nevertheless, substantial evidence does not support a conclusion
that the Laus did not obtain a demolition permit for the El Cid Annex
building within 60 days, as the El Cid Annex building was demolished
within 61 days. The evidence in the record is unclear as to when the Laus
obtained the demolition permit for the El Cid Hotel. They were required to
do so by March 9, 2019, and a March 11, 2019, inspector's note indicated the
permits had already been obtained, yet an April 4, 2019, inspector's note
provided that the demolition permits had not yet been finalized. Further,
the City did not present any argument before the Designee or this court that
the Laus's demolition of either building was dilatory or that the El Cid Hotel
could have been demolished quicker considering the significant asbestos
present. Accordingly, we remand this matter to the Designee to determine
whether the Laus failed to comply with the demolition requirements.
Additionally, because we are unable to determine whether substantial
evidence supports the Designee's findings, we also cannot determine if the
penalties were properly ordered, as it is unclear if compliance with each
requirement would have been weighted equally in determining the
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penalties. Thus, we reverse and remand the penalties portion of the
Designee's order.
Lastly, we conclude the abatement costs and administrative
fees are supported by substantial evidence and were not unreasonable.3
The City complied with Las Vegas Municipal Code 9.04.080(D) in declaring
the properties imminent hazards, and thus, the abatement costs were
supported by substantial evidence. As to the reasonableness of the
abatement costs, the Laus failed to submit evidence, beyond mere
argument, that the material costs were significantly higher than retail
prices. The Designee considered the Laus's challenge to the abatement
costs and concluded that considering the emergency conditions, the costs of
abatement were appropriate. Thus, the Designee did not act arbitrarily or
capriciously by denying the Laus's request to reduce the abatement costs
and administrative fees, and we affirm those costs and fees. See State, Tax
Comm'n u. Am. Home Shield of Neu., Inc., 127 Nev. 382, 385, 254 P.3d 601,
603 (2011) (explaining that an agency abuses its discretion when its decision
was arbitrary or capricious). Accordingly, we
3The Laus argue that the abatement costs and administrative fees
related to the third property must be reversed because the issue was not
heard at the Designee's hearing. They, however, have waived this
argument because they terminated the hearing before the City was able to
present evidence concerning this property, and instead, the Laus requested
the issue be submitted to the Designee based on the evidence already
admitted in the record.
Additionally, the City contends this court need not consider the Laus
challenge of the abatement costs and administrative fees because they
waived it by not raising it in their petition for judicial review, but the record
belies this argument.
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ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
J.
Hardesty
Al,;_sbc J.
Stiglich
Herndon
cc: Hon. Jessica K. Peterson, District Judge
Stephen E. Haberfeld, Settlement Judge
Law Office of Andrew H. Pastwick, LLC
Las Vegas City Attorney
Eighth District Court Clerk
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