PITFALLS
OF CODE
ENFORCEMENT
Stephanie E. Karr
Curtis, Heinz, Garrett & O’Keefe, P.C.
St. Louis, Missouri
Exercise of Police Power
 Code
Enforcement is a mechanism to
protect the public health, safety and
welfare.
 Code Enforcement, when utilized properly,
falls under the umbrella of the city’s police
power.
A nuisance is a condition which
causes a hazard or some detriment
to the public health, safety and
welfare
LACK OF
CAUSAL
CONNECTION
Causal Connection
A
causal link must be shown between the
alleged violator and the alleged nuisance.
City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110 (Mo. 2007)
(nuisance action to recover costs for abatement of lead paint in homes)
City of St. Louis v. Varahi, Inc., 39 S.W.3d 531 (Mo.App.E.D. 2001)
(city failed to prove that hotel's hourly rental policy, reputation and
arrests in vicinity of hotel caused public nuisance of prostitution on
street outside hotel);
PROCEDURAL
DEFICIENCIES
Abatement
If the property owner fails to remedy the
nuisance, the city may take action to abate
the nuisance
The costs incurred by the city in abating
the nuisance may be recovered from the
property owner by issuance of a Special
Tax Bill – such costs are a lien on the
property.
General Procedures
for Abatement

Written Notice reasonably calculated to reach
the intended recipients
 Opportunity for owner or possessor to be heard
by representative of the city
 Reasonable time for abatement by
owner/possessor – “reasonable time” depends
on the condition to be abated and other
considerations such as weather conditions
 Findings and determination of nuisance after
hearing
Statutory Procedures

Section 67.398: “…Any ordinance authorized by this
section may provide that if the owner fails to begin
removing or abating the nuisance within a specific time
which shall not be less than seven days of receiving
notice that the nuisance has been ordered removed or
abated, or upon failure to pursue the removal or
abatement of such nuisance without unnecessary delay,
the building commissioner or designated officer may
cause the condition which constitutes the nuisance to be
removed or abated.”
Statutory Procedures
 Section
71.780: “…Such nuisances may
be suppressed by the ordinances of said
cities, or by such act or order as the
charters of said cities authorize them to
adopt.”
Statutory Procedures
Section 71.285: Expedited procedures for
abatement of high grass and weeds and
litter and trash in certain cities
Statutory Procedures
 Section
67.400 and 67.410: Vacation,
Repair or Demolition of Dangerous
Buildings
Section 67.450
“In the event any building or structure is wrongfully
demolished by a city…or is demolished without adhering to
the procedures provided in sections 67.400 to 67.450, the
city…shall be liable for damages as determined by a court
of law in a suit brought by the party so damaged.”
This section does not require ownership of the building in
order to recover for wrongful demolition and, therefore,
does not preclude damages and recovery by non-owners,
including tenants, lien holders, or other interested parties.
Defective Notice
 Arbogast
v. City of St. Louis, 285 S.W.3d
790 (Mo.App.E.D. 2009)
June, 2000:
Plaintiff buys and moves into property
May, 2001:
Fire damages structure
Plaintiff moves out and registers change of address
with Post Office (did not register new address
with Assessor’s Office)
July, 2001:
Mail to Plaintiff is returned to sender with notification of
new address
July 2001 – July 2002: Plaintiff receives mail at new address including
mail from other City departments
August and October, 2001: City had to board up building twice because
of “squatters” and others who removed boards and
other items from property
October, 2001: City’s Building Department served notice of
condemnation and potential demolition on Plaintiff by
posting it on the damaged structure and by regular mail
to the subject property
Deadline to appeal notice or to remedy violation was
October 29, 2001
Mailed Notice was returned to City
No appeal was filed
February, 2002: Structure demolished
On Plaintiff’s action for wrongful demolition, jury
awarded Plaintiffs $65,000
Action not dismissed for failure to exhaust
administrative remedies because of defective notice
“…that rule does not apply when the government
fails to provide parties with notice and an
opportunity to be heard in accordance with the
requirements of due process.”
Sufficient Notice
Government must provide “notice reasonably
calculated, under all the circumstances, to apprise
interested parties of the pendency of the action
and afford them an opportunity to present their
objections.”
If the government becomes aware prior to a taking
that its attempt at notice has failed, due process
requires the government to take further reasonable
steps if any are available.
Sufficient Notice - Posting
“…in most cases, the secure posting of a
notice on the property of a person is likely to
offer that property owner sufficient warning
of a pendency of proceedings possibly
affecting his interests.”
“…posted service accompanied by mail
service is constitutionally preferable to
posted service alone.”
Quoting: Greene v. Lindsey, 456 U.S. 444,
102 S.Ct. 1874, 72 L.Ed.2d 249 (1982)
Sufficient Notice - Mail
“Under most circumstances, notice sent by mail is
deemed reasonably calculated to apprise
interested parties that their property rights are in
jeopardy…But in some special circumstances,
mailed notice may be inadequate…”
1.
2.
3.
government knows that the party does
not reside at the address and does not have
access to the address
recipient is known to be a person who
cannot understand the notice
government learns the mailed notice is
returned by the post office before the
taking occurs
Reasons Why City’s Notices
Failed
Posted Notice failed:
It was likely that Plaintiff did not see the posted
notice (inspector acknowledged that squatters and vandals
frequently removed boards and notices from condemned
buildings in the area and that, in fact, City had to board the
building up at least twice within 3 months)
Mailing failed:
Mailed notice was returned to the City. Other City
departments accomplished mailings to Plaintiff.
City had other avenues to reach Plaintiff
Lack of Notice to Mortgagee
First National Acceptance Company v. City
of Utica, New York, 6:12-CV-1622 (N.D.
New York)
Pending Case
Mortgage Company filed 1983 action against City for demolishing
structure subject to Deed of Trust without notice to the company and an
opportunity for the company to be heard.
Last month, Court denied city’s Motion for Summary Judgment on
procedural due process claims and granted mortgagee’s Motion for
Summary Judgment.
Municipal liability is limited under Section 1983 by Monell v. Dep’t of Social
Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)
Municipal liability exists where the city’s policies or customs led to an
independent constitutional violation.
If a plaintiff shows that the city’s “policy” or “custom” was the “moving force”
behind the violation, then he/she will prevail.
Here, the City of Utica did not require its code enforcement officers to
search real estate records, determine the identity of mortgagees and
provide them of notice of any process that could lead to destruction of a
significant asset on the property.
The violation of mortgagee’s rights was a result of an official policy or
custom – therefore, City subject to 1983 liability.
Defective Hearing
 Village
of Blodgett v. Rhymer, 279 S.W.3d
242 (Mo.App.S.D. 2009)
July 2005 – storm caused the roof of defendant’s
building to cave in
One Month later – letter sent to owner ordering
him to remedy and remove the dangerous building
or “appear before the Municipal Court…to be
heard and present evidence as to why [defendant
is not] in violation of the Ordinance.”
Three months later – City demolishes building but leaves
basement portion and debris
January, 2006 – City sends 2nd letter to defendant
ordering him to remedy the existing conditions
February 4, 2006 – defendant appears at Board meeting
and asked if installing fence would remedy the violations
February and March, 2006 – letters to defendant
ordering him to perform the work
April 2006 – City pays to have basement filled and debris
removed
City cannot recover abatement
costs
In City’s action to enforce its tax lien, the tax
lien was determined to be invalid because
defendant was not afforded an adequate
hearing
“…no hearing was ever scheduled for Appellant.
Rather, Appellant took affirmative steps to attend a
regular meeting of the board of trustees. It is unclear
from the record what type of process Appellant
received there, but what is clear is that Village never
provided Appellant with the type of hearing required by
either of its ordinances.”
No Adequate Hearing
 Goe
v. City of Mexico, 64 S.W.3d 836
(Mo/App.E.D. 2001)
Process to demolish dangerous structure.
Section 67.410 requires ordinance to provide for a “full and adequate
hearing upon the matter, giving the affected parties at least ten days’
written notice of the hearing…After the hearings…the building
commissioner…shall issue an order making specific findings of fact,
based upon competent and substantial evidence, which shows the
building or structure to be a nuisance and detrimental to the health,
safety, or welfare…”
Opportunity to ask for hearing is
not enough
Following the code official’s original notice and order to demolish the
structure, the aggrieved party had the right to appeal the decision of the
code official.
If no appeal was requested, then no hearing was held.
“Because the demolition ordinance did not provide for a hearing to be
held automatically, it did not comply with the requirements of section
67.410 and was therefore invalid.”
Owner did not waive due process challenge by not appealing the
original decision.
Trial court’s dismissal reversed and cause for damages remanded.
Defective Notice and Hearing

McNeill v. City of Kansas City:
Building on City’s dangerous building list since August, 2001
McNeill purchased property in 2008 and then:
- paid delinquent taxes and fees for the property
- notified the City of his plans to renovate
- began renovating by: obtaining architectural plans, gutting the
building, removing the old roof, re-decking the roof, reframing
the building and demolishing the brick and concrete patio which
had collapsed
By June, 2009, work stalled because of trouble with McNeill’s
construction loan
June 2009: City sends letter to McNeill instructing him to remove some
debris that was sitting on the property along with weeds that had begun
to grow there
June 24, 2009: McNeill meets with code enforcement inspectors and
representatives. McNeill tells them of his plans to obtain other financing.
Code enforcement informs McNeill that he will have more time to obtain
financing and instructs him to remove a pile of debris on the side of the
building.
July, 2009: McNeill’s contractor removed the debris and graded the yard.
Upon completion, McNeill notified code enforcement on July 20, 2009.
July 31, 2009: McNeill receives preliminary commitment for a
construction loan and began notifying subcontractors.
August 8, 2009: City demolished the building “without having any further
contact” with McNeill, disregarding the policy of the Dangerous Buildings
Division to send the property owner a pre-demolition notice.
McNeill sues the City for wrongful
demolition under Section 67.450 and
City files counterclaim seeking the costs
incurred with respect to the demolition
Initial jury trial - 4 days
Judgment in favor of McNeill
Damages: $150,000
Motion for New Trial granted / affirmed (372 S.W.3d 906)
(Flawed jury instruction)
3 day jury trial April 15, 2014 – April 17, 2014
Judgment in favor of McNeill
Damages:
$151,000 for property damages
$55,000 for personal injury
Prejudgment interest (9%) on property damage amount
commencing September 2, 2010
Costs assessed to City: $1,900.65
Defective Findings and
Conclusions
 Woodson
v. City of Kansas City, 80
S.W.3d 6 (Mo.App.W.D. 2002)
Department issued order to demolish storage garage which was
appealed to the City’s Property Maintenance Appeal Board. The Board
held evidentiary hearing.
Following evidence, the Board voted and issued Findings and
Conclusions merely affirming the previous demolition order. The Board
did not set forth specific conditions and defects which caused the
garage to be dangerous.
Ordinance set forth several conditions which showed a structure to be
dangerous, such as:
1.
The exterior walls or other vertical structural members list,
lean or buckle to such an extent that a plumb line passing
through the center of gravity does not fall inside the
middle one-third of the base.
2.
A portion thereof has wrecked, warped, buckled or settled
to such an extent that wall or other structural portions
have materially less resistance to winds or snow…
Neither the Department’s demolition order or the Board’s decision made
findings which set forth these conditions to support a decision that the
building was dangerous.
Case remanded back to Board with instructions to remand matter to
department for specific findings as to particular conditions of building.
Demolition delayed.
NO
WARRANT
Administrative Search Warrants
Camara v. Municipal Court of the City and
County of San Francisco, 387 U.S. 523; 87 S.Ct.
1727, 18 L.Ed.2d 930 (1967)
Bezayiff v. City of St. Louis, 963 S.W.2d 225
(Mo.App.E.D. 1997)
Warrants


Necessity of warrant
Requirements
 Probable cause
 Affidavit
 Application for the warrant
 Definition of area and work covered
 Warrant
 Execution
 Return
Process Is Not Meant
To Be Easy
An “individualized review” is
necessary to provide “the
traditional safeguards which the
Fourth Amendment guarantees to
the individual.”
Public goals and need for
expediency considered
Camara:
“…it is vigorously argued that the health and safety of entire urban
populations is dependent upon enforcement of minimum fire, housing,
and sanitation standards, and that the only effective means of enforcing
such codes is by routine systematized inspection of all physical
structures…we think this argument misses the mark. The question is
not, at this stage at least, whether these inspections may be made, but
whether they may be made without a warrant…It has nowhere been
urged that fire, health, and housing code inspection programs could not
achieve their goals within the confines of a reasonable search warrant
requirement.”
Liability Considerations
 Is
it the “policy” or “custom” of the City
NOT to obtain warrants?
Procedure to obtain warrants
Adequate training of code enforcement officers
 No
Qualified Immunity
Haefner v. City of Philadelphia: Summary Judgment based on
qualified immunity of inspector and Department Head denied
Camara case was decided in 1967
building code inspector had been involved in another
lawsuit concerning lack of warrant
city had warrant provisions in Code
City had conducted training session
Department Head – did not object to employee’s
conduct
SELECTIVE
ENFORCEMENT
AND
SUMMONS OVERKILL
Generally, the failure of municipal authorities to enforce a
zoning ordinance against some violators does not preclude its
enforcement against others. Kansas City v. Wilhoit, 237
S.W.2d 919 (Mo.App. 1951).
But, selective enforcement or using the process to a greater
extent than is necessary may lead to a Section 1983 action.
Williams v. City of Carl Junction, Missouri,
480 F.3d 871 (8th Cir. 2007)
and
523 F.3d 841 (8th Cir. 2008) (award of attorneys fees to
City reversed)
Garcia v. City of Trenton, Missouri,
348 F.3d 726 (8th Cir. 2003)