March 13, 2009
Dear Sir:
You have several questions related to the right of the city’s utility board to cut off utility
service at property condemned by the city’s codes department, presumably for being unfit for
human habitation. However, that authority appears to extend only to condemnation cases in
which an emergency order of eviction has been issued.
1. What authority does the codes enforcement department have to terminate
utilities for condemned properties of existing customers?
Tennessee is in the U.S. Sixth Circuit Court of Appeals, and the law in the Sixth Circuit
applies to Tennessee. The Sixth Circuit has developed rules governing the termination of utility
services in condemnation cases. But the Tennessee state courts and the U.S. Supreme Court have
also spoken at some length about the nature of utility services in Tennessee, and the protection
those services are afforded under state law, but which are enforceable under federal law. What
they have said has an impact upon all your questions on this subject.
Utility Services Under Memphis LG&W v. Craft and Tennessee State Law
Utility services in Tennessee are property rights
Utility customers in Tennessee have property right in continued utility services. The U.S.
Supreme Court held in Memphis LG&W v. Craft, 436 U.S.1 (1978), that such property rights
could not be taken away except where two procedural safeguards were followed:
- The utility must have in place a process for providing a termination notice.
- The notice of termination must include notice that the customer has the right to a
hearing, if he wants one, before the termination.
Craft involved an unpaid utility bill. The Court declared that, “In defining a public
utility’s privilege to terminate for the nonpayment of proper charges, Tennessee decisional law
draws a line between utility bills that are the subject of bona fide dispute and those that are not.”
[At 1560]. In the unreported case of Hargis v. City of Cookeville, 92 Fed. Appx. 190, 2004 WL
237655 (C.A.6 (Tenn.)), the U.S. Sixth Circuit Court of Appeals also found that the city’s cut-off
policy was defective because it did not notify the customer that he had the right to object to the
termination of service, but also declared that Craft applied to cases of disputed water bills, and
only when the cut-off had caused the customer damage. In that case there was no actual cut-off
of utility service. However, it appears that whether or not an unpaid utility bill is in dispute,
those two procedural safeguards apply to all utility terminations for any reason.
Indeed, Craft was decided by the U.S. Supreme Court based on state law. State law is the
source of property rights, but those rights are enforceable by the federal courts. That case
declares that:
State law does not permit a public utility to terminate service “at
will.” Cf. Bishop v. Wood, 426 U.S. 431, 345-347, 96 S.Ct. 2074,
2078-2079 48 L.Ed.2d 684 (1976). MLG&W and other public
utilities in Tennessee are obligated to provide service “to all of the
inhabitants of the city of its location alike, without discrimination
and without denial, except for good and sufficient cause,”
[Emphasis is mine] Farmer v. Nashville, 127 Tenn. 509, 515, 156
S.W. 189, 190 (1912), and may not terminate service except “for
nonpayment of a just service bill,” Trigg, 533 S.W.2d, at 733. An
aggrieved customer may be able to enjoin a wrongful threat to
terminate, or to bring a subsequent action for damages or a refund.
Ibid. The availability of such local-law remedies is evidence of
the State’s recognition of a protected interest. Although the
customer’s right to continued service is conditioned upon payment
of the charges properly due, “[t]he Fourteenth Amendment’s
protection of ‘property’ ... has never been interpreted to safeguard
only the rights of undisputed ownership.” Fuentes v. Shevin, 407
U.S. 67, 86 S.Ct. 1983, 1997, 23 L.Ed.2d 556 (1972). Because
petitioners may terminate service “only for cause,” respondents
assert a “legitimate claim of entitlement” within the protection of
the Due Process Clause. [At 436 U.S. 11]
In Smith v. Tri-County Electric Membership Corporation, 689 S.W.2d 181 (Tenn. Ct.
App. 1985), citing Craft, above, it said that, “As in the case of water, electric utility
service” is a “necessity of modern life” and the defendant is obligated to provide service
to all its members “alike, without discrimination, and without denial except for good and
sufficient cause.” [At 184] The Tennessee Attorney General in TAG 90-26, has opined
that “Assuming a contract to obtain utility service is between a tenant and the utility, the
Newport Housing Authority cannot disconnect these Utilities in order to enforce a writ of
possession....” [At 1] The above cases appear to make it clear that where a person has
legitimately obtained utility services, there is a contract for such services between the
utility and the person.
Does the condemnation of a structure constitute “good cause” to terminate the structure’s
utility service by either the utility service provider or by the city’s codes department? The
answer is that it depends on the reason for the condemnation and the process the utility service
provider or the city’s codes department followed in making the condemnation.
The Law On Utility Terminations In Condemnation Cases In The Sixth Circuit
Flatford v. City of Monroe and other Sixth Circuit cases
The Sixth U.S. Circuit Court of Appeals draws some fairly bright lines for the termination
of utility service in codes enforcement cases. I will discuss those lines at considerable length to
ensure that codes enforcement and utility service officers are aware of the questions they must
ask themselves before they terminate utility services in condemnation cases.
Flatford v. City of Monroe, 1 F.3d 162 (6th Cir. 1994), stands for the proposition that it is
unconstitutional to evict homeowners or tenants without a pre-eviction hearing, except in cases
of an emergency. There the Flatfords sued the city under 42 U.S.C. ' 1983, alleging that the
when the city evicted them from their apartment it violated their procedural due process
guaranteed to them under the Fourteenth Amendment, and their rights under the Fourth
Amendment against unreasonable searches and seizures. In that case, police officers had entered
the building in which the Flatfords lived to execute a search warrant unrelated to the Flatfords.
But they saw what they considered to be numerous unsafe building conditions, and reported
those conditions to the city’s Director of Building Safety. The Director obtained an
administrative inspection warrant and visited the building accompanied by a city attorney. They
found “numerous building code violations throughout the eighty-year old, wooden framed
structure ranging from structural failure and extensive ‘wood rot’ to exposed electrical wiring
and the presence of combustibles.” [At 165] The Director testified that the “extensive degree of
dilapidation and disrepair was among the worst he had seen and feared that its tenants, including
seven adults and sixteen children faced an immediate risk of electrocution or fire.” [At 165] He
considered those conditions an emergency, and in consultation with the accompanying attorney,
posted condemnation signs on all entrances, and with the assistance of city police officers,
ordered the building vacated in 2-1/2 hours. [At 165] However, a detailed inspection shortly
after the emergency eviction showed that most of the code deficiencies were in four units, while
only a missing electric switch plate and an inoperative smoke detector in the Flatford’s
apartment. But even affidavit of the owner of the apartment building showed that there were
other electrical system defects in the building:
.... that a splice in a wall switch could have been immediately
corrected by shutting off the separately metered electricity to that
apartment and disconnecting the illegal splice; that an extension
cord running in the hall between two units could have been
removed; that there was no storage in the stairway of combustible
materialBno gasoline, oil, or the like-only household products
stored in one unit in proximity to frayed electrical wire...[At 168]
The question in this case was whether the code enforcement officials were entitled to
qualified immunity for their actions. “The doctrine of qualified immunity,” said the Court:
shields government officials performing discretionary functions
from civil damages liability as long as their actions were
reasonable in light of the legal rules that were clearly established at
the time of their conduct. Harlow v. Fitzgerald, 457 U.S. 800, 102
S.Ct. 2727, 73 L.Ed.2d 397 (1982). Although the reasonableness
of an official’s action turns on objective factors, the Supreme Court
requires a fact-specific inquiry to determine whether officials
would reasonably, even if mistakenly, believe their actions are
lawful. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034,
3038-39, 97 L.Ed.2d 523 (1987). To withstand a motion for
summary judgment on the ground of qualified immunity, the
plaintiff must establish: (1) an alleged violation which implicates
clearly established law, and (2) facts sufficient to create a genuine
issue of fact that the alleged violation of that law actually occurred.
Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir. 1992).
The problem for judges in qualified immunity cases has not been in the articulation of the
rule, but its application, said the Court, and:
The decision will depend on a judgment or intuition more subtle
than any articulate major premise. Thus we must settle whether the
Flatfords’ version of the facts provides that the defendants did not
act reasonably. Russo, 953 F.2d at 1043.... We must, therefore,
determine whether Bosanac [the Director of Building Safety] is
qualifiedly immune for his failure to provide the Flatfords with any
process before or after the eviction. [At 166-67]
The Court recited the rule governing evictions in Fuentes v. Shevin, below:
In Fuentes v. Shevin. the Supreme Court held that due process
requires notice and a hearing prior to eviction. 407 U.S. 67, 92
S.Ct. 1983, 32 L.Ed.2d 556 (1972). There are, however,
“extraordinary circumstances where some valid governmental
interest is at stake that justifies postponing the hearing until after
[eviction].” Id. At 82, 92 S. Ct. at 82. A prior hearing is not
constitutionally required where there is a special need for very
prompt action to secure an important public interest and where a
government official is responsible for determining, under these
standards of a narrowly drawn statute, that it was necessary and
justified in a particular instance. Id. At 91, 92 S.Ct. At 2000. [At
167] [Emphasis is mine.]
The “statute” in this case was a provision of the Monroe City Ordinance that provided
that:
“If the building or structure is in such condition as to make it
immediately dangerous to life, limb, property or safety of the
public or its occupants, it shall be ordered vacated.” Monroe,
Mich. Ordinance No. 89-018, ' 1 adopting by reference Unif.
Bldg. Code ' 403(2) (1988). Protecting citizens from an
immediate risk from an immediate risk of serious bodily harm falls
squarely within those “extraordinary situations” contemplated by
Fuentes. The Flatfords therefore have a clearly established right
to a pre-eviction hearing only in the absence of exigent
circumstances. [At 167]
Did such an emergency exist? That question was pertinent to both the codes enforcement
officer and to the police officers who assisted in the eviction in this case.
The codes enforcement officer was the Building Safety Director, Bosanac, who the court
concluded had acted reasonably in ordering their eviction. The Flatfords lived in one apartment
in the apartment building. The Court reasoned that the apartment building must be looked at as a
whole:
We must examine the Flatford’s evidence concerning the condition
of the structure as a whole not merely the condition of the
Flatford’s unit in isolation of the units directly below. No one can
seriously suggest that where there is a reasonably significant risk of
fire, the installation of a smoke Director alone would guarantee the
safety of children in adjacent apartments. Sometimes children are
left alone. Dangerous conditions do not limit their consequences to
the walls of a particular apartment. As a result, it was imminently
reasonable for Bosanac to consider that the Flatfords’ safety
required more than mere installation of a smoke detector in one
apartment. [At 167]
For that reason, the Court held that Bosanac had qualified immunity for his failure to
provide the Flatfords with a pre-eviction due process hearing. But he was not off the hook: he
had also failed to give the Flatfords notice of their right to a post-eviction hearing, although he
had afforded that right to the landlord. For that failure, the Court held that Bosanac acted
unreasonably.
The court analyzed the question of whether the police officers had qualified immunity
against the Flatford’s charge that they had violated the Fourth Amendment in assisting in their
eviction without a warrant or a court order, and answered that question this way:
Whether the officers violated the Fourth Amendment or whether
exigent circumstances in fact justified the warrantees eviction,
however, does not resolve the issue of qualified immunity. In
Anderson v. Creighton, the Supreme Court cautioned that law
enforcement officers whose judgments in making difficult
determinations are objectively, legally reasonable should not be
held personally liable in damages for conduct which, under Fourth
Amendment academics, constitute a violation. 483 U.S. at 643-44,
107 S.Ct. At 3040-41.
Further, stated the Court:
We have recognized that it is inevitable that law enforcement
officials will in some cases reasonably but mistakenly conclude
that probable cause is present, and we have indicated that in such
cases those officialsBlike other officials who act in ways they
reasonably believe to be lawfulBshould not be held personably
liable. The same is true of their conclusions regarding exigent
circumstances... Id. At 641, 107 S.Ct. At 3039 (citation omitted).
The very point of the exigency exception under these
circumstances is to allow immediate effective action necessary to
protect the safety of occupants, neighbors, and the public at large.
Although police officers may have some knowledge of what
constitutes a “dangerous building” as defined under municipal
building codes, requiring officers to second guess the more
informed judgement of a building safety inspector would hinder
effective and swift action. Officers should, therefore, have wide
latitude to rely on a Building-safety official’s expertise where that
expert determination appears to have some basis in fact. [At 170]
But in Footnote 7 of that case, the court went even further with respect to the qualified
immunity of police officers, but also added a cautionary note:
This is one in which officers faced some indicia of an emergency.
We are not prepared to say, however, that such indicia are
predicate to an officer’s reliance upon an inspector’s decision to
evacuate. Given the need for swift action once an inspector has
determined that conditions impose an immediate hazard, officers
have no duty to test whether the decision has any basis in fact, e.g.,
that there is exposed wiring, electric splices, etc. Qualified
immunity should ordinarily apply in these situations even where
officers are unaware of the precise conditions that an inspector
concludes, in his judgment, constitutes an immediate hazard. This
immunity, however, remains qualified. If there are suspicious
circumstances which would lead a reasonable officer to scrutinize
whether an inspector’s actions are wholly arbitrary, then reliance
upon the inspector’s judgment should not shield officers who act
unreasonably.... [At 170]
The unreported case of Sell v. City of Columbus, 47 Fed.Appx. 685, 2002 WL 2027113
(C.A. 6. Ohio), the Sixth Circuit considered the question of whether the summary eviction of
homeowners by the city’s codes enforcement officers was legally justified on health and
sanitation grounds. The “emergency eviction form” stated:
Inspection of the above referenced site reveals that an emergency
exists which requires immediate action to protect the public health
and safety. The conditions causing this emergency to exist are as
follows: Unsanitary conditions due to amount of pets. [At 686]
The U.S. District Court had found that the eviction was legally justified because 33 dogs
were found on the property, 21 of which were kept in the house. But an inspection of the home
had been performed by the Public Health Veterinarian about three weeks before the eviction, but
he found the premises to be “relatively clean,” “did not find any bowel movement or droppings
or anything like that on the floor,” and “did not find that the number of dogs posed ‘an imminent
health risk’ to either the canine or human occupants.” [At 687] The code enforcement officer
testified that on the day of the eviction he signed the emergency order for eviction based on
“presence of animal feces and urine on the floor, which he believed posed a health risk.” [At 688]
However, the city’s emergency vacation order form provided an abatement option, but the code
enforcement officer “did not provide plaintiff’s with an opportunity to clean the home or cause it
to be cleaned, or to remove some or all of the dogs.” Rather, he issued a written directive to
“VACATE PROPERTY IMMEDIATELY.” [At 688] Subsequent to the eviction, the codes
department found other violations, including lack of smoke alarms, an unsafe heating system, a
clogged drain in the basement, and roach and flea infestation. [At 689] [Note: None of the
parties contested the District Court’s findings that the city could not rely upon after-discovered
code violations to justify the emergency eviction order.] There was conflicting testimony by the
Sells and the codes enforcement officers whether there the house was the presence or the smell of
dog feces and urine and garbage of other kinds in the home. The District Court found “virtually
overwhelming evidence” about the condition of the home, and that it supported a “reasonable
conclusion by Cross and other Code Enforcement Officers that there was an immediate health
risk to plaintiffs.” [At 689]
The Court of Appeals rejected the District Court’s holding, declaring that:
At least since the time of Sir Edward Coke, it has been a
fundamental principle of Anglo-Saxon law that “a man’s home is
his castle.” Institutes, III, 73. Accordingly, “the prohibition
against the deprivation of property without due process of law
reflects the high value, embedded in our constitutional and political
history, that we place on a person’s right to enjoy what is his, free
of governmental interference.”: Fuentes v. Shevin, 407 U.S. 67, 81,
92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). (citation omitted [by the
court]) The constitutional right to a hearing prior to eviction from
one’s home is well established. See Fuentes, 407 U.S. at 81-82;
see also Flatford v. City of Monroe, 17 F.3d 162, 167 (6th Cir.
1994).
To put it simply, the guarantee of a pre-eviction hearing is the rule
dictated by the Constitution. However, there is an exception to that
rule. The Sixth Circuit recognizes a resident’s constitutional right,
grounded in the Fourth Amendment and the Due Process Clause, to
“pre-eviction judicial oversight in the absence of emergency
circumstances.” Flatford, 17 F.3d. at 170. The “emergency
circumstances” exception is carefully tailored:
A prior hearing [before eviction] is not constitutionally required
where there is a special need for very prompt action to secure an
important public interest and where a government official is
responsible for determining, under the standards of a narrowly
drawn statute, that it was necessary and justified in a particular
instance [At 690] [emphasis is mine.]
In other words, the due process requirement of a hearing prior to
eviction may be bypassed only if an authorized government
official, adhering to limited statutorily prescribed standards, finds
that immediate eviction without a hearing is “necessary and
justified” to further an important governmental interest, most
commonly the protection of its citizens’ health and safety... [At
690]
The Court of Appeals was persuaded that the “undisputed accumulation of feces in the
inside dog cages, alone, provided a reasonable basis for a Code Enforcement Officer to declare
an emergency.” [At 697] But the record, continued the Court, did not indicate whether the
existence of an emergency made it necessary to order the Sells to vacate the building without first
affording them a pre-deprivation hearing. [At 697]:
As a general principle, the Constitution allows summary eviction
without the procedural due process of a pre-deprivation hearing
only when necessitated by exigent circumstances to “[p]rotect
citizens from an immediate risk of serious bodily harm.” Flatford,
17 F.3d at 167. In Flatford, for example, the building inspector
found exposed wiring and improperly stored combustibles in a
wood-framed apartment building, which he reasonably believed
posed “an immediate risk of electrocution or fire.” Id. At 162.
Similarly, in Mitchell v. City of Cleveland, No. 97-4206, 12998
WL 898872 (6th Cir. Dec 17, 1998,) the building inspector testified
that “the inadequate and defective electrical system, constituted
cause to order the building vacated to prevent serious injury or
death.” Compare Zakaib v. City of Cleveland, No. 77402, 2001
WL 406209 (Ohio Ct. App. April 19, 2001) (drawing a distinction
between unsanitary emergency conditions and emergency
conditions necessitating an eviction without a hearing). [At 697]
The Court of Appeals remanded this case to the District Court to make certain finding on
questions about which the court was not clear. I do not know what happened to this case after
that, but I use it for the purposes of pointing out that health and sanitation defects in buildings
can also be the basis of emergency evictions, although I suspect that emergency evictions made
on those grounds are more problematic than are ones based on electrical and structural defects,
unless the health and sanitation defects involve plumbing defects that create human sewerage
problems.
But Sell v. City of Columbus cites two other cases in which the courts have upheld the
summary eviction of tenants from buildings without pre-eviction hearings on emergency
grounds: the unreported Sixth Circuit case of Mitchell v. City of Cleveland, 1998 WL 898872
(1998), and the Ohio Court of Appeals case of Zakaib v. City of Cleveland, 2001 WL 406029
(2001) Both cases involved police searches based on evidence of drug dealing in the residences
in question in which the police reported code violations to the city building departments. Upon
those reports the city’s building department obtained administrative search warrants and
inspected the buildings for code violations. In Mitchell, the administrative search disclosed
“faulty heating facilities, lack of smoke detectors, and hazardous electrical conditions,” which
were declared by the inspectors to be a “public nuisance, constituting an imminent danger and
peril to human life and public health, safety and welfare.” [At 1] Under a city ordinance,
“immediate danger to human life or health is an emergency that authorizes the commissioner
[apparently of the Drug House Task Force (DHTF)] to enter the property to remove the structure,
make it safe, or order immediate vacating and boarding” [At 1] In this case the house was
boarded up and the Mitchells were ordered to vacate the premises the same day. Similarly, in
Zakaib, the administrative search disclosed a wide range of violations in a building that housed a
grocery store and upstairs apartment:
- Gas and electrical: Gas leak, combined with electrical violations created explosion
hazard. The electrical defects included dangerous use of extension cords to power ungrounded
soft-drink coolers, running next to gas furnace that had a leak. Wiring in upstairs apartment
showed signs of an electric fire at a wall outlet, open electrical junction boxes and loose wire
connections with electrical tape rather than wire nuts; Romex electrical wire used in a
commercial building, and light fixtures in upstairs apartment were unsecured and hanging.
- Plumbing: Main sewer line was plugged, causing raw sewerage to leak directly into
basement where food products were stored, toilet in store bathroom was not secured to the floor,
lavatory waste drain was not sealed on main floor of store, lavatory was not vented and sump
pump fittings were with packing/scotch tape, flue connect to gas hot water tank was pitched
downward which would result in carbon monoxide being pumped into basement and entire
premises.
- HVAC: Open, unsealed and improperly pitched flues for carbon monoxide venting,
natural gas line leak, open and exposed wiring and safety controls for furnace; gas curb box had
been covered with cement when driveway was poured, which prevented outside gas shut-of in an
emergency, gas lines improperly installed, outside air conditioning unit installed without covers
on electrical components, furnaces installed without permits and had never been inspected.
- Structural: Rotten floor joists beneath high weight fixtures on floor of store, completely
open and exposed stairwell pit in rear of premises, garage full of debris which was structurally
unsound and created potential for collapse, toilet not secured to floor and rotten floor around it.
- Health violations: Various food and cooking violations.
Needless to say, all of those violations led to an emergency condemnation of the property
without a pre-eviction hearing.
In both Mitchell and Zakaib, the Sixth Circuit and the Ohio Court of Appeals,
respectively, citing Flatford and Sell, held that the evictions of the tenants of the buildings were
justified without a pre-eviction hearing. It is interesting that the courts in those cases rejected the
administrative searches as being pretextual, that in reality the city was using the code
enforcement process to shut down drug houses. The courts declared that the motive of the code
enforcement officers was immaterial, that the issue governing whether the tenants’ utilities could
be terminated was whether the code violations were so serious as to justify an emergency
eviction.
Application of Above Cases To Existing Utility Customers
Generally
Both Craft and the Tennessee cases on the nature of utility services in Tennessee,
demonstrate that utility services create a property right in such services, which can be taken away
only “for good and sufficient cause.”
The Sixth Circuit in Flatford and the unreported cases cited above that rely on Flatford,
cited the rule for emergency termination of utility services:
In Fuentes v. Shevin. the Supreme Court held that due process
requires notice and a hearing prior to eviction. 407 U.S. 67, 92
S.Ct. 1983, 32 L.Ed.2d 556 (1972). There are, however,
“extraordinary circumstances where some valid governmental
interest is at stake that justifies postponing the hearing until after
[eviction].” Id. At 82, 92 S. Ct. at 82. A prior hearing is not
constitutionally required where there is a special need for very
prompt action to secure an important public interest and where a
government official is responsible for determining, under these
standards of a narrowly drawn statute, that it was necessary and
justified in a particular instance. Id. At 91, 92 S.Ct. At 2000. [At
167] [Emphasis is mine.]
Narrowly drawn statute requirementBYour City’s building codes
Going backward in that language, there must be a narrowly drawn statute that supports
emergency utility terminations. Flatford allows the statute to be a city ordinance. In Title 12 of
the Municipal Code, the City has adopted several national codes that have a bearing on the city’s
questions about the termination of utility services. The city has also adopted other codes in Title
12 of the Municipal Code, including electrical and plumbing codes. I have focused on those
codes that I think answer the City’s questions.
International Property Maintenance Code and International Fire Code. In Title 12,
Chapter 5 of the Municipal Code, the city has adopted the International Property Maintenance
Code, 2003 Edition (hereinafter referred to as the IPMC) [although the title page of Title 12,
indicates that Chapter 5 applies to the Housing Code]. It has also adopted the International Fire
Code, 2003 Edition, (hereinafter referred to as the IFC ) in Title 7, Chapter 2 of the Municipal
Code.
Section 107of the IPMC provides for notices of codes violations, ' 108 provides the
standards for unsafe structures and equipment, and ' 109 provides for emergency measures, as
follows:
109.1. Imminent danger. When, in the opinion of the code
official there is imminent danger of failure or collapse of a
building or structure which endangers life, or when any structure
or part of a structure has fallen and life is endangered by the
occupation of the structure, or when there is actual or potential
danger to the building occupants or those in the proximity of any
structure because of explosives, explosive fumes or vapors or the
presence of toxic fumes, gases or materials, or operation of
defective or dangerous equipment, the code official is hereby
authorized and empowered to order and require the occupants to
vacate the premises forthwith. [Emphasis is mine.] The code
official shall cause to be posted at each entrance to such structure a
notice reading as follows: “This Structure Is Unsafe and Its
Occupancy Has Been Prohibited by the Code Official.” It shall be
unlawful for any person to enter such structure except for the
purpose of securing the structure, making required repairs,
removing the hazardous condition or of demolishing the same.
Section 110 of the IFC contains a provision for Unsafe Buildings, subsection 110.2 of
which includes provisions for the immediate evacuation of unsafe buildings that have “hazardous
conditions that present imminent danger to building occupants.”
Section 109.1 of the IPMC itself appears to be more than adequate to support emergency
evictions without a pre-eviction hearing. The one in Flatford provided that “If the building or
structure is in such condition as to make it immediately dangerous to life, limb, property or safety
of the public or its occupants, it shall be ordered vacated.”
However, the Court in Sell was concerned that the eviction was being done by persons
not authorized by the statute in that case. Section 4509.06 of the Columbus City Code provided
that:
(a) Whenever the Development Regulation Administrator finds
that an emergency exists which requires immediate action to
protect the public health and safety or the health and safety of any
person, he may issue an order reciting the existence of such an
emergency and requiring such action as he deems necessary....
But evidently, it was the city’s custom and practice of allowing code enforcement officers
to order emergency evictions. The Court remanded the case to the District Court to make certain
findings of fact, one of which was who, under the emergency eviction procedure, was actually
authorized to order emergency evictions. Section 103 of the IPMC creates the department of
property maintenance inspection, “and the executive official in charge thereof shall be known as
the code official.” Section 109, governing emergency measures speaks of the “code official” as
the person who makes emergency eviction decisions. Section 103.3 gives the code official the
authority to appoint a “deputy code official, and other related technical officers, inspectors and
other employees.” It is the “code official” who has all of the responsibilities of enforcing the
IPMC. Common sense and the doctrine that generally says that administrative officials have the
right to delegate administrative duties, suggests that the code official can delegate his duties, to
subordinates, including the duty to make decisions in emergencies. But in light of Sell, it might
be wise for any city to make sure that, at least where emergency evictions are concerned, the
delegation of duty is found in writing.
Qualified immunityBcode enforcement officers who terminate utilities
Imperative in understanding and applying the doctrine of qualified immunity in preeviction cases is the Sixth Circuit’s position that it is unconstitutional to evict a person from his
residence without prior notice and hearing. The only exception is when there are extraordinary
circumstances that justify the denial of notice and hearing. In order to avoid liability for denying
the person he evicted without a pre-eviction hearing the code enforcement officer must make a
case that he had reasonable grounds to believe that the facts that led him to order the eviction
without a hearing were extraordinary circumstances that satisfy the court. In Flatford the
building inspector was held to have qualified immunity for his emergency eviction of the
Flatfords without a pre-eviction hearing, but he was held not to have qualified immunity for his
failure to give them a post-eviction hearing.
If the conditions of the property in question are bad enough under Section109 of the
IPMC, Flatford and the other cases above support the proposition that an emergency eviction will
be allowed. But as the courts themselves said in those cases, each case depends upon the facts;
there is no magical yardstick for determining whether the threshold for emergency eviction has
been reached. The question of whether the emergency eviction will stand does not depend upon
the code official being right, but whether he acted reasonably. It probably goes without saying
that the violations in Flatford and Mitchell involved serious electrical code violations, the
violations in Zakaib involved a serious combination of electrical and plumbing problems, and the
violations in Sells involved serious health and sanitary problems, in that case with dog feces.
Qualified immunityButility employees who aid code enforcement officers in
terminating utilities
Flatford’s analysis of the qualified immunity of police officers who aided the code
enforcement officers in carrying out an emergency eviction of all the tenants in the building in
which the Flatfords lived seems important in the context of utility employees who aid code
enforcement officers in cutting-off utilities in emergency evictions. The Court gave the police
officers broad qualified immunity, declaring that generally, the police officers should not have to
second guess the officials who make the decision to evict tenants without a hearing on
emergency grounds. The Court even went so far as to say that the qualified immunity of police
officers did not necessarily depend upon the existence of an emergency in such cases, but in so
saying, it issued a cautionary note worth repeating here:
This [the case of Columbus v. City of Monroe] is one in which
officers faced some indicia of an emergency. We are not prepared
to say, however, that such indicia are predicate to an officer’s
reliance upon an inspector’s decision to evacuate. Given the need
for swift action once an inspector has determined that conditions
impose an immediate hazard, officers have no duty to test whether
the decision has any basis in fact, e.g., that there is exposed wiring,
electric splices, etc. Qualified immunity should ordinarily apply in
these situations even where officers are unaware of the precise
conditions that an inspector concludes, in his judgment, constitutes
an immediate hazard. This immunity, however, remains qualified.
If there are suspicious circumstances which would lead a
reasonable officer to scrutinize whether an inspector’s actions are
wholly arbitrary, then reliance upon the inspector’s judgment
should not shield officers who act unreasonably.... [At 170]
But it appears to me that utility service personnel might have a higher duty than do police
officers to “scrutinize whether an inspector’s action are wholly arbitrary” in cutting-off utilities,
because utility workers are more experienced in the utility field. Section 111.3 of the IBC is
somewhat vague on the question of whether the utility service provider has any voice in the
termination of utility services where the codes enforcement officer decides that there is an
emergency that requires the termination of such services. It provides that “The building official
shall notify the serving utility, and wherever possible the owner and occupant of the building,
structure or service system of the decision to disconnect prior to taking such action.” Nothing in
that provision suggests that the utility service provider’s employees can second guess the code
enforcement officer’s decision, only that he must give the utility service provider notice of his
decision to terminate such services. In addition, it seems that generally, where there is an
emergency eviction, utility services will ordinarily be cut-off because the building will be
vacated. Indeed, ' 115 of the IBC, entitled UNSAFE STRUCTURES AND EQUIPMENT, also
appears to apply to all structures, whether under construction or existing. Section 115.5 provides
that:
Structures or existing equipment that are or hereafter become
unsafe, insanitary or deficient because of inadequate means of
egress facilities, inadequate light and ventilation, or which
constitute a fire hazard, or are otherwise dangerous to human life
or the public welfare, or that involve illegal or improper occupancy
or inadequate maintenance, shall be deemed an unsafe condition.
Unsafe structures shall be taken down and removed or made safe,
as the building official deems necessary and as provided for in this
section. A vacant building structure that is not secured against
entry shall be deemed unsafe.
Sections 108.2, 108.5 and 19.2, of the IPMC respectively provide for the closing of
vacant structures, the prohibition on the occupation of vacated structures, and the boarding up of
such structures, all of which provisions strongly imply that utility services to them will be
discontinued. Likewise, ' 311.2.1 of the IFC provides that vacant structures shall be “boarded,
locked, blocked or otherwise protected to prevent entry by unauthorized individuals.” But '
311.2.2 also provides that in vacant buildings, “fire alarm, sprinkler and standpipe systems shall
be maintained in an operable condition.”
What neither the IPMC nor the IFC do not cover is by whom utility services can be
terminated. Common sense declares that if the electrical code violations are bad enough to justify
an emergency eviction, the interest of surrounding property dictates that electrical service should
be terminated. The same is true of water and perhaps sewer service in some cases.
But your City has also adopted the International Building Code, 2003 Ed., (hereinafter
referred to as the IBC), in Title 5, Chapter 1, of the Municipal Code. Generally, the IBC applies
to new construction and alterations, but '' 111-SERVICE UTILITIES appears broader.
Subsection 111.3 provides that:
111.3 Authority to disconnect service UTILITIES. The building
official shall have the authority to authorize disconnection of utility
service to the building, structure or system regulated by this code
and the codes referenced in case of emergency were necessary to
eliminate an immediate hazard to life or property. [Emphasis is
mine] The building official shall notify the serving utility, and
wherever possible the owner and occupant of the building, structure
or service system of the decision to disconnect prior to taking such
action. If not notified prior to disconnecting, the owner or occupant
of the building, structure or service system shall be notified in
writing, as soon as practical thereafter.
Among the “codes referenced” in the IBC, are those specifically included in ' 101.4:
101.4. Referenced codes. The other codes listed in sections 101.4
through 101.4.7 and referenced elsewhere in this code shall be
considered part of the requirements of this code to the prescribed
extent of such reference.
Two of the “referenced codes” are 101.4.5, the International Property Maintenance Code,
and 101.4.6, the International Fire Prevention Code. As indicated above, the City has adopted
both of those codes. The former code applies to:
....existing structures and premises; equipment and facilities; light,
ventilation, space heating, sanitation, life and fire safety hazards;
responsibilities of owners, operators and occupants; and occupancy
of existing premises and structures.
The latter code applies to:
.... matters affecting or relating to structures, processes and premises
from the hazard of fire and explosion arising from the storage,
handling or use of structures, materials or devices; for conditions
hazardous to life, property or public welfare in the occupancy of
structures or premises; and from the construction, extension, repair,
alteration or removal of fire suppression and alarm systems or fire
hazards in the structure or on the premises from occupancy or
operation.
Read together, ''111.3, 101.4, 101.4.5 and 101.4.6 of the IBC appear to give the building
official who enforces the IBC the authority to “authorize” the cut-off of “SERVICE UTILITIES”
to property in situations where there the continuation of such services are an immediate threat to
life and property. As pointed out above, the language in ' 111.3 appears to use the phrase “The
building official shall have the authority to authorize the disconnection of utility service to the
building....” in the sense that he can do it himself (or have his employees do it.).
But even if that is so, as a practical matter he may find it necessary to call on utility
officials to do that job. I have a passing familiarity with utility services sufficient to know that
different methods can be used to cut-them off. As to electrical service, main breakers can be
tripped for electrical service, but electric meters can also be removed and meter receptacles
blocked. As to water and gas services, valves can be closed at or near the meter box or in the
building at one or more places. Sewer service can be cut-off with sewer blocks, although I doubt
that method is often used. There are probably also additional ways to ways to cut-off all utility
services, and presumably, other considerations may go into how some services are cut-off. For
example, in the winter, the decision to cut-off water might also involve draining water lines in the
building. There may also be variations on how particular utility services are provided that may
not make the cut-off of those services as simple as tripping one breaker or turning off one valve,
especially where multiple tenants use a building. I can imagine that in many, or not all, cases the
building official will want the utility service provider to do the actual utility cut-offs.
It is in such cases that the qualified immunity question becomes more compelling for
utility service workers, whose duty to make sure that the utility termination is not arbitrary may
increase.
How Does Tennessee Code Annotated, Title 68,
Chapter 104, Part 1, Fit Into Your City’s Question?
Tennessee Code Annotated, Title 68, Chapter 104, Part 1, contains lengthy provisions
governing the inspection, and even the termination of electrical and gas services, but it does not
appear to contain provisions for the emergency eviction of tenants. That statutory scheme gives
the state commissioner of the department of commerce and insurance extensive authority in the
area of fire prevention, including building inspections, and the authority to appoint deputy
marshals to assist him. [Tennessee Code Annotated, '' 68-102-101, 68-102-104, 68-102-107,
68-102-116, and 68-102-117] Tennessee Code Annotated, ' 68-102-108 also makes certain
persons “assistants to commissioner,” including the fire chief or fire marshal, depending upon the
organization of fire services in the city in question.
Tennessee Code Annotated, ' 68-102-117 contains provisions related to the regulation of
dangerous buildings, among them, the following:
(1) When any officer referenced in ' 68-102-116 finds any building
or other structure that for want of repairs, lack of sufficient fire
escapes, automatic or other fire alarm apparatus or fireextinguishing equipment, or by reason of age or dilapidated
condition, or from any other cause, is especially liable to fire, or
constitutes any other dangerous or defective conditions, and that is
situated so as to endanger life or property, and whenever such
officer shall find in any building combustible or explosive matter or
inflammable conditions dangerous to the safety of such buildings,
the officer shall order the dangerous or defective conditions
removed or remedied and the order shall be immediately complied
with by the owner or occupant of such premises or buildings, or by
any architect, contractor, builder, mechanic, electrician or other
person who shall be found responsible for the dangerous or
defective conditions. The provisions of this subdivision (a)(1) shall
apply to any building or other structure that is being erected,
constructed or altered, and to any building that has been erected,
constructed or altered.
Subsection (2)(A) of that statute provides that AIf compliance is not expedient and does
not permanently remedy the condition, after giving written notice, then the officer has the
authority to issue a citation for the violation.... But subsection (c) provides that:
If it is found by any person, association or corporation supplying
electrical energy or gas (natural, artificial or liquid petroleum) to
equipment or installations in any building or structure or on any
premises located in this state, or if it is found by any official making
an inspection pursuant to this chapter that such facilities or
equipment are defective so as to be especially liable to fire or hazard
to life and property, or to have been installed in violation of laws or
regulations, then such person, association or corporation may
discontinue the supplying of such electrical energy or gas until the
defective or unlawful conditions have been corrected.
That statute is puzzling as to whether the “person, association or corporation” that supplies
the electricity or gas includes a municipal utility, and whether the utility cut-off can be immediate.
Subsection (d) of the statute provides that:
A supplier of electrical energy or gas to such installations having
defective or unlawful conditions, as defined in this section or
enumerated by a written report of any official making an inspection
pursuant to this chapter, shall be furnished a copy of [any such
order/s that] relate to the supplier, electrical defects to electrical
suppliers and gas defects to gas suppliers. If the defective or
unlawful conditions have not been corrected within the thirty-day
period, then such suppliers, either electrical or gas, shall
discontinue service until the defective or unlawful conditions have
been corrected....
Jackson v. Bell, 226 S.W 207 (1920) is the only case I can find interpreting Tennessee
Code Annotated, ' 68-102-117. But that case upheld the fire commissioner’s order under that
statute to destroy a certain building that his inspection found to meet the “especially liable to fire”
definition of that statute. [Also see the subsequent cases of Thomas v. Chamberlain, 143 F.Supp.
671 (D.C.E.D. Tenn. 1955), and Winters v. Sawyer, 463 S.W.2d 705 (Tenn. 1971)]. But the
provisions in Tennessee Code Annotated, ' 68-102-117 related to who could cut-off electricity
and gas, and when they could be cut-off were added after Bell. I traced the history of the
development of that statute, but will omit it, except to say that it does not seem to me to qualify as
a “narrow” statute of which Flatford speaks under which emergency evictions can be made
without a hearing.
Public Acts 1994, Chapter 193 added Tennessee Code Annotated, ' 68-102-153 to the
statutory scheme in Tennessee Code Annotated, Title 68, Chapter 102, Part 1. Presumably, that
addition gives to the fire marshal the authority to “disconnect or terminate electrical and gas
service,” under Tennessee Code Annotated, ' 68-102-117, but only under limited conditions. I
am not sure that statute constitutes a narrow statute that satisfies Flatford as one under which
emergency evictions without a hearing can be made. It reads:
(a) Neither the state fire marshal nor any inspector who contracts
with the state may disconnect or terminate the electrical services at
any residential customer’s residence until the following have been
completed:
(1) An inspection has been made of the premises that reveals that
continued electrical services pose a substantial and immediate threat
of harm to person or property, and the harm cannot be avoided by
less drastic means other than disconnecting the service;
(2) Reasonable attempts have been made to contact the customer or
owner of the premises prior to disconnecting any services;
(3) The person performing the inspection makes an examination of
the premises to determine that there are no individuals using any
medical devices that require electrical services, and, if so,
reasonable accommodations are made to continue the electric
service to medical devices following any termination; and
(4) The person performing the inspection makes an examination of
the premises to conclude that termination of the electrical services
will not damage any property of the residential customer without
first making arrangements to secure the prevention of the
damages....
A significant exception to this statute is contained in subsection (b) of this statute: “The
provisions of this section shall not apply to the personnel of any municipal electric system or any
rural electric and community services cooperative.” Frankly, I am not sure whether that statute
expands or narrows the authority of the personnel of municipal electrical systems to terminate
electrical service. Arguably, it relieves such utility employees from performing the same checklist
before cutting-off electricity. Under the provisions of the IBC cited above that give the building
official the right to cut-off utilities, presumably, he too is not required by this statute to follow that
checklist. But a reading of that checklist indicates that it is probably generally a good one to
follow.
2. What authority does codes enforcement have to prevent new customers from
getting utilities to condemned properties?
If the building official has the authority under ' 111.3 of the IBC, to disconnect utility
services to existing buildings through the “referenced codes” (IPMC, IFC, both of which the city
has adopted),or through ' 115 of the IBC (Unsafe Structures and Equipment), to eliminate an
“immediate hazard to life or property,” it stands to reason the building code official has some say:
over the restoration of power, assuming an appeal has not overturned the building official’s
decision to disconnect the utility services. Section 111.1 of the IBC seems to support that
conclusion. It provides that:
No person shall make connections from a utility, source of energy,
fuel or power to any building or system that is regulated by this
code from which a permit is required, until released by the building
official.
Section 102.3 of the IPMC also provides that “Repairs, additions or alterations to a
structure, changes of occupancy, shall be done in accordance with the procedures and provisions
of the International Existing Building Code.....” (Hereinafter referred to as the IEBC) The City
has not adopted the IEBC, but '105.1 of that code requires permits on the part of
[a]ny owner or authorized agent who intends to repair, add to, alter,
relocate, demolish, or change the occupancy of a building or to
repair, install, add, alter, remove, convert, or replace any electrical,
gas, mechanical, or plumbing system, the installation of which is
regulated by this code, or to cause such work to be done, shall first
make application to the code official and obtain the required permit.
There is also a Section 111BService Utilities section in the 2006 IEBC that has its exact
counterpart in the IBC. Section 111.1 provides that provides that, ANo person shall make
connections from a utility, source of energy, fuel, or power to any building or system that is
regulated by this code for which a permit is required, until approved by the code official.
Tennessee Code Annotated, ' 6-54-501 governs the adoption of various standard codes by
municipalities in Tennessee, and requires official action on the part of the city to adopt such
codes. I doubt that statute allows a city to treat the IEBC as adopted because in other codes the
city has officially adopted it speaks of the IEBC as governing the particular question at issue. But
if there is any doubt about whether the service utility provisions of the IBC allow the building
official the right to prevent the owner or occupant, or a new applicant for service, from obtaining
utility services for a condemned building, the city could adopt the IEBC.
3. If codes enforcement is authorized to do 1 and 2 above, what notice to the
customer is required of the utility?
This question also appears to be governed by Craft, and other cases above, which make it
clear that in Tennessee continued utility service is a property right. But in Tennessee a property
right also appears to be implicated where there is a denial of utility service as well as when the
utility service is terminated. Needless to say, most of the cases dealing with the property right in
utility services involve the termination of such services. However, one of the cases cited in Craft
supporting the proposition that utility service is a property right is Farmer v. Mayor and City
Council of Nashville, 156 S.W. 189 (1913) There Farmer sought to compel the city to provide
him with water services at the residence he rented. At the time he rented the residence he
tendered the proper amount to the city to secure waster service, but the city rejected his tender
because there was a water “tax” outstanding on the premises. Under the city’s regulations, no
water would be supplied to any premises where there was a debt owed for water service. In
finding against the city, the Tennessee Supreme Court declared that:
It was settled by this court in the case of Crumley v. Watauga Water
Co., 99 Tenn. 420, 41 S.W. 1058, that a water company having the
power under its charter to condemn private property for its
necessary purposes, and obligated by the law of its creation to afford
to the city of its location and the inhabitants thereof a plentiful
supply of water, is a quasi public corporation, that enjoys and must
exercise its opportunities for gain subject to its obligation to the
public to supply water to all who apply therefor and tender the usual
rates, and that this obligation is an implied condition of the grant of
its franchises.
It was also settled n Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41
S.W. 1060, 63 Am.St.Rep. 841, that such a water company is
charged with the public duty of furnishing water to all of the
inhabitants of the city of its location alike, without discrimination
and without denial, except for good and sufficient cause. [At 56
S.W. 190]
For that reason, with respect to a person who attempts to obtain reentry to, and utility
service at, the building where the person was subjected to an emergency condemnation and
eviction, assuming the condemnation and the eviction were upheld on appeal and was not
otherwise disturbed by a court, continues until the building is repaired sufficiently to satisfy the
building inspector that it meets whatever code provisions apply to it, and the building inspector
authorizes the reconnecting of utilities.
It appears to me that essentially the same rule would apply to a “new” person applying for
utility service at the condemned building. Craft and the cases supporting it that create a property
right in Tennessee to utility services appear to allow the denial of utility services “for good and
sufficient cause” as to the initial denial of utility services as well as to the denial of continued
utility services. Requiring the building to be repaired and brought up to the standards required by
the applicable building codes, and requiring the building inspector to approve the reconnecting of
the utility services before the applicant for utility services can obtain such services seems to be
within the scope of the building inspector under the building codes.
To facilitate repairs to buildings, Section 111BService Utilities, in both the IBC and the
2006 IEBC, also provide for temporary connections in ' 111.2: “The code official shall have the
authority to authorize the temporary connection of the building or system to the utility source of
energy, fuel, or power.”
In most cases where the restoration of utilities to a condemned building is being sought,
the codes enforcement officials appear to be the prime movers, as they are when the decision to
terminate the utilities is made.
Presumably, the rules governing qualified immunity for the termination of utility services
in condemned buildings applies to the denial of utility services in the same buildings, although the
“denial” of utility services to a building after its emergency eviction and condemnation seems to
be essentially a continuing part of the termination of utility services.
Obviously, many condemned buildings will not be repaired; their owners will abandon
them or will not otherwise spend the money to restore them to the standards prescribed by the
various applicable building and utility codes. Some of them will be ordered demolished by the
building inspector under the building codes and other statutes that allow such action.
4. Can you provide any suggested forms that utilities should require from code
enforcement authorities [to disconnect and reconnect utilities]?
Surprisingly, I have never been asked this question in all the years I have been at MTAS.
I am in the process of trying to locate forms other cities or governments use when a decision is
made by code enforcement authorities to terminate utilities for code violations. I will get back
with you on this question as soon as I am successful.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/