Municipal officials up and down the state and their attorneys are paying particularly close attention to an otherwise obscure case out of Hesperia, as the fight over the principles involved could conceivably unwind the authority and protocols cities have come to rely upon to enforce their codes and regulations.
There are multiple levels of irony in the matter. This case comes nearly four years after the City of Hesperia paid out $200,000 to foreclose a federal lawsuit over what a federal magistrate indicated was the unconstitutional application of its municipal authority through the use of its code enforcement division, resulting in the case being dropped before that constitutional test, with its implication for all other California cities, was actually made. Once again, however, the city has applied that authority in a way that raises questions as to whether the Hesperia has assumed greater reach than is afforded it under both the California and U.S. Constitution, triggering a legal challenge. After again finding itself in federal court in an effort to defend that assumption of authority, the city has thrice spurned an offer from the plaintiff’s attorney to settle the matter in return for the city calling a halt to the ongoing administrative adjudication process against his client, which is setting up a showdown on the principle of whether a city has the authority to not only cite those it perceives as having run afoul of city ordinances, codes and zoning restrictions but adjudicating those matters without using an unbiased hearing officer and then imposing punishment.
With the city intent on pushing the issue to apply its administrative power and the attorney for the plaintiff unwilling to vacate the suit, a legal showdown that could erode the ability of local governments to constrain or otherwise modulate the behavior of their residents appears inevitable.
It is the constitutionality of a city serving as not only the enforcement officer but the prosecutor, jury and judge – a set-up known as the administrative adjudication process – that is at the root of the lawsuit filed in the United States District Court in Los Angeles by Upland-based attorney Marc Grossman on behalf of Alexander Cooper Jr. against the City of Hesperia as well as three of its residents – JoAnn Chavis, Lewis Chavis and Christopher Chavis.
It is Grossman’s contention that Cooper has been subjected to a kangaroo court, before which his rights of due process were entirely ignored. In the suit, Grossman maintains that the Chavis family exploited familial connections to individuals within the City of Hesperia and its code and law enforcement divisions to vector unjustifiable enforcement action against Cooper because of personal differences that developed between them. According to Grossman, city officials either negligently or maliciously permitted the city’s code enforcement division to be applied against his client and then utilized the city’s administrative adjudication process in which the principles of law and justice were disregarded or perverted to reach a foregone conclusion with regard to Cooper’s alleged offense. The lack of Constitutional protections and accompanying violations of due process inherent in the city’s citation and administrative process resulted in Cooper being railroaded, that is, found guilty without a trial, Grossman maintains. Moreover, the city then assessed fines that are both unjust and excessive.
In September 2012, according to the suit, Cooper moved into a home in the 10700 block of Choiceana Avenue in Hesperia and shortly thereafter an air conditioning unit on his property was stolen. Cooper reported the theft to the sheriff’s department, which serves as the police department in Hesperia. In January 2014, according to the suit, Cooper learned from a neighbor that Christopher Chavis had stolen the air conditioner. Cooper then approached Christopher Chavis, JoAnn Chavis and Lewis Chavis about the air conditioner, according to the suit, only to be met with a tirade of profanity from the trio.
“Joann Chavis then began a pattern of using her connections within the Hesperia Code Enforcement Department to harass Cooper,” according to the suit. “Joan Chavis has since, on several occasions, directed Hesperia code enforcement officers to harass Cooper at his home solely for the purpose of seriously alarming or annoying him, and for no legitimate purpose. Hesperia has conspired and acted in concert with Joann Chavis by continuing to harass Cooper at his home, relying solely on Joann Chavis’s frivolous complaints against Cooper, such as complaints of dust in the air after Cooper moves his car on his property or allegations that Cooper had packages sent to Joann Chavis’s home to in some way commit identity theft. Hesperia has followed such illegitimate code enforcement responses with bills for up to $2,500 per response alleging that Cooper must compensate Hesperia for following up on Joann Chavis’s frivolous complaints. Hesperia has sent demands for a total of $3,912 for such illegitimate code enforcement responses,” the suit states.
Furthermore, according to the lawsuit, on February 4, 2014 Cooper and two of his girlfriend’s children were at his Choiceana Avenue home when he was confronted by eight city employees, including members of the Hesperia code enforcement division in response to what the suit says was “yet another frivolous complaint from Joann Chavis. Cooper was arrested and imprisoned on a citizen’s arrest by Lewis Chavis on charges of actions that did not factually occur. At no time on February 4, 2014 was Cooper creating or causing there to exist loud or unreasonable noise. At no time on February 4, 2014 did Cooper commit a misdemeanor in the presence of any defendant.”
Though he was given a notice to appear in court on April 9, 2014 to answer a criminal complaint relating to allowing excessive noise to emanate from his property the city said was pending against him, according to the suit, “On or about April 9, 2014 Cooper called the court to see if the district attorney had filed charges and was told charges had not yet been filed. Cooper continued to check with the court frequently over the next year to determine if charges had or had not yet been filed. Cooper is informed and believes that the district attorney never filed charges for any matters from February 4, 2014. Unfounded and frivolous disruption at Cooper’s home by Hesperia’s code enforcement in conspiracy with Joann Chavis continued on, but is not limited to, February 7, 2014, July 25, 2014, July 27, 2014, March 31, 2015, May 6, 2015 and May 8, 2015. On June 2, 2014, Joann Chavis’s harassment continued with the malicious filing of an unfounded request for a civil harassment restraining order against Cooper with the California Superior Court. The court denied the petition for lack of evidence following a motion for dismissal.”
According to Grossman, the city has, in violation of Cooper’s Constitutional rights to due process, proceeded with deeming him guilty of the code enforcement violations the city’s officers have cited him with and assessed him for the cost of the code enforcement division’s action against him, by using its administrative citation process, which does not afford the accused a trial. Through that administrative citation process, Cooper has been assessed with the $3,912 in fines. Moreover, according to Grossman, the city continued to hold over Cooper’s head the possibility that it would proceed with a criminal prosecution of the misdemeanors – producing excessive noise and disturbing the peace – referenced in those citations.
The lawsuit against Hesperia Grossman has filed on Cooper’s behalf is reminiscent of a similar suit filed by another Upland-based attorney, Louis Fazzi, on behalf of two other Hesperia residents, Janet and Esther Duran, based on the municipality having used its authority, bankroll and control of the code enforcement process to overwhelm its citizens and obtain an inevitable adjudication in the city’s favor.
In January 2010, the Hesperia code enforcement division took up a case that had as its focus a property on Redwood Avenue owned by Esther Duran. which her daughter, Janet, was using as a temporary rescue shelter for horses that would otherwise have been sent to slaughterhouses for euthanization or processing for the dog food or glue manufacturing industries.
Janet Duran, an ambulance driver, in 2004 took up the cause of doomed horses, including wild mustangs run to ground by cowboys in Nevada and Arizona and ones being sold by their owners at auction, for as little as $5, $10, or $15 a head, ostensibly to buyers interested in using them for horsemeat.
The Redwood property prior to city incorporation was zoned for agricultural use. The post-incorporation zoning was agricultural residential and the Durans were permitted under the city’s code to have up to six horses on the property per its acreage.
On January 13, 2010, a team of city employees that included two code enforcement officers, four armed sheriff’s department deputies in flak jackets and two animal control officers descended on the Durans’ property. One of the code enforcement officers served Esther Duran with papers and the team then seized three horses and five dogs, one of which was a stray whose owner the Durans were seeking to locate. Both Esther and Janet were cited and slapped with a total of $129,000 in fees, which upon the city’s processing protocol were ratcheted up into liens against the property. Those liens resulted in Esther Duran’s mortgage increasing from $1,400 to $4,700 per month.
Unwilling to take the city’s action lying down, the Durans hired Fazzi. Fazzi brought several principles to bear which the city had in the past routinely overlooked in its enforcement efforts, including compliance with the city’s own codes, which actually allowed for the presence of up to three more horses than the Durans had on the property on January 13, 2010 and up to five dogs, as well as the right to due process. The city’s response was to seek a series of delays, which had the effect of increasing the Durans’ legal costs while the underlying issue – the return of their animals – remained unresolved.
Despite the cost, the Durans did not simply duck out of the fight. Fazzi persisted on their behalf, successfully removing the matter to federal court. Still, the city told the court the Durans were maintaining a substandard property and that the animals for that reason should not be returned to them. Fazzi maintained that the property was up to code and in compliance in all regards. In March 2012, a court-appointed independent inspector went over the Redwood property with a fine-tooth comb, concluding the property was indeed up to code.
In April 2012, U.S. District Court Judge John E. McDermott ruled that the city’s action against the Durans was improper and that their animals would have to be returned to them. Fazzi immediately brought a motion to have McDermott consider whether the entire process the Durans had been subjected to was unconstitutional.
While McDermott’s ruling was pending, the city offered the Durans a $200,000 settlement. The tendering of that offer, and the Durans’ acceptance of it, put the matter to rest, preventing a potentially precedent-setting ruling that would prohibit the city from continuing to employ the same tactics against other city residents.
Four years later, Grossman finds himself knocking on the same courthouse door as Fazzi, again in an effort that would, if successful, establish that Hesperia’s administrative citation process is an inherently unconstitutional one.
That the Constitutional test of the entire municipal administrative citation process pertains to Hesperia is not an accident. There are elements in Hesperia’s approach that make it far more easy to demonstrate the unconstitutionality of the process, in particular the way in which the city escalates the fines it imposes on those deemed guilty of violating city codes. Whereas most other cities that have availed themselves of the administrative citation approach have a fining schedule that maxes out at no more than $1,000 per infraction, Hesperia has assumed unto itself the authority to ratchet its fines up to $2,500 per incident. Like other cities, Hesperia has a graduated fining schedule that begins with fines that are substantially lower. Nevertheless, once the city has levied the gamut of fines against a single individual or property owner up the ladder to reach the maximum of $2,500, every further infraction deemed to have been perpetrated by that offender brings with it a fine of $2,500. Hesperia goes further still, imposing a 30 day time limit for the offender to make restitution. If the fine is not paid within 30 days, a fifty percent surcharge is levied on top of the fine.
Grossman said, “Every city and jurisdiction has the authority to apply fines for violation of their codes, but they cannot suspend due process in imposing those punishments. Cities and counties have their local ordinances. Most have an enforcement structure that maxes out at $500 or in some cases $1,000. Anything beyond that, the person has a right to an impartial hearing and judicial process. In Hesperia, you get to a fine of $2,500 after the fifth incident in which the police have been called. If you don’t pay within 30 days, that goes to $3,750 per incident where someone has alleged something that requires a police response. The city has given itself the right to record liens against the houses of the offenders. Under the Hesperia statute you do not have a right to a hearing in front of a judge. All you get is a hearing in front of hearing officer designated by the police chief. So what you get is someone serving at the pleasure of the police department making a determination if the police department was justified in imposing a fine of that magnitude.
“Our client had a dispute with his next door neighbor who is a police department insider,” Grossman continued. “His neighbor happens to be a volunteer member of the citizens patrol, which is a quasi-police reserve group. They do ride-alongs with the sheriff’s department, which in Hesperia is the police department. In fairness to Hesperia, the $2,500 fine level is not triggered until you get to a fifth so-called offense. Most calls about noise or riding motorcycles get ignored in a city with 90,000 that is spread out like Hesperia is with as few officers as they have. But when our client’s neighbor calls, she gets a response. These are complaints about things that were they to emanate from anyone else, would have gotten no response. But with those complaints, she [Joann Chavis] and her family have pushed him into the fifth tier. And once you are in the fifth tier, every call triggers a fine of $2,500 which a month later turns into $3,750 if you can’t pay it. What we have offered is to end this litigation, without me or my firm getting attorney’s fees, if the city will just put an end to this, reset our client so at the drop of a dime he is not subject to another $3,750 fine. The window on keeping him in the fifth tier is three years. So that means that if he goes two years and ten months and his neighbor calls to complain about too much noise, he gets hit with another $3,750 fine. And if he goes two years after that without any incident and someone complains about dust being churned up when he rides his motorcycle, it costs him another $3,750. And if two years and ten months later his dog barks and someone complains, he gets fined $3,750 again, every time with no impartial hearing officer. We have asked that the city end this situation in which he remains subject to having these liens slapped against his house. The city has refused to meet that request.”
The city is represented by attorney Allen Christiansen in its response to Cooper’s lawsuit. In court papers and correspondence relating to the suit, Christiansen maintains that the city, in an effort to arrive at a settlement, has removed the previous lien against Cooper’s property. At the same time, Christiansen maintained, Cooper is “trying to run an unlicensed business out of his home.” Christiansen characterized the lawsuit as “frivolous litigation” in which Cooper is “seeking to make a federal case out of a neighborhood dispute instead of just requesting an administrative hearing.” It would be better, Christiansen said, for Cooper “to obey the law, stop and try to make amends with his neighbors. It seems fairly apparent,” Christiansen said, that Grossman was “pursuing this litigation without any justification.”
As to the assertion that the City of Hesperia’s administrative citation process is unconstitutional, Christiansen told Grossman, “other cities have similar ordinances and your representation that these are ‘massive fines without appropriate process’ is a farce. Your client simply refused to take advantage of his due process rights and instead found you to bring a federal lawsuit. You’ve got no basis to argue that the process is not appropriate because your client has never used the process.”
Initially, the federal judge hearing the case, Michael Fitzgerald, expressed skepticism over the propriety of bringing the case at the federal level, and he suggested to Grossman that the proper forum was within the California Superior Court System or even more properly small claims court. Grossman endeavored to explain that the issues as to the constitutionality of the administrative citation process and Hesperia’s accelerated and excessive fines were issues best adjudicated in federal court, persuading Fitzgerald that the matter merited the United States District Court for the Central District of California’s scrutiny. Fitzgerald has allowed the case to proceed.
In this way, the case represents a credible challenge to not only Hesperia’s fining schedule which allows for the imposition of a $2,500 fine that can be bootstrapped up into a $3,750 fine for what are simple infractions or minor code violations, but the city’s administrative citation regime, which does not adhere to the principle of allowing those accused to get a full-fledged hearing of the evidence against them before an independent magistrate. This has led to city officials and city attorneys with municipalities throughout the state which have themselves adopted administrative citation ordinances to sit up and take notice, as a ruling against Hesperia in the Cooper case could conceivably invalidate a tool those communities heavily rely upon for their code enforcement efforts.
Grossman, who has committed to seeing the case to a conclusion in the United States District Court for the Central District of California that will remove the City of Hesperia’s threat of subjecting Cooper to the city’s accelerated fines/liens without billing his client, said he will, if he does not achieve a favorable ruling from Fizgerald on the issues at stake in the case, appeal to the 9th Circuit Court of Appeals. And his client will not, as occurred in the Duran case, bug out and take a monetary settlement from the city to drop the case to head off a landmark decision that will establish the administrative citation process as an unconstitutional one, Grossman said.
“In her capacity as a volunteer in the Hesperia Citizens Patrol Program,” Grossman said, “Joann Chavis has trained with the police department and works closely, communicates regularly and has developed contacts with members of the Hesperia code enforcement division and other agents and agencies of the city. Acting under the color of law, the defendants worked a denial of Alexander Cooper’s rights, privileges, or immunities secured by the United States Constitution or by federal law and conspired to deprive him of his liberty without due process of law, causing him to be taken into custody and held there against his will. They made an unreasonable search and seizure of his person or property without due process of law and impeded and hindered the due course of justice, with intent of denying him equal protection of laws, depriving him of his rights, privileges, and immunities as guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States.”
When the Sentinel offered Christiansen the opportunity to refute Grossman’s contentions, he said, “As much as I would enjoy talking with you, I don’t comment on pending litigation.”