Opinion
CV-18-128
03-23-2021
City of Lewiston, Plaintiff, v. William Verrinder, Defendant.
JUDGMENT
VALERIE STANFILL, JUSTICE
This land use violation case came before the court for final hearing on March 17, 2021. Plaintiff was present through its agent, Nicholas Richard, and was represented by Michael Carey, Esq. Defendant was present and represented himself. This court had previously entered summary judgment in Plaintiff's favor on the Complaint, and the matter was set for hearing on the penalty, costs, fees and/or other remedy to be imposed.
At the time of the hearing, Plaintiff confirmed the only remedy it seeks is a daily civil penalty for the violations together with attorney's fees and costs. No abatement or corrective order was sought as the violations have been corrected.
Based on the evidence produced at the hearing, the court finds that the Lewiston Property Maintenance Code violation as set forth in the Notice of Violation regarding the accumulation of rubbish or garbage on Defendant's property existed from November 16, 2017 through at least July 17, 2018; abatement or correction occnrred after that date. This is a total of 243 days. The court also finds that the Lewiston Property Maintenance Code violation as set forth in the Notice of Violation regarding the missing part of the exterior stairs on Defendant's property existed from November 16, 2017 through at least April 12, 2018; abatement or correction occurred after that date. This is a total of 147 days.
November 16 is the date upon which Defendant called the code enforcement officer about the Notice of Violation dated November 8, 2017 and thus had clear notice. The conditions were actually observed and existed before that date.
Plaintiff asks the court to impose a civil penalty of $100 per day for 243 days, or $24,300.00, for the violation involving the accumulation of rubbish or garbage on Defendant's property. Plaintiff also asks the court to impose a civil penalty of $100 per day for 147 days, or $14,700.00, for the violation involving the damaged front stairs on Defendant's property. Thus, Plaintiff seeks a total civil penalty of $39,000.00 from Defendant.
Pursuant to 30-A M.R.S. § 4452(3),
3. Civil penalties. The following provisions apply to violations of the laws and ordinances set forth in subsection 5. Except for paragraph H, monetary penalties may be assessed on a per~day basis and are civil penalties,
A. The minimum penalty for starting construction or undertaking a land use activity without a required permit is $ 100, and the maximum penalty is $ 2, 500.
B. The minimum penalty for a specific violation is $100, and the maximum penalty is $5,000
C. The violator may be ordered to correct or abate the violations. . .,
E. In setting a penalty, the court shall consider, but is not limited to, the following:
(1) Prior violations by the same party;
(2) The degree of environmental damage that cannot be abated or corrected;
(3) The extent to which the violation continued following a municipal order to stop; and
(4) The extent to which the municipality contributed to the violation by providing the violator with incorrect information or by failing to take timely action.
F. The maximum penalty may exceed the amounts set forth in paragraphs B and B-l, but may not exceed $25,000, when it is shown that there has been a previous conviction of the same party within the past 2 years for a violation of the same law or ordinance.
This provision is applicable to Defendant's violation of Lewiston's code pursuant to 30-A M.R.S. § 4452(5). Although it states that "monetary penalties may be assessed on a per-day basis", § 4452(3), the statute also states that the "minimum penalty for a specific violation is $100." The Law Court has held that when another provision of law provides that each day the violation continues constitutes a separate violation, this court has no discretion to impose less than the minimum penalty of $100 for each day of the continuing violation. Town of Orono v. Lapointe, 1997 ME 185, ¶¶ 9-12; Deft. of Envtl. Protection v. Emerson, 616 A.2d 1268, 1272 (Me. 1992). In this case, the Lewiston Code states as follows:
Each day that a violation continues after due notice has been served shall be deemed a separate offense.
City of Lewiston Code of Ordinances, Chapter 18, § 18-52, IPMC §106.4. Therefore, this court is without discretion to impose less than $24,300.00 for the 243 days of continuing violation involving the accumulation of rubbish or garbage, and $14,700.00 for the 147 days of continuing violation involving the damaged front stairs.
In this case, there are no aggravating factors that would cause the court to impose greater than the mandatory minimum required. The court is unaware of any prior violations and there is no environmental damage. See 30-A M.R.S. § 4452(3)(E).
To be clear, the court considers the total civil penalty sought to be disproportionate to the offenses, particularly since the rubbish strewn about was not visible for much of the time when there was snow on the ground. Nonetheless, this is the minimum penalty required by statute and the Code.
The Law Court has made it clear that this court is also without discretion to suspend any portion of the minimum penalty imposed, Lapointe, 1997 ME 185, ¶ 12, 698 A.2d at 1062. The Law Court has not addressed the issue whether the two penalties may run concurrently to each other in the situation presented here, namely, where the violations existed at the same time and were the subject of a unitary Notice of Violation and Land Use Enforcement action. Certainly in the criminal context the court has the ability to specify that fines not be cumulative. See 17-A M.R.S. § 1707 . And, fines may be made non-cumulative even if they may not be suspended. Applying the same reasouing, therefore, this court finds that the civil penalties ought not to be cumulative and shall run concurrently with each other.
17-A M.R.S. § 1707 provides "When multiple fines are imposed on a convicted person at the same time or when a fine is imposed on a convicted person already subject to an unpaid or partly unpaid fine, the fines must be cumulative, unless the court specifies that only the highest single fine must be paid in the case of offenses based on the same conduct or arising out of the same criminal episode or for other good cause stated on the record or in the sentences."
Plaintiff also seeks attorney's fees and costs in the amount of $28,257.00. Pursuant to 30-A M.R.S. § 4452(3)(D), when the City is the prevailing party, it "must be awarded reasonable attorney fees, expert witness fees and costs, unless the court finds that special circumstances make the award of these fees and costs unjust." Although the attorney's fees sought in this case are certainly high, the court recognizes that a significant amount of the legal maneuvering was caused by Defendant, who removed the case to the U.S. District Court, then to the Superior Court, and who filed a number of unsuccessful motions. While such moves are Defendant's right, they come at the cost of increasing fees sought by the City. The court finds that the fees sought by the City are reasonable under all the circumstances and therefore awards those fees and costs to the City. For the foregoing reasons, it is ordered as follows:
The court imposes a civil penalty of $24,300.00 for the violation involving the accumulation of rubbish or garbage, and $14,700.00 for the violation involving the damaged front stairs. The court orders that the civil penalties are non-cumulative or concurrent, so that the total penalty that must be paid is $24,300.00. In addition, the court awards to Plaintiff attorney's fees in die amount of $28,257, 00. Therefore, the total judgment awarded in favor of Plaintiff and against Defendant is $52,557.00, plus post judgment interest.
This Judgment may be incorporated on the docket of the cast; by reference pursuant to Me.R.Civ.P.79{a).