Opinion
NO. 19-CA-357
01-29-2020
ST. JOHN THE BAPTIST PARISH v. DUTCH BAYOU DEVELOPMENT COMPANY, INC.
COUNSEL FOR PLAINTIFF/APPELLEE, ST. JOHN THE BAPTIST PARISH, Samuel J. Accardo, Jr., Joseph J. Accardo, Jr. COUNSEL FOR DEFENDANT/APPELLANT, DUTCH BAYOU DEVELOPMENT COMPANY, INC., Philip J. Cambre
COUNSEL FOR PLAINTIFF/APPELLEE, ST. JOHN THE BAPTIST PARISH, Samuel J. Accardo, Jr., Joseph J. Accardo, Jr.
COUNSEL FOR DEFENDANT/APPELLANT, DUTCH BAYOU DEVELOPMENT COMPANY, INC., Philip J. Cambre
Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.
CHEHARDY, C.J.
Philip Cambre, in proper person and on behalf of Dutch Bayou Development Co., Inc. (collectively "Dutch Bayou"), appeals an April 17, 2019 judgment rendered in the Fortieth Judicial District Court, which affirmed an administrative adjudication by St. John the Baptist Parish's Planning and Zoning department prohibiting the defendant, St. John the Baptist Parish ("the Parish"), from assessing or recovering any costs, fees or expenses against Dutch Bayou for the abatement of a shed or any shed-related debris located at 108 Audifrey Lane in Reserve, Louisiana ("the Property"), and which ordered the Parish to reimburse $250.00 to Dutch Bayou for the allegedly salvageable materials the Parish improperly removed from the Property. For the following reasons, we affirm the district court's judgment.
According to Mr. Cambre, he is the secretary/treasurer and managing agent of Dutch Bayou.
Factual Background and Procedural History
This litigation stems from administrative judgments issued against Dutch Bayou for violation(s) of the St. John the Baptist Parish Code of Ordinances. Dutch Bayou owned a house and shed located on the Property in Reserve, Louisiana. Following an administrative hearing held on August 18, 2017, Dutch Bayou's shed was adjudicated to be in violation of the St. John the Baptist Parish Code of Ordinances, Section 105-41, et seq. , Hazardous/Unsafe Buildings and Premises. The administrative judgment, dated August 30, 2017, assessed penalties ($300.00), administrative fees ($100.00), and costs associated with the administrative hearing ($100.00) against Dutch Bayou for its shed-related violation. The judgment further notified Dutch Bayou that it had forty-five days to abate the violation and to pay the penalties and fees assessed, in the absence of which the violation would be abated by the Parish at Dutch Bayou's expense.
The house located on Dutch Bayou's property was the subject of a separate administrative proceeding (2017-CE-3831), and was also adjudicated to be in violation of Section 105-41, pursuant to a separate judgment.
Though the administrative judgment states that it was mailed to Dutch Bayou on September 5, 2017, the record contains a copy of the envelope confirming that the judgment was mailed to Dutch Bayou ("second attempt") via certified mail on October 11, 2017, and picked up on October 12, 2017. Thus, Dutch Bayou's filing of the petition for appeal on November 6, 2017 was timely.
Pursuant to La. R.S. 13:2575 H and Section 2.5–25 of the St. John the Baptist Parish Code of Ordinances, Dutch Bayou timely filed a petition in the Fortieth Judicial District Court to appeal the administrative judgment relating to the shed. In its petition for appeal, Dutch Bayou claimed the hearing officer erred in assessing fees and/or costs against Dutch Bayou because it had "corrected the Hazardous/Unsafe Buildings conditions that were first cited and listed in the original violation" by demolishing the shed prior to the administrative hearing. Additionally, claiming that the violations had been remedied and that any materials remaining on the property would be recycled and were not hazardous, Dutch Bayou's petition for appeal sought a stay under La. R.S. 49:964 against the enforcement of the administrative ruling.
Specifically, Dutch Bayou argued that it was error for Dutch Bayou to be assessed any costs for demolition of a shed that had already been demolished or to be assessed for administrative fees where fees had already been assessed on the house located on the subject property [in 2017-CE-3831]. Dutch Bayou's appeal to the district court, however, was limited solely to the administrative ruling regarding the shed violation issued in 2017-CE-3833. There is no evidence that Dutch Bayou appealed the adjudication addressing the house violation.
At the February 2, 2018 hearing before the district court on Dutch Bayou's appeal of the administrative ruling, in addition to its argument that it was wrongfully assessed fees and costs, Dutch Bayou argued that it had been denied due process because the Parish had improperly abated the shed violation while Dutch Bayou's appeal was still pending. On February 7, 2018, five days after the hearing was held and the matter was submitted, but prior to the district court's rendition of judgment on Dutch Bayou's appeal, Dutch Bayou filed an application for leave to "insure the Court ha[d] a complete record" of the administrative proceedings relative to the shed and to "supplement with written argument & pictures." No order to receive or consider additional evidence accompanied Dutch Bayou's application.
On April 24, 2018, the district court issued judgment affirming the findings of the administrative hearing officer as to Dutch Bayou's shed violation, and upheld the fees and costs assessed to Dutch Bayou. However, finding merit to Dutch Bayou's due process claim, the district court remanded the matter for further administrative proceedings.
Regarding the $300.00 penalty assessed against Dutch Bayou, there was no challenge as to the amount of the assessment; rather, Dutch Bayou challenged that there was an assessment at all. At the district court hearing, Mr. Cambre acknowledged that while the shed had been torn down, its foundation had not been removed. Consequently, because debris from the shed remained on the property, the district court determined that it could not "conclude that the [administrative hearing officer's] assessment [against Dutch Bayou] was improper." As to the administrative costs assessed against Dutch Bayou, the district court determined from reviewing the record of the administrative hearing that there were actually two separate administrative proceedings—one involving both the house and shed, and the other involving only the shed—and, thus, an administrative fee was assessed for each proceeding. The record in the instant appeal does not contain a transcript or record of the August 18, 2017 administrative hearing, nor does it contain a transcript or record of the February 2, 2018 hearing held before the district court.
Accordingly, a second administrative hearing was held on July 20, 2018 for the limited purpose of addressing Dutch Bayou's due process claim. Following the administrative hearing, but prior to the hearing officer having issued an amended judgment, Dutch Bayou filed a motion for leave in the district court on September 27, 2018 to amend its original petition for appeal to include an additional claim for the irreparable injury and loss it suffered as a result of the Parish's removal of valuable, salvageable items from the Property. Even though an amended administrative judgment following the remand hearing had not yet been issued, included in Dutch Bayou's motion for leave to amend was a "Motion to Set Aside or Appeal Administrative Hearing Officer's Oders[sic]/Judgments/Procuders [sic] Including Remand Ordered Hearing Action."
The amended administrative judgment erroneously indicates that the matter came for hearing on July 21, 2018, a Saturday. The subpoena noticing the administrative hearing states that the hearing was actually set for Friday, July 20, 2018.
On October 10, 2018, the hearing officer issued an amended administrative judgment. In accordance with the district court's prior determination that the Parish had erred in abating the shed violation while Dutch Bayou's appeal of the administrative ruling was still pending, in addition to assessing a penalty for the shed violation ($300.00), a hearing fee ($100.00) and an administrative fee ($200.00), which the district court had previously affirmed, the amended judgment also prohibited the Parish from assessing or recovering any costs, fees or expenses against Dutch Bayou for the Parish's abatement of the shed or any shed-related debris located on the property.
At a hearing held on October 25, 2018, the district court summarily denied Dutch Bayou's motion to amend its original petition on the basis that the original petition for appeal had already been tried and judgment rendered, and that to allow Dutch Bayou to amend its petition to add an additional claim at this stage of the proceedings would be tantamount to giving it a second bite of the apple. Further, because Dutch Bayou's motion to set aside or appeal the amended judgment had been filed prior to Dutch Bayou's having actually received notice of it, the hearing to address the merits of Dutch Bayou's appeal was continued to November 20, 2018. At that hearing, Dutch Bayou attempted to revisit its motion to amend stating the motion had been filed in order to apprise the district court that the administrative hearings had not been conducted in accordance with the Administrative Procedures Act, La. R.S. 49:950, et seq. Specifically, Dutch Bayou argued that "irregularities in procedure" which occurred during the administrative hearings were not reflected in the record before the district court when it reviewed the original administrative decision and, therefore, supplementation with the entire record of the administrative proceedings was necessary to enable the district court to conduct a complete review of the matter. In reiterating its denial of Dutch Bayou's motion to amend, the district court noted that any irregularities occurring in the original administrative proceeding should have been addressed by Dutch Bayou in its appeal of the original administrative judgment, which Dutch Bayou failed to do.
The district court clarified that the only issue before it at the hearing was Dutch Bayou's contention that when the Parish prematurely abated the shed-related violation, it improperly removed salvageable materials of value belonging to Dutch Bayou. The district court noted, however, that no evidence or argument was presented at the administrative hearing on remand in July of 2018—nor did the amended administrative judgment address—regarding identification of the items removed, whether the items were salvageable, or of any of the items' purported value. Additionally, no such evidence or information was presented to the court during the November 20, 2018 hearing. Nonetheless, on the basis that its prior judgment indicated that only the shed's foundation remained on the Property, the district court issued judgment, with reasons, on April 17, 2019 ordering the Parish to reimburse $250.00 to Dutch Bayou for the items it removed.
Mr. Cambre, in proper person and on behalf of Dutch Bayou, now appeals that judgment to this Court.
Issues Presented for Review
In its brief on appeal, Dutch Bayou argues that the record contains insufficient evidence to support either the October 10, 2018 amended administrative judgment (because it does not provide a "specific amount of [the] refund charges that would result from the" Parish for assessing costs, fees or expenses against Dutch Bayou for the abatement of the shed and shed-related debris), or the district court's April 17, 2019 judgment ordering the Parish to reimburse $250.00 to Dutch Bayou for the items it removed from the Property (because the record does not provide a basis upon which this award was made). Dutch Bayou also argues that the Parish failed to comply with the provisions of the Administrative Procedure Act "APA" by failing to provide the district court with the entire record of the administrative proceedings, where irregularities in procedure occurred, thereby preventing the district court from conducting a complete review of Dutch Bayou's appeal. Dutch Bayou further contends that the administrative judgment's imposition of penalties against it was "unreasonable, arbitrary, capricious or an abuse of discretion." Dutch Bayou seeks for this Court to remand the matter to the district court in order for the Parish to "supplement the record with a complete record" of the administrative proceedings and "for a retrial [by the district court] on that complete evidence." Standard of Review and Applicable Legal Principles
Pursuant to an order issued by this Court, the administrative hearing officer supplied this Court with a complete record of the administrative proceeding on remand of the district court judgment held on July 20, 2018. The record contained copies of the applicable administrative rulings, photographs of the shed and the shed-related debris, and included an audio recording of the administrative proceeding.
The standard of review of an administrative agency's decision is narrower than the standard of review applied to civil and criminal appeals. Spears v. Louisiana Board of Practical Nurse Examiners , 16-587 (La. App. 5 Cir. 6/15/17), 223 So.3d 679, 687. Pursuant to La. R.S. 49:964 (A) and (B), a party aggrieved by a final agency decision in an adjudication proceeding is entitled to have that decision reviewed initially by the district court of the parish in which the agency is located. The agency shall submit to the reviewing court the original or certified copy of the entire record of the administrative proceeding under review unless stipulated to the contrary by the parties. The court may require or permit subsequent corrections or additions to the record. La. R.S. 49:964 D. If, before the date set for the hearing, application is made to the court for relief to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court. La. R.S. 49: 964 E. The review shall be conducted by the court without a jury and "shall be confined to the record." However, "[i]n cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court." La. R.S. 49:694 F. Upon request, the court shall hear oral argument and receive written briefs. Id.
"It is elementary that a court's function is not to weigh de novo the available evidence and to substitute its judgment for that of the agency." Spears , 16-587, 223 So.3d at 687-688 (quoting Save Ourselves, Inc. v. La. Environmental Control Commission , 452 So.2d 1152, 1159 (La. 1984). The district court, functioning as a court of appeal, "is a court of record and cannot receive new evidence." McCall v. Parish of Jefferson , 15-103 (La. App. 5 Cir. 10/28/15), 178 So.3d 174, 176.
A party aggrieved by the district court's decision is entitled to appeal to the appropriate appellate court as in other civil cases. La. R.S. 49:965. When an appellate court reviews the district court's judgment, no deference is owed by the appellate court to the district court's factual findings or legal conclusions, "just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal." Spears , 16-587, 223 So.3d at 688, (quoting Tomorrow's Investors, LLC v. State , 11-1616 (La. App. 1 Cir. 3/23/12), 92 So.3d 364, 367, writ denied , 12-0886 (La. 6/1/12), 90 So.3d 444 ). "Thus, an appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency and not the decision of the district court." Sylvester v. City of New Orleans Through Code Enforcement and Hearings Bureau , 17-0283 (La. App. 4 Cir. 10/11/17), 228 So.3d 285, 287.
La. R.S. 49:964 G defines the scope of judicial review of agency decisions and sets forth the exclusive grounds upon which an administrative agency's decision may be reversed or modified:
The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of this rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues.
Finally, the decisions of the administrative agency are subject to a rebuttable presumption of validity and should not be reversed by a reviewing court absent "a clear showing that the decision (1) was arbitrary or capricious, (2) was an abuse of the hearing officer's discretion, or (3) was manifestly erroneous based on the evidence in the record on appeal." Gebre v. City of New Orleans , 14-0904 (La. App. 4 Cir. 10/7/15), 177 So.3d 723, 730. The aggrieved party bears the burden of establishing that the administrative ruling was arbitrary, capricious, or manifestly erroneous in the light of the record evidence. Clark v. La. State Racing Com'n , 12-1049 (La. App. 4 Cir. 12/12/12), 104 So.3d 820, 827. Absent such a showing, the reviewing court may not may not substitute its own judgment for that of the agency. Id.
With these legal precepts in mind, we now turn to the issues raised by Dutch Bayou in the instant appeal in order to determine whether it is entitled to the relief it seeks—remand to supplement the record and a retrial on its appeal of the agency's ruling in the district court.
Discussion
Dutch Bayou argues that the record before us is insufficient (and, thus, needs to be supplemented) to support the amended administrative judgment "on the specific amount of refund charges that would result from ... ‘assessing/recovering, any costs, fees or expenses, against Dutch Bayou for the abatement of the shed or any shed-related debris ...." To the contrary, though the record before us does not contain documentation of "the specific amount" invoiced by the Parish to Dutch Bayou for the costs it incurred to abate the shed violation, we find this to be of no consequence. According to the amended administrative judgment, the Parish was precluded from recovering any amount whatsoever from Dutch Bayou for the "costs, fees or expenses" related to its "abatement of [Dutch Bayou's] shed and shed-related debris." Thus, no matter what amount the Parish included in the invoice it sent to Dutch Bayou for the costs it incurred to abate the shed violation, the Parish was precluded from recovering it.
To the extent Dutch Bayou's arguments pertain to matters involving the code violation related to the home on the Property, which violation was the subject of a separate proceeding and resulted in the rendition of a separate judgment in 2017-CE-3831, any matters concerning the home violation are not before this Court.
Dutch Bayou also maintains that when the Parish prematurely abated the shed violation, it "haul[ed] off valuable property that Dutch Bayou had set aside for salvage." Dutch Bayou argues that the district erred in "decid[ing] the value of the property removed [$250.00] without having a complete record" before it. The Parish contends that other than Dutch Bayou's bare assertion that the Parish wrongfully removed items from the property that were valuable and/or salvageable, Dutch Bayou failed to present any evidence at the administrative hearing on remand identifying any of the items allegedly removed, proof that the alleged items were salvageable, or proof of the purported value of the items. To the extent Dutch Bayou contends that the lack of record evidence constitutes an "irregularity in procedure" occurring during the administrative proceedings "not shown in the record," La. R.S. 49:694 F afforded Dutch Bayou the opportunity to present proof thereon to the district court during the hearing on Dutch Bayou's appeal of the amended administrative judgment. This Dutch Bayou did not do, as specifically noted by the district court in its April 17, 2019 judgment, and confirmed by our de novo review of the record. Specifically, our review of the audio recording of the July 20, 2018 administrative hearing confirms that Dutch Bayou presented no evidence or testimony regarding the alleged salvageable items it claims the Parish removed or as to the value of those items.
See Footnote 8, supra . Further, La. R.S. 49:964 F provides that a district's review of an administrative ruling "shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the [administrative] agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs." Dutch Bayou also argues in the instant appeal that the administrative record does not contain the administrative judgment dated August 30, 2017 issued in 2017-CE-3831, a separate proceeding relative to the house located on the property. Dutch Bayou argues that it never received a copy of that judgment, which also constitutes an irregularity in procedure at the administrative level denying it due process. Dutch Bayou's appeal, however, is of the district court's April 17, 2019 judgment relative solely to the shed. Thus, any argument pertaining to the house-related violation is not properly before us.
Further, we find that Dutch Bayou's reliance on La. R.S. 49:964 E for the proposition that the district court erred in denying Dutch Bayou's attempts to have the record supplemented is ill-founded. The statute specifically provides, in pertinent part, that "[i]f, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court...." [Emphasis added.] Dutch Bayou has not provided any good reason for its failure to present the evidence in the hearing on remand before the agency. Moreover, the record before us shows that Dutch Bayou's application for leave to supplement the record with additional written argument and photographs was not filed in the district court until after the hearing on Dutch Bayou's petition for appeal had taken place, not before as required by the statute. Consequently, Dutch Bayou's application to supplement the record came too late. There is also no indication in the record, or contention by Dutch Bayou in this appeal, that the evidence with which it attempted to supplement the record in the district court included either an itemization of the alleged salvageable items it contends the Parish removed or of the purported value of those items.
Despite the lack of evidence as to value, the district court ordered the Parish to reimburse $250.00 to Dutch Bayou for the items it removed. While we recognize Dutch Bayou's dissatisfaction that it was not awarded additional monies to compensate it for the alleged salvageable property the Parish removed, it was Dutch Bayou's burden to present such evidence at the administrative hearing, and/or at the district court hearing, to prove its claim. Supplementation of the administrative record at this stage of the proceedings will not cure Dutch Bayou's failure to follow the proper procedures for introducing this evidence during the proceedings that occurred below. Accordingly, we find no factual or legal basis upon which to remand this matter for supplementation of the record of the administrative proceedings or to order a retrial of the appeal from the agency decision before the district court. Dutch Bayou is not entitled to the requested relief.
Next, Dutch Bayou argues that the administrative judgment's imposition of penalties against it, and the liens filed by the Parish against the Property, were unlawful when filed and were "unreasonable, arbitrary, capricious or an abuse of discretion." As to the purported liens, the record is devoid of any indication that lien and/or privilege issues were ever presented to or addressed by the administrative hearing officer during the administrative proceeding on remand or by the district court on Dutch Bayou's appeal of the amended administrative judgment. The long-standing rule of law is that appellate courts will not consider issues raised for the first time on appeal, which are not pleaded in the court below, and which the district court has not addressed. First Bank & Trust v. Bayou Land & Marine Contrs. , 12-295 (La. App. 5 Cir. 10/30/12), 103 So.3d 1148, 1152. Consequently, we will not consider the lien or privilege issues raised by Dutch Bayou, which were raised for the first time in its brief in this Court.
Regarding Dutch Bayou's contention that the penalties assessed against it in the administrative judgments were arbitrary, capricious, manifestly erroneous, and unsupported by the record, we disagree. It is clear from this Court's review of the pleadings filed by Dutch Bayou in this matter that Dutch Bayou has not contested that its shed on the Property was, at some point, in violation of the St. John the Baptist Parish Code of Ordinances, Section 105-41, et seq. Until now, Dutch Bayou has not challenged the hearing officer's imposition of a penalty for the shed violation, only its imposition of the administrative fees and costs associated with the administrative hearing addressing the violation. In fact, on de novo review of the record, we find that Mr. Cambre actually acknowledged Dutch Bayou's violation both during the July 20, 2018 administrative hearing on remand, and during the district court hearing held on November 20, 2018, when he stated that "Dutch Bayou felt that it had handled the first two violations properly ...." Consequently, based upon Dutch Bayou's admission of the shed violation, supplementation or a re-trial before the district court is not necessary for our determination that no error exists in the hearing officer's amended administrative judgment imposing a penalty and assessing fees and costs against Dutch Bayou for its shed violation, or in the district court's affirmation of that amended judgment.
Pursuant to Section 2.5-9(c)(1) of the St. John the Baptist Parish Code of Ordinances, an administrative hearing officer "shall assess costs of any proceeding when there is [a] finding of a violation." These administrative costs, which shall not be less than $100.00, are mandatory and may not be waived or reduced. See Section 2.5-9(c)(2)and (3). In the event more than one violation is found, "[t]he hearing officer may, for each separate violation, order the payment of hearing costs...." Section 2.5-20(d). Fines and penalties up to "$500.00 per violation and up to $500.00 per day for continuing violations" may be assessed. See Sections 2.5-9(d) and 2.5-12(a). Having found that Dutch Bayou was in violation of Section 105-41 of the St. John the Baptist Parish Code of Ordinances, the administrative hearing officer was mandated to assess administrative fees ($100.00) and costs of the hearing ($100.00) against Dutch Bayou.
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CONCLUSION
For the foregoing reasons, finding no error in the amended administrative judgment, we affirm the district court's April 17, 2019 judgment.