Opinion
No. 277.
Argued June 2, 1970. —
Decided June 26, 1970.
APPEAL from an order of the county court of Sheboygan county: JOHN G. BUCHEN, Judge. Affirmed.
For the appellant the cause was argued by Roy G. Mita, assistant attorney general, with whom on the briefs was Robert W. Warren, attorney general.
For the respondent Thomas James there was a brief by Kaftan, Kaftan, Kaftan Kuehne of Green Bay, and oral argument by Arthur Kaftan.
This is an action against the respondents to recover a forfeiture for alleged state building code violations. Respondent Thomas James, a resident of Minneapolis, Minnesota, is the owner of a building located at 506 East Mills Street in Plymouth, Wisconsin. The building is leased to the Red Owl supermarket chain, which in turn subleases the building to respondent William Czerwonka. James had the building constructed in 1965-1966 for occupation by Red Owl.
In January of 1966, Archie F. Green, a state inspector, inspected the premises and noted several violations of the state building code. At that time he left a notice of these violations, directed to James, with an employee of the Red Owl store. No notice of violations was ever sent to James at his Minneapolis address, although at least one of the inspection reports made during several reinspections contained his Minneapolis address. When James actually did learn of the violations he caused them to be rectified. The state pressed for recovery of a forfeiture from the respondents.
Trial was held to the court and on May 15, 1969, Judge BUCHEN rendered his decision, finding that while proof of actual notice of violation is not necessary, the commission failed to give notice in a manner which was reasonably calculated to inform the defendants of the violations. Therefore, he ordered the action for the forfeiture dismissed.
The state appeals from this dismissal.
The only issue on this appeal is whether the state must give notice, reasonably calculated to inform a nonresident owner of a building of building code violations in order to maintain an action to collect forfeitures from such owner. We think so.
It is true that the state building code has the force and effect of statutes. However, this does not dispense with the requirement, once violations of the code have been found, that there must be notice of such violations before a forfeiture can be imposed.
Park Bldg. Corp. v. Industrial Comm. (1960), 9 Wis.2d 78, 100 N.W.2d 571.
Forfeitures are not favored in the law and statutes imposing the same are subject to the rule of strict construction. Sec. 101.18, Stats., provides:
See: 36 Am. Jur. 2d, Forfeitures and Penalties, p. 615, sec. 8.
State v. Howard W. Russell, Inc. (1923), 181 Wis. 76, 194 N.W. 43. See also: State v. Peterson (1930), 201 Wis. 20, 229 N.W. 48.
" Per diem unit of violations. Every day during which any person, persons, corporation or any officer, agent or employee thereof, shall fail to observe and comply with any order of the commission or to perform any duty enjoined by sections 101.01 to 101.29, inclusive, shall constitute a separate and distinct violation of such order, or of said sections as the case may be."
For such forfeiture to accrue we think that the alleged nonresident violator should receive notice of those violations. Although it is not necessary to receive actual notice before being subject to forfeitures there must be notice reasonably calculated to inform the nonresident owner the building.
The forfeiture provisions of this statute were intended compel a reluctant building owner to comply with the building code. These forfeitures would be imposed in situations where the owner refused to comply and an action had to be brought to make him take the necessary steps. In such a situation the owner would undoubtedly have notice. But in this case James made the necessary corrections upon learning of the defects. In this type of situation the imposition of forfeitures without notice of violation and opportunity to comply was not intended.
See generally: Robert A. Johnston Co. v. Industrial Comm. (1943), 242 Wis. 299, 7 N.W.2d 854.
Moreover, if a forfeiture could be imposed without first giving notice of violation and an opportunity to comply, a serious due-process question would be raised.
The trial court was entirely correct in its twofold ruling here that there must be notice to James and that there was none given.
The attorney general for the first time in the reply brief argues that even if dismissal of the forfeiture action as to James was. proper, the trial court erred in dismissing also as to William Czerwonka. We have considered this argument and find it has no merit.
By the Court. — Order affirmed.