Opinion
No. 5-946 / 05-0083
Filed February 1, 2006
Appeal from the Iowa District Court for Wapello County, Daniel P. Wilson, Judge.
Winbco Tank Company appeals the dismissal of its petition for a writ of mandamus ordering the defendants to take certain action. AFFIRMED.
John N. Moreland of Harrison, Moreland Weber, P.C., Ottumwa, for appellant.
Barbara A. Hering and April M. Delange of Hopkins Huebner, P.C., Des Moines, for appellee.
Thomas Kintigh, Ottumwa, for appellee.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Plaintiff-appellant, Winbco Tank Company, appeals the dismissal of its petition for a writ of mandamus seeking to require certain action be taken against Rosenman's, Inc., a scrap metal salvage yard company, by the defendants-appellees: the City of Ottumwa; the city director of health, inspections and solid waste, Jody Gates; and the city administrator, Steve Rasmussen. Winbco contends Rosenman's is not in compliance with the sections of the Ottumwa City Code governing salvage yards and the defendants should be ordered to take action to force Rosenman's into compliance. The district court dismissed Winbco's petition on three grounds: (1) the defendants performed all the duties required of them; (2) Winbco had other plain, speedy, and adequate remedies, which precluded an order of mandamus; and (3) mandamus was inappropriate because a non-party to the mandamus action might have been injured if mandamus was ordered. Winbco appeals each of these grounds for dismissal of its petition. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
To operate a salvage yard Rosenman's needed and had a salvage yard dealer's license issued by the city. Rosenman's first obtained a license in 1980. Rosenman's and Winbco's share a property boundary line within the City of Ottumwa.
In 2000, Winbco first reported to the city that it believed Rosenman's was not complying with the city code. The city inspected Rosenman's premises. The city's inspector, Gates, notified Rosenman's on September 1, 2004 that it was not in compliance with the city code because materials were visible above the salvage yard fence and because certain materials were not screened from view in any manner. See Ottumwa Code § 22-56 (2001). Rosenman's was given a month to become compliant. The city administrator, Rasmussen, conducted a follow up inspection on October 1, 2004. Rosenman's was deemed noncompliant because materials were still visible over the salvage yard fence and certain materials were still not sufficiently screened. Due to Rosenman's failure to come into compliance with the city code Rasmussen, consistent with section 22-59 of the city code, issued a recommendation to the city council that Rosenman's salvage dealer license be revoked. Despite the recommendation of the city administrator, the city council voted not to revoke Rosenman's license.
Winbco subsequently filed a petition for a writ of mandamus in an attempt to force the city, Rasmussen, and Gates to take other action against Rosenman's. Winbco claimed that the defendants failed to enforce Ottumwa City Code sections 22-56 and 22-57 in (1) failing to require Rosenman's to completely enclose its fence so that its operations were fully screened from Winbco's property, (2) failing to require Rosenman's to move its salvage below fence level, and (3) failing to prevent Rosenman's from conducting business on the street. Winbco contended that the city should be ordered to use its police power and seek criminal or civil penalties, as provided for by the city code, against Rosenman's as a means to force Rosenman's into compliance. Ottumwa Code § 1-8.
The district court dismissed Winbco's petition on three grounds: (1) the defendants performed all the duties required of them; (2) Winbco had other plain, speedy, and adequate remedies, which precluded an order of mandamus; and (3) mandamus was inappropriate because a non-party to the mandamus action might have been injured if mandamus was ordered. Winbco challenges each of these findings in its appeal.
II. SCOPE OF REVIEW.
The district court's decision to issue a writ of mandamus involves the exercise of discretion. Koenigs v. Mitchell County Bd. of Supervisors, 659 N.W.2d 589, 592 (Iowa 2003) (citing Bellon v. Monroe County, 577 N.W.2d 877, 878-79 (Iowa Ct.App. 1998)). Because a writ of mandamus is triable in equity, our review is de novo. Id. III. ANALYSIS.
A writ of mandamus is a drastic remedy to be applied only in exceptional circumstances. Bellon, 577 N.W.2d at 879 (citing Stith v. Civil Serv. Comm'n of Des Moines, 159 N.W.2d 806, 808 (Iowa 1968)). It is not to be used to establish rights but to enforce rights that have already been established. Id. "The writ can be used to compel a tribunal to act but cannot control its discretion." Id. (emphasis added); accord 52 Am Jur. 2d Mandamus § 131, at 378 (2000) ("It is universally agreed that the discretionary acts of enforcement authorities will not be controlled by mandamus, absent proof of an abuse of that discretion.")
The municipal ordinance relevant to salvage dealers found at Ottumwa City Code section 22-59 provides:
The provisions of this article shall be enforced by the city administrator or his or her designee. Failure to comply with the rules as outlined in chapter 22, article III, shall be cause for a notice to be issued outlining what corrective action must occur in order to remedy noncompliance. If corrective action is not forthcoming, the subsequent recommendation to the city council may be to revoke the license. . . .
(Emphasis supplied.)
In the present case the defendants took action in the manner described by section 22-59. The city administrator's designee, Gates, inspected Rosenman's facility, and, after finding Rosenman's was not in compliance, Gates sent a letter informing Rosenman's of its noncompliance and outlining the necessary corrective actions. The city administrator, Rasmussen, conducted a re-inspection approximately thirty days later. After finding that Roseman's was still not in compliance, Rasmussen sent a letter to the mayor and the city council with the recommendation that Rosenman's license be revoked due to its noncompliance. However, the city council ultimately voted not to revoke Roseman's license. Neither the city, nor Rasmussen, nor Gates have taken subsequent action to force Rosenman's to comply with the city ordinances.
Winbco argues that the city, Rasmussen, and Gates have additional authority to force Rosenman's into compliance and that a writ of mandamus should be issued to require them to use this authority. Specifically, Ottumwa City Code section 1-8(a) provides:
Whenever in this Code . . . the doing of any act is required or failure to do any act is declared to be unlawful or an offense, where no specific penalty is provided therefore, the violation of any such provisions of the Code or any ordinance shall be punished by a fine not to exceed $500.00 and/or imprisonment not to exceed 30 days.
(Emphasis added.) Furthermore, Section 1-8(b) provides:
The violation of any such provision of this Code or any ordinance may be considered a municipal infraction as provided for by the Code of Iowa. . . . A municipal infraction is a civil offense punishable by a civil penalty of not more that $500.00 per each violation or, if the infraction is a repeat offense, a civil penalty not to exceed $750.00 per each repeat offense. Each day's violation is a separate offense.
(Emphasis added.)
Assuming without deciding that provisions found in section 1-8 could be utilized by the city, Rasmussen, and Gates to attempt to force Rosenman's into compliance, it is clear that there are a number of enforcement options and it is up to the discretion of the city, Rasmussen, and Gates to chose which enforcement option to pursue. As cited above, "[t]he writ [of mandamus] can be used to compel a tribunal to act but cannot control its discretion." Bellon, 577 N.W.2d at 879 (emphasis added). In the present case the city, Rasmussen, and Gates have in fact acted. We cannot control their discretion by ordering them to take a specific action among a group of alternatives.
Having resolved this case on the above issue, we need not reach the other grounds for dismissing the petition cited by the district court and appealed by Winbco.