The opinion
COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED
March 25, 1998
DEWEY HARLESS, ) C/A NO. 03A01-9707-CH-00289
) Cecil Crowson, Jr.
Plaintiff-Appellant, ) Appellate C ourt Clerk
)
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) SULLIVAN COUNTY CHANCERY COURT
)
)
)
)
CITY OF KINGSPORT, )
) HONORABLE R. JERRY BECK,
Defendant-Appellee. ) JUDGE, By Interchange
For Appellant For Appellee
DEWEY HARLESS, Pro Se J. MICHAEL BILLINGSLEY
Kingsport, Tennessee Kingsport, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
This litigation originated when Dewey Harless
(“Harless”) filed a petition for writ of certiorari seeking
review of administrative decisions of Zack Wright (“Wright”),
Building Official for the defendant City of Kingsport (“the
City”). Those rulings decree the demolition of two structures
owned by Harless. Wright’s orders were issued in accordance with
the provisions of Section 6-320, et seq., of the City’s 1981 Code
of Ordinances, which provisions, in turn, were enacted pursuant
to T.C.A. § 13-21-101, et seq. (1992 & Supp. 1997). Following a
bench trial, the Chancellor affirmed Wright’s determinations, and
Harless appealed, raising the following questions for our review:
1. Did the fact that Wright served as both
the investigator and the hearing officer in
this case result in a denial of due process?
2. Is Wright’s decision affected by bias,
given that he acted as both investigator and
hearing officer, and is an employee of the
City?
3. Is Wright’s decision arbitrary and
capricious, or unsupported by the evidence?
4. Are the pertinent ordinances of the City
facially unconstitutional?
We affirm.
I. Facts
Harless is the owner of two lots, municipally known as
1717 and 1725 Reedy Creek Road in Kingsport. Each lot is
improved with a structure that is presently in a state of
disrepair. Wright is the “Building Official” for the City. In
response to complaints received by the City, Wright conducted a
2
preliminary inspection of the premises, and subsequently issued a
“Complaint of Unfitness for Human Habitation or Use and Notice of
Hearing” for each of the structures. The complaints contain
extensive findings regarding the dilapidated condition of each of
the structures.
Separate hearings1 were conducted regarding the two
structures, with Wright acting as the hearing officer in both
cases. The proof at each hearing consisted of Wright’s
observations regarding the subject structure; a copy of the
City’s complaint; photographs of the structure, submitted by Code
Enforcement Officer Eddie Trent; Trent’s testimony that the City
had received several complaints regarding the structure; and the
testimony of Harless and his wife.
Wright subsequently issued written findings of fact
regarding each structure. With respect to the property at 1717
Reedy Creek Road, the findings are as follows:
The structure in question consists of the
remainder of a concrete block dwelling with a
metal roof.
This structure was gutted by fire several
years ago. Although no evidence was
introduced at the hearing, an examination of
the premises reveals extensive fire damage.
The rear portion of the roof has completely
burned away with only fragments of the wood
framing remaining. The metal roof has
collapsed into the interior of the structure
and smoke or fire damage is visible from the
front.
There is extensive deterioration to the
foundation and block walls of the structure.
1
These hearings were filed as one proceeding on appeal.
3
There are no windows or doors in the
structure and the front of the structure has
been boarded up with plywood.
There is no electricity connected to the
premises.
There is no utility water serving the
premises.
There is no sanitary sewer service connected
to the premises.
The building in question appears to have been
of poor quality construction at the time of
its original erection and appears to have not
received adequate maintenance through the
years. The fire which gutted the interior
has damaged or destroyed a great portion of
the wooden framing and extremely extensive
repair would be necessary to the wooden
portions.
I find that the value of the existing
structure to be not more than $500.00 which
is based upon salvage value of the material.
I find that to make this structure habitable,
an expenditure of a sum much greater than 50%
of the existing building value would need to
be made.
Wright made similar findings regarding the structure at 1725
Reedy Creek Road:
The structure in question consists of a frame
single family residence.
This structure is approximately fifty years
old, or older, and is erected on a brick
masonry foundation wall.
There is extensive deterioration to the
foundation wall with extensive separation and
weakening rendering it unsound and dangerous.
Most windows are broken out or boarded up.
The front entrance door fits poorly with gaps
around the door.
There is a gaping hole in the front gable.
4
The rear porch, a two level structure,
suffers advanced deterioration and is near
the point of collapse.
There is no electricity connected to the
premises.
There is no utility water serving the
premises.
There is no sanitary sewer service connected
to the premises.
The dwelling appears to have been of low
quality construction at the time of its
original erection and appears to have not
received adequate maintenance through the
years. There is considerable evidence of
water damage to wooden portions and the
outside sheathing.
To stabilize and repair the foundation and
make it structurally sound would require
great expense and may not be possible without
risking the entire collapse of the dwelling.
Unless the foundation is made sound, there
can be no satisfactory repair of the
remainder of the dwelling.
I find that the value of the existing
structure to be not more than $1000.00 which
is based upon salvage value of the material.
I find that to make this structure habitable,
an expenditure of a sum much greater than 50%
of the existing building value would need to
be made.
Pursuant to his findings, Wright ordered that each of
the structures be demolished. He relied upon the City’s Code of
Ordinances, specifically Section 6-323(c), which mandates the
removal or demolition of a structure where an expenditure of more
than half of the structure’s value would be necessary to make it
habitable. Harless’ appeal followed.
II. Applicable Law
5
T.C.A. § 13-21-101, et seq. (1992 & Supp. 1997),
authorize municipalities of this state to adopt ordinances
pertaining to structures that are unfit for human occupation or
use. Pursuant to those provisions, the City enacted Sections 6-
320 through 6-330 of its municipal code. Those sections provide,
in pertinent part, as follows:
§ 6-321.1. The building official is hereby
designated as the public officer of the City
of Kingsport who shall exercise the powers
herein prescribed.
§ 6-322. Whenever a petition is filed with
the building official by a public authority
or by at least five (5) residents of the city
charging that any structure is unfit for
human occupation or use, or whenever it
appears to the building official on his...
own motion that any structure is unfit for
occupation or use, the building official
shall, if, after making a preliminary
investigation, such investigation discloses a
basis for such charges, issue and cause to be
served upon the owner of and parties in
interest of such structure, a complaint
stating the charges in that respect and
containing a notice that a hearing will be
held before the building official (or his
designated agent) at a time and place therein
fixed not less than ten (10) days nor more
than thirty (30) days after the serving of
said complaint; that the owners and parties
in interest shall be given the right to file
an answer to the complaint and to appear in
person, or otherwise, and give testimony at
the place and time fixed in the complaint;
and, that the rules of evidence prevailing in
courts of law or equity shall not be
controlling in hearings before the building
official or his designated agent....2
* * *
§ 6-323. If, after such notice and hearing
as above prescribed, the building official
determines that the structure under
consideration is unfit for human habitation
2
Section 6-322 is taken almost verbatim from T.C.A. § 13-21-103(2)(Supp.
1997).
6
or use, he shall state in writing his
findings of fact in support of such
determination, and shall issue and cause to
be served upon the owner thereof an order:
(a) If the repair, alteration, or
improvement of the structure can be
made at a reasonable cost in
relation to the value of the
structure requiring the owner
within the time specified in the
order to repair, alter, or improve
such structure to render it fit for
human occupation or use or if not
adequately repaired, altered or
improved within the time specified
in the order to vacate and close
the dwelling as a place of human
habitation or use; or
(b) If the repair, alteration or
improvement of the said structure
cannot be made at a reasonable cost
in relation to the value of the
structure requiring the owner
within the time specified in the
order to remove or demolish such
structure.3
(c) The building official shall
determine the value of the
structure in question existing on
the land and the value of the land
itself shall not be considered and
if the structure can be made to
conform to such standards as will
make it properly habitable by an
expenditure of not more than fifty
(50) percent of said value, the
order referred to in the preceding
paragraph shall conform to the
first alternative. If an
expenditure of more than fifty (50)
percent of the value just referred
to would be necessary to make the
structure properly habitable, the
order in the preceding paragraph
shall conform to the second
alternative.4
* * *
3
Subsections 6-323(a) and (b) are substantially identical to T.C.A. §
13-21-103(3)(A) and (B)(Supp. 1997), respectively.
4
Subsection 6-323(c) was enacted pursuant to T.C.A. § 13-21-103(3)(A)
and (B)(Supp. 1997), which allow a municipality to fix a certain percentage of
repair costs as the threshold amount of “reasonable” repairs.
7
§ 6-329.
(a) Any person affected by an order
issued by the building official may
file a bill in the chancery court
for an injunction restraining the
building official from carrying out
the provisions of the order, and
the court may, upon the filing of
such bill, issue a temporary
injunction restraining the building
official pending the final
disposition of the cause; provided,
however, that within sixty (60)
days after the posting and service
of the order of the building
official, such persons shall file
such bill in the court. Hearings
shall be had by the court on such
bills within twenty (20) days or as
soon thereafter as possible, and
shall be given preference over
other matters on the court’s
calendar.
(b) The court shall hear and determine
the issue raised and shall enter
such final order or decree as law
and justice may require. In all
such proceedings, the findings of
the building official as to facts,
if supported by evidence, shall be
conclusive. Costs shall be in the
discretion of the court....5
* * *
§ 6-330. The building official is authorized
to exercise such powers as may be necessary
or convenient to carry out and effectuate the
purposes and provisions of this chapter
including the following powers in addition to
others herein granted:
(a) To investigate conditions in the
city in order to determine which
structures therein are unfit for
human occupation or use.
(b) To administer oaths and
affirmations, examine witnesses and
receive evidence.
(c) To enter upon premises for the
purposes of making examinations
5
Section 6-329 is taken almost verbatim from T.C.A. § 12-21-106.
8
provided that such entries shall be
made in such manner as to cause the
least possible inconvenience to the
persons in possession.6
III. Scope of Review
Common law certiorari, as provided for in T.C.A. § 27-
8-101 (Supp. 1997),7 is available for judicial review of a
decision of an administrative body acting in a judicial or quasi-
judicial capacity. Davison v. Carr, 659 S.W.2d 361, 363 (Tenn.
1983). The Supreme Court has stated that
...administrative decisions are presumed to
be valid and a heavy burden of proof rests
upon the shoulders of the party who
challenges the action.
McCallen v. City of Memphis, 786 S.W.2d 633, 641 (Tenn. 1990).
Generally speaking, review of an administrative decision by way
of the common law writ is confined to the question of whether the
inferior board or tribunal has exceeded its jurisdiction or acted
illegally, arbitrarily, capriciously, or fraudulently. T.C.A. §
27-8-101 (Supp. 1997); McCallen, 786 S.W.2d at 638; Hoover v.
Metropolitan Bd. of Zoning Appeals, 924 S.W.2d 900, 904
(Tenn.App. 1996); Gallatin Hous. Auth. v. City Council, City of
6
The provisions of § 6-330 are derived directly from T.C.A. § 13-21-107.
7
That section provides, in pertinent part, as follows:
The writ of certiorari may be granted whenever
authorized by law, and also in all cases where an
inferior tribunal, board, or officer exercising
judicial functions has exceeded the jurisdiction
conferred, or is acting illegally, when, in the
judgment of the court, there is no other plain,
speedy, or adequate remedy....
9
Gallatin, 868 S.W.2d 278, 279-80 (Tenn.App. 1993). This question
typically involves a determination of whether the record contains
material evidence to support the decision below. See Hoover v.
Metropolitan Bd. of Housing Appeals, 936 S.W.2d 950, 954
(Tenn.App. 1996); Hall v. Shelby County Retirement Bd., 922
S.W.2d 543, 545 (Tenn.App. 1995); Davis Group (MC), Inc. v.
Metropolitan Gov’t of Nashville and Davidson County, 912 S.W.2d
178, 180 (Tenn.App. 1995); and Metropolitan Air Research Testing
Auth., Inc. v. Metropolitan Gov’t of Nashville and Davidson
County, 842 S.W.2d 611, 619 (Tenn.App. 1992).
If a reviewing court determines that there is no
material evidence to support an administrative decision, it “must
conclude that the administrative body acted illegally.” Hoover
v. Metropolitan Bd. of Zoning Appeals, 924 S.W.2d at 904-05. An
administrative decision may be found to be illegal, arbitrary or
fraudulent in other circumstances as well; for example, where the
standards of due process have not been met, where a
constitutional or statutory provision has been violated, or where
some unlawful procedure has been followed. Id. at 905; Brooks v.
Fisher, 705 S.W.2d 135, 136 (Tenn.App. 1985).
The reviewing court does not inquire into the
correctness of the inferior tribunal’s findings of fact, T.C.A. §
13-21-106(b), Gallatin Hous. Auth., 868 S.W.2d at 280; nor is it
permitted to weigh the evidence. Hoover v. Metropolitan Bd. of
Zoning Appeals, 924 S.W.2d at 904. Moreover, the reviewing court
“should refrain from substituting its judgment for the broad
10
discretionary authority of the local governmental body.”
McCallen, 786 S.W.2d at 642.
IV. Analysis
As indicated earlier, Harless essentially advances four
theories on this appeal. He contends: 1) that he was denied due
process by virtue of the fact that Wright acted as both
investigator and hearing officer; 2) that Wright was biased; 3)
that the evidence does not support Wright’s decisions; and 4)
that Sections 6-322 and 6-323 of the City’s Code of Ordinances
are unconstitutional on their face.
We shall address Harless’ arguments regarding due
process and bias together, since the two theories are related and
are discussed in tandem at various points in his brief. We
initially note that the applicable statutory provisions, as well
as the corresponding provisions of the City’s Code of Ordinances,
authorize the designated official -- in this case, Wright -- to
conduct a preliminary investigation, preside over a subsequent
hearing, determine whether the structure in question is fit for
human occupation or use, and issue findings of fact and a
concomitant order. See T.C.A. § 13-21-103(2) and (3)(Supp.
1997); T.C.A. § 13-21-107; the City’s Code §§ 6-322, 6-323 and 6-
330 (1981).
It is true, as Harless points out, that due process
guarantees to a party an administrative hearing before a fair and
impartial tribunal. Jones v. Greene, 946 S.W.2d 817, 825
11
(Tenn.App. 1996); Cooper v. Williamson County Bd. of Educ., 803
S.W.2d 200, 202 (Tenn. 1990). Nevertheless, with regard to the
propriety of an administrative official acting in dual
capacities, the Supreme Court has stated that
the mere fact that both investigative and
adjudicative functions have been granted to
an administrative body... does not of itself
create an unconstitutional risk of bias in an
administrative adjudication.
Cooper, 803 S.W.2d at 202-03. In reaching this conclusion, the
Supreme Court relied -- as do both parties in the instant case --
on the decision of the United States Supreme Court in Withrow v.
Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). In
that decision, the United States Supreme Court stated that
[t]he contention that the combination of
investigative and adjudicative functions
necessarily creates an unconstitutional risk
of bias in administrative adjudication has
a... difficult burden of persuasion to carry.
Id., 95 S.Ct. at 1464. The Court also observed that
[t]he case law, both federal and state,
generally rejects the idea that the
combination [of] judging [and] investigating
functions is a denial of due process....
Id., 95 S.Ct. at 1467.
Furthermore, it is well-established that administrative
decision-makers are presumed to discharge their duties with
12
honesty and integrity. Jones, 946 S.W.2d at 825; Cooper, 803
S.W.2d at 203 (citing Withrow, 95 S.Ct. at 1464). As noted in
Withrow, this presumption is a difficult one to overcome. Id.,
95 S.Ct. at 1464. In the instant case, Harless has offered no
evidence of bias to support his heavy burden of persuasion; nor
does the record offer any indication that Wright’s performance of
his dual roles resulted in a denial of due process. See Cooper,
803 S.W.2d at 202-03. Accordingly, we find Harless’ arguments
regarding due process and bias to be without merit.
We next turn to Harless’ contention, as stated in his
words, that “the record, including the two transcripts is utterly
devoid of any support for [Wright’s] two findings that to make
plaintiff’s two structures habitable, an expenditure of a sum
greater than 50% of the existing buildings’ value would need to
be made.” We also find this argument to be unpersuasive. The
record contains substantial evidence to support Wright’s
decisions. The findings from Wright’s investigation, as well as
the numerous photographs introduced at the hearings, represent
material evidence of the dilapidated condition of the structures.
Furthermore, the transcripts indicate that Wright allowed Harless
and his wife numerous opportunities to explain their plans for
repairing the structures, but that they failed to articulate any
definite schedule or strategy for accomplishing such repairs.
In his brief, Harless does not explain exactly how or
why the record lacks support for Wright’s findings; instead, he
makes only a general reference to his statement of facts and the
transcripts of the hearings, with no further argument or citation
13
to the record. We believe that the language of this court in
Hoover v. Metropolitan Bd. of Housing Appeals, 936 S.W.2d 950
(Tenn.App. 1996), is applicable here:
this record does contain substantial and
material evidence that each of the subject
properties required repairs the cost of which
would exceed 50% of the value of the
property. The lists of necessary repairs and
comprehensive pictorial illustrations are
sufficient to satisfy a reasonable person of
the cost of repairs in relation to the value
of the property.
Id. at 954. Accordingly, we find that the record contains
substantial and material evidence to support Wright’s decisions.
Therefore, we conclude that those decisions are not “clearly
illegal, arbitrary or capricious.” Id. (quoting McCallen v. City
of Memphis, 786 S.W.2d 633, 642 (Tenn. 1990)).
Harless’ remaining argument concerns the
constitutionality of Sections 6-322 and 6-323 of the City’s Code
of Ordinances. We note initially that the portions of the
ordinances attacked by Harless are in strict compliance with, and
essentially track the language of, the corresponding statutory
provisions at T.C.A. § 13-21-103(2) and (3)(Supp. 1997). By
challenging the ordinances, therefore, Harless essentially
attacks the validity of the statutes, because to hold the
ordinances unconstitutional would effectively render the
corresponding statutory provisions invalid as well.
We cannot reach this constitutional issue. Harless has
failed to comply with T.C.A. § 29-14-107(b), which requires that
14
a party who seeks to challenge the constitutionality of a statute
of statewide effect must give notice to the State Attorney
General. By the same token, Harless has failed to comply with
Rule 24.04, Tenn.R.Civ.P.8, or Rule 32, T.R.A.P.9, which impose
similar notice requirements in cases where the validity of a
statute is contested. These requirements are mandatory; in the
absence of Harless’ compliance therewith, the issue of the
relevant statutes’ constitutionality is not properly before us.
See Cummings v. Shipp, 3 S.W.2d 1062, 1063 (Tenn. 1928); McDaniel
v. General Care Corp., 627 S.W.2d 129, 133 (Tenn.App. 1981);
Wallace v. Knoxville’s Community Dev. Corp., 568 S.W.2d 107, 110
(Tenn.App. 1978).
In any event, we find nothing facially unconstitutional
about the ordinances in question. We note that substantially
similar ordinances have withstood constitutional attack and have
been held to fall “squarely within the legitimate use of the
police power.” Winters v. Sawyer, 463 S.W.2d 705, 707 (Tenn.
1971). Harless’ argument essentially revolves around his
contention that allowing the same official to act in multiple
capacities renders an impartial hearing impossible. We have
already rejected that argument in this case. Harless also
suggests that the failure of Section 6-323 of the City’s Code of
Ordinances to define the term “value” renders that ordinance
8
Rule 24.04 provides that “[w]hen the validity of a statute of this
state... is drawn in question in any action to which the State or an officer
or agency is not a party, the court shall require that notice be given the
Attorney General, specifying the pertinent statute, rule or regulation.”
9
Rule 32(a) provides that “[w]hen the validity of a statute of this
state... is drawn in question in any appeal to which the state or an officer
or agency is not a party, the party raising such question shall serve a copy
of the party’s brief on the Attorney General.”
15
unconstitutional; this argument is likewise found to be without
merit.
V. Conclusion
We therefore find and hold that Wright’s decisions are
supported by substantial and material evidence, Hoover v.
Metropolitan Bd. of Housing Appeals, 936 S.W.2d 950, 954
(Tenn.App. 1996), and are not “illegal, arbitrary, or
capricious,” McCallen v. City of Memphis, 786 S.W.2d 633, 642
(Tenn. 1990). Accordingly, we will “refrain from substituting
[our] judgment for the broad discretionary authority of the local
governmental body.” Id.
The decision of the Chancery Court is affirmed. Costs
on appeal are taxed to the appellant. This case is remanded to
the trial court for enforcement of the trial court’s judgment and
for collection of costs assessed there, all pursuant to
applicable law.
__________________________
Charles D. Susano, Jr., J.
16
CONCUR:
_________________________
Houston M. Goddard, P.J.
_________________________
Herschel P. Franks, J.
17