finding that the clear language of the APA excludes the City Civil Service Commission from its coverage
How later courts described this case
- finding that the clear language of the APA excludes the City Civil Service Commission from its coverage
Written by the judges who cited it.
The opinion
PERRINE CHAUMONT * NO. 2020-CA-0017
VERSUS *
COURT OF APPEAL
THE CITY OF NEW ORLEANS *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-10273, DIVISION “L”
Honorable Kern A. Reese, Judge
******
Judge Regina Bartholomew-Woods
******
(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins,
Judge Regina Bartholomew-Woods)
LEDET, J., CONCURRING
Keith M. Whipple
P.O. Box 790
Bourg, LA 70343
COUNSEL FOR PLAINTIFF/APPELLANT
Daniel T. Smith
ASSISTANT CITY ATTORNEY
Shawn Lindsay
DEPUTY CITY ATTORNEY
Churita H. Hansell
CHIEF DEPUTY CITY ATTORNEY
Donesia D. Turner
SENIOR CHIEF DEUPTY CITY ATTORNEY
Sunni J. LeBeouf
CITY ATTORNEY
1300 Perdido Street
City Hall - Room 5E03
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
JUNE 3, 2020
RBW
SCJ
This appeal stems from an administrative case involving the short-term
rental of a residential property located in New Orleans, Louisiana. After a hearing
before an administrative hearing officer in which the Plaintiff-Appellant was found
to have violated certain provisions of the New Orleans City Code and the
Comprehensive Zoning Ordinance governing short-term rental properties,
Plaintiff-Appellant lodged an appeal with the Civil District Court for the Parish of
Orleans. After a hearing, the trial court affirmed the decision of the administrative
hearing officer. It is from this affirmation that Plaintiff-Appellant now appeals.
For the reasons that follow we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On January 18, 2017, Defendant-Appellee, City of New Orleans, (“the
City”), notified Plaintiff-Appellant, Perrine Chaumont, (“Appellant”), via letter,
that it was aware that the residential property she owned, which is located at 1829
1
Joseph Street (“the property”) was being used as a short-term rental, and that
Appellant was required to obtain a short-term rental permit in order to continue
operating. The letter also described the requirements for permit licenses and set
forth the penalties for operating a short-term rental without a permit. Thereafter,
on May 29, 2017, an application was filed for a short-term rental permit of the
property, which was described as the full side of a double with three (3)
bedrooms.1 The City issued a short-term rental license for the property, which
permitted Appellant to rent three (3) bedrooms for a total guest occupancy of six
(6); the license was valid for one (1) year and expired on its own terms on July 13,
2018.
On June 27, 2017, the City discovered that the property was listed on a
vacation rental website, VRBO, with an occupancy of four (4) bedrooms that
sleeps (14) fourteen guests and failed to include a license number, in violation of
the City ordinances. 2 The City sent a violation letter on July 20, 2017, and advised
of the possible penalties for noncompliance, that included the following: fines up
to $500 per day, court costs, liens, suspension or revocation of license, and/or
termination of utility service. On January 9, 2018, the City sent a subsequent letter,
notifying Appellant of suspected violations3 of the City ordinances and again set
1
The application was filed by Christopher Whipple. The Orleans Parish Tax Assessor’s Office
lists both Christopher Whipple and Appellant as owners with a homestead exemption on the
property.
2
The City explained that an inspector recorded a screenshot of the advertisement.
3
The suspected violations included: City of New Orleans Code §26-615(c), which requires
short-term rental operators to provide a valid permit number on listing advertisements and
Comprehensive Zoning Ordinance art. 21.8.C.14(b)(4), which limits occupancy to two (2) guests
per bedroom or a total of ten (10) guests, whichever is fewer.
2
forth penalties for said violations. The letter advised Appellant to correct the short
term rental’s listing to reflect the occupancy limits set forth by its license and to
include the valid permit number.
On January 16, 2018, the City discovered that the property was listed on
another rental website, this time Booking.com, as a four (4) bedroom home that
sleeps sixteen (16) guests.4 On July 3, 2018, the City mailed Appellant a notice of
an administrative hearing set for July 18, 2018, and advised Appellant that the
property violated the City of New Orleans Code Section 26-615(c),5 which requires
short-term rental operators to provide a valid permit number on listing
advertisements, and Comprehensive Zoning Ordinance 21.8.C.14(b)(4),6 which
limits occupancy to two guests per bedroom or ten total guests, whichever is
4
The City explained that an inspector recorded a screenshot of the advertisement.
5
City Code §26-615, states, in pertinent part:
(a) Upon satisfactory submission of the required documentation in Section 26-
614, the Department of Safety and Permits may issue an annual Short-term Rental
License Permit.
…
(c) The permit holder shall provide the valid permit number on any listing
advertising or soliciting the property for use as a short-term rental. The permit
holder shall only advertise the short-term rental as allowed by their short-term
rental permit.
6
Comprehensive Zoning Ordinance art. 21.8.C.14(b), provides, in pertinent part:
1. A Short-term Rental license shall be secured prior to operation; and Short-term
Rental operators shall comply with all applicable license requirements provided in
the Code of the City of New Orleans.
…
4. Occupancy shall be limited to two (2) guests per bedroom or ten (10) guests,
whichever is less.
3
fewer.7 The hearing notice was mailed to the address listed for the owners of the
property, and was also posted at the property on July 10, 2018.
After multiple continuances, on October 3, 2018, the matter proceeded to an
administrative hearing before Administrative Hearing Officer Schalyece Harrison
(“the Hearing Officer”) under Case No. 17-07944-RENT.8 At the hearing, the
parties were sworn-in and the City’s representative and Short-term Rental
Administrator, Berrian Eno-Van Fleet, introduced various exhibits, including the
application and the temporary short-term license permit for the property, the
violation letters, the notice of hearing, the proof of mailing and posting of the
notice, as well as screenshots from the VRBO and Booking.com websites. The
screenshots were offered to show that the property’s listings were not in
compliance with the City’s ordinances, which require license numbers to be posted
on the advertisement and that the number of rooms and guests correspond with the
limits set forth in the short-term rental permit.
After hearing the arguments and considering the evidence introduced, the
Hearing Officer found Appellant to be in violation of both ordinances. Further, the
Hearing Officer imposed a $1,000 fine ($500 for each of the violations) and $75 in
court costs. The Hearing Officer also instructed Appellant to cancel all outstanding
reservations on the property, provide the City with documentation of the
7
These ordinances were re-codified in December 2019.
8
The matter was originally set on July 18, 2018, but was continued until August 22, 2018. On
August 22, 2018, counsel for Appellant appeared and the matter was reset again to September
12, 2018. In September 2018, Appellant’s counsel requested additional time and the hearing was
rescheduled until October 3, 2018.
4
cancellations, and remove the online listings of the property within twenty-four
(24) hours.9 Judgment to this effect was executed on October 10, 2018.
Thereafter, on October 11, 2018, Appellant filed a petition of suspensive
appeal and injunctive relief with the Civil District Court for the Parish of Orleans.
In response, the City filed an opposition to the petition for injunctive relief on
November 28, 2018.
On January 11, 2019, the trial court held a hearing on Appellant’s
Preliminary Injunction wherein she requested that the City be restrained “from
interfering with [the] business establishment pending [the] suspensive appeal.” At
the conclusion of the hearing, the trial court, without rendering a decision, allowed
Appellant and the City to file post-hearing memoranda. In response, the trial court
held over the injunction issue to a trial, which was to be conducted with the
suspensive appeal.
On April 17, 2019, a trial was conducted on Appellant’s suspensive appeal
and injunction. At the conclusion of the trial, the trial court took the matter under
advisement. On October 1, 2019, the trial court issued a judgment, as well as
reasons for judgment, denying Appellant’s suspensive appeal and injunctive relief
and affirming the administrative judgment rendered on July 3, 2018, by the City. It
is from this judgment that Appellant now appeals.
9
The Hearing Officer warned Appellant, after Appellant’s vocal unwillingness to comply
without a written judgment, that her lack of compliance would result in an additional hearing to
assess daily fines.
5
ASSIGNMENTS OF ERROR
On appeal, Appellant raises the following assignments of error:
(1) Whether the trial court erred in affirming the decision of the
administrative hearing officer because it was found upon an improper record,
unsubstantiated hearsay, incompetent evidence and the sole witness in the
proceeding admitted she did not procure any of the evidence or exhibits;
(2) Whether the trial court erred in dismissing Appellant’s appeal of the
administrative hearing officer’s decision and rendering a judgment without
requiring the hearing officer to dictate into the record her findings of facts and
conclusions of law in contravention of the Administrative Procedure Act (“APA”)
and Appellant’s due process rights to a full and fair hearing;
(3) Whether the trial court erred in failing to find the New Orleans City
Code regulating home sharing by private homeowners was unconstitutional, in
violation of their rights under the First, Fourth, Fifth, and Eighth Amendments, and
failing to find the ordinances were unconstitutionally vague in violation of the Due
Process Clause of the Fourteenth Amendment.
Appellant mentions the first two assignments of error in his appellate brief,
but fails to fully argue the merits thereof. Pursuant to Rule 2-12.4 of the Uniform
Rules, Courts of Appeal, all specifications or assignments of error must be briefed,
and the appellate court may consider as abandoned any specification or assignment
of error that has not been briefed. Further, Rule 2-12.13 of the Uniform Rules,
Courts of Appeal addresses non-compliant briefs and provides that “[b]riefs not in
6
compliance with these Rules may be stricken in whole or in part by the court, and
the delinquent party or counsel of record may be ordered to file a new or amended
brief.” Thus, the sanction to be imposed for a non-conforming brief is left to the
discretion of the court. Cangelosi v. Treasure Chest Casino, L.L.C., 18-72, p. 3
(La. App. 5 Cir. 7/31/18), 252 So.3d 559, 562, writ denied, 2018-1446 (La.
11/20/18), 256 So.3d 997. Accordingly, this Court may decline to consider the first
and second assignments of error on these grounds. State v. Anderson, 97–2587, pp.
9-10 (La. App. 4 Cir. 11/18/98), 728 So.2d 14, 20 (stating that “any specification
or assignment of error not briefed is considered abandoned”).
In the appellate brief, Appellant fully briefed the third assignment of error;
however, none of the constitutional arguments were properly raised before the trial
court and thus are waived on appeal. Before the trial court, Appellant only argued
that the City ordinances were unconstitutional by violating the Equal Protection
and Due Process clauses of the Fourteenth Amendment, but failed to elaborate
further.10 Appellant’s arguments with respect to the First, Fourth, Fifth, and Eighth
Amendments were not pled before the trial court and thus are now raised for the
first time on appeal.11 It is well settled that appellate courts will not consider issues
10
In the petition for suspensive appeal and injunctive relief, Appellant merely alleged that the
“ordinance enacted by the City of New Orleans is unconstitutional as violating the Equal
Protection and Due Process clauses of the United States and Louisiana Constitutions.”
Additionally, Appellant did not raise any constitutional challenges before the administrative
hearing officer.
11
The petition did claim that the judgment imposed by the administrative hearing officer was
draconian in nature but did not invoke the Eighth Amendment. Moreover, this Court recently
upheld a $3,000 fine for violating the City’s short-term rental ordinances. See Nola Bourbon,
LLC v. City of New Orleans, 2019-0847, p. 5 (La. App. 4 Cir. 1/29/20), 290 So.3d 225, 229
(finding that a hearing officer’s judgment of $500 fine per violation was not excessive where the
evidence showed that the property owner’s violations had been and continued to be ongoing).
Here, the websites’ screenshots established that the property was listed with room and guest
7
raised for the first time, which are not pleaded in the court below and which the
district court has not addressed. Council of City of New Orleans v. Washington,
2009-1067, pp. 3-4 (La. 5/29/09), 9 So.3d 854, 856. The longstanding
jurisprudential rule of law in Louisiana is that litigants must raise constitutional
attacks in the trial court, not the appellate courts, and that the constitutional
challenge must be specifically pleaded and the grounds for the claim
particularized. Id. 2009-1067, p. 4, 9 So. 3d. at 857 (citing Mosing v. Domas,
2002–0012 (La.10/15/02), 830 So.2d 967; Vallo v. Gayle Oil Co., 1994–1238
(La.11/30/94), 646 So.2d 859). “The purpose of these procedural rules is to afford
interested parties sufficient time to brief and prepare arguments defending the
constitutionality of the challenged statute.” Id. (citing State v. Hatton, 2007–2377,
p. 14 (La.7/1/08), 985 So.2d 709, 719).
Here, because Appellant argued that the ordinances violated the First,
Fourth, Fifth, and Eighth Amendments for the first time on appeal, she waived
those constitutional challenges. The only constitutional argument raised below was
the Fourteenth Amendment Equal Protection and Due Process claims, though the
grounds thereof were not specifically pled.12
capacities in excess of what the short-term license allowed. The record further shows the rental
license expired at the time of the hearing. Additionally, Appellant listed the property for rent
between $500 and $600 a night, and thus the fines appear proportional. As such, the hearing
officer’s imposition of $500 fines for each violation, including $75 for hearing costs, was not
excessive.
12
The appellate brief does not argue violations of equal protection.
8
DISCUSSION
Standard of Review
This Court in Nola Bourbon, LLC v. City of New Orleans, 2019-0847, pp. 2-
4 (La. App. 4 Cir. 1/29/20), 290 So.3d 225, 227–28, summarized the law on
appeals taken from administrative proceedings involving violations of city
ordinances as follows:
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. La. R.S. 49:964(A)(1) and
(B). The district court acts in the capacity of an
intermediate appellate court. 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 fact 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. 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.’”
Bourgeois v. Louisiana State Racing Comm’n, [20]10-
0573, p. 7 (La. App. 4 Cir. 11/12/10), 51 So.3d 851, 856
(quoting Smith v. State, Dep’t of Health and Hospitals,
39,368, pp. 4-5 (La. App. 2d Cir. 03/02/05), 895 So.2d
735, 739).
The standard of appellate review of an
administrative agency’s decision is distinct from and
narrower than that which applies to ordinary civil and
criminal appeals. Reaux v. Louisiana Bd. of Med.
Examiners, [20]02-0906, p. 3 (La. App. 4 Cir. 5/21/03),
850 So.2d 723, 726. The exclusive grounds upon which
an administrative agency’s decision may be reversed or
modified on appeal are enumerated in La. R.S. 49:964(G)
of the Administrative Procedure Act (“APA”). Armstrong
v. Louisiana State Bd. of Medical Examiners, [20]03-
1241, pp. 9-11 (La. App. 4 Cir. 2/18/04), 868 So.2d 830,
837-38.
9
DMK Acquisitions & Properties, L.L.C. v. City of
New Orleans, [20]13-0405, p. 8 (La. App. 4 Cir.
9/18/13), 124 So.3d 1157, 1163 (quoting Clark v.
Louisiana State Racing Comm’n, [20]12-1049, pp. 9-11
(La. App. 4 Cir. 12/12/12), 104 So.3d 820, 826-27).
Under La. R.S. 49:964(G), a reviewing court may
affirm an administrative decision or remand the case for
further proceedings; the court may also reverse or modify
the decision if substantial rights of the appellant have
been prejudiced because the administrative findings,
inferences, 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 the 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.
[Emphasis added].
Id.
Assignment of Error Number One
As his first assignment of error, Appellant contends that the trial court erred
in affirming the administrative hearing officer’s decision because it was based
10
upon improper unsubstantiated hearsay evidence and the only witness did not
procure the evidence offered at the hearing. Pursuant to La. R.S. 49:956(1):
Agencies may admit and give probative effect to
evidence which possesses probative value commonly
accepted by reasonably prudent men in the conduct of
their affairs. They shall give effect to the rules of
privilege recognized by law. Agencies may exclude
incompetent, irrelevant, immaterial, and unduly
repetitious evidence. Objections to evidentiary offers
may be made and shall be noted in the record. Subject to
these requirements, when a hearing will be expedited and
the interests of the parties will not be prejudiced
substantially, any part of the evidence may be received in
written form.13 [Emphasis added].
Further, La. C.E. art. 801(C) provides that “hearsay is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” “[H]earsay evidence may be
admitted in administrative hearings if it is competent evidence.” Honore’ v. Dep’t
of Pub. Works, 2014-0986, pp. 13-14 (La. App. 4 Cir. 10/29/15), 178 So.3d 1120,
1129-30 (citing Diggs v. Dep’t. of Police, 2012–1276, p. 7 (La. App. 4 Cir.
4/24/13), 115 So.3d 1150, 1154; Broaden v. Dep’t. of Police, 2003-1427, pp. 6–7
(La. App. 4 Cir. 1/14/04), 866 So.2d 318, 322; Taylor v. New Orleans Police
Dep’t, 2000–1992 (La. App. 4 Cir. 12/12/01), 804 So.2d 769, 772). “Hearsay
evidence qualifies as competent evidence if it has a degree of reliability and
trustworthiness such that a reasonable person would rely upon it.” Id. at p. 14, 178
13
The City specifically adopted the evidentiary rules of the APA. New Orleans City Code § 6-
36(g) provides: “[a]ny administrative adjudication hearing held under the provisions of this
article shall be conducted in accordance with the rules of evidence of the Administrative
Procedure Act, R.S. 49:950 et seq. Testimony of any person shall be taken under oath and shall
be recorded.”
11
So.3d at 1130 (citing Broaden, 2003–1427, p. 7, 866 So.2d at 322). “Furthermore,
the admission of such hearsay evidence in an administrative hearing must not
infringe upon any constitutional principles.” Johnson v. Dep’t of Police, 2008-
0467, p. 12 (La. App. 4 Cir. 12/10/08), 2 So.3d 501, 509 (citing Taylor, 2000-
1992, p. 5, 804 So.2d at 773).
At the administrative hearing, Eno-Van Fleet, the City’s Short-term Rental
Administrator, introduced several exhibits, as follows: the application for the
property, filed on May 29, 2017, requested permission to rent a full side of a
double with three (3) bedrooms; the temporary license, issued July 14, 2017, for
the property allowed Appellant to rent three (3) bedrooms for a total guest
occupancy of six (6), which expired on July 13, 2018; a screenshot, captured on
June 27, 2017, of the listing on the VRBO website, which advertised the property
as a four (4) bedroom that could sleep fourteen (14) people and featured a hallway
with a trundle bed that pulled out two beds; reviews in which previous guests
indicated that fourteen (14) people had stayed at the property in January 2017, and
groups of twelve (12) and thirteen (13) guests had stayed at the property in March
2017; a screenshot, captured on January 16, 2018, of a Booking.com listing that
described the property as a four (4) bedroom house that sleeps sixteen (16) guests;
a screenshot, captured on August 21, 2018, of a Booking.com listing that described
the property as a four bedroom that sleeps sixteen (16) people; a screenshot,
captured on August 21, 2018, of a VRBO listing that did not include the license
number and described the property as a four (4) bedroom home for ten (10) guests
12
that featured a trundle bed in a hallway to accommodate additional guests. At the
hearing, although Eno-Van Fleet admitted that she did not “personally procure” the
exhibits, as the short-term rental administrator she supervises all short-term rental
violation investigations. She further explained that the City inspectors who
acquired the documents work under her direct supervision and they work together
as a team to investigate violations of the City’s ordinances and regulations
pertaining to short-term rental properties.
The City contended that the exhibits relating to the advertisements that
Appellant posted on VRBO and Booking.com are non-hearsay pursuant to La. C.E.
art. 801(D)(2), which provides:
D. Statements which are not hearsay. A statement is not
hearsay if:
…
(2) Personal, adoptive, and authorized admissions. The
statement is offered against a party and is:
(a) His own statement, in either his individual or a
representative capacity;
(b) A statement of which he has manifested his adoption
or belief in its truth; or
(c) A statement by a person authorized by him to
make a statement concerning the subject. [Emphasis
added].
Here, Appellant posted the property on the VRBO and Booking.com
websites to advertise it as a short-term rental. The statements regarding the number
of guests allowed and the omission of the permit number is a personal admission
by Appellant, and does not qualify as hearsay. However, even if the screenshots
13
did constitute hearsay, as noted above, hearsay evidence is admissible in
administrative hearings provided the evidence is determined to be competent.
Honore’, 2014-0986, pp. 13-14, 178 So.3d at 1129-30.
The Louisiana Supreme Court, in Chaisson v. Cajun Bag & Supply Co., 97-
1225, pp. 12-13 (La. 3/4/98), 708 So.2d 375, 382, explained the term “competent
evidence” in the administrative hearing context as evidence having “some degree
of reliability and trustworthiness” and “of the type that reasonable persons would
rely upon.” Further, the Louisiana Supreme Court instructed that the determination
of whether evidence is “competent” is one that “must be made on a case-by-case
basis under the particular facts and circumstances.” Chaisson, 97–1225 at p. 13,
708 So.2d at 382. The Supreme Court explained that “most hearsay evidence in
administrative hearings is generally reliable documentary evidence, such as
correspondence, physician’s reports, and the like.” Chaisson, 97–1225 at p. 11, 708
So.2d at 382.
Here, considering the nature of web-based short-term rentals—screenshots
of the online rental advertisements appear to be the type of evidence that
reasonable persons would rely upon to demonstrate violations of the City’s
regulations. Further, Eno-Van Fleet testified that as the short-term rental
administrator she was involved in investigating property violations and indicated
that any information obtained from the City inspectors, such as the website
screenshots, was at her instruction. As such, even if the evidence against Appellant
qualifies as hearsay, it does not appear that the Hearing Officer abused her
14
discretion in allowing these documents into evidence. Thus, we find that this
assignment of error lacks merit.
Assignment of Error Number Two
As the second assignment of error, Appellant argues that the trial court erred
in dismissing the suspensive appeal because the Hearing Officer failed to dictate
her findings of fact and conclusions of law as required by the APA. Specifically,
La. R.S. 49:958 of the APA provides, in pertinent part:
A final decision or order adverse to a party in an
adjudication proceeding shall be in writing or stated in
the record. A final decision shall include findings of
fact and conclusions of law. Findings of fact, if set forth
in statutory language, shall be accompanied by a concise
and explicit statement of the underlying facts supporting
the findings. [Emphasis added].
However, the APA applies only to state agencies. Specifically, La. R.S.
49:951(2) defines agency as follows:
(2) “Agency” means each state board, commission,
department, agency, officer, or other entity which makes
rules, regulations, or policy, or formulates, or issues
decisions or orders pursuant to, or as directed by, or in
implementation of the constitution or laws of the United
States or the constitution and statutes of Louisiana,
except the legislature or any branch, committee, or
officer thereof, any political subdivision, as defined in
Article VI, Section 44 of the Louisiana Constitution,
and any board, commission, department, agency,
officer, or other entity thereof, and the courts.
[Emphasis added].
Further, as provided by La. Const. art. VI, § 44(2), a “political subdivision” is
defined as “a parish, municipality, and any other unit of local government,
15
including a school board and a special district, authorized by law to perform
governmental functions.”
The City is a municipality and, as such, the City’s administrative hearing
officer is excluded from complying with the APA and thus is not bound by the
dictates of La. R.S. 49:958. See George v. Dep’t of Fire, 637 So.2d 1097, 1103
(La. App. 4 Cir. 1994) (finding that the clear language of the APA excludes the
City Civil Service Commission from its coverage); Franklin v. City of Alexandria,
2018-634, p. 12 (La. App. 3 Cir. 5/1/19), 272 So.3d 120, 127 (APA did not apply
to the City Council, the legislative arm of the City, a political subdivision of the
State).14 Moreover, even if the Hearing Officer in this case was subject to the
provisions of La. R.S. 49:958, her failure to include findings of fact and
conclusions of law in her decision was not fatal.
Louisiana jurisprudence provides that “where the findings and reasons
therefor are necessarily implicit in the record and the administrative determination
is supported and sustainable by a preponderance of the evidence, the administrative
decision is not invalid merely because the agency failed to explicitly articulate that
which is self-evident.” In re Ark-La-Tex Antique & Classic Vehicles, Inc., 2005-
1931, p. 7 (La. App. 1 Cir. 9/15/06), 943 So.2d 1169, 1174 (citing Summers v.
Sutton, 428 So.2d 1121, 1128 (La. App. 1 Cir. 1983)).
14
The evidentiary rules of the APA, however, do apply to City administrative hearings. New
Orleans City Code §6-36(g) provides: “[a]ny administrative adjudication hearing held under the
provisions of this article shall be conducted in accordance with the rules of evidence of the
Administrative Procedure Act, R.S. 49:950 et seq. testimony of any person shall be taken under
oath and shall be recorded.”
16
Here, the City presented evidence that showed the Appellant violated the
City’s ordinances by exceeding the occupancy limit allowed for short-term rentals
and by failing to include the license number on websites advertising the property.
Appellant did not offer any evidence in opposition. While the Hearing Officer did
not expressly articulate the basis for her decision pursuant to La. R.S. 49:958, the
reasons for her ruling are evident from the record. Thus, the failure to provide
factual findings or conclusions of law does not invalidate the Hearing Officer’s
ruling.
Further, the Hearing Officer’s failure to abide by La. R.S. 49:958 does not
violate Appellant’s due process rights to a full and fair hearing. The record reflects
that Appellant had notice of both the hearing and the ordinances that were
allegedly violated. Further, the January 9, 2018 violation letter advised Appellant
of the possible penalties, including fines and the suspension of or revocation of the
short-term rental license for noncompliance. Additionally, the hearing on the
matter was reset three (3) times, at Appellant’s request. Appellant objected to the
evidence offered at the hearing and cross-examined the City’s witness, Eno-Van
Fleet. Appellant also had the opportunity to present countervailing evidence, but
failed to do so. The City provided sufficient notice of the ordinance violations, and
Appellant was afforded a reasonable opportunity to be heard; thus, Appellant’s due
process rights were not violated. Thus, this assignment of error lacks merit.
17
Assignment of Error Number Three
As the third assignment of error, Appellant claims that the trial court erred in
failing to find the ordinances, which regulate home sharing by private
homeowners, unconstitutional. Specifically, Plaintiff argues that the ordinances
violate homeowners’ First, Fourth, Fifth, and Eighth Amendments and are
unconstitutionally vague in violation of the Due Process Clause of the Fourteenth
Amendment.
As discussed herein-above, because Appellant failed to raise these
constitutional arguments with regard to the First, Fourth, Fifth, and Eighth
Amendments before the trial court, these arguments are not properly before this
Court.15 Additionally, Appellant’s vagueness claim was also not raised in the
proceedings below. Therefore, the only constitutional issues properly before this
Court on review are those related to the Fourteenth Amendment due process
claims.16 It is important to note that Appellant challenged the current ordinances on
short-term rentals, which were not in effect at the time of the administrative
adjudication. As such, they are not ripe for our consideration.
The Fourteenth Amendment to the United States Constitution provides, in
pertinent part, “nor shall any state deprive any person of life, liberty or property,
without due process of law.” In addition, La. Const. art. I, § 2 provides “[n]o
15
The City, in its brief in opposition, argued that Appellant’s constitutional arguments are
waived on appeal, but nevertheless addressed each of the alleged constitutional violations.
16
Appellant also claimed that the City’s ordinances violated the Equal Protection Clause of the
Fourteenth Amendment, but did not raise this issue on appeal.
18
person shall be deprived of life, liberty, or property, except by due process of law.”
Oliver v. Orleans Par. Sch. Bd., 2014-0329, 2014-0330, p. 34 (La. 10/31/14), 156
So.3d 596, 619.
The Louisiana Supreme Court explained
An ordinance, like a state statute, is presumed to
be constitutional. In construing an ordinance, courts use
the same guidelines as those used in construing a state
statute. The presumption of a statute’s constitutionality is
especially forceful when statutes are enacted to promote
a public purpose. Unlike the federal constitution, the
provisions in Louisiana’s constitution are not grants of
power, but instead are limitations on the otherwise
plenary power of the people. Pursuant to La. Const. art.
VI, a municipal authority governed by a home rule
charter possesses powers in affairs of local concern
within its jurisdiction that are as broad as those of the
state, except when limited by the constitution, laws
permitted by the constitution, or its own home rule
charter.
City of Baton Rouge/Par. of E. Baton Rouge v. Myers, 2013-2011, 2013-2036, pp.
4-5 (La. 5/7/14), 145 So.3d 320, 327 (citing Fransen v. City of New Orleans, 2008-
0076, p. 10 (La. 7/1/08), 988 So.2d 225, 233). “Because statutes are presumed
constitutional, the party challenging the statute bears the burden of proving its
unconstitutionality.” Fransen, 2008-0076, p. 11, 988 So.2d at 234 (citing Wooley
v. State Farm Fire & Cas. Ins. Co., 2004–0882, p. 19 (La.1/19/05), 893 So.2d 746,
762).
The current provisions governing short-term rentals are contained in Chapter
26, Article IX, of the New Orleans Code of Ordinances. Specifically, City Code
Ordinance §26-624 sets forth the authority of the department of safety and permits
to issue licenses and provides, in pertinent part:
19
(a) Receive short-term rental applications. The
department shall receive and process all short-term rental
permit applications and determine applicant eligibility.
(b) Issue eligible short-term rental permits. The
department shall issue permits only to eligible applicants,
as determined by the department.
Further, City Code Ordinance §26-627 addresses the suspension of an
owner’s permit and procedures and provides:
(a) If the department has good cause to believe that the
use of a dwelling unit as a short-term rental presents an
imminent threat to public health, safety, or welfare, the
director of the department, by issuance of a written order
stating the reasons for such belief, may immediately
suspend the short-term rental owner permit with respect
to the unit without a hearing. The department shall
transmit notice of the director's written order within 24
hours of the determination, and shall send said order to
the owner's contact information provided to the
department in the owner permit application.
(b) No dwelling unit subject to an order of suspension
may be used as a short-term rental.
(c) Within 14 days of the written order of suspension, a
short-term rental owner may request a hearing in writing,
directed to the director of the department. The hearing
shall take place within seven business days of the written
request for a hearing. If the owner fails to timely request
a hearing, the short-term rental owner's permit shall be
deemed revoked.
Further, City Code Ordinance §26-628(c) also provides that the “decision to
suspend or revoke a permit shall be at the discretion of the hearing officer based on
the severity of the violation and any other mitigating or aggravating circumstances
surrounding the violation.”
Also, City Code Ordinance §26-629 addresses penalties for violations of
ordinances and provides:
20
(a) Any person who violates this article or the
Comprehensive Zoning Ordinance shall be subject to a
fine of not less than $500.00 for each offense. Each day
that such violation exists shall constitute a separate and
distinct offense. Multiple violations can occur during a
single guest stay, and may be noticed and heard in a
single administrative hearing.
(b) In addition to any fine or penalty imposed by this
article, the city may seek all available relief in a court of
competent jurisdiction to enjoin any violation.
(c) The city may seek any remedy to compel compliance
with the requirements of this article or any correlating
provision in the Comprehensive Zoning Ordinance,
including the discontinuance of electrical service and the
filing of property liens.
(d) The city may revoke or suspend any and all permits
required by this article, as provided herein. If a permit
issued pursuant to this article is revoked, such revocation
shall remain in effect for a period of one year from the
date of revocation. The duration of suspensions shall be
as dictated by the hearing officer's order.
Appellant contends that the aforementioned ordinances violate her due
process rights because the ordinances leave discretion to officials as to whether to
grant or revoke a license and allow the City to revoke licenses without a hearing.
Appellant also claims that the fines imposed are both adjudicated by the City and
also paid to the City, which creates a conflict of interest in violation of due process.
It is well settled that the City has the authority to initiate legislation and
enforce zoning ordinances. See Art. II, Sec. 2-101 of the City of New Orleans
Home Rule Charter; City of New Orleans v. Bd. of Comm’rs of Orleans Levee
Dist., 93-0690 (La. 7/5/94), 640 So.2d 237, 244-45. Additionally, operating a
short-term rental is a privilege, not a right. See Sec. 26-615(c) (stating that short-
term rental permits are “regulated privileges, not rights, and can be revoked or
21
suspended by the city in accordance with the provisions provided herein”). Further,
City inspectors are not afforded unfettered discretion in granting short-term
licenses because City Code Ordinance §26-617 explicitly sets forth the
requirements for obtaining a short-term rental permit. Moreover, contrary to
Appellant’s assertions, the ordinances do require notice and an opportunity to be
heard before penalizing a homeowner; City Code Ordinance § 26-626(b) provides
that “[n]otice and hearing requirements for determining violation(s) shall be in
accordance with the administrative procedures provided in Chapter 6, Article II of
the Code of the City of New Orleans.” City Code Ordinance §6-36, provides for
those administrative procedures and states in relevant part:
(a) Whenever the city agency having enforcement
responsibility determines that a Code violation exists, a
notice of violation(s) shall be provided to the owner(s).
(b) A notice of violation(s) shall:
(1) Be in writing;
(2) Provide the municipal address of the cited
property;
(3) Provide the date of the inspection;
(4) Provide notice of alleged Code violation(s) at
the cited property;
(5) Provide the mailing address and telephone
number of the enforcement agency;
(6) Provide the time, date and location of the
administrative hearing whereby the alleged Code
violation shall be adjudicated;
(7) Provide notice that the failure to appear at the
hearing shall be considered an admission of
liability for the alleged violation(s);
22
(8) Provide the risk of fees, penalties, costs, and
liens that may be imposed for continued
violation(s); and
(9) Provide the risk of remedial measures that may
be ordered by a hearing officer to correct or abate
Code violation(s).
(c) Prior to holding an administrative hearing pursuant to
this article, the alleged violator shall be notified at least
15 days in advance of the date that such a hearing is
scheduled. Notice shall be personally served or sent to
the alleged violator by regular and certified or registered
U.S. Mail at the address listed in the assessor's office of
the parish. The date of the postmark shall be deemed to
be the date of delivery. Any notification so sent and
returned by the U.S. Post Office shall be considered as
having fulfilled the notification requirement. Proof of
notification and attempts at service shall be entered in the
record for each case prior to the hearing.
(d) In addition to the service provided in subsection (c), a
copy of the notice of violation(s) shall be affixed in a
prominent location on the property upon which
violation(s) are alleged or, if safe access to the property is
not reasonably practicable, on some prominent fixture on
the adjacent public right-of-way as near as possible to the
property at least five days in advance of the date of the
hearing. It shall be unlawful for any person other than an
agent of the city to remove a notice posted on the public
right-of-way prior to the commencement of the hearing.
Moreover, City Code Ordinance §6-41 provides that persons who are found
to be liable for a code violation by a hearing officer “may appeal the determination
to the civil district court for the parish.” Additionally, a homeowner’s short-term
rental permit is revoked by a hearing officer and it is only revoked without a
hearing by a City inspector in response to emergency situations such, an imminent
threat to public health, safety, or welfare. Sec. 26-628(c); Sec. 26-627(a).
Because the current City’s ordinances provide the eligibility requirements
for obtaining a short-term rental permit, require notice of a violation, require notice
23
of hearing, require a hearing before a hearing officer before imposing penalties,
allow the penalties to be appealed, and absent a threat to public safety provide an
opportunity for a hearing before revoking a license, the ordinances do not violate
the homeowner’s constitutional right to due process.
With regard to the City’s adjudication and collection of fines, Appellant
correctly states that the United States Fifth Circuit held that due process is violated
when an adjudicator imposes and administers court fees. See Cain v. White, 937
F.3d 446, 454 (5th Cir. 2019) cert. denied, 140 S. Ct. 1120 (2020).17 However,
according to the City, the hearing officer does not have a monetary interest in the
result of the adjudications and their salaries and benefits are the same irrespective
of whether they find that a person violated the ordinances. Also, the Department of
Safety and Permits is “funded by the City’s general fund and remits all fines
collected back to the City’s general fund” and the Department “does not keep those
fines, and its annual budget is not tied to the amount of fines it collect.” Id.
Accordingly, it does not appear that the City has a direct financial incentive to find
17
In Cain v. White, 937 F.3d 446, the plaintiffs challenged the assessment of fines and fees
against criminal defendants by the judges of Orleans Parish Criminal District Court (“OPCDC”).
The fines and fees collected were mostly directed to the Judicial Expense Fund (JEF), making up
about one-quarter of the JEF. The judges have exclusive control over how the JEF is spent.
Although the JEF did not go towards their salaries, it funded salaries and employment-related
benefits of staff, CLE travel, conferences and legal education, office supplies, jury expenses,
professional liability insurance for the judges, etc. Id. at 448-49. The district court held that “with
respect to all persons who owe or will incur court debts arising from cases adjudicated in
OPCDC, and whose debts are at least partly owed to the OPCDC Judicial Expense Fund, the
Judges’ failure to provide a neutral forum for determination of such persons’ ability to pay is
unconstitutional.” Id. at 451. The court of appeals summarized the issue as “whether the Judges’
administrative supervision over the JEF, while simultaneously overseeing the collection of fines
and fees making up a substantial portion of the JEF, crosses the constitutional line.” Id. The court
of appeals affirmed, concluding that “when everything involved in this case is put together, the
‘temptation’ is too great.” Id. at 454.
24
violations and assess fines. Here, Appellant failed to meet his burden of
establishing that the ordinances are unconstitutional. Thus, this assignment of error
lacks merit.
CONCLUSION
For the aforementioned reasons, we affirm the trial court’s judgment.
AFFIRMED
25