Opposition Brief — Vicari Contractors, Inc. v. Parish of Jefferson

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Supreme Court, U.S.

FILED

NO. 97-1878 JUN 22 1998

TTERK

In the Me

Supreme Court of the United States

OCTOBER TERM, 1997

VICARI CONTRACTORS, INC.

Petitioner

VERSUS

PARISH OF JEFFERSON

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEAL, FIFTH CIRCUIT,

STATE OF LOUISIANA

A BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

DANIEL A. RANSON (#11114)

WINDHORST, GAUDRY, RANSON,

HIGGINS & GREMILLION, L.L.C.

401 Whitney Avenue, Suite 500

Gretna, LA 70056

Telephone: (504) 362-2466

Attorney for Respondent,

The Parish of Jefferson

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

INDEX TO OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Page

I The Court Lacks Jurisdiction..................ccccccsesecceees 1

Il. Writ Grant Considerations Are Not Present......... 4

Ill. The Controversy Does Not Arise Under Federal

IV. Preemption Under the Supremacy Clause............. 9

V. The Housing Act of 1937 Does Not Preempt Local

RD LT LET MD TOP 11

ae = I insrcdsicteialikdnnccniicindi ee en 16

APPENDIX:

App. A. Petitioner’s Writ to Louisiana Supreme

TABLE OF AUTHORITIES

Cases:

1610 Corporation v. Kemp, 753 F. Supp. 1026

a ern si i

Adams v. Robertson, 117 S.Ct. 1028 (1997).............

California v. ARC America, Corp., ___ U.S. ___.,

109 S.Ct. 1661, 104 L.Ed. 2d 86 (1989)............

City of Cleveland v. Berger, 91 Ohio App. 3d 102,

CEL IO. Be BOGS Ce ecetintitciniimnts

Hillsborough County v. Automated Medical

Laboratories, Inc., 471 U.S. 707, 105 S.Ct.

2371, 85 L.Ed. 2d 714 (1985)...................000cee0e0

Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85

Rte. ie BE CRG ID snc cotenacesenstsinctatntinicionnion

James v. Valtierra, 402 US 137, 91 S.Ct. 1331

CIF F Bidcaccscsccssidtnsnscanhestenciiuetbaisenebnaiieiunéadecaaaanals

Kargman v. Sullivan, 552 F.2d 2 (1st Cir. 1977)...

Louisiana Public Service Comm’n v. Federal Com-

munications Comm ‘n., 476 U.S. 355, 106 S.Ct.

1890, 90 L.Ed. 2d 369 (1986)...

Page

sia 8.15

named 9

Deira

iii

TABLE OF AUTHORITIES (continued)

Cases: Page

Pacific Gas & Electric Co. v. State Energy Resources

Conservation & Development Comm’n., 461

U.S. 190, 103 S.Ct. 17138, 75 L.Ed. 2d 752 (1983).....9

Rice v. Norman Williams Co., 458 U.S. 654, 102

S.Ct. 3294, 73 L.Ed. 2d 1042 (1982).......................... 10

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67

S.Ct. 1146, 91 L.Ed. 2d 1447 (1947)...0....cccccccccccccces. 10

United States Constructors and Consultants, Inc.

v. Cuyahoga Metropolitan Housing Authority,

35 Ohio App. 2d 159, 300 N.E. 2d 452

Vandermark v. Housing Auth. of City of York, 663

rem I rn: NO i hc 11

Webb v. Webb, 451 US 493, 101 S.Ct. 1889, 68 L.Ed.

ee EEE SEEN ET EIT TIT TRE 4

TABLE OF AUTHORITIES (continued)

Page

Constitutional Provisions, Statutes and Regulations:

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SERRA Sa Raor ne ee re eC OE Ne CMC eT ee 11

Ge SPs ET ii inset tateclbcisienes caida tiaibdbae weceabiebieiccedies 11

Ge Se teiie Fa Wick iaebatashiasincecuisvadocsanicibckounisdsbeiasickaivcnsck 11

Oe he Eis DAA inndsiecbinis dita Batis 1

Ge NBs Bcc bteisciididcicdidlsusdaidibcaabsduinchchbtaheces 12

Oe See aty BOG Ris hctisrteacintcsnacass acneccsecea nee 12

SE SE OE OB oii a ae 15

mn GA Hs Tinie cetncdieicalinihalene te es 4

WI Tia Wis Aches eeseovdennedanaiechae unscicisoncebsde tise aio 1

SS SIR kc ie ahha i oe ee 1

fe beg: ae Re me ts ERaieraswe tie oe ene Nat en hue anne 9

BRIEr IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

MAY IT PLEASE THE COURT:

The Respondent the Parish of Jefferson, in accordance

with Sup. Ct. R. 15, submits this Brief in Opposition to the

Petition for Writ of Certiorari filed by Vicari Contractors,

Inc. In accordance with Sup. Ct. R. 15, 2, Respondent calls

the Court’s attention to a misstatement of fact in the Peti-

tion that bears on what issues are properly before the Court

if certiorari were granted. é

I. THE COURT LACKS JURISDICTION

Petitioner claims it raised federal questions in the ap-

pellate courts of the State of Louisiana. Petition for a Writ

of Certiorari at 3. Petitioner claims jurisdiction is invoked

pursuant to 28 U.S.C.A. §1257(a), which provides that final

judgments or decrees rendered by the highest court of a State

in which a decision could be had may be reviewed by the

Supreme Court by writ of certiorari where the validity of a

statute of any State is drawn into question on the grounds

of its being repugnant to Constitution, treaties and laws of

the United States, or where any title, right, privilege, or im-

munity is specially seet up or claimed under the constitu-

tion or Statutes of the United States. Petition for a Writ of

Certiorari at 2. Petitioner did not raise any federal claims in

state court proceedings.

Respondent attaches as an appendix Petitioner’s Ap-

plication for a Writ of Certiorari to the Louisiana Supreme

Court. (A1-A48). Petitioner did not cite the Constitu-

tion, treaties or laws of the United States, or any right,

privilege, or immunity under the United States Constitution

or laws, as supportive of its position in the case. (A1-A48).

The brief filed by Petitioner on appeal to the state Fifth Cir-

cuit was an exact duplicate of the writ application filed in

the Louisiana Supreme Court. Further, at oral argument in

the state Fifth Circuit Petitioner requested that the court

disregard Petitioner’s brief and consider “fairness and equi-

ty’. No federal questions were addressed by the state courts

because Petitioner did not raise federal questions in the state

courts. The first reference in this case to the United States

Constitution, Statutes, and Codes is the Petition for a Writ

of Certiorari.

Petitioner claims it raised federal questions through

“fact pleadings”, citing paragraphs of its Petition for

Damages. Petition for a Writ of Certiorari at 3. The cited

paragraphs reflect no reference which could in the most

liberal interpretation be said to raise with fair precision any

federal claims. The allegations of the petition were insuffi-

cient to inform the state courts that they were presented with

a federal claim. Moreover, on the first day of trial of this mat-

ter, Petitioner entered the following stipulation on the record:

All claims stated in the Petitions against the

Parish of Jefferson arising prior to the entering into

the Consent Judgment on August 2, 1991 are

dismissed and the Petition is amended to state that

the action is for the wrongful enforcement of the

agreement which was reached in open court on

August 2, 1991...

Under Petitioner’s stipulation the only issue addressed

Pete reorenyeemerpemane* ~~

was whether the Parish wrongfully enforced a consent judg-

ment after Petitioner allegedly complied with its terms.

Federal preemption and supremacy clause issues now

raised by Petitioner were neither raised nor addressed in the

state courts. This Court has consistently held that, with very

rare exceptions, in reviewing state court judgments it will

not consider federal claims unless the federal claims were

either addressed by or properly presented to the state court

that rendered the decision to be reviewed. Adams v. Robert-

son, 117 S.Ct. 1028, 1029 (1997). When the state court is silent

on a federal question, the Court assumes the issue is not pro-

perly presented, and the aggrieved party bears the burden

of defeating that presumption. Id. at 1029. Petitioner con-

cedes that the Louisiana state courts did not consider or pass

on federal questions. Petition for a Writ of Certiorari at 3.

Petitioner does not, indeed cannot, show that the issues were

properly presented to the state courts.

The state court briefs and record show that federal ques-

tions were not presented in the state courts. (A1-A48). Peti-

tioner does not demonstrate compliance with state rules for

raising federal claims before the state courts, nor has Peti-

tioner explained why the failure to comply with those rules

would not be an adequate and independent ground for the

state court to disregard the claims. Adams, 117 S.Ct. at 1030.

Petitioner does not establish that it presented federal claims

“with fair precision and in due time”. Id. at 1030. The federal

claims were not asserted until the Petition for Writ of Cer-

tiorari. Under the circumstances it was reasonable for the

state courts to conclude no federal claims were before them.

Id. at 1031.

Because petitioner failed to carry its burden of show-

ing federal claims now raised were properly presented to the

state courts, this Court cannot reach the question presented.

Id. at 1028. This Court need not decide whether the require-

ment that a federal claim be addressed or properly presented

in state court is jurisdictional or prudential, because even

treating the rule as prudential, the circumstances here justify

no exception. Id. at 1031. Nevertheless, Respondent respect-

fully suggests that, in accordance with Webb v. Webb, 451

US 493, 496, 101 S.Ct. 1889, 1991, 68 L.Ed. 2d 392 (1981),

the Court is without jurisdiction in this case because federal

questions were not raised in the state court proceedings.

II. WRIT GRANT CONSIDERATIONS

ARE NOT PRESENT

Sup. Ct. R. 10 sets forth criteria which indicate the

character of reasons the Court considers in deciding whether

to grant certiorari: a) the existence of conflicting decisions

between United States courts of appeals on the same impor-

tant matter; b) the state court of last resort has decided an

important federal question in a way that conflicts with the

decision of another state court of last resort or a United States

court of appeals; c) a state court or United States court of

appeals has decided an important question of federal law that

has not been but should be settled by this Court, or has decid-

ed an important federal question in a way that conflicts with

relevant decisions of this Court.

None of the Sup. Ct. R. 10 writ grant considerations

exist in the present case. No conflicting decisions by United

States courts of appeals are cited. The state courts have not

decided any questions of federal law. Petitioner does not point

out any question of federal law that has not been but should

be settled by this Court. In addition to the absence of jurisdic-

tion, the absence of writ grant considerations dictates that

this Court deny the Petition for a Writ of Certiorari.

Ill. THE CONTROVERSY DOES NOT ARISE

UNDER FEDERAL LAW

Petitioner claims this case “concerns the Section 8 Cer-

tificate Program, . . . established pursuant to Section 8 of the

National Housing Act of 1937”. Petition for Writ of Certiorari

at 3. This is a misstatement of fact. By Petitioner’s own

stipulation the only issue in the trial court was whether

Respondent wrongfully enforced a consent judment because

Petitioner allegedly complied with its terms. A recitation of

facts with reference to record evidence compellingly

demonstrates the National Housing Act is not implicated.

In 1989 Petitioner purchased twelve vacant four-plex

buildings on Mary Poppins Drive in Harvey, Louisiana, an

area notorious for drug activity in abandoned and blighted

buildings. The Sheriffs Office responded to hundreds of ser-

vice calls at the buildings. The buildings were in such poor

condition that $1.5 million dollars worth of renovations were

needed. Many units had fire damage and were missing doors

and windows. Petitioner was unable to secure financing for

renovations. In April 1991 the property remained in a derelict

condition.

The Respondent enacted a Dangerous Building Or-

dinance to protect the health, safety and welfare of the

general public by establishing a requirement that structures

which were vacant, unsecured, and unrepaired be secured

and repaired by the owner, at the risk of demolition if the

owner failed to comply. Petition for a Writ of Certiorari,

22a-47a. Economic decline had caused the incidents of va-

cant, open structures to increase significantly. Id. at 23a.

Derelicts, criminals, and vagrants habitually used such struc-

tures as hideouts. Id. at 22a. The respondent was compelled

to provide a means of forcing owners to abate the hazards

or to bear costs incurred by the Respondent in abating the

hazards.

In April 1991 the Respondent investigated complaints

with respect to Petitoner’s buildings. The buildings were open

to entry by vagrants; exteriors and interiors had fire damage;

and junk, trash and debris were scattered through the in-

teriors. Photographs graphically depict the dilapidated state

of the buildings. The buildings were inspected by inspector

Thibodaux of Harvey Volunteer Fire Co. No. 2. Inspector

Thibodaux determined the buildings were fire hazards

because they were full of trash, open to entry by vandals and

vagrants, and falling down, conditions conducive to arson

fires. There had in fact been a series of fires in the buildings.

An administrative hearing took place with respect to

the condition of the buildings. Peter G. Vicari was present

on behalf of Petitioner. The Hearing Officer determined the

buildings were dilapidated, substandard, unfit for human

habitation, constituted a hazard to health, safety and welfare

of the citizens, and were “dangerous buildings’. Orders were

issued giving Petitioner thirty (30) days to secure the

buildings and obtain a permit and begin repairs, or obtain

a demolition permit. The orders were served on Petitioner,

who acknowledged receipt of the orders and advised that “we

should start a total renovation project within the next

thirty days”’.

Petitioner failed to take action as promised. On July

25, 1991 Respondent notified Petitioner that demolition

would commence the next day. Petitioner filed a Petition for

a Writ of injunction to enjoin demolition. After appearing

in court for a hearing on a preliminary injunction Petitioner’s

attorney recited the terms of a settlement on the record. Peti-

tioner agreed that by August 24, 1991 it would secure all

openings with plywood and remove all debris from the

buildings. A representative of Petitioner was to be present

on August 26, 1991 to allow inspection. Renovations were

to begin by September 3, 1991. Petitioner consented and

agreed that upon its failure to comply with the provisions of

the agreement the buildings would be demolished by the

Respondent without further notice. Petitioner did nothing to

comply with the settlement agreement. Demolition commenc-

ed the week of September 25, 1991 and continued through

February 4, 1992. Petitioner filed suit for damages four

months later.

Petitioner had entered into an “Agreement to Enter in-

to a Housing Assistance Payment Contract” (AHAP) with

the Housing Authority of Jefferson Parish. (A49-A66). The

effective date of the Agreement was May 30, 1991. (A49). The

AHAP provided that if Petitioner completed rehabilitation

of units in accordance with a work write-up, a Housing

Assistance Program (HAP) contract would be executed. (A49).

Commencement of the work was to be no later than July 30,

1991. (A50). Petitioner could not obtain financing for the

renovations and thus was unable to commence renovations

as required under the AHAP. The AHAP was cancelled by

the Housing Authority of Jefferson Parish.

Petitioner filed a claim against HUD under the Tort

Claims Act alleging the property was demolished as a result

of HUD‘s negligence and unreasonable delays in approving

project based Section 8 funding. Petitioner filed a Complaint

against HUD in the United States District Court for the

Eastern District of Louisiana wherein it alleged the buildings

were demolished as a result of HUD’s negligence in approv-

ing proposed rent schedules for the project. Petitioner’s claims

against HUD were dismissed on motion for summary judg-

ment. The Fifth Circuit affirmed the dismissal of the claims

against HUD. Claims with respect to the AHAP were not

presented in the state court proceedings against Respondent

and are not properly before this Court.

Even if raised in this litigation, the claims asserated

by Petitioner do not involve a right or remedy created by

federal law. 1610 Corporation v. Kemp, 753 F. Supp. 1026,

1031 (D.Mass. 1991), held that the fact that an AHAP is sub-

ject to federal regulation or involves preprinted forms

prescribed by HUD does not establish that interpretation and

aspects of performance of the AHAP are governed by federal

law or that controversy over its terms arises under federal

law, such that there would be federal question jurisdiction.

Although federal statutes and regulations may be implicated

to some extent, the claims at the core require only an inter-

pretation of contract rights. Id. There is no significant federal

interest or policy in conflict with state law, nor is there a

necessity to provide for federal uniformity in the interpreta-

tion of such contract rights. Id. Interpretation of contractual

obligations under an AHAP are governed by state law. Id.

Federal courts have no subject matter jurisdiction to hear

such claims. Id.

ali delat

This case did not involve the National Housing Act.

Even if it had, the National Housing Act does not preempt

local laws enacted for the protection of the health, safety, and

welfare of the general public.

IV. PREEMPTION UNDER THE SUPREMACY CLAUSE

Petitioner suggests HUD’s involvement in approving

proposed rents for Petitioners project once renovations were

complete brought the project under the auspices of the Na-

tional Housing Act, and therefore state and local laws and

ordinances which in any way impact the project are preemp-

ted by the Supremacy Clause of the United States Constitu-

tion. Petition for Writ of Certiorari at 12. Petitioner suggests

local governing authorities have no right to enforce or-

dinances enacted for the protection of the public health, safe-

ty, and welfare as against Petitioner’s property, because its

potential contract with a local housing authority to provide

Section 8 project based housing is a shield against compliance

with health, safety, and sanitation codes. Id. This position

is untenable.

The Supreme court has laid out a well-worn path in

preemption cases. California v. ARC America, ae.

US. : , 109 S.Ct. 1661, 1665, 104 L.Ed. 2d 86 (1989).

It must first be determined whether Congress stated express-

ly its intent to supercede state law through the enactment

of the statute in question. Even in the absence of express

preemptive language, Congress may legislate in a given area

so comprehensively that federal law occupies an entire field,

leaving no room for state regulation. Pacific Gas & Electric

Co. v. State Energy Resources Conservation & Development

Comm’n., 461 U.S. 190, 204, 103 S.Ct. 1713,

1722, 75 L.Ed. 2d 752 (1983). Even when Congress does not

occupy an entire field, state law is prempted when it actual-

ly conflicts with federal law. Such a conflict may occur when

compliance with both state and federal law is impossible, or

when the state law stands as an obstacle to the accomplish-

ment and execution of the full purposes or object of Congress.

Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85

L.Ed. 2d 581 (1941). The critical question is whether Con-

gress intended that federal regulation supercede state law.

Louisiana Public Service Comm’n v. Federal Communications

Comm’n., 476 U.S. 355, 369, 106 S.Ct. 1890, 1899, 90 L.Ed.

2d 369 (1986).

Preemption may not be inferred from every Congres-

sional enactment that overlaps state regulation. Courts must

start with the assumption that the historic police powers of

the states are not to be superceded by a federal statute unless

that was the clear and manifest purpose of Congress. Rice

v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146,

1152, 91 L.Ed. 2d 1447 (1947). The presumption against

preemption applies to state or local regulations on matters

of health and safety. Hillsborough County v. Automated

Medical Laboratories, Inc., 471 U.S. 707, 715, 105 S.Ct. 2371,

2376, 85 L.Ed. 2d 714 (1985). Only actual conflicts between

state and fedearal law are of concern; the existence of a

hypothetical or potential conflict is insufficient to warrant

preemption. Rice v. Norman Williams Co., 458 U.S. 654, 659,

102 S.Ct. 3294, 3299, 73 L.Ed. 2d 1042 (1982).

V. THE HOUSING ACT OF 1937

DOES NOT PREEMPT LOCAL BUILDING ORDINANCES

The United States Housing Act of 1937, 50 Stat. 888,

VE Yaak Cat Gea Reng Oe

as amended, 42 U.S.C. §1401 et seq., established a federal

housing agency authorized to make loans and grants to state

agencies for slum clearance and low rent housing projects.

James v. Valtierra, 402 US 137, 138, 91 S.Ct. 1331, 1332

(1971). The Act assists the several States and their political

subdivisions to remedy unsafe and unsanitary housing con-

ditions and the shortage of decent, safe, and sanitary dwell-

ings for families of lower income. 42 U.S.C. §1437. The Act

authorizes the Department of Housing and Urban Develop-

ment to provide low interest loans, grants and other

assistance for the construction and operation of housing for

families with low incomes. 42 U.S.C. §1437b. In order to ac-

complish this purpose Congress recognized the need to vest

maximum power and responsibility with local public hous-

ing authorities in order to promote efficient management of

the housing programs. Vandemark v. Housing Auth. of City

of York, 663 F.2d 436, 439 (8rd Cir. 1981). The act includes

a declaration of policy which states, in pertinent part, that:

‘{ilt is the policy of the United States .. . to

vest in local public housing agencies the maximum

amount of responsibility in the administration of

their housing programs.’ 42 U.S.C. §1437

The Housing Act did not, as suggested by Petitioner,

displace local ordinances relating to building codes, health,

safety or zoning. In Kargman v. Sullivan, 552 F.2d 2, 11 (1st

Cir. 1977), the court held the federal legislation creating the

network of subsidized housing laws is superimposed upon and

consciously interdependent with the substructure of local law

relating to housing. The court noted that dwellings on pro-

perty eligible for §221(dX3) loans must meet the requirements

of all state laws or local ordinances relating to public health

or safety, zoning or otherwise. 12 U.S.C. §1715(dX2). Id. at

11. These local laws advance significant and uniquely local

interests with which courts should not lightly interfere. Id.

Given a perceived conflict, especially in an area of strong local

concern, reconciliation is to be preferred to complete ouster

of a state law or municipal ordinance. Id.

Several state courts have held the National Housing

Act was not intended to limit or exclude state action or to

exercise supremacy in that area. United States Constructors

and Consultants, Inc. v. Cuyahoga Metropolitan Housing

Authority, 35 Ohio App. 2d 159, 167, 300 N.E. 2d 452, 456

(1973), held the Act merely sets forth a national housing

policy to promote the general welfare of the nation by employ-

ing funds and credits to assist the states and their political

subdivisions in eliminating unsafe and unsanitary housing

conditions and the shortage of decent, safe, and sanitary

dwellings for families of low income in urban areas by per-

mitting the federal government to offer and provide finan-

cial assistance in the form of grants and/or loans to state or

local housing agencies to develop low rent housing. 42

U.S.C.A. §1409 and 1411. “It is clear . . . that Congress did

not intend to limit or exclude state action or to exercise

supremacy in this area. There is no conflict between the

federal law and regulations and Ohio law in regard to hous-

ing.” Id. at 167, 300 N.E. 2d at 457.

City of Cleveland v. Berger, 91 Ohio App. 3d 102, 631

N.E. 2d 1085 (1993), held that an apartment building owner

who was under contract with HUD to participate in a Sec-

tion 8 program failed to establish that a complaint against

him for city housing code violations was federally preemp-

ted. Berger argued the supremacy clause provides for the

oo ls net

REEL

ENE LF 828 BP

SNELL ROL TL LM

preemption of any law which conflicts with federal law. Id.

at 109, 631 N.E. 2d at 1089. The court held that mere dif-

ferences between federal law and state law do not constitute

a conflict sufficient to invoke preemption; it must be shown

that compliance with both federal and state regulations is

impossible or that the state law stands to impair achieve-

ment of the purposes and goals of the federal statute. Id. at

110, 631 N.E. 2d at 1090. The court held there was no

evidence the federal government explicitly preempted state

law in the area of public housing or that Congress intended

to exclusively regulate the area. Id. at 1090. The court re-

jected Berger’s argument that application of state law would

disrupt the proper functioning of the federal Section 8 pro-

gram, noting that Berger produced no evidence state hous-

ing code regulations were in conflict with federal legislation.

Id.

In the present case the evidence at trial showed com-

pelling local public health, safety, and welfare concerns. The

buildings purchased by Petitioner had been abandoned and

vacant for years. Many of the units were fired damaged and

missing doors and windows. The local sheriff’s office respond-

ed to hundreds of calls at the vacant buildings after they were

acquired by Petitioner. Fire inspectors deemed the buildings

fire hazards because they were full of trash, open to entry

by vagrants and vandals, and falling down, conditions con-

ducive to arson fires. There had in fact been a series of fires

in the buildings. Z

The Jefferson Parish Council enacted a Dangerous

Building Ordinance to protect the health, safety, and welfare

of the general public by establishing a requirement that struc-

tures which were vacant, unsecured and unrepaired be

secured and repaired by the owner, at the risk of demolition

if the owner failed to comply. Economic decline had caused

the incidents of vacant, open structures to increase

significantly. Derelicts, criminals, and drug traffickers

habitually use such structures as hideouts. The Parish Coun-

cil was compelled to provide a means of forcing owners to

abate the hazards or to bear the costs incurred by the Parish

in abating the hazards.

Orders requiring correction of the derelict conditions

were served on Petitioner. Petitioner entered into a consent

judgment wherein it agreed to take corrective action within

a certain time period, barring which the Respondent was

authorized to demolish the buildings. Petitioner did nothing

to comply with the terms of the consent judgment. The

Respondent, having notice of the dangerous and derelict con-

dition of the buildings, had no choice but to move forward

and abate the danger before a policeman, fireman or resi-

dent was injured. Had any person been injured in the

buildings after the deadlines expired, the Respondent faced

potential liability for failure to fulfill its governmental

responsibilities. The Respondent is not answerable in

damages for fulfilling its duty to protect the public health,

safety and welfare.

In its statement of the case Petitioner extensively

details contacts between Petitioner, the JPHA, and the

United States Department of Housing and Urban Develop-

ment with respect to Petitioner’s efforts to secure a HAP con-

tract once renovations were complete. Petition for Writ of

Certiorari at 3-11. Petitioner contends demolition of the struc-

tures “eradicated two years of administration by HUD and

countless hours spent to enforce an Act of Congress which

eo a a oc

SEES RAY ES ELIS, PLEO ISIE EOL DEITIES

NREL ES

contains a statement of congressional policy.” Petition for

Writ of Certiorari at 6. Petitioner overstates HUD’s limited

role in this matter.

The Jefferson Parish Housing Authority (JPHA) is a

separate political subdivision from the Respondent. LSA-R.S.

40:381 et seq. Contracts between the JPHA and Petitioner

did not in any manner involve Respondent. (A49-A66).The

AHAP between Petitioner and the JPHA was an agreement

to enter into a contract for rentals once the property was

renovated. (A49). Despite a two year effort, Petitioner could

not secure financing for the renovations. The AHAP was ter-

minated because Petitioner failed to commence renovations

by July 1, 1991. Hud’s only involvement was to approve an-

ticipated rents upon completion of renovations. See 1610 Cor-

poration v. Kemp, 753 F.Supp. 1026, 1028 (S.D. Mass 1991).

Further, the AHAP entered into by Petitioner did not

by its nature supercede and preempt local building codes or

ordinances relating to zoning, health, safety, and welfare.

To the contrary, the AHAP specifically provides that when

the work is complete the owner must provide the JPHA with

a certification that the units have been rehabilitated in ac-

cordance with applicable zoning, building, housing, and other

codes, ordinances, or regulations. (A56). Rather than

supercede and prempt local ordinances, the AHAP specifically

requires compliance with such local ordinances.

This Court held that the Housing Act of 1937 does not

explicitly provide for preemption of state law with respect

to housing. James v. Valtierra, 402 U.S. 137, 138, 91 S.Ct.

1331, 13832 (1971). A federal appellate court held that the

Housing Act of 1937 is superimposed upon and consciously

interdependent with the substructure of local law relating

to housing, including requirements of local ordinances

relating to public health or safety, zoning, or otherwise.

Kargman v. Sullivan, 552 F.2d 2, 11 (1st Cir. 1976). Petitioner

produced no evidence that local Ordinances on dangerous and

derelict buildings are in conflict with any federal legislation.

Petitioner has not shown that compliance with both federal

and state regulations is impossible, or that state law stands

to impair achievement of the purposes and goals of the federal

statute. Petitioner’s contention that local ordinances on

dangerous and derelict buildings are preempted by the Na-

tional Housing Act is meritless.

VI. CONCLUSION

Petition fails to carry its burden of showing that

“federal claims” now raised were properly presented to the

state courts. This Court therefore is without jurisdiction.

Even were the court to treat the rule as purely prudential,

the circumstances here justify no exception. Further, none

of the traditional writ grant considerations exist in this case.

No conflicting decisions are cited by Petitioner. Louisiana

state courts did not decide any question of federal law. Peti-

tioner does not point out any questions of federal law to be

settled by this Court.

Neither the National Housing Act of 1937 nor the Sec-

tion 8 program are implicated in this case. The fact that Peti-

tioner entered into an AHAP does not establish performance

of the AHAP is governed by federal law, or that controversy

over its terms “arise under federal law’”’ such that there is

federal question jurisdiction. Even if the National Housing

Act was implicated, it does not supercede or preempt local

Rk i a

it EE ATLAS Be SS Tt OR

ordinances protecting public health and safety. There was

no intent by Congress to preempt local regulation of hous-

ing through building codes, zoning, or other ordinances. The

AHAP documents themselves call for compliance with such

local ordinances.

Petitioner’s application for a Writ of Certiorari must

be denied.

Respectfully submitted,

WINDHORST, GAUDRY, RANSON

HIGGINS & GREMILLION, L.L.P.

DANIEL A. RANSON (#11114)

401 Whitney Avenue, Suite 500

Gretna, LA 70056

Telephone: (504) 362-2466

Attorney for Respondent

The Parish of Jefferson

G-/0745/0011/PLEADING/BRIEF.OPP

A-1

APPENDIX A

SUPREME COURT OF LOUISIANA

NO:

VICARI CONTRACTORS, INC.

Plaintiff/Appellant

RELATOR

VERSUS

PARISH OF JEFFERSON

Defendant/Appellee

RESPONDENTS

APPLICATION BY VACARI CONTRACTORS, INC.

FOR WRITS OF CERTIORARI

AND REVIEW TO THE LOUISIANA

COURT OF APPEAL, FIFTH CIRCUIT

IN CASE NO. NO: 97CA 00168c/w97CA00169

ON APPEAL FROM THE 24th

JUDICIAL DISTRICT COURT FOR THE PARISH OF

JEFFERSON, STATE OF LOUISIANA,

DOCKET NUMBERS: 420-579c/w434-842

HONORABLE SUSAN CHEHARDY, JUDGE-DIV.“N”

ORIGINAL PETITION OF VICARI CONTRACTORS, INC.

Plaintiff/Appellant

Relator

Respectfully submitted,

/s/ Stephen J. Caire

STEPHEN J. CAIRE, LA BAR

NO. 3780

ATTORNEY AT LAW

P. O. BOX 1248

METAIRIE, LA 70004-1248

(504) 341-9500 (Office)

(504) 347-7471 (FAX)

Attorney for

Plaintiff/Appellant/Relator

A-2

INDEX OF ALL ITEMS

A ee i

2. STATEMENT OF WRIT GRANT

SERS I Ra Oe ii

ie. ' § § gi. . .. eee iii

(a) Summary of the Nature of the Case

NE Re i interesitintthttninticrertnncestcintisese 1

(he) Acaharmmmamt OF TRTOUG...........0cc.ccsessccccsscesscesssccseseeses 2

CD RR iiitiictnccatbiadiicacnniniiniiicemninman 6

i. Argument on assignment of errors nos. 1

GREE ‘Ticccassstucintsiedaidieihitiamdindingiaientanisibiadessimasdeke 6

ii. Argument on assignment of error no. 3.. 10

iii. Argument on assignment of error no. 4.. 12

iv. Argument on assignment of error no. 5.. 14

SPUN aN ~ cbtsdainndelbnshenbeiheiadbaiaheiaiesnaebhaktnesen 14

EPR REINER ECE LN SSE Cae een 16

Part III. Delegation of Legislative

SI icteriitn ichianspestihitioniabioutaniedin 16

Part IV. Parish Officials had no dis-

RE SSREIEE Te Oe eee 19

v. Argument on assignment of errors nos. 6

SIDE Wiisssninehiechaliiaaiiantiniaianeiiiadindamsaeatentaial 22

vi. Argument on assignment of error no. 8.....23

BR ERENT ar ee NO 24

GF iiataneibiiteitbidcitnttnceititipnitcncindihnninaniieintate 25

* , , -. |) ERENT E DEE 26

Tn CmmerG Oe UII ana ssecansescccecesvesinesorconncence 27

Court of Appeal Opinion......................cccccceseeeeeees 29

Other pleadings and documents essential

to demonstrate why the application should

i I aiiticiereicaiaitiitenceerintientinpieen 38,et seq.

A-3

STATEMENT OF WRIT GRANT CONSIDERATION

Significant Unresolved Issues of Law

At issue in this case is the extent to which a governing

authority may condemn any building or structure which is

private property; more specifically, when the conditions,

which caused the buildings to be condemned, can be cured

by remedial measures without demolition, are the owner’s

fundamental rights to due process of law violated and denied

when the governing authority, nevertheless, chooses to itself

demolish private property rather than to remedy the offen-

ding conditions. Plaintiff/Relator had applied for and been

granted a building permit for remedial work.

The issue of the nature and extent of power exercised

by a condemning governing authority is a significant

unresolved issue of law.

Conflicting Decisions

The governing authority did not vote to order the

demolition of Plaintiff’s/Relator’s apartment complex. The

facts presented during the trial of this case raise several

issues regarding the delegation of legislative power to the

executive branch of the governing authority. Indeed, whether

or not the power to demolish private proterty can be delegated

is a controlling issue in this case along with the issue of strict

interpretation and application of such laws. The decision of

the Court of Appeal conflicts with the decisions of the

Supreme Court.

Gross Departure From Proper Judicial Proceedings

The credibility and impeachment of witnesses at trial

is a key issue. The trial court would not allow counsel for

Plaintiff/Relator the opportunity to proceed with an effort

to impeach certain witnesses who are members of the ex-

ecutive branch of government or attack their credibility. The

court of appeal sanctioned such departure by the lower court

from proper judicial proceedings. Under these conditions,

Plaintiff/Relator did not receive a fair trial and, as such, the

trial of this case merits review by the Supreme Court.

ii.

A-5

TABLE OF AUTHORITIES

SESS LLL 3

el icicincecnicpnncnnnecneneeveseenaticececsceenes 3

a satseszecsncsenes 7

a cc sssaensncenvenneccces 7

EEE SESE ECE 7

swe caasnasncatecenevence 7

Neen sneaccnaseners 12

SESE SE 12

EE LILES LE 12

EE EES ELS SSS 13

ces escsnencen 13,14

nc csscnsecene 23

EEE 13

ES 8

ESSE 9

LENE TE 15

EE SLE EE 15

ESET 14

Abbott v. Parker, 249 So.2d 908 (La., 1971)..........ccccc0 4,8

Archon v. Union Pacific Rail Road, 657 So.2d 987 (La.,

TABLE OF AUTHORITIES (continued)

Billiot . MOMAR, Inc., 655 So.2d 363 (Ct. of App. 5th

Cher, Bi acscinevitvisrncceliccebcthasbicclancmidetateekackialeabnachnds 7

Brown v. Drille, 630 So.2d 471 (La., 1994)...............ccccceeees 7

Chappuis v. Reggie, 62 So.2d 92 (La. 1952).................. 4,10

City of Shreveport v. Restivo, 491 So.2d 377 (La.,

a a ceivisicncsissiciensscetisicineiisnedatinighctadiceiiantiicaiieaaiaaliiinieadaediahabaibiaes 17

Coliseum Square Association v. City of New Orleans, 544

SD. Fe ee. Gig, Si itnnsininctictianintnatnnicibadalinaes 18

Commissioner of Agriculture v. Plaquemines Parish

Council, 439 So.2d 348 (La., 1983)..............ccccccssseeseeeees 16

Housemasters Corporation v. City of Kenner, 374 So.2d

RIO Ceitg Be enenicctnnctiiacanintiiialicnicinniiitis erie 14,24

International Stevedores, Inc., v. Hanlon, 499 So.2d 1183

Ce. GE A: TR Siig ee ritasestinditincerntiescnairnanes 12,13

Melancon v. Mizell, 44 So.2d 826 (La., 1950)..................... 3

Rick v. Department of Transportation & Development,

GOO Tae RTE Geh, B GR casciincnencrcttensiewthcnsins 9

Schimpf v. Thomas, 15 So.2d 880 (La., 1943).................... 4

Succession of Morvant, 578 So.2d 549, (Ct. of App. 3rd.

CERES: Smmva a: ocicosctiticceiiscscitenseaienin omeniidsoesaaksessuabeietampiatiiaini Adaeiinckaaat 10,11

A-7

MEMORANDUM

(a)

Summary of the Nature of the Case and Prior Proceedings

On July 29, 1991, plaintiff/appellant, Vicari Contrac-

tors, Inc., filed a petition for writ of injunction seeking to en-

join defendant/appellee, the Parish of Jefferson, from

demolishing plaintiff's/appellant’s apartment complex. (Case

NO. 420-579XRecord: Vol. 1, p.D Plaintiff/appellant had

been informed by defendant/appellee on July 25, 1991, that

the work order to demolish plaintiff's/appellant’s apartment

complex would be issued on Friday, July 26, 1991, and demoli-

tion would begin on Monday, July 29, 1991. At the commence-

ment of the trial for a preliminary injunction the parties

reached an agreement which was dictated into the record on

August2, 1991 (See Exhibit Vicari #10). Notwithstanding

the agreement, the Parish of Jefferson, defendant/appellee,

pe fact demolish plaintiff's/appellant’s complex albeit

defendant/appellee, the Parish of Jefferson, had actual

knowledge that finality had been reached by plaintiff/ap-

pellant with both the Jefferson Parish Housing Authority

and the United States Department of Housing and Urban

Development to renovate the apartment complex.

See, Vicari Exhibit No. 11)

The plaintiff, after dictating an agreement in the record,

later, on August 23, 1991, refused to sign the consent judg-

ment. Plaintiff/appellant alleged the refusal to sign signified

his withdraw! of his consent. Plaintiff claims that at that mo-

ment, the Parish of Jefferson was required to seek judicial

enforcement; defendant/appellee rather that do so, the Parish

of Jefferson, proceeded at its peril to engage in wrongful

conduct by taking private property and destroying it, after

admitting by the issuance of a building permit for remedial

work that the private property did not need to be destroyed.

The agreement which was dictated into the record and reduc-

ed to the form of a Consent Judgment was presented to the

judge by defendant/appellee, the Parish of Jefferson, and sign-

ed by him in chambers on August 23, 1991. (Record Vol.

1, pp. 15-17) A petition to annul the Consent Judgment was

filed by the plaintiff/appellant on June 24, 1993, shortly after

its discovery of fraud and ill practice. (Case No.

420-579XRecord: Vol. 1, pp. 20-24) Plaintiff/appellant had

also filed a Petition for Damages for Wrongful Demolition

of Private Property on June 15, 1992. (Case No.

434-842\Record: Vol. single, p.1)

These cases were consolidated in both the trial and appellate

courts. (A clerical error resulted in one of the captions show-

ing plaintiff/appellant to be Vicari Construction, Inc. The real

party plaintiff in both cases is Vicari Contractors, Inc.)

On March 26, 1993, defendant/appellee filed a Peremp-

tory Exception of Res Judicata, claiming that the consent

judgment signed on August 23, 1991, barred plaintiff’s/ap-

pellant’s damage action. The trial judge denied the excep-

tion Record: Vol. Single, pp. 116-118). Application For

Writs was filed by defendant/appellee in the Court of Appeal,

Fifth Circuit, No. 94-C-199 (Record: Vol. 1, p. 89). On March

16, 1994, the applicant’s writ was denied and characterized

plaintiff's/appellant’s petition for damages to be an action

for wrongful enforcement of the consent agreement. Likewise,

the Supreme Court of Louisiana denied the defendant’s/ap-

pellee’s application for writs No. 94-C-1051 (Record: Vol.

page 90).

A-9

The case proceeded to trial and judgment was rendered

on August 27, 1996 (Record: Vol. 2, pp. 319-320)

The trial judge did not assign reasons for judgment

The Court of Appeal rendered its opinion on October

15, 1997 and affirmed the judgment of the trial court. Plain-

tiff's/Appellant’s application for rehearing was timely filed

and was denied on November 17, 1997.

(b)

ASSIGNMENT OF ERRORS

1. The trial judge failed to find that the conduct of the

Parish of Jefferson was a wrongful enforcement of the con-

sent agreement between plaintiff/appellant, Vicari Contrac-

tors, Inc. and defendant/appellee, the Parish of Jefferson. This

failure was error.

2. The trial judge failed to find that the wrongful en-

forcement of the consent agreement was a cause in fact by

defendant/appellee, the Parish of Jefferson, of damage to

plaintiff/appellant Vicari Contractors, Inc. This failure was

error.

3. The trial judge failed to find that the refusal by plain-

tiff/appellant to sign the consent judgment established a

lawful withdrawal of it consent. This failure was error.

4. The concurrence of both spouses is required to dispose

of all or substantially all of the assets of a community

business. The trial judge gave judicial recognition to the con-

sent agreement which disposed of all the assets of the cor-

poration. In so doing, the trial judge was in error.

ieee rll

A-10

5. The plaintiff/appellant, a corporation, did not receive

notice according to law. The trial judge failed to find insuffi-

_cient notice. The trial judge in so doing committed error.

6. The trial judge prohibited counsel for plaintiff/ap-

pellant from impeaching the testimony of Mr. Paul Connick,

Sr., and Mr. Perrin C. Butler, Jr. This restraint imposed upon |

counsel for plaintiff/appellant was error.

7. The trial judge dismissed plaintiff's/appellant’s Peti-

tion to Annual the August 2, 1991, Consent Judgment. This

dismissal was error.

8. The trial judge to sequester witnesses permitting both

Mr. Paul Connick, Sr. and Mr. Perrin C. Butler, Jr. to re-

main in the courtroom during trial. Both of these gentlemen

were significant material witnesses as representatives of the

defendant/appellee, Parish of Jefferson. This ruling of the

trial Judge was error.

(c)

Summary of Argument

Interpreting Statutes And Ordinances

We must be governed by the well-established principles

of statutory interpretation of our State if we are to ascertain

their meaning. Those principles are:

1) Where the words of a law are dubious, their

meaning may be sought by examining the context with

which the ambiguous words, phrases and sentences may

aS ah ee ae te

ens

A-11

be compared, in order to ascertain their true meaning.

(LSA-CC Art. 16; NOW, LSA-CC Art. 12)

2) Laws in pari materia, or upon the same subject

matter, must be construed with a reference to each other,

what is clear in one statute may be called in aid to ex-

plain what is doubtful in another. (LSA-CC Art. 17:

NOW.LSA-Art. 13)

3) Statutory provisions should be construed along

with the remainer of the statute and in connection with

all laws on the same subject matter. Melancon v.

Mizell, 44 So.2d. 826 (La., 1950)

4) All statutory provisions are to be given effect

whenever possible. Chappuis v. Reggie, 62 So.2d. 92

(La., 1952)

5) A title is no part of a statute, but it may be con-

sidered in determining legislative intent where doubt

exists. Schimpf v. Thomas, 15 So.2d. 880 (La., 1943)

In the case of Abbott v. Parker, 249 So.2d 908

(La., 1971), the Supreme Court of Louisiana explained

that a special statute prevails over a general statute,

holding:

Under this construction of Paragraph (T), the

special law (constitutional provision) relating

to issuance of bonds by the Stadium District

prevails over the subsequent general legisla-

tion regulating bond-issuance. A general rule

of statutory construction is that, in the absence

A-12

of legislation intent to the contrary, a special

statute enacted for a particular purpose will

not be presumed to have been within the scope

of a subsequent general enactment on the

same subject matter, State ex rel. Day v.

Rapides Parish School Board, 158 La. 251, 103

So. 757 (1925); that, in the event of ambiguity

or conflict, special laws prevail over general

laws. State v. Mejia, 250 La. 518, 197 So.2d

73 (1967); State Through ZDevariment of

fiighways vo. Macaluso, 235 La. 1019, 106

So.2d 455 (1958); see 82 C.J.S. Statutes s 347

b. Here, of course, mere legislation general in

nature cannot be deemed to have modified a

self-executing constitutional provision special-

ly regulating in its entirety a specific state

instrumentality.

Factual Summary

1. The Parish of Jefferson did not delegate its police to

order the demolition of dangerous buildings owned in the

private sector to its executive branch of government; accor-

dingly, the demolition of plaintiff's apartment complex by

offices or employees of the Parish of Jefferson was vires acts

for which the Parish of Jefferson is liable to plaintiff. (See

testimony of former Parish President, Michael J. f

Yenni, by deposition as Vicari Exhibit No. 4)

2. The Jefferson Parish Council, governing authority,

retained its police power regarding owners of private property

who were participating in HUD’S Federal Section 8 Project

Based Assistance program by passing a special resolution

iia aaa

A-13

addressed to HUD requesting that HUD expedite its process-

ing of pending participants, of which plaintiff was one.

(Vicari Exhibit No. 6)

3. The executive branch of the Parish of Jefferson,

through its then President, Hon. Michael J. Yenni, did not

deligate any authority to either Mr. Paul Connick, Sr., Chief

Administrative Assistant, or to Mr. Perrin C. Butler, Jr.,

Assistant Parish Attorney; on the contrary, he too wrote let-

ters to HUD stating that “...this project is very necessary to

meet the needs of the low income people in this area who

would like to live there and it is an integral part of our overall

strategy for the restoration of this very strategic

neighborhood.” (Vicari Exhibits No. 7 & 8)

4. Parish President Yenni, in his letter to HUD dated

December 14, 1990, recognized the Jefferson Parish Hous-

ing Authority as the specific agency to which authority had

been delegated to administer HUD’S Section 8 Project Bas-

ed Program saying, “...The Housing Authority of the Parish

of Jefferson’s assessment of the placing of the Project in this

area was one that was taken with much care and thought

concluding that the above site was very accessible to social,

recretional, educational, commercial, and health facilities and

services and other municipal facilities. In fact, it appears

that the above site is superior to many other sites in Jef-

ferson Parish in that all of the above amenities outlined

can be accessed by these residents without motorized

transportation.“(emphasis added) (Vicari Exhibits No. 7

& 8)

5. Plaintiff purchased the property relying upon

the authority delegated to the Jefferson Parish Housing

A-14

Authority as described by Mr. Yenni in his letter to HUD

dated December 14, 1990; and, which authority had been

delegated far in advance of the purchase of the property by

plaintiff on December 29, 1989. (Vicari Exhibit No. 1 and

Exhibit D #12)

6. The Housing Authority of Jefferson Parish executed

a contract with plaintiff, the effective date of that agreement

being May 30, 1991. (Vicari Exhibit No. 5)

7. On August 22, 1991, prior to commencing demoli-

tion of plaintiff's apartment complex, defendant/appellee had

actual knowledge that HUD had given its final approval to

the contract between the Housing Authority of Jefferson

Parish and plaintiff. (Vicari Exhibit No. 11)

8. Mr. Paul Connick, Sr., admitted having a meeting

with plaintiff's representative, Mr. Peter G. Vicari, who ad-

vised Mr. Connick of the approval by HUD, which meeting

was on or about August 22, 1991. At that meeting Mr. Con-

nick told Mr. Vicari that he did not care about HUD’S ap-

proval and was going to demolish plaintiff's buildings

anyway. Mr. Connick’s agreed that he knew of HUD’S ap-

proval. (Record: Vol. 3, p. 35, lines 18-20XRecord: Vol 2,

p. 396, lines 12-32XRecord: Vol. 3, p. 631)

9. Plaintiff's sole asset was the apartment complex

demolished by the Parish of Jefferson and Mr. Peter G. Vicari

lacked authority, as a matter of law, to dispose of that asset

in any manner whatsoever. (Testimony of Barbara Vicari,

Vol 3, p. 654, lines 6-32; p. 655, lines 1-8)

10. Mr. Peter G. Vicari was not the agent for service

Decne”

A-15

of process on plaintiff, and, as a matter of strict construction

of the law, plaintiff did not receive sufficient notice of these

condemnation proceedings. (Testimony of Barbara Vicari,

Vol. 3, lines 19-25)

11. The conduct of Mr. Paul Connick, Sr., in having

plaintiff's apartment complex demolished were acts on his

part, which are not reasonably related to the legitimate

governmental objective of the Parish of Jefferson to par-

ticipate in JUD’S Section 8 Project Based Assistance Pro-

gram; furthemore, such conduct was outrageous, reckless and

flagrant misconduct for which the Parish of Jefferson is liable

to plaintiff. (Testimony of Mr. Connick; Record: Vol.

three, p. 628 lines 25-32, p. 629 lines 1-24)

ARGUMENT ON ASSIGNMENT OF ERRORS 1 AND 2

PART 1.

Defendant/Appellee, the Parish of Jefferson, demand-

ed in the ORDERS dated May 24, 1991 that Vicari perform

certain remedial or curative work on the buildings so that

permits could be issued and work begun on the apartments.

In those orders, which are already part of the record before

this Honorable Court, Vicari was directed to Exhibit C of the

order remedy the defects, which states in part:

2. The owner has until the 30th day following the date

of this order to perform one of the following:

(a) obtain a building permit from the JEFFERSON

PARISH DEPARTMENT of INSPECTION and

CODE ENFORCEMENT for the repair of the building

A-16

and begin repairs to the building in conformity with

all applicable Parish and State Codes.

The Parish of Jefferson issued an ORDER similar to

this for all of Vicari’s buildings, each dated May 24, 1991.

On August 6, 1991, the Parish of Jefferson executed a

RELEASE OF ORDER for each of Vicari’s buildings. Paul

Connick, Sr., head of the Dangerous Building Abatement

Division of Jefferson Parish, signed each release. Each release

was executed before a notary public in the presence of two

witnesses. Each release states under oath “That said order

has been satisfied and that this affidavit is now made for

the purpose of authorizing and directing the Reorder of Mor-

tgages for the Parish of Jefferson to erase the said Order

entirely from his records.” (See Defendant’s Exhibit D #58)

La. Civil Code Article 1835 sets forth the significance

of an authentic act as it “constitutes full proof of the agree-

ment it contains, as against the parties, their heirs...’”’ La.

Civ. Code Art 1835. Article 1848 clearly states that

“(tlestimonial or other evidence may not be admitted to

negate or vary the contents of an authentic act or an act under

private signature.

In Brown v Drille, Inc., 630 So.2d 741, 93-1019 (La.

1994), the Supreme Court addressed the issue of allowing

parol evidence to modify the contents of an authentic act.

Louisiana courts, applying LSA-C.C. Art. 2056’s

general rule of construction, have not hesitated to

confine their analysis to the four corners of the in-

strument. When, as in that instance, a contract can

be construed from the four corners of the instru-

A-17

ment without looking to extrinsic evidence, the

question of contractual interpretation is

answered as a matter of law and thus summary

judgment is appropriate. Wilson v. Cost+Plus of

Vivian, Inc., 375 So.2d 683, 685 (La.App.2d Cir.

1979); Horton v. Mobley, 578 So.2d 977, 982

(La.App. 2d Cir. 1991).

Brown, at 749-750 (emphasis added). It is undeniable that

each of these releases is an authentic act and satisfies al]

of the formalities set forth in L.A.Civil code Article 1833.

The words of the releases are clear and explicit and lead to

no absurd consequences, therefore no further interpretation

may be made in search of the parties’ intent. La. Civ.Code

Art. 2046.

In Billiot v. MOMAR, Inc., 655 So.2d 363 (Ct. of App.

5th Cir. 1995) the Fifth Circuit Court of Appeals also address-

ed the issue of allowing parol evidence to refute or contradict

the terms of an authentic act.

The meaning and intent of the parties to writ-

ten contract which is clear, explicit, and leads

to no absurd consequence must be sought

within the four corners of the instrument, Bon-

fanti Marine, Inc. v. Clement, 439 so.2d 537

(La.App. 1st Cir. 1983); McClelland v. Security In-

dustrial Insurance Co., 426 So.2d 665 (La.App. Ist

Cir. 1982), writ denied, 430 So.2d 94 (La. 1983).

Parol evidence may not explain, vary, add to,

or subtract from the writing. Ashley Enterprises,

Inc. v. Esplanade Plaza Co., 425 So.2d 1010, 1012

(La.App.5th Cir.), writ denied, 482 So.2d 270

A-18

(La.1983); Carnpesi v. Margaret Plantation, 417

So.2d 1265, 1269 (La.App. 1st Cir.), writ denied, 422

so.2d 163 (La.1982); Mathieu v. Nettles, 383 So.2d

1337 (La.App. 3rd Cir.) writ denied, 390 So.2d 202

(La.1980).

Id. at 366 (emphasis added).

Defendant, the Parish of Jefferson, executed authen-

tic acts wherein it stated unequivocally that Vicari had com-

plied with the requirements of its ORDERS dated May 24,

1991. However, Defendant then proceeded to demolish

Vicari’s buildings without notice, operating under the

premise that Vicari had not complied with the requirements

of the ORDERS dated May 24, 1991.

In essence, the Parish of Jefferson had sworn under oath

that Vicari satisfied the requirements. Any other position

taken now by Defendant would be inconsistent with the

authentic acts recorded in the mortgage record of Jefferson

Parish, and would be an attempt to vary the terms of an

authentic act. The Civil Code and the jurisprudence are clear

that Defendant may not assert anything other than that

which it has already sworn to in its authentic act. Given the

inability of defendant to maintain any other position, it is

clear that defendant wrongfully demolished Vicari’s

buildings based on the “four corners’’; of defendant’s releases.

PART 2.

In this case the special statute upon which plaintiff

relies is LSA - R.S. 33:1236(11), which provides in pertinent

part:

EEE

A-19

(m) Housing development and services

organizations, including development of pro-

grams and services, under other federal hous-

ing legislation, for needy tenants and

homeowners, but not including mortgage loans

and long-term capital financing;

The Jefferson Parish Housing Authority was acting

under authority of the above quoted statute on behalf of the

Parish of Jefferson when it executed the contract with plain-

tiff. The objective of that statute was accomplished by the

Jefferson Parish Housing Authority; therefore, the demoli-

tion of plaintiff's apartment complex cannot be rationally

related to the exercise of police power by the Parish of Jef.-

ferson under the aegis of a general statute. See Abbott, supra.

LSA - R.S.33:1236 (49), provides in pertinent part:

(aXi) To enact ordinances relating to the repair and

condemnation of buildings, dwellings, and other

structures that have become derelict and present

a danger to the health and welfare of residents of

the parish upon adequate notice to the owner.

However, with respect to structures within a

historical preservation district, the governing

authority of the district shall have concurrent

authority with respect to such matters.

(ii) The phrase “derelict and present a danger

to the health and welfare”, as used in this

Paragraph, shall include, but not be limited to,

buildings or structures which have any of the

following characteristics:

A-20

(aa) Are structurally unsafe.

(bb) Are not provided with adequate egress.

(cc) Constitute a fire hazard. -

(dd) Are otherwise dangerous to human life.

(ee) By way of existing use or condition con-

stitute a hazard to public safety, health, or welfare

by reason of inadequate maintenance, dilapidation,

obsolescence, fire hazard, or abandonment.

.iii) Ordinances enacted pursuant to this

Paragraph may declare such derelict structures to

be public nuisances, and require their repair,

rehabilitation, demolition, or removal.

(iv) The governing authority of any parish

may request and the adjutant general may assign,

subject to the approval of the governor, national

guard personnel and equipment to assist in the

removal and demolition of condemned buildings,

structures, or public nuisances. The provisions of

this item shall be applicable when the budget for

the demolition and removal of condemned struc-

tures has been expended by the governing authority

of a parish. However, the request must be accom-

panied by documentation that all procedural pro-

tections and substantive restraints have been

adhered to by the governing authority. In the event

all protections and substantive restraints have been

adhered to by the governing authority, the parish

and their personnel and the national guard and

their personnel shall not be liable to the owner of

BRS i a aca ce ct

A-21

the building, structure, or public nuisance for any

damages sustained resulting from the demolition

of the building, structure, or public nuisance.

(bXi) In the exercise of the authority herein

granted, the governing authority of the parishes

of Jefferson. Calcasieu, Tangipahoa, St. Helena,

Quachita, West Baton Rouge, Iberville, Caddo, and

Livingston may, among other things but not by way

of limitation require or compel property owners

to repair or demolish such structures on their

property.

The Supreme Court of Louisiana explained the princi-

ple in Chappuis v. Reggie, 62 So.2d 92 (La., 1952). saying:

The uniform jurisprudence is to the effect that all

statutory provisions are to be given effect whenever

possible. LSA Civil Code of Louisiana, Art. 17; State

v. Texas Co., 205 La. 417, 17 So. 2d 569; Town of

Abbeville v. Police Jury, 207 La. 7 79, 22 So. 2d 62;

Melancon v. Mitzell, 216 La. 711, 44 So.2d 826. If

acts can be reconciled by a fair and reasonable in-

terpretation, it must be done since the repeal of

statute by implication is not favored and will not

be indulged if there is any other reasonable con-

struction. Town of Abbeville v. Police Jury, supra;

State v. Standard Oil Co. of La., 188 La. 978, 1054,

178 So. 601; Mouledoux v. Maestri, 197 La. 525, 2

So. 2d 11; State v. Jones, 220 La. 381, 56 So. 2d 724.

Moreover, where two acts relating to the same sub-

ject are passed at the same legislative session, there

A-22

is a strong presumption against implied repeal, and

they are to be construed together, if possible, so as

to reconcile them, giving effect to each. State v.

Shushan, 206 La. 415, 19 So. 2d 185; City of New

Orleans v. Board of Supervisors of Elections, 216

La. 116, 43 So. 2d 237. In the latter case this Court

quoted with approval the following language:

“Where it is possible to do so, it is the duty of the

courts, in the construction of statutes, to harmonize

and reconcile laws * * *. These rules are particular-

ly applicable to statutes passed at or about the same

time or at the same session of the legislature, since

it is not to be presumed that the same body of men

would pass conflicting and incongruous acts.’ 216

La. at pages 144-145, 43 So.2d at page 246.

Therefore, the mandate of the Supreme Court of Louisiana

is that it is the duty of the court to harmonize and reconcile

the above quoted sections of LSA -R.S. 33:1236. Such har-

mony and reconciliation dictates that judgment be rendered

to favor of Plaintiff/Relator, Vicari contractors, Inc.

ii.

ARGUMENT ON ASSIGNMENT OF ERROR NO. 3

A more detailed explanation of the significance and

characterization of a consent judgment was given by the

Third Circuit Court of Appeal of Louisiana in the case of Suc-

cession of Morvant. 578 So.2d 549 (Ct. of App. 3rd Cir., 1991),

wherein the court said

A consent judgment is a bilateral contract and

must be based on consent, an essential element of

a contract. At the heart of the consent judgment

A-23

is an admission by a party to the litigation of the

validity of his opponent’s claim against him in such

a way as to leave no issue to be tried. Comment (c),

LSA - C.C.P. Art. 2085.

The jurisprudence has established certain

guidelines for determining whether a certain judg-

ment was consensual. In King v Crawford, 334

So.2d 476 (La.App. 1st Cir. 1976), writ refused, 337

so.2d 879 (La.1976), the appellate court refused to

dismiss an appeal, finding that although a consent

judgment was confected, the appellant the

withdrawal of his consent by refusing to sign it on

the ground that the judgment did not reflect the

stipulation to which all parties agreed. Likewise,

the various appellate courts have looked to other

procedural mechanisms utilized to show disagree-

ment with a consent judgment which would signify

rejection of the consensual requirement. In Martin

v. Holder Sheet Metal Works, Inc., 176 so.2nd 500

(La. 1979), the Supreme Court implied that it would

have considered the rejection of the consent judg-

ment had the employer’s attorney objected on

record to the provisions of the judgment or had he

moved for a new trial. See also Hill v Hill, 471

So.2nd 1130 (La.App. 3rd. Cir.1985)

The consent judgment at issue shows counsel for the

plaintiff refused to sign the consent judgment alleged to be

res judicata. By refusing to sign, the plaintiff, through his

counsel, signified the withdrawal of his consent. At that mo-

ment, the defendant, the Parish of Jefferson, was required

to seek judicial enforcement; rather than do so, the Parish

of Jefferson, proceeded at its peril to engage in infamous con-

duct by taking private property and destroying it after ad-

A-24

mitting, by the issuance of a building permit, that the private

property subject of the taking did not need to be destroyed.

In Morvant, supra, the court further recognized:

A compromise is a contract. LSA-C.C. Art.

3071. Legal agreements have the effect of law upon

the parties and the courts are bound to give legal

effect to all such contracts according to the true in-

tent of the parties. Smith v. Leger, 439 So.2d 1203

(La.App. 1st Cir.1983).

* * *

In the present case, the trial court correctly

concluded that the judgment of possession embodied

a compromise between the parties which was

recited into the record in open court. However,

under LSA-C.C. Art. 3079 and interpretative

jurisprudence, contracts of compromise may be

vitiated by error of fact bearing on the principal

cause, and may be rescinded whenever there exists

an error on the matter in dispute. Misuraca V.

Metropolitan Life Ins. Co., 199 La. 868, 7 So.2d 167

(1942).

There can be no doubt that the consent judgment, even

if the court should find that it is valid notwithstanding the

absence of the signature of counsel for the plaintiff, that it

may be vitiated by error of fact bearing on the principal cause,

and may be rescinded. The error in this case was the reliance

by the Parish of Jefferson on HUD’s admitted error in ap-

proving only fifteen (15) units.

a eNOS

A-25

see

lii.

ARGUMENT ON ASSIGNMENT OF ERROR NO. 4

Peter G. Vicari and Barbara T. Vicari have been mar-

ried to each other but once, and were living together as hus-

band and wife at the time of the formation of the corpora-

tion, Vicari Contractors, Inc. Since Vicari Contractors, Inc.

was formed during the marriage of Peter G. Vicari and Bar-

bara T. Vicari, and was formed using community funds,

Vicari Contractors, Inc. is a community owned business

enterprise.

In that regard, LSA - CC Art 2338, entitled Communi-

ty Property, provides:

The community property comprises; property ac-

quired during the existence of the legal regime

through the effort, skill, or industry of either

spouse, property acquired with community things

or with community and separate things, unless

classified as separate property under Article 2341;

property donated to the spouses jointly; natural

fruits of community; damages awarded for the loss

or injury to a thing belonging to the community;

and all property not classified by law as separate

property.

In International Stevedores Inc., v. Hanlon, 499 So.2d

1183 (5th Cir., 1986), this Court held:

A stock certificate is prima facia evidence of cor-

porate ownership, but is distinguished from actual

ownership, which may be determined from all the

facts and circumstances of the case. ...It is only

A-26

paper evidence of the ownership of shares of stock

created for convenience. It is not the certificate

which is subject to ownership, but the share of stock

itself.

As such, neither Mr. Vicari nor his wife, could have under-

taken to unilaterally dispose of that property designated as

community. Support for this concept is found in LSA - CC

Art. 2337 entitled Disposition of Undivided Interest, which

provides:

A spouse may not allienate, encumber, or lease to

a third person his undivided interest in the com-

munity or in particular things of the community

prior to the termination of the regime.

Generally, each spouse acting alone may manage, con-

trol, or dispose of community property unless otherwise pro-

vided by law. See C.C. Art. 2346. However, the laws deal-

ing with the management of community property recognize

exceptions which are pertinent to this case. The exceptions

are provided in C.C. Art. 2346 and stated by the phrase

“unless otherwise provided by law.”

In this case there are two (2) exceptions which are per-

tinent. The first is C.C. Art. 2347 which provides:

The concurrence of both spouses is required for the

alienation encumbrance, or lease of community im-

movables, furniture or furnishings while located in

the family home all or substantially, all of the

assets of a community enterprise and movables

issued or registered as provided by law in the names

A-27

of the spouses jointly. (Emphasis added)

Another such exception is found in C.C. Art. 2353

which addresses the effect of alienation of community pro-

perty by one of the spouses. That article provides:

When the concurrence of the spouses is required

by law, the alienation, encumbrance, or lease of

community property by a spouse is relatively null

uniess the other spouse has renounced the right to

concur. Also, the alienation, encumbrance, or

lease of the assets of a community enterprise by

the non-manager spouse is a relative nullity. (Em-

phasis added)

In the instant case not only is the controlling authori-

ty governing Mr. Vicari’s inability to disposes of the entire

asset base of the corporation as cited above, but the laws

respecting corporations, LSA R.S. 12:121, also govern the

voluntary transfer of corporate assets and, in pertinent part,

provides:

B. If the corporation is not insolvent, such authori-

ty may be given only by the shareholders, by vote

of at least two-thirds of the voting power present

(or by such greater or lesser proportions, not less

than a majority, of the voting power present or of

the total voting power, as the articles may require)

Thus, the above quoted pertinent part of LSA R.S. 12:121

is consistent with the laws regulating the management of

community property. The Consent Judgment which resulted

A-28

in the demolition of all of the assets of Vicari Contractors,

Inc. is not valid because LSA R.S, 12:121 required a vote

in favor of such action by Barbara T. Vicari, which she did

not give. Based on the reasoning in the above cited case, en-

titled International Stevedores Inc., v. Hanlon. Barbara T.

Vicari, by virtue of the laws regarding management of the

community property regime, owns a fifty percent (50%) in-

terest in the shares of stock of Vicari Contractors, Inc.

When the above three (3) articles regarding the com-

munity property regime are applied to the facts in this case,

it bocomes clear that the concurrence of both spouses is re-

quired to validy enter into an agreement which results in

a demolition of substantially all of the assets of a communi-

ty enterprise. Both spouses held executive positions with the

corporation. Peter G. Vicari held the office of president, and

Barbara T. Vacari held the office of secretary. The participa-

tion of each in the management of the assets of this communi-

ty enterprise is evidenced by the sale of property to Vicari

Contractors, Inc. on December 29, 1989.

The testimony of Barbara T. Vicari on rebuttal clearly

shows that she had not renounced her right to concur in the

alienation of the assets of a community enterprise; therefore,

the agreement reached in open court on August 2, 1991,

without the concurrence of Barbara T. Vicari is null under

the authority of C.C. Art. 2353.

iv.

ARGUMENT ON ASSIGNMENT OF ERROR NO. 5

PART I

The Supreme Court of the Louisiana, in Housemaster

Corp. V. City of Kenner, 374 So.2d 1240 (La., 1979) held:

ay FRE

A-29

; Generally, a municipality in the exercise of its

police power may, without compensation, destroy

a building or structure that is a menace to the

public safety or health. At a minimum, however,

that municipality must, before destroying a

building, give the owner sufficient notice and a

hearing to satisfy the governmental responsibili-

ty to accord due process of law. 7 E. McQuillan,

Municipal Corporations 24.561 (3d ed 1968); Miles

v. District of Columbia, 510 F.2d 188 (D.C. Cir.

1975). We consider it axiomatic that statutes pro-

viding these procedural protections and substantive

restraints must be strictly construed, particularly

to the requirement that the property owner be

notified of the hearing.

LSA - R.S. 33:4771 et seq governs the exercise of police

power by a political subdivision in the enforcement of its

building code. That statute, in pertinent part, provides:

(2) “Building Code’ means any building,

mechanical, plumbing, electrical, fire prevention,

or other regulatory code or ordinance adopted by

a political subdivision which established minimum

standards for the use, occupancy, design, planning,

engineering, construction, alteration, installation,

repair, maintenance, location, removal, or demoli-

tion of any building, structure, or improvement to

immovable property or for the quality of materials

or equipment used in connection therewith.

“|

A-30

(9) “Political subdivision” means any parish or

municipality which has authority to adopt and en-

force a building code pursuant to this Part. LSA

- R.S. 33:1236, any other general or special law,

any charter or home rule pian of government, or

any other authority or grant of power. (Emphasis

added)

Therefore, the Parish of Jefferson falls within the defini-

tion of the statute which governs the removal of dangerous

structures, particularly LSA -R.S. 33:4761, et seq. In that

regard, the Supreme Court of Louisiana has recognized that

LSA - R.S. 33:4762 is to be strictly complied with,

Housemaster, supra. that statute provides strict re-

quirements which must be satisfied before a governing |

authority can exercise its police power to demolish private |

property. LSA - R.S. 33:4762 A. provides: |

Before the governing authority may condemn any

building or structure, there must be submitted to

it a written report recommending the demolition

or removal of the building signed by some city

official or other person authorized to act in such

matters for the municipality. The mayor or chief

executive shall thereupon serve notice on the owner

of the building or structure requiring him to show

cause at a meeting of the governing authority,

regular or special, why the building or structure

should not be condemned. The date and hour of the

meeting shall be stated in the notice which shall |

be served at least ten days prior to the date of the |

hearing except in case of grave public emergency |

as thereinafter provided. The notice may be served

A-31

by registered or certified mail, postage prepaid, ad-

dressed to the owner at his last known address. The

notice may also be served by the marshal of the

municipality or by any sheriff or deputy sheriff or

constable having jurisdiction and power to serve

legal process where the owner of the buyilding or

structure is found in the State of Louisiana, and

their officer shall make return of the sservice as

in ordinary cases. (Emphasis added)

LSA = CC Art.17 [now CC Art. 13] states: “Laws on

the same subject matter must be interpreted wiwth reference

to each other.” The interpreter must also look to the provi-

sion of R.S. 33:4762 A, to determine the intent of the

Legislature that attaches to the police power delegated to

political subdivisions when the political subdivsion condemns

any building or structure. The requirement established by

the Legislature in R.S. 33:4762 A is that a written report

recommending the demolition must be signed by some official

authorized to act in such matters and, then, a meeting of the

governing authority of the political subdivision must be held

so that the gaoverning authority itself has the opportunity

to determine whether or not it should exercise police power

to demolish private property.

The Parish of Jefferson did not prepare a written report

recommending the demolition of plaintiff's building; nor was

a meeting of the governing authority convened for that pur-

pose. (Record: Vol. 3, p. 644) Therefore, the Parish of Jef-

ferson failed to strictly comply with Louisiana Law and

negligently demolished plaintiff's property causing substan-

tial economic damages.

A-32

PART II

The parish of Jefferson further failed to strictly comp-

ly with its own ordinance, number 18050, as amended by or-

dinance No. 18130. (Exhibit D #80). That ordinance ad-

dresses the procedures to be followed regarding the exercise

of its police powers to demolish dangerous buildings. Sec.

19-63 (f) (3) specifically restricts the demolition of a building

to one which cannot reasonably be repaired. The Parish of

Jefferson issued to Vicari Contractors, Inc. a building per-

mit (See Defendant/Appellee Exhibit No. D 52) (Record:

Vol. 1, p, 45) and thereby acknowledged that the building

could have been reasonaably repaired.

Furthermore, Sec. 19-63 (h) provides that after the

Owner has taken measures, i.e. obtained a building permit

to perform the remedial work, the Owner must receive notice

and the Hearing Officer shall reconvene the hearing before

he may issue a revised order that the building be demolished.

Accordingly, the Parish of Jefferson ignored not only

the laws of the State of Louisiana but also its own ordinance,

both of which establish a duty on the part of the governing

authority to determine that the building cannot reasonably

be repaired. The Parish of Jefferson violated that duty to the

plaintiff and caused substantial economic loss.

In conclusion, plaintiff/appellant vigorously argues that

the United States Department of Housing and Urban

Development, HUD, would certainly not have approved plain-

tiffs buildings for a federaly funded project if those buildings

could not reasonably be repaired.

A-33

PART III

Delegation Of Legislative Power To

Executive Branch Prohibited As Unconstitutional

The Supreme Court of Louisiana has had occasion to

decide how administrative officers can administer laws. In

Commissioner of Agriculture v. Plaquemines Parish Com-

mission Council, 439 So.2d 348 (La. 1983). our Supreme

Court held:

Here, the statute has no standards to guide the ad-

visory commission on pesticides or the commis-

sioner in determining whether to approve or disap-

prove more restrictive regulations by local political

subdivisions. Absent any standards, the require-

ment is void as an unconstitutional delegation of

legislative power to the executive branch of

government.

Neither Mr. Connick nor Mr. Butler were given any

standards to guide them. If there was any delegation at all,

it was to the “independent hearing officer”. Therefore, to the

extent that any delegation to them may have been intended

by the Jefferson Parish Council and, considering both

testified that they acted in ignorance of the resolution of the

Council, the President’s letters and the contract executed by

the Jefferson Parish Housing Authority, such a delegation

of police powers is unconstitutional.

It is axiomatic that at the time the decision was made

by Mr. Connick to demolish Plaintiff's/Relator’s private pro-

perty, all other decisions affecting private property were

made by a vote of the Jefferson Parish Council. The various

A-34

boards and commissions acted in an advisory capacity only.

Stated another way, the Jefferson Parish Council did not

delegate its decision making authority to boards and com-

missions such as the Zoning Appeal Board, the Planning Ad-

visory Board and the Standards and Appeals Board (Building

Code). Presently, the decision to demolish private property

is determined by a vote of the Jefferson Parish Council, a

right of due process which was denied to Vicari Contractor,

Inc. because Mr. Connick alone made that decision.

Additionally, the Supreme Court of Louisiana has held

that a local governmental authority cannot prohibit a per-

son from performing acts after a license (permit) has been

issued, City of Shreveport v. Restivo, 491 So.2d 377 (La.

1986), reasoning:

The critical issue involves the Code’s prohibition

against a journeyman plumber’s engaging in any

manner in the business of plumbing, although he

holds an occupational license from the State, unless

he or a member of his firm is licensed as a master

plumber. Therein lies a possible conflict between

the Code and the statutes, but the issue is more ap-

proriately addressed in terms of the reasonable ex-

ercise of the City’s police power.

Police power is the power of a governmental

body to impose laws and regulations which are

reasonably related to the protection or promotion

of a public good such as health, safety or welfare.

City of Shreveport v. Curry, 357 So.2d 1078, 1079

(La. 1978). The business of plumbing is so intimate-

ly connected with the public health as to be general-

ly the proper subject of regulation under the police

Se a ee eee ee |

A-35

power of the governing authority. State v. Malory,

168 La. 742, 123 So. 310 (1929). However, it is also

necessary to determine whether the section under

scrutiny is reasonably related to some objective con-

cerned with public health.

As previously stated, there was no evidence

whatsoever in the record. Moreover, there is no ap-

parent reason related to the public health why a

licensed journeyman plumber cannot engage in the

business of plumbing to the extent of repairing a

leaking lavatory without being a master plumber

or being in a firm with a master plumber. (FN5)

The Code recognizes that such work does not even

necessitate the issuance of a permit. The same ob-

jective which apparently prompted the City to re-

quire licensing of master plumbers cannot be said

to warrant requiring a master plumber’s license to

fix a leaking lavatory.

On the narrow issue presented in this case,

we hold that the City of Shreveport may not enforce

Section 102.1 against a licensed journeyman

plumber who engages in the plumbing business to

the extent of repairing a leaking lavatoy.

The demolition of plaintiff's apartment complex was not

reasonably related to some objective concerned with public

health simply because the Parish of Jefferson issued to |

plaintiff a building permit, and, thereby admitting that

something other than demolition was reasonable.

The Supreme Court of Louisiana has further held, in

Coliseum Square Association v. City of New Orleans, 544

So.2d 351 (La. 1989).

A-36

It is a violation of good faith to the public, and to

those who acquired property in reference to the plan

of a city with a view to the enjoyment of the use

thus publicly granted, to afterwards appropriate a

street to private uses. City of Baton Rouge v. T.J.

Bird, Sheriff, et al, 21 La.Ann. 244 (1869). Also see

De Armas, et al. v. mayor, etc. of New-Orleans, 5

La. 132 (1833), dismissed for lack of jurisdiction 34

U.S. (9 Pet.) 224, 9 L.Ed. 109 (1835).

Plaintiff in the case at bar acquired property in

reference to the plan of the Parish of Jefferson as described

by Hon. Michael J. Yenni, Parish President, in his letter to

HUD dated December 14, 1990. The demolition of its pro-

perty was a violation of good faith since, Mr. Connick pro-

ceeded to have plaintiff's buildings demolished having ar-

rived at that conclusion arbitrarily and capriciously, com-

pletely contrary to substantiated competent evidence, i.e.,

the building permit, JPHA’s contract with plaintiff, letters

from the parish president, the council resolution and

HUD’s approval. The Supreme Court in Coliseum, supra,

defined arbitrary and capricious as:

Generally, “capriciously” has been defined as a con-

clusion of a commission when the conclusion is an-

nounded with no substantial evidence to support

it, or a conclusion contrary to substantiated com-

petent evidence or of the proper weight thereof.

Favrot v. Jefferson Parish Council, 470 So.2d 286

(La. App. 5th Cir. 1985); Torrance v. Caddo Parish

Police Jury, supra.

A-37

Part IV.

Parish Administrative Officials Had No Discretion

The Supreme Court of Louisiana applied its interpreta-

tion of the discretionary function exception in two recent

cases.

In Rick v. State, Dept. of Transp. and Development,

630 So.2d 1271, (La. 1994), the Supreme Court made the

following analysis:

This Court considered the discretionary function ex-

ception to state liability in Fowler v. Roberts, 556

So.2d 1 (La.1989). Judicial inteference in executive

actions involving public policy is restrained by the

exception. The Louisiana statute immunizes public

entities like the DOTD from liability for policy-

based decisions.

A two-step analysis determines whether the

exception applies. Berkovitz by Berkovitz v. U.S.,

486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531

(1988). First, a court must determine whether the

action is a matter of choice. If no options are involv-

ed, the exception does not apply. If the action in-

volves selection among alternatives, the court must

determine whether the choice was policy based.

Decisions at an operational level can be discre-

tionary if based on policy. U.S. v. Gaubert, 499 U.S.

315, 111 S. Ct. 1267, 113 L.Ed.2d 335 (1991).

The DOTD argues that whether a particular

crossing is selected for upgrade is a matter of discre-

tion protected by the exception. Selecting one cross-

ing for upgrade in preference to another equally

A-38

deserving crossing would probably be a policy deci-

sion. However, this crossing was not selected for

earlier upgrade because the DOTD negligently

assigned it a low hazard index. It the DOTD had

examined its own data, it would have assigned a

much higher hazard index to this crossing. Using

1974 data to formulate a 1986 hazard index was

not a policy decision. It was operational negligence

on the part of the DOTD. this operational

negligence and the resulting low hazard index

postponed the improvement of this crossing.

After the crossing was selected for upgrade

in 1986, there was further delay which the DOTD

attributes to the railroad’s failure to respond. The

erroneous hazard index submitted to the railroad

may have contributed to the delayed reaction of the

railroad. The DOTD admitted that it made no ef-

fort to obtain a timely response and did not calen-

dar or monitor the railroad’s reaction. The DOTD

does not ascertain that a railroad has even receiv-

ed a priority notice. The railroad prepares the

upgrade plans and estimates under an unknown

timetable. These plans and estimates were receiv-

ed from the Illinois Central Railroad on September

2, 1988, after Mrs. Rick’s accident. The DOTD’s

failure to inquire about the status of the cross-

ing upgrade constituted further operational

negligence. The failure was not shown to be bas-

ed on any policy considerations. Compare Simeon

v. Doe, 618 So.2d 848 (La. 1993). (emphasis added)

The Parish of Jefferson introduced evidence of its own

“operatioinal negligence’ when it proved that it had

knowledge of all the fires that occurred in 1988-89, a period

A-39

of two years, and did nothing toward proceeding to declare

; the property dangerous; instead, having such knowledge, the

Parish of Jefferson placed nothing in the public records to

alert plaintiff, an innocent purchaser, that the apartment

| complex was a target of its police power objective to protect

and promote the lives, health, morals, comfort, and general

/ welfare of its people as a whole.

The Supreme Court of Louisiana further classified

ey “delay” as operational negligence in Archon v. Union Pacific |

R.R., 657 So.2d 987, (La. 1995), thusly: |

Having found that DOTD was negligent in

failing to install adequate warning signs or devices

at the Van-Ply crossing and that this breach was

a cause-in-fact of Archon’s death, we now consider

DOTD’s assertion that the discretionary function

exception of LSA-R.S. 9:2798.1 operates to shield

it from liability.

LSA-R.S. 9:2798.1 provides immunity from

liability for “public entities or their officers or

employees based upon the exercise or performance

or the failure to exercise or perform their policy-

making or discretionary acts when such acts are

within the course and scope of their lawful powers

and duties.”” We have adopted a two-step test for

determining when this exception applies. See

Fowler v. Roberts, 556 So.2d 1, 15 (La.1989) (citing

Berkovitz v. Berkovitz v. United States, 486 U.S.

531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). First,

the court must determine whether the government

action is a matter of choice. If it is not (because some

statute,

A-40

regulation, or policy prescribes a specific course of

action to follow), then the exception does not apply

and there is no immunity. On the other hand, if the

action does involve an element of choice or discre-

tion, then the court must determine “whether that

discretion is the kind which is shielded by the ex-

ception, that is, one grounded in social, economic

or political policy.” Id. Only those actions based on

public policy are protected by the statute. Id.

In evaluating DOTD’s actions in this case, we

are mindful of dicta in Rick that the selection of

one crossing in preference to another equally deser-

ving crossing is more likely a policy decision and

thus, by implication, shielded under the discre-

tionary function exception. In that same case,

however, we deemed as operational negligence, and

thus not protected, DOTD’s negligence in failing

to obtain a timely response from the railroad regar-

ding the upgrade plans after the site had been

selected.

DOTD argues that in the instant case no such

operational negligence occurred as the upgrade pro-

cess was not unduly delayed. (FN18) While we

agree with DOTD’s contention that it proceded ef-

ficiently through the federal approval process once

the Van-Ply crossing was finally selected for im-

provement, we refuse to extend immunity to

DOTD’s failure to install flashing lights (or provide

some other more adequate warning device) after it

had acknowledged in 1983 that such action was re-

quired. DOTD’s failure to follow through on, or im-

plement, its mandate to install these warning

devices is operational negligence not protected by

A-41

LSA-R.S. 9:2798.1. (FN19) We agree with the

California Supreme Court observation that “{a]

governmental entity may not, ostrich-like, hide its

head in the blueprints, blithely ignoring the actual

operation of the plan. “See Baldwin v. State, 6

Cal.3d 424, 99 Cal. Rptr. 145, 491 P.2d 1121, 1127

(1972). In Rick, we criticized and deemed as opera-

tional negligence DOTD’s failure to monitor the

railroad’s approval of the planned upgrade because

it resulted in delayed implementation of the deci-

sion to improve the crossing. DOTD’s fault in this

case lies not in any policy decision, as that decision

had already been made, but in its ignoring the

numerous complaints, as well as its own findings,

regarding the hazardous nature of the Van-Ply

crossing and the obvious need for, and its-promise

to install, active signalization.

DOTD has not suggested any social, economic,

or political policy that was the basis for its failure

to comply with its own mandate; rather, DOTD ap-

pears to have simply forgotten the obligation it had

taken on, and it provides no explanation for that

lapse. Nor does it attempt to explain why it ig-

nored the repeated letters.it had received as ear-

ly as December, 1987 requesting investigation of

the crossing. As we noted to Fowler, “{wJhen the

government acts negligently for reasons unrelated

to public policy considerations, it is liable to those

it injures.” Fowler v. Roberts, 556 So.2d 1, 15-16

(La.1989). Thus, the decision whether or not to re-

quire flashing lights at the crossing might have

been one for which DOTD had no liability because

tht decision necessarily involves the exercise of

governmental discretion. On the other hand, the

lengthy delay of over six years in effectuating a

A-42

decision already made is not a discretionary call

that qualifies for similar treatment.(emphasis

added)

Likewise, the Parish of Jefferson introduced evidence

of complaints about fires but made no attempt to explain why

it did nothing during 1988-89 to protect the public, including

innocent purchases, like Vicari Contractors, Inc., from the

consequence of fire. Such a consequence of fire included the

use of complaints of fires to justify targeting property for

demolition. (See Record: Volume III, pp. 487 ff)

ARGUMENT ON ASSIGNMENT OF ERRORS 6 AND 7

The affidavits which are filed and the exhibits which

are referred to in plaintiff's opposition to defendant’s motion

for summary judgment clearly show fraud and ill practice

regarding the conduct of Mr. Paul Connick, Sr., among other

employees of the Parish of Jefferson, with respect to the

method of enforcement pursued by Mr. Paul Connick, Sr. The

petition to annul the judgment should not have been

dismissed.

As an example, the affidavit of Mr. Paul Connick, Sr.

filed in these proceedings on March 26, 1993 at 4:35 p.m. in

statement number 14 recites that Judge Porteous gave the

following order to plaintiff/appellant:

Now, ya'll agreed to this and at ten o’clock thirty

days from this date, the Parish can go in and tear

these buildings down unless Vicari does what he

says what he’s going to do. I don’t want to see you

back in this court.

AAT AME: Stee FOP IN Op TOE

A-43

Mr. Paul Connick, Sr. goes on to attribute the following state-

ment to Judge Porteous:

Judge Porteous specifically told Vicari:

You don’t come back to me — you’ve got your orders

to do what you’ve got to do.

The transcript of the proceedings before Judge Porteous

which were held on December 15, 1993 and which are attach-

ed to plaintiff's opposition, (Record: Vol. 1, p. 175-176)

specifically pages 14 and 15, show that judge Porteous ad-

vised counsel present that he had no recollection of making

these above referenced statements attributed to him by Mr.

Connick; and, then on page 15, Mr. Anzelmo, then the at-

torney for the Pa1.sh of Jefferson, frankly states that it is

he, Mr. Anzelmo, who made the statement and that he was

in error in doing so.

Mr. Paul Connick, Sr., affiant, certainly knew that the

statement which he attributed to Judge Porteous was in er-

ror but, nevertheless, signed that statement under oath.

Clearly, these transcripts and affidavits justify a cross-

examination of Mr. Paul Connick, Sr., for impeachment pur-

poses as well as credibility on the following issues: (See

Record: Voi. 1, 97 CA 168, pp. 162-175)

1. Did Mr. Connick purger himself in signing that

affidavit and in doing so attempt to create a

justification which did not exist for the Parish

Of Jefferson to demolish plaintiff's property?

2. Under what authority did Mr. Connick proceed

A-44

to destroy plaintiff's property as well as his con-

duct in doing so since the transcript of the agree-

ment, as it has been identified by both the trial

Court and the Court of Appeals, shows that the

Plaintiff intended that he be given further notice

even though it might not be recited in the judg-

ment? (Exhibit Vicari #10)

3. Was the conduct of Mr. Paul Connick, Sr. in con-

formity with the ordinance of the Parish of Jef-

ferson. Plaintiff strongly disputes that Mr. Con-

nick’s conduct complied with the ordinance of the

Parish of Jefferson and, this issue of fact is reason

enough for the Petition to Annul the judgment

to survive.

vi.

ARGUMENT ON ASSIGNMENT OF ERROR NO.8

LSA - C.E. Art. 615 entitled Exclusion of Witnesses provides:

A. As a matter of right; exceptions. On its own

motion the court may, and on request of a party the

court shall order that the witnesses be excluded

from the courtroom or from a place where they can

see or hear the proceedings, and refrain from

discussing the facts of the case with anyone other

than counsel in the case. In the interests of justice,

the court may exempt any witness from its order

of exclusion. However, this article does not

authorize exclusion of:

eT See ee eT ee ee ee en ee er Onn eee. Oe et Wine merts oper vty

A-45

(2) A single officer or single employee of a party

which is not a nataural person designated as its

representative or case agent by its attorney.

** *

Counsel for plaintiff/appellant at the commencement

of trial moved for sequestration of witnesses. A colloquy en-

sued wherein the judge allowed both Messrs. Connick and

Butler to be qualified as representatives of Jefferson Parish

over the specific objection of counsel for plaintiff/appellant.

Here, Messrs. Connick and Butler were material witnesses.

Either of them were qualified representatives of Jefferson

Parish; and, pursuant to LSA - C.E. Art. 615 (2) it is a man-

datory requirement to have one remain leaving the other

susceptible to plaintiff's/appellant’s request for sequestration.

While-indersigned counsel did state the word “okey”’

after the ruling of the trial judge, that was merely stated to

acknowledge the ruling of the trial judge and not an ac-

quiescence to the ruling. Undersigned counsel clearly stated

his objection to the court’s ruling during the colloquy which

resulted in that ruling. Under these conditions, plaintiff/ap-

pellant did not receive a fair trial according to proper judicial

proceedings.

A-46

CONCLUSION

The Parish of Jefferson is liable to plaintiff for the

demolition of its apartment complex caused by the opera-

tional negligence of its administrative officers.

Additionally, plaintiff did not receive proper notice

through its designated agent for service of process and, as

such, denied plaintiff its fundamental right to due process

of law. Housemaster Corp. v. City of Kenner, 374 So.2d 1240

(La. 1979) (See testimony of Barbara Vicari. (Record: Vol.

3, p. 654, lines 6-32; p. 655, lines 1-8)

Respectfully submitted,

/s/ Stephen J. Caire

Stephen J. Caire

Attorney At Law

P.O.Box 1248

Metairie, LA. 70004-1248

Process Service:

1900 Destrehan Avenue

Harvey, LA 70058

(504) 341-9500 (Office)

(504) 347-7471 (FAX)

(504) 454-6623 (Voice Mail)

Attorney for Plaintiff/Appellant

Vicari Contractors, Inc.

A-47

VERIFICATION

STATE OF LOUISIANA

PARISH OF JEFFERSON

BEFORE ME, the undersigned Notary Public, duly

commissioned and qualified in and for the parish and state

aforesaid,

PERSONALLY CAME AND APPEARED:

STEPHEN J. CAIRE

who being by me first duly sworn, did depose and say that

he is the attorney for Relator herein and that all of the allega-

tions of fact contained in the foregoing Petition for Super-

visory Writs are true and correct to the best of his knowledge,

information and belief; and that he has delivered a copy of

the foregoing petition to the Clerk, Court of Appeal, Fifth

Circuit, State of Louisiana, Courthouse, Gretna, Louisiana,

and that he has served a copy of the foregoing brief served

upon the Parish of Jefferson through their attorneys of record

Mr. Daniel A. Ranson and Michael D. Peytavin, (Attorney

for Defendant/Appellee, The Parish of Jefferson), 401

Whitney Avenue, Gretna, Louisiana 70056, (504) 362-2466,

by placing a copy of same in the United States Mail, First

Class postage pre-paid on this 17th day of December, 1997.

. : se

A-48

Harvey, Louisiana on this 17th day of December, 1997.

/s/_ Stephen J. Caire

STEPHEN J. CAIRE

SWORN TO AND SUBSCRIBED

BEFORE ME ON THIS 17th DAY OF

December, 1997,

/s/ — Megible

NOTARY PUBLIC

A-49

APPENDIX B

Agreement/Contract Number:

U.S. DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, SECTION 8

HOUSING ASSISTANCE PAYMENTS PROGRAM

SECTION 8 CERTIFICATE PROGRAM

PROJECT BASED AGREEMENT

PART I

AGREEMENT TO ENTER INTO HOUSING ASSISTANCE

PAYMENT CONTRACT

This Agreement to Enter Into Assistance Payments Contract

(* Agreement *) is between the Housing Authority of the

Parish of Jefferson (* PHA *),

and Vicari Contractors, Inc.

(* owner *),.

The owner agrees to complete the rehabilitation of unit(s)

in accordance with the work write-up attached as Exhibit

B. When the rehabilitation is completed, the (owner and the

PHA will enter into a Housing Assistance Contract

(*Contract*) which will allow the owner to receive housing

assistance payments from PHA on behalf of eligible lower-

Income Families(*Families*) so that they may afford the

unit(s). The PHA has executed an Annual Contributions Con-

tract (*ACC*) with HUD by which HUD agrees to provide

funds to the PHA to make these housing assistance payments.

1.1 Significant Dates: Contents of Agreement.

A. Effective date of Agreement: 5-30-91 .

A-50

. Date of Comencement of work. The date for comence-

ment work ( see Section 1.41A) is not later than 60

calendar days after the effective date of this

agreement.

. Time for Completion of Work. The date for comple

tion of the work ( see Section 1.411) is not later than

250 calendar days after the effective date of this

Agreement.

. Contents of the Agreement. This agreement consists

of Part I, Part II , Fors HUD 52521 B (if applicable,

see Section 1.2) , and the following exhibits:

Exhibit A: The approval Owner’s proposal.

Exhibit B: The work write-up.

Exhibit C: Identification of units be size, address, and

applicable Coniract Rents.

Exhibit D: The Housing Assistance Payments Con-

tract (* Contract* ) complete with respect

to the Agreement/Contract number, the

identification of PHA and Owner, and Ex:

hibit B.

Exhibit E: The schedule of completion of stages, if ap.

plicable. (This exhibit should identify the

units in each stage).

Additional Exhibits: ( Specify additional exhibits, suck

as Davis-Bacon Wage Rate Schedule, I!

any, If none, insert “None”’.)

This agreement, including the exhibits, is the entire

Agreement between the RHA and the

Owner.

1.2

2.1

2.2.

2.3

2.11 Flood Insurance.

A-51

Applicability of Part II Provisions.

Training, Employment, and Contracting Opportunities

for business and Lower Income Persons. ( Applies if the

total of ___tract Rents for all units under the propos-

ed contract, over its maximum ( if the contract,

is more than $500,000 or $2,778 per month.)

( ) Applicable (~) Not Applicable

Equal Employment Opportunity. ( Applies only to con-

struction contracts of more than $10,000.)

( ) Applicable (~) Not Applicable

Clean Air Act and Federal Water Pollution Control

A-_. ( Applies if the total of Contract Rents for for all

units under the proposed Contract, over the maximun

term of the contract, is more than $100,000 or $550 per

month.)

( ) Applicable (~~) Not Applicabale

2.8, and 2.10 Labor Standards Requirements. ( Section

2.4, 2.* and 2.10 only when this Agreement covers nine

or more units.) 2.4 HUD-Federal Labor Standards

Mines i | 0 6h” lees

2.1___Evidence of Unitial Completion:

( ( Applicable (~) Not Applicable

( ) Applicable (~) Not Applicable

1.3

1.4

A-52

PHA Assurance to Owner.

The PHA warrants that it is a “Public housing agen-

cy” as defined in the U.S. Energy Act of 19___., that

if authorized to execute an Agreement in accordance

with HUD Regulations and requirements and that is

____ an Act with HUD.

Schedule of Completion.

A. Timely Performance of work. The Owner agrees to

begin work no later than the date for commence-

ment of work as stated in Section 1.1(9). In the event

the work is not commensed, diliquently continued

and competed as required under this Agreement,

the PHA may terminate this agreement: or take

other appropriate action. The Owner agrees to

report promptly to the PHA the date work is com-

menced and furnish the PHA with progress reports

as required by the PHA.

B. Time for Completion. All work must be completed

no later than the end of the period stated in Sec-

tion 1.1 (C). Where completion in stages is provid-

ed for, work related to units included in each stage

shall be completed by the stage completion date in

Exhibit E, and all work on all stages must be com-

pleted no later than the end of the period stated in

Section 1.1(C).

C. Delays. in the event there is a delay in the comple-

tion due to unforeseen factors beyond the Owner’s

control as determined by the PHA, the PHA agrees

to extend the time for completion as appropriate.

;

’

A-53

1.5 Rehabilitation Period.

A. Contract Rents. The initial Contract Rent for each

unit must be determined in accordance with HUD

requirement. The Contract Rents stated in Exhibit

C will be the initial Contract Rents specified in the

Contract unless decreases are made by the PHA (1)

in accordance with paragraph (B) of this section or

(2) to correct PHA errors in determination of initial

Contract Rents in accordance with HUD re-

quirements. The initial Contract Rents listed in Ex-

hibit C of this Agreement may not increase for any

reason, including changes in rehabilitation work.

. Changes in Rehabilitation Work. The Owner must

obtain prior PHA approval for any change from the

work specified in Exhibit B which would alter the

design or quality of the rehabilitation. The PHA

may disapprove any changes requested by the

Owner. PHA approval of changes may be condition-

ed on a reduction of Contracts Rents in the amount

determined by the PHA. If the Owner takes any

changes without prior PHA approval, the PHA may

reduce Contract Rents in the amount determined

by the PHA, and may require the Owner to ready

any deficiencies prior to, and as a condition for ac-

ceptance of the units.

. List of Vacancies. Sixty days prior to the schedul-

ed completion of the rehabilitation ( Where com-

pletion in stages is provided, sixty days prior to com-

pletion of rehabilitation on each stage), the Owner

agrees to notify the PHA in writing of any unit(s)

A-54

expected to be vacant at the anticipated effective

date of the Contract. The PHA agrees to refer to

the Owner appropriate-sized families from the PHA

waiting list. When the Contract is executed, the

Owner agrees to notify the PHA which units are

vacant.

. Limitation on Requiring Tenants to Move.

1. The Owner agrees that, during the period from

submission of the Owner’s proposal to the PHA un-

til completion of the work pursuant to this Agree-

ment, lawful residential tenants of the property (

building or complex) have not been and must not

be required to move from the property except in ac-

cordance with the following:

(a) Tenants may not be required to move per-

manent from the property.

(b) Tenants may not be required to move tem-

porarily from the property unless:

(1.) The tenants have received adequate, ad-

vance written notice and appropriate ad-

visory services.

(2.) deceit, safe, and sanitary temporary

housing is available.

(3.) the temporary relocation period will not

exceed 12 months, and

(4.) the Owner will reimburse the tenants

for reasonable out-of-pocket expenses ‘ as

eA kA eR ee ied aoe 8

pa RAR Bape a,

eer ees

A-55

determined in accordance with HUD requirements)

incurred in connection with the temporary

relocation.

2. The provisions of paragraph (D((D do not apply:

(a) to tenants of the property who comence oc-

cupancy after submission of the Owner’s

proposal to the PHA, if the Owner gives the

tenants, prior to commencement of occupan-

cy, adequate notice of impending rehabilita-

tion and possibility that the tenant may be

required to move from the property, or

(B) to a termination of tenancy for serious or

repeated violation of the terms and condi-

tions of the lease; violation of applicable

Federal, State, or local law; or other good

cause. (For this purpose, good cause does not

include expiration of the lease term or a ter-

mination of tenancy because of the Owner’s

participation in the Section 8 Project Bas-

ed Certificate Program.)

E. Inspections. The PHA will inspect during

rehabilitation to insure that work is proceding

on schedule, is being accomplished with the

terms of the Agreement, and meets the levels of

workmanship and materials specified in the work

writeups.

1.6 Work Completion. Work Completion.

A. Conference with Exhibit B. The completed work must

A-56

be in accordance with Exhibit B. The owner is solely

responsible for completion of the work.

Notification of Completion. The owner agrees to

notify the PHA when the work is completed and

to submit to the PHA the items described in

paragraph (C) of this section.

. Evidence of Completion. When the work is com-

pleted, the Owner must provide the PHA with the

following:

1.A certificate of occupancy and/or official ap-

provals as requird by the locality.

2.A certification by the Owner that:

(a) the work has been completed in accor-

dance with the requirements of this

Agreement;

(b) The unit(s) is in good and tenantable

condition;

work except for items of delayed completion

which are minor or which are incomplete

because of weather conditions and, in any

case, do not preclude or affect occupancy:

(d) The unit(s) has been rehabilitated in ac-

cordance with applicable zoning, building,

housing and other codes, ordinances or

A-57

regulations, as codified by any waiver obtained

from appropriate officials;

(e) any unit built prior to 1978 is in compliance

with applicable HUD Lead Based Paint —

tions; and

(f) If Labor Standards Requirements are ap-

plicable, the Owner has complied with the re-

quirements of Section 2.10 of this Agreement.

D. Review and Inspection.

After receipt of the evidence of completion,

the PHA agrees to review the evidence of

completion for compliance with paragraph

2.10

A PHA representative must inspect the

unit(s) to be assisted to determine that the

work has been completed in accordance with

the Agreement. If the inspection discloses

defects or deficiencies, the inspector will

report these with sufficient detail and infor-

mation for purposes of paragraph (f) of this

section.

E. Acceptance. If the PHA determines from the review

and inspection that the units meet the Housing

Quality Standards (or other standards approved by

HUD) for the program and the work has been com-

pleted in accordance with the Agreement, the

A-58

unit(s) must be accepted.

F Acceptance Where Defects or Deficiencies

Reported. If the work is not acceptable, the follow-

ing shall apply:

1. Ifthere are any items of delayed completion

which are minor items or which are in-

complete because of weather conditions and

in any other case which do not preclude or

affect occupancy, and all other requirements

of the Agreement have been set, the unit(s)

may be accepted. The Owner shall deposit

in escrow with the PHA funds in an amount

the PHA determines to be sufficient to

assure completion of the delayed items, and

shall execute a written agreement with the

PHA ( in the form prescribed by the PHA)

which specifies the schedule for completion

of the items. If the items are not completed

within the agreed time period, the PHA may

terminate the Contract or exercise other

rights under the Contract.

2 .If other deficiencies exist, the PHA must deter-

mine whether and to what extent the deficien-

cies are correctable, and whether the Contract

Rents and term of the Contract should be reduc-

ed. The Owner must be notified of the PHA’s

decision.

G. Notification of Nonacceptance. If the PHA deter-

mines that, based on the review of the evidence of

ee oe ee

ee ee ae Od

Le LT SNE Secon nT ewe Ee ey UN eg aT Meee Ee ee eee a

A-59

completion and inspection, the units cannot be ac-

cepted, the Owner must be promptly notified of this

decision and the reasons.

H. Completion in Stages. Where completion in stages

is provided for, the procedures of this section shal]

apply to each stage.

1.7 Execution of Housing Assistance Payments Contract.

A. Time and Execution. Upon acceptance of the unity

by the PHA, the Owner and the PHA agree to ex-

ecute the Contract.

B. Completion in Stages. Where completion in stages

is provided for, the number and types of units in

each stage, and the Contract Rents for such units,

shall be separately shown in Exhibit A of the Con-

tract for such stage. Upon acceptance of the first

stage, the Owner will execute the Contract and

signature block provided in the Contract for that

stage. Upon acceptance of each subsequent stage,

the Owner will execute the signature block provid-

ed in the Contract for such stages.

C. Form of Contract. The terms of the Contract shal]

be as provided in Exhibit D of this Agreement. Prior

to execution by the PHA or the Owner, all blanks

in the Contract shall be completed by the PHA.

There will be no change in the terms of the Con-

tract other than as provided in this Agreement.

1.8 Cooperation in Equal Opportunity Compliance Reviews:

Nondiscrimination.

A-60

The Owner and the PHA agree to cooperate with

HUD in the conducting of the compliance review

and complaint investigatiaons pursuant to all ap-

plicable civil rights statutes, Executive Orders,

and rules and regulations.

.In the carrying out of the obligations under this

Agreement, the Owner will not discrimninate

against any employee or applicant for employ-

ment because of race, color, creed, religion, sex,

handicap or national origin. The Owner will take

affirmative action to insure that applicants that

are employed, and employees are treated during

employment, without regard to their race, col-

or, creed, religion, sex, handicap or national

origin. Such action shall include, but not be

limited to the following: employment, upgrading,

demotion, or transfer; recruitment or recruitment

advertising; layoff or termination; rates of pay

or other forms of compensation; and selection for

training, including apprenticeship.

The Owner to post in a conspicuous places,

available to employees and applicants for employ-

ment, notices to be provided by HUD setting

forth the provisions of this nondiscrimination

clause. The Owner will in all solicitations or

advertisements for employees placed bay or on

behalf of the Owner state that all qualified ap-

plicants will receive consideration for employ-

ment without regard to race, color, creed,

religion, sex, handicap or national origin. The

Owner will incorporate the foregoing re-

quirements of this paragraph (B) in all of its con-

A-61

tracts for project work, except contracts for stan-

dard commercial supplies or raw materials, and

will require all of its contractors for such work

to incorporate such requirements in all subcon-

tracts for project work.

1.9 PHA and Owner Relation to Third Parties.

A. Nonperformance of Contractor. The PHA has not

assured any responsibility or liability for the per-

formance of any contractor, subcontractor or sup-

plier, whether or not listed by the PHA as a

qualified contractor or supplier under the program.

The selection of a rehabilitation contractor, subcon-

tractor or supplies is the sole responsibility of the

Owner, and the PHA has no involvement in any

such relationship.

B. Injury Resulting from Rehabilitation. The PHA has

not assured any responsibility for or liability to any

person including a resident of the unit undergoing

rehabilitation, injured as a result of the rehabilita-

tion or as a result of other action or failure to act

by the Owner.

C. Legal Relationship. The Owner is not the agent of

the PHA, and this agreement does not create or af-

fect any relationship between the PHA and any

lender to the Owner or any suppliers, employer, con-

tractors or subcontractors used by the Owner in the

implementation of the Agreement.

D. Exclusion of Third Party Claims. Nothing in this

agreement shall be construed as creating any right

A-62

of a Family or other third party ( other than HUD)

to enforce any provision of this Agreement or the

Contract or to assert any claim against HUD, the

PHA or the Owner under the Agreement or the

Contract.

E. Exclusion of Owner Claims Against HUD. Nothing

in this agreement shall be construed as creating

any right of the Owner to assert any claim against

HUD.

1.10 Rights of HUD if PHA Defaults Under Agreement.

1.11

If HUD determines that the PHA has failed to comply

with this Agreement, or has failed to take appropriate

action, to HUD’s satisfaction or as directed by HUD,

for enforcement of the PHA’s rights under this agree-

ment, HUD may assure the PHA’s rights and obliga-

tions under this Agreement, and may perform the

obligations and enforce the rights of the PHA under

the Agreement. HUD will, if it determines that the

Owner is not in default, pay Annual Contributions for

the purpose of asking housing assistance payments

with respect to the dweiling units(s) under this Agree-

ment for the duration of the Contract.

Interest of Members, Officers, or Employees of PHA,

Members of Local Governing Body, or Other Public

Officials.

No present or former member or officer of the PHA (ex-

cept tenant-commissioners), no employee of the PHA

who fomulates policy or influences decisions with

respect to the Section 8 Program, and no public official

or member of a governing body or State or local

1.12

1.13

A-63

legislator who exercises functions or responsibilities

with respect to the Section 8 Program, shall have

any direct or indirect interest, during his or her

tenure or for one year thereafter, in this Agreement

or the Contract or in any proceeds or benefits aris-

ing from the Agreement or Contract. This provi-

sion may be waived by HUD for good cause.

Interest of Member of or Delegate to Congress.

No member of or delegate to the Congress of the United

States of America or resident commissioner shall be

admitted to any share or part of this Agreement or to

any benefits which may arise therefrom.

Assignment of the Agreement or Contract or Interest in

it.

A. The Owner agrees that the Owner has not made

and will not make any transfer in any form, in-

cluding any sale or assignment of this Agreement

or the Contract or the property without the prior

written consent of the PHA. A change in ownership

in the Owner, such as a stock transfer or transfer

of the interest of a limited partner, is not subject

to the provisions of this section. Transfer of the in-

terest of a general partner is subject to the provi-

sions of this section.

B. The PHA will give its consent to a transfer of the

Agreement or Contract pursuant to paragraph (A)

of this section if the transfree agrees in writing (in

a form acceptable to the PHA) to comply with all

the terms of the Agreement and Contract, and if

the transferee is acceptable to the PHA.) The PHA’s

A-64

criteria for acceptance of the transferee must be no

more restrictive than for initial acceptance of any

Owner under the Program at the time of the

Owner’s request.

C. If an Owner is proposing to pledge the Agreement

or HAP Contract as a security for financing, the

Owner must submit the financing documents to the

PHA for approval. In determing the approvability

of a pledge arrangment, the PHA must review the

documents submitted by the Owner to ensure that:

1. The financing documents do not purport to

pledge or give greater rights or payments

to any party against the PHA than are pro-

vided to the Owner under the Agreement or

HAP Contract and do not contain any re-

quirements inconsistent with the Agree-

ment or HAP Contract:

2. The PHA is not a party to any of the finan-

cing

( than

those already specified under the Agree-

ment of HAP Contract) in connection with

the

3. No moderation or alteration is proposed or

sale of the Agreement of HAP Contract.

1.14 Owner Assurance to the PHA.

A Contractor Selection. The Owner must select a

The owner agrees to require from each pro-

spective contractor a certification that neither

ee ee en ee

. A-65

the debarred, suspended,

proposed for deb , declared or

in contract: by the Comptroller

General or any Federal department or agency. The

Owner contracts to,

otherwise engage the services of, or fund any con-

tractor that does not provide this certification.

B. Rehabilitation Financing. The owner agrees not to

rehabilitate the units with assistance under the

U.S. Housing Act of 1937 (e.g., public housing and

rental rehabilitation program, housing develop-

ment tax except lands or other Section 8 pro-

grams) or the flexible subsidy program. The owner

warrants that the units were not hehabilitated with

assistance under the U.S. Housing Act of 1937 in

the five years before execution of the Agreement.

C. Ownership. The Owner warrants that the proper-

ty to be rehabilitated under this Agreement is not

owned by the PHA, or an entity controlled by the

PHA. ss

1.15 Other Federal Requirements.

The Owner shall comply with the requirements of

the following, where applicable:

A. Executive Orders 12432, Minority Business Enter-

prise Development, and : a

business Enterprise Policy.

B Executive Order 11625, Prescribing Additional

Arrangements for developing and Certifying a

National Program for Minority Business

Enterprises.

A-66 :

C. 24 CPR Part 24, Debarrent, Susension, and Limited

Denial of Participation.

1.16 HUD Requirements. The Agreement and the contract

shall be interpreted and implemented in acceptance

‘vith HUD requirements.

Termination of Contract. This Agreement or the Con-

tract can be terminated upon atleast 10 days written

notice to the by the PHA or HUD if the PHA

or HUD determines that the Contract Units are not

cpmpleted in accordance with the PHA’s written selec-

tion policy or that the Contract Units did not initialy

___. the HUD eligibility requirements.

PHA :Housing Authority of the Parish of Jeffer-

son Owner _ Vicari Contractors Inc.

By /s/_ Barry Bordelon By /s/ Illegible

Barry Bordelon, Chairman Pres.

Official Title

Date 5/30/91 Date 5/30/91

Warning: 18 U.S.C. 1001 provides, among other things,

that whereas knowingly and willingly

containing any false, fictitious, or fraudulent

statement within the jurisdiction of

any dapartment or agency of the United States, shall be fin-

ed not more than $10,000 or imprisioned for not more than

five years or both.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.