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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 815

## Text

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

i
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

ii
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

iv
TABLE OF AUTHORITIES (continued)

Page

Constitutional Provisions, Statutes and Regulations:

BS SE WET Oe ei icinsihiisasisvcnsnidienciescaddohcsas ccicnenbaiaiins 12
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

1

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-

2

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* ~~

3

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.

4

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

5

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

6

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.

8

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

9

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,

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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
(c) Summary of the Argument......................:ccccceeees 3
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

a.
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.

b.
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.

A

c.

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.,

As
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

A8

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

A.
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.

B.

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

1
|

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

ee

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

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)

v.
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.

:
i
;
i
’
3
3

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.

B.

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;

(c) There are no defects or deficiencies in the
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.

Bs

After receipt of the evidence of completion,
the PHA agrees to review the evidence of
completion for compliance with paragraph
(C) of this section and, if applicable, Section
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.

ne

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.

=e

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1575%3A2. Public record. Not legal advice.