Environmental Court: Trampling Liberty

1. Environmental Court:Trampling Liberty Josh McKoon October 21, 2008

2. The Current Code/Environmental Court is Failing in Four Different Ways • The Appeal/Bond Process is Broken. • Violations should not carry criminal penalties. • The Code is vague and needs redrafting. • Enforcement is erratic, arbitrary and capricious.

3. Appeal/Bond Process is Broken • I represented Mrs. Corinne Holton in a hearing last week regarding 7 citations she was issued. • Mrs. Holton pled not guilty and we had a hearing that lasted approximately 2.5 hours. • At the close of the hearing the Judge found her guilty on all charges. • I had stated multiple times throughout the hearing that we intended to appeal several decisions, including the finding of guilt. • The Judge advised that the appeals process was handled by the clerks.

4. Appeal/Bond Process (Cont’d) • I accompanied Mrs. Holton to the rear of the Courtroom and into the area of Recorder’s Court that connects to the Muscogee County Jail • She was told that she had to pay her fines in full ($1,750.00) or appeal. I informed the clerk we intended to appeal within 5 days as the flyer posted at the window stated we could. • At this point I was told Mrs. Holton would not be released unless she immediately posted an appeal bond in the amount of $4,795.00 and appeal filing fees in the amount of $175.00.

5. Appeal/Bond Process (Cont’d) • Off to Jail • Mrs. Holton was ready, willing and able to pay the bond at Noon and was told the Judge had left the building, that the Judge had to sign the bond and that she would have to be processed into the County Jail even though I as her attorney could get the Judge to sign the bonds in 10 minutes. • Processing • I left the building at 12:40 and returned with Mrs. Holton’s and Ms. Hollis (more on her later) bonds signed at 1:00. I was told they were being processed and we would have to wait for them to be processed in before they could be processed out. • Waiting • Mrs. Holton was not released until after 2:30. She was stripped, forced to put on prison clothes, photographed, fingerprinted (after being told she would not be fingerprinted) and denied food and water during her entire ordeal.

6. Appeal/Bond Process (Cont’d) • Treatment • Mrs. Holton was only given the opportunity to use the restroom in an open facility in front of male inmates. She emerged from the jail emotionally and physically traumatized. • Geraldine Hollis • Ms. Hollis had a hearing before Mrs. Holton and was held in the back for the entire 2.5 hour period we were having our hearing. When I arrived back there and was trying to resolve Mrs. Holton’s appeal, I learned from Ms. Hollis that she was being told her paperwork was insufficient and had been told so for much of the time she was back there.

7. Appeal/Bond Process (Cont’d) • It became apparent to me that Ms. Hollis was not going to be given her appeal bond unless I stepped in and so I informed the clerks that I was representing Ms. Hollis as well. • I filled out the appeal bond paperwork in a fashion identical to that had been rejected when Ms. Hollis completed the forms and it was signed by the Judge and accepted by the clerks. • Ms. Hollis, whose forms and payment of appeal bond was made at the same time as Mrs. Holton, was not released until some time after 3:30 P.M.

8. Appeal/Bond Process (Cont’d) • Ms. Hollis’s Ordeal • It was much the same as Mrs. Holton. She was taken to jail, stripped, forced to wear prison attire, photographed, fingerprinted (after being told she would not be fingerprinted) and denied food and water. • What’s Wrong With This Picture? • Mrs. Holton’s total fines would have been $1,750.00, but she had to come up with $4,970.00 to appeal her case. • Ms. Hollis fines totaled $100.00 but she had to come up with $1,420.00 to appeal her case.

9. Appeal/Bond Process (Cont’d) • The Purpose of an Appeal Bond is to insure that the penalty (in this case a fine) will be paid if the appealing party loses and also to insure they appear in Court. • The bonds in both of these cases were set at 3 times and 14 times the fines respectively, and there was no likelihood that either Mrs. Holton or Ms. Hollis were going to skip town. After all they live here, run businesses here and pay taxes here. • And what exactly was the “crime” here? In Mrs. Holton’s case, she had code violations related to the operation of a mobile home park.

10. Appeal/Bond Process (Cont’d) • In Ms. Hollis’s case, she was accused of letting her grass grow too high and of obstruction for calling the police when the code enforcement officer repeatedly refused her request to serve her with the initial citation and leave her home. • The fact is the Bond Process in Recorder’s Court is broken and if the Recorder’s Court refuses to fix it, you can by amending the Charter to provide express direction for setting bonds in cases involving environmental code violations.

11. Why Criminal Sanctions? • Of course the terrible injustice done to Mrs. Holton and Ms. Hollis is not simply a product of the broken Appeal/Bond Process in Recorder’s Court. • The fact is that no criminal sanction should be provided for violating Chapter 13 of the Code of Ordinances. • Chapter 13 covers nuisances any as such a civil money penalty (fine) should be the only penalty for violation. • A survey of other city ordinances finds that Athens-Clarke County, Atlanta and other major cities treat this as purely a civil enforcement action.

12. Why Criminal Sanctions? (Cont’d) • Criminal Sanctions make no sense from a public policy perspective. Locking up Mrs. Holton and/or Ms. Hollis will not lead to an abatement of the nuisance. In fact, it will make it more likely that the nuisance remains if they are not free to handle it. • The excessive appeal bond also requires those who wish to fight their tickets to put up enormous sums to guarantee their freedom that could otherwise be used to abate the nuisance complained of by the City. • In America, we should be very careful what offense merits depriving someone of their liberty. Simply put, in the United States, you should not be going to jail for failure to cut your grass.

13. The Code is Vague • Sec. 13-113 • Let us turn first to Ms. Hollis’s “Crime”, violation of Sec. 13-113 titled, “Weeds—Defined; prohibition” • It states in part, “It shall be unlawful for the occupant of any occupied lot of land in the city, or the owner of any unoccupied lot in the city, or for any agent or representative of any such occupant or owner, to permit or maintain on such lot any growth of weeds or grass to a height of over 18 inches.” So who exactly is liable here? Is it the occupant, the owner or the agent/representative? I don’t know and I don’t think you can tell me. And how long do you have to cut it. Ms. Hollis was on her way to cut the grass when hit with the citation.

14. The Code is Vague (Cont’d) • Sec. 13B-404.02 • SOIL AND GROUND COVER. Exposed ground surfaces in all parts of every mobile home park shall be paved, or covered with stone screenings, or other landscaping material, or protected with a vegetative growth that is capable of preventing soil erosion and of eliminating objectionable dust and/or mud. • This is one of several offenses Mrs. Holton was charged with by Code Enforcement. Now I asked why Mrs. Holton was cited when it was admitted that the ground cover problems were all on lots leased by her to tenants who failed to adhere to the Code despite Mrs. Holton’s instructions. No one could give me an answer. Because Mrs. Holton is being cited even though she doesn’t own the subject property. And again, how long may the ground be exposed before it is a violation? What if Mrs. Holton is putting down ground cover regularly and it is being removed by tenants, as was often the case?

15. The Code is Vague (Cont’d) • Sec. 13B-404.03 • SITE DRAINAGE REQUIREMENTS. The ground surface in all parts of every mobile home park shall be graded and equipped to drain all surface water in a safe, efficient manner in order to eliminate water pockets, low areas or bogs. • When I asked the Code Enforcement official the standard to which the ground surface should be graded, she told me that you would need to rely on a third party contractor for their “best judgment”. • When I asked how quickly an area must drain to be deemed to do so in a safe, efficient manner, I heard a phrase repeated throughout the hearing: It’s a Judgment Call.

16. The Code is Vague (Cont’d) • Sec. 13B-305(f)(1) & (3) • (f)   Nonconforming mobile home parks shall conform with the following roadway standards within 14 months from the adoption of the ordinance from which this section derives: • (1)   Pavement.  Roadways within the park shall be constructed in accordance with one of the following standards:  • a.   Six inches of compacted graded aggregate base, well crowned or sloped for drainage; or • b.   Four inches of compacted aggregate base, with a one and one-half inch bitumens asphaltic concrete surface; or • c.   Five inches of reinforced Portland cement concrete pavement. • (3)   Minimum maintenance standards.  Roadways shall be maintained free of ruts, holes, and standing water. 

17. The Code is Vague (Cont’d) • Now we established that Pine Grove Mobile Home Park, which Mrs. Holton operates, has asphalt roads and the Code Enforcement official admitted that she didn’t know if there were 4 inches of gravel underneath it or not, but said Mrs. Holton was still somehow violating (f)(1). • When asked about being free of ruts and holes, the Code Enforcement official said you would be cited for any rut or hole. When I asked if a golf ball sized hole would warrant a citation, I heard that phrase again: Judgment Call.

18. The Code is Vague (Cont’d) • Sec. 13B-407.  Electrical distribution system. • Every park shall contain an electrical wiring system consisting of wiring, fixtures, equipment and appurtenances, and each mobile home stand shall be equipped with a minimum of 100 ampere service, which shall be installed and maintained in accordance with applicable electric codes of Columbus, Georgia. • Now there was no evidence presented at the hearing that Pine Grove was not meeting this standard, although one may wonder what electric codes apply to Columbus, Georgia, when do they change, where could I go to find that out—maybe that is something that should be in a law that if you violate you will be sent to jail for 30 days.

19. The Code is Vague (Cont’d) • Sec. 13B-410.02. Mobile home parks shall be maintained free of accumulations of debris which may provide rodent harborage or breeding places for flies, mosquitoes and other pests. • OK, how much debris has to be on site for it to be considered an accumulation of debris? I don’t know about you but I don’t know how much of what kind of debris “may provide rodent harborage or breeding places for flies, mosquitoes and other pests.” When asked about this, you guessed it, whether you are in violation is a “Judgment Call”.

20. The Code is Vague (Cont’d) • Sec. 13B-410.05. The growth of brush, weeds and grass shall be controlled to prevent harborage of ticks, chiggers and other noxious insects. Mobile home parks shall be so maintained as to prevent the growth or ragweed, poison ivy, poison oak, poison sumac and other noxious weeds considered detrimental to health. Open areas shall be maintained free of heavy undergrowth of any description. • At least Ms. Hollis had the 18 inches to know about. How in the world do you meet the standard about ticks, chiggers, and other noxious insects?

21. Enforcement: Erratic, Arbitrary & Capricious • In Mrs. Holton’s case, she had received a notice in 1999 about some, but not all, of these issues. • In December of 2000, a timeline was worked out to resolve the ground cover issue only, making it appear that no other violations were at issue then. • Between December of 2000 and August 20, 2008 when the citations issued, there is no documentation of any contact from Code Enforcement with Mrs. Holton about Pine Grove. • This means either a) Mrs. Holton was in continuous violation for 8 years and no one thought it was important enough to cite her or b) when a sewer problem occurred at the park (caused by a tenant) Code Enforcement just decided for whatever reason to throw the book at Mrs. Holton

22. Enforcement: Erratic, Arbitrary & Capricious • Without prolonging what is a necessarily involved presentation, let it be made clear that numerous mobile home parks in the same area have not been cited for more egregious violations than Pine Grove. • Ms. Hollis has also had numerous run-ins with Code Enforcement regarding a vacant lot she owns which neighboring property owners routinely use as a dump. Again, the property owners dumping on Ms. Hollis are not cited. Ms. Hollis is. • This might all have a certain comedic value to it except for the fact that two women, who are taxpayers in this community and otherwise law abiding citizens were thrown into our jail with common criminals for not having their grass cut. Put simply, this is an obscenity and should never be allowed to happen again in our community.

23. Solutions • I did not come just to complain, but to offer solutions. • First—end the ridiculous appeal bond practice in Recorder’s Court. How? Simple. Amend Sec. 5-602 of the Charter to read as follows (new language highlighted): • Sec. 5-602.  Appeal bond; trial de novo. • (1) Any person or persons found guilty by the recorder upon a plea of not guilty, when charged in violation of an ordinance of the consolidated government other than violations of Chapter 13 or Chapter 13B of the Code of Ordinances of Columbus, Georgia, shall have the right of appeal to the city court from the recorder's court in the same manner and under the same procedure as now prescribed by law for such appeals. • (2) Any violation of Chapter 13 or Chapter 13B an appeal shall lie to the State Court of Muscogee County as a matter of right, upon payment of the total fines assessed into Court or the filing of a pauper’s affidavit

24. Solutions • Second, de-criminalize Chapter 13 and 13B Violations by amending these Code Sections: • Sec. 13-118.  Penalty. • Any person violating any provision of this article shall, upon conviction in the recorder's court, be assessed a fine not to exceed $250.00 for each violation. No other sanction shall lie for a violation of any provision of this article. • Sec. 13B-801.  Penalties. • Any person who violates any provision of this chapter shall upon conviction be assessed a fine not to exceed $250.00 for each violation. No other sanction shall lie for a violation of any provision of this article.

25. Solutions • Finally, revise Chapter 13 and Chapter 13B to provide specific, objective standards for violation. • Why? As any student of the law knows, criminal statutes are supposed to be strict liability. I know for example, if I exceed the objective speed limit of 55 MPH that I am guilty of speeding. I don’t know if I am violating any of the ordinances I have reviewed today because violation is in the eye of the beholder and not subject to an agreed upon standard. • In America, we should take deprivation of liberty very seriously. We should not be throwing anyone in jail because of their failure to meet, in the judgment of a Code Enforcement Officer, an arbitrary and moving standard codified in our Code of Ordinances.