|Legal Opinion: |
Text of Document: August 2, 1993
Your question is, what action can the city take against a pallet manufacturer who is in violation of the fire code? The first step is to cite him to city court for such violations.
Under the facts reflected in the fire inspections you mailed to me, there is no question but what the pallet manufacturer is in violation of the fire code. I don't think it necessary to point out the areas in which that is true; you have already done a good job of that.
With respect to the question of whether the piles of pallet wood represent "lumber" within the meaning of the fire code, I can find no specific law. However, I have no doubt the courts would find them to be lumber. Nothing in the fire code suggests that the sole location of lumber within the meaning of the fire code is a lumber yard.
A heavy fine levied for each violation ought to encourage the pallet manufacturer to clean up his act rather quickly.
Of course, the pallet manufacturer has the right to appeal a conviction in municipal court to circuit court, and to a jury trial in circuit court. In theory, that could considerably delay the effort of the city to make him conform to the fire code. However, nothing prevents the city from charging him in municipal court with successsive violations during the appeals process. In addition, the municipal court can make the pallet manufacturer pay the fine immediately upon conviction, even if he appeals the conviction to circuit court.
In State v. Benton, 15 TAM 28-37 (Ct.Crim.App., 1990) an attorney convicted by the Bradley County General Sessions Court for speeding was fined $50 and costs. She appealed that conviction to the Court of Criminal Appeals. At some point not clear in the case the general sessions court made her pay the fine and costs. One of her arguments to the court of criminal appeals was that it was improper for the general sessions court to require her to pay the fine and costs while the case was being appealed. The court of appeals rejected that argument, declaring that Tennessee Code Annotated, section 40-24-101, "gives any court in this state, including a municipal court, the authority to direct a convicted defendant to pay the entire amount of a fine at the time the sentence is pronounced." [Emphasis is mine.]
Obviously, if the municipal court won't make him pay the fine at the time of conviction that provision won't help you, but State v. Benton should be brought to the attention of the municipal court, and under the facts you might get a sympathetic judge.
Sidney D. Hemsley
Senior Law Consultant