|Legal Opinion: |
Text of Document: FROM: Donna Leydorf, Legal Consultant
DATE: November 22, 2000
RE: Appeal Bond
This memo is a follow-up to a discussion we had last week about whether a person appealing a fine for a building code violation needs to pay the fine during the pendency of the appeal. I re-read your email dated Nov. 14, 2000, and find that I omitted discussion of a section in the City code the City Administrator pointed out that allows for an intermediate level of appeal for a building code violation to the Board of Codes. Section 12-108 provides:
Appeals to the board of codes appeals concerning interpretation or administration of this title may be taken by any person aggrieved or by any officer or bureau of the governing body of the city affected by any decision of the codes enforcement officer. Such appeals shall be taken within a reasonable time, not to exceed 60 days or such lesser period as may be provided by the rules of the board, by filing with the codes enforcement officer and with the board of codes appeals a notice of appeal specifying the grounds thereof. The codes enforcement officer shall forthwith transmit to the board all papers constituting the record upon which the action appealed from was taken.
The board of codes appeals shall fix a reasonable time for the hearing of appeal, give public notice thereof as well as due notice to the parties in interest, and decide the same within a reasonable time. At the hearing, any party may appear in person or by agent or attorney.
Notice of appeal shall be in writing and when filed, shall be accompanied by a fee of twenty-five dollars ($25.00)
There is another section that answers the Administrator’s question about what happens to the fine imposed during the pendency of the appeal. Section 12-109 states:
An appeal stays all proceedings in furtherance of the action appealed from unless the codes enforcement officer from whom the appeal is taken certifies to the board of codes appeals after the notice of appeal is filed with him, that by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed, other than by a restraining order which may be granted by the board of codes appeals or by a court of record on application, on notice to the codes enforcement officer from whom the appeal is taken and on due cause shown.
The term “stay” means that the fine would not be collected until the appeal has concluded. If the person appealing wins his/her appeal, the fine would be voided.
The Administrator also asked if it is necessary for the city to give notice of the right to appeal to the board of codes appeals before sending the matter to city court. I see no requirement in the code for such notice, but as a practical matter, a lot of confusion could be avoided if that notice is provided with the original citation of violation.
Your code also provides for appeal of a code enforcement issue to the circuit court. Your code adopts §27-5-101, Tennessee Code Annotated in Chapter 4 which states:
Any person dissatisfied with the judgment of a recorder or other officer of a municipality charged with the conduct of trials, in a civil action, may, within ten (10) days thereafter, Sundays exclusive, appeal to the next term of circuit court.
This is the chapter which provides for posting of an appeal bond of $250, or the combined amount of the fine and costs levied by the city court, whichever amount is greater. Note that Section 3-403 allows for the posting of the bond in three separate ways: 1) a cash deposit; 2) by corporate surety company authorized to do business in Tennessee; or 3) by two (2) private persons who individually own real property located within the County. The City Attorney can explain further the details of posting such bonds.
Let me know if you have further questions.