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Municipal Technical Advisory Service (MTAS)

Original Author: Hemsley, Sid
Date of Material: 03/27/2012

Fines and court costs

Authority of the City Court to Impose Fines

Reviewed Date: 07/26/2021
MTAS was asked to analyze several questions related to the authority of the municipal court to impose fines.

March 27, 2012

Dear Senior Staff Administrator:

You have several questions related to municipal code enforcement:

Questions 1 and 2:
1. What is the maximum fine/penalty that can be imposed by the city judge for municipal code violations?
2. In municipal ordinance cases, can each day constitute a separate violation and separate offense?

As a practical matter, the maximum fine that can be levied by the municipal court is $50. However, apparently if the ordinance on which the fine is based provides that each day of a violation shall constitute a separate violation, the courts will uphold $50 fines for each day the ordinance is violated.

I have addressed these questions with respect to municipal code enforcement, and have attached a memo I did on that subject that is still current, except for the implications that the Municipal Court Reform Act of 2004, as amended, has on municipal fines. As that memo points out, the Tennessee Supreme Court in City of Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001), held that the maximum punitive fine that could be imposed by a municipal court is $50, but that the same courts could levy remedial fines of up to $500. I have seen nothing that changes that “rule,” except that § 16-18-302(a)(2) of the Municipal Court Reform Act of 2004, as amended, provides that:

A municipal court also possesses jurisdiction to enforce any municipal law or ordinance that mirrors, substantially duplicates or incorporates by cross-reference the language of a state criminal statute, if and only if the state criminal statute mirrored, duplicated or cross-referenced is a Class C misdemeanor and the maximum penalty prescribed by municipal law or ordinance is a civil fine not in excess of fifty dollars ($50.00).

But § 16-18-302(a)(1) of the Municipal Court Reform Act of 2004 also gives municipal courts jurisdiction over two other classes of offenses:
1. For violation of the laws and ordinances of the municipality; or
2. Arising under the laws and ordinances of the municipality.

Generally, municipal code enforcement violations arise under § 16-18-302(a)(1), as opposed to
§ 16-8-302(a)(2), of the Municipal Court Reform Act of 2004, as amended. Nothing is said in that statute about any fine limitations on the two classes of municipal offenses that fall under § 16-18-302(a)(1). But we know from Davis, that if the fine under those two classes of offenses is “punitive “ rather than “remedial” the limit of the fine is $50.

Therein lays a definitional problem: making the distinction between “punitive” and “remedial.” Davis appears to have established a two-part test to make that determination:

1. Is the intent of the legislation that establishes the penalty punitive or remedial? If it is punitive, the fines under it are punitive.
2. If the intent of the legislation that establishes the penalty is remedial, is the application and effect of the penalty punitive or remedial?
With respect to the part of that case that dealt with building code violations [Barrett v. Metropolitan Government], the Court outlined the functions of remedial fines, which I will quote at length, for no other reason than to demonstrate the difficulty of making the distinction between punitive and remedial fines:

Various courts have attempted to describe the attributes typically associated with civil, remedial measures. Some courts have recognized that remedial measures are typically “corrective and equitable in kind.” See Dyna–Med, Inc. v. Fair Employment & Housing Comm’n, 43 Cal.3d 1379, 241 Cal.Rptr. 67, 743 P.2d 1323, 1327 (1987)(citation omitted). They are designed primarily “ ‘to rectify,’ [or] to ‘put right,’ ” Langford v. Couch, 50 F.Supp.2d 544, 547 (E.D.Va.1999)(citation omitted), and they may consist of “[any]thing that corrects, counteracts, or removes an evil or wrong.” State v. Zerkel, 900 P.2d 744, 748 (Alaska Ct.App.1995)(citation omitted); Cabinet Realty, Inc. v. Planning & Zoning Comm’n, 17 Conn.App. 344, 552 A.2d 1218, 1221 (1989). Quite simply, therefore, remedial measures are any “means by which a right is enforced or the violation of a right is prevented, redressed, or compensated.” Overman v. Southwestern Bell Tel. Co., 675 S.W.2d 419, 423 (Mo.Ct.App.1984)(citation omitted).

Using these definitions as our guide, it is immediately apparent that many sanctions in Title 16 are corrective in nature and therefore serve remedial purposes. Some of these remedial sanctions include the issuance of a stop-work order, Code of Laws § 16.04.110, the revocation of any permit or approval, id. § 16.04.120, and the ability of the director of codes administration *270 to require proof of compliance with the Code at the expense of the owner or agent, id. § 16.04.140. In each of these cases, the sanction seeks to correct or to halt the then-existing violation of the Code.

However, a monetary penalty often stands in sharp contrast to other remedial measures, because a monetary penalty can serve but a few truly remedial purposes. Some examples of truly remedial purposes served by monetary penalties include those that (1) compensate for loss; (2) reimburse for expenses; (3) disgorge “ill-gotten” gains; (4) provide restitution for harm; and (5) ensure compliance with an order or directive, either through the execution of a bond, or as discussed below, through a prospectively coercive fine. Importantly, however, to the extent that a monetary penalty is not designed to serve these or similar goals, it will appear more likely to predominantly serve the purpose of general and specific deterrence. Although we agree that some level of deterrence is present in all remedial measures, when the predominant purposes served by the penalty are to provide general and specific deterrence and to ensure overall future compliance with the law, then the monetary penalty should be deemed as serving punitive purposes for analysis under Article VI, section 14.22
Specific Assessments in this Case
Leaving aside for a moment the penalty imposed for Barrett’s violation of the stop-work order, we turn our attention to the penalties imposed for Barrett’s failures to secure a building permit and for his improper installation of roof underlayment. Analyzing the actual purpose and effect of these monetary sanctions within the context of their statutory scheme, we first note that Title 16 of the Metropolitan Code of Laws does not appear to impose monetary penalties for the purpose of rectifying or otherwise correcting violations of its provisions. Rather, Title 16 imposes monetary penalties for past, completed violations of the Code of Laws without regard to correcting or rectifying any harm.

For example, the Code of Laws does not impose monetary penalties for the purpose of compensating the Metropolitan Government or any private party for any loss that has resulted from a failure to comply with its provisions. It does not impose monetary penalties to reimburse the Metropolitan Government, or any private party, for expenses incurred in inspecting sites, in ensuring compliance with its provisions, or in administering any court proceedings.23The Code does not impose *271 monetary penalties to disgorge defendants of any undeserved profits, nor does it impose monetary penalties to reimburse the Metropolitan Government, or any private party, for fixing the damage caused by a defendant’s noncompliance. Finally, the Code does not impose monetary penalties to secure execution of any type of bond to ensure compliance with a legal obligation or duty.

Moreover, the fines imposed in this case did not have the actual effect of correcting or remedying any of Barrett’s violations. We see no indication, for example, that the fines actually corrected the improper installation of roof underlayment. Although Barrett’s fines could have been used to pay for the installation of proper roof underlayment—and thereby give some remedial effect to that monetary sanction—it appears that these fines went into the Metropolitan Government’s general fund and were not used for this purpose. Moreover, we also see no indication that the penalties have mended any harm associated with Barrett’s three failures to secure a building permit. Indeed, whatever harm was caused by his failures in this regard, the fines cannot now be said to have arrested, alleviated, or rectified that harm, which is presumably still present to this day. Consequently, we must conclude that, unlike other sanctions available in Title 16, the fines imposed in this case do not have the actual effect of correcting or remedying any problem associated with Barrett’s violations of the Code.

As we stated earlier, we recognize that all fines, whether punitive or remedial in their actual purpose or effect, provide some measure of general and specific deterrence against noncompliance with the law. We also recognize that deterrence is one of several features that secures the benefits of remedial regulations such as these. However, Article VI, section 14does not consider, as a proper remedial purpose outside of its application, the deterrence provided by the fine or the benefits that such deterrence brings. To the extent that the deterrence associated with a fine appears to be its only or its predominant “remedial” aim, the fine is more properly characterized as being punitive in its actual purpose or effect. Therefore, we conclude that Barrett has shown by clear proof that the actual purpose and effect of these four fines were so punitive as to negate any remedial intent by the Metropolitan Council. Accordingly, we hold that Article VI, section 14applies with regard to these fines.

Assessment for the Violation of a Stop Work Order

Returning to the assessment for the violation of the stop-work order, we must initially acknowledge that this assessment is conceptually different from the other four fines. More so than the others, a fine for failing to comply with a stop-work order could be remedial if it were imposed as a prospectively coercive measure, i.e., to compel a defendant, then in violation of the Code, to conform to the terms of the order. Indeed, when viewed in this context, it appears that this type of fine is not so much concerned with the underlying violation of the law itself, as it is with ensuring that the underlying violation is corrected, rectified, or alleviated through other remedial measures.

In this manner, this type of fine is closely analogous to civil contempt fines, which are generally regarded as being remedial in nature when (1) the fine is prospectively coercive, or (2) the fine serves to compensate the party injured by the violation of the order. See, e.g., United Mine Workers v. Bagwell, 512 U.S. 821, 829, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). Importantly, though, because of its close kinship to *272 the traditional goals of punishment, a prospectively coercive fine possesses a limited ability to serve as a predominantly remedial measure. To this end, the United States Supreme Court has recognized in the civil contempt context that “[w]here a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to purge.” Id.(citing Penfield Co. of Cal. v. SEC, 330 U.S. 585, 590, 67 S.Ct. 918, 91 L.Ed. 1117 (1947)) (emphasis added); see also Parisi v. Broward County, 769 So.2d 359, 365 (Fla.2000). In fact, “[t]he absence of a purge provision means that the fine will be imposed regardless of reform and commitment to obey. A fine without a purge provision therefore suggests an intention to punish past misconduct rather than to insure future lawfulness.” New York State Nat’l Org. for Women v. Terry, 159 F.3d 86, 94 (2d Cir.1998).

The purging of a prospectively coercive fine may occur in two ways: (1) the fine is imposed and suspended pending future compliance, see Parisi, 769 So.2d at 365(citing Bagwell, 512 U.S. at 829), 114 S.Ct. 2552;see also Jessen v. Jessen, 5 Neb.App. 914, 567 N.W.2d 612, 618–19 (1997); or (2) the fine is imposed per diem, or for each day of noncompliance with an order or directive, see United States v. Ayres, 166 F.3d 991, 995 (9th Cir.1999). This second type of purgeable fine has been recognized as remedial because it “exert[s] a constant coercive pressure, and once the jural command is obeyed, the future, indefinite, daily fines are purged.” Bagwell, 512 U.S. at 829, 114 S.Ct. 2552.Thus, in a manner similar to imprisonment for civil contempt, it has been said that the defendant carries the ability to purge the contempt and to avoid further accumulation of fines. Id.By way of contrast, however, a fine that is fixed, determinant, and presents the defendant “no subsequent opportunity to reduce or avoid the fine through compliance,” must be deemed to be predominantly punitive in nature. Id.

Using this analogy to civil contempt fines, we conclude that the actual purpose and effect of the fine in this instance were to impose punishment for the violation of the stop-work order. Initially, it is clear that the fine imposed for the violation of the stop-work order did not go to compensate the Metropolitan Government for any damage suffered by the violation. Indeed, no proof was introduced at the hearing to calibrate the amount of the fine to the harm caused by Barrett’s failure to obey the stop-work order, thereby denying any claim that compensation was its true purpose.
Therefore, because this fine did not serve to compensate the Metropolitan Government for the harm caused by Barrett’s violation of the stop-work order, the fine may be considered remedial only if it could have been purged. However, the fine imposed in this case was fixed and determinate, and Barrett was presented with no opportunity to purge the fine or to escape its consequences by altering his future behavior. Moreover, although the Code of Laws permits per diem fines for the violation of a stop-work order, Code of Laws § 16.04.72(A), we see no indication that this particular five-hundred dollar fine was the result of a per diem fine imposed to arrest a continuing violation. Rather, the actual purpose of the maximum fine sought in this case is readily apparent from the Metropolitan Government’s closing argument before the general sessions court:

Time and time again [, Barrett] has expressed complete disregard for the Building Code, and I think that he won’t deny that. But it’s gone beyond that into some behavior, intimidating some of these Code employees and doing whatever he can to try and get by without having to pull a roofing permit. And to *273 me it just pushes the limits of decency and of good citizenship in this country.
Thus, because the fine was not compensatory, and because Barrett was not given a subsequent opportunity to reduce or avoid the fine, we must hold that even this fine was predominantly punitive in its actual purpose and effect and subject to Article VI, section 14. [At 269-73] [Emphases are mine]

Generally, the courts have followed Davis, giving few breaks to municipalities on the question of whether its fines in property maintenance cases are punitive or remedial, with one significant exception: where a municipal court fines a defendant $50 a day until he or she complies with the ordinance in question. [See Town of Nolensville v. King, 151 S.W.3d 427 (Tenn. 2004), City of Johnson City v. Paduch, 224 S.W.3d 868 (Tenn. Ct. App. 2007), in the attached memo, and the unreported case of City of Clarksville v. Dixon, 2005 WL 3504589 (Tenn. Ct. App.)].

However, in Paduch, both the city court and the circuit court ordered a storage building that the Paduchs had attached to one of their existing buildings, in violation of the city’s building code. The reason for the separation was that the building code required it in the absence of a sprinkler system the Paduchs had refused to install. The remedy, concluded the Court, was remedial rather than punitive.
It appears to me that fashioning penalties that are remedial can be an administrative nightmare for both municipalities and municipal courts. Again, making each day the ordinance at issue is violated a separate offense appears to be an exception where intention of that penalty is to stop the violation on the part of the defendant.

Question 3: What remedies are available if a violator is found guilty and fined, but fails to pay the fine and costs? I assume that this question applies to property maintenance and building code violations. Additional statutes apply to remedies in cases of traffic violations. Additional statutes also apply for remedies for failure to appear.

I have unsuccessfully tried several times over the years to find a simple, quick method to quantify the unpaid fines and costs in the municipal courts of the state. As far as I can determine, there is no economical, easy way for municipal courts to compel defendants who have been assessed fines and costs by municipal courts to pay such fines and costs. The threshold problem in this area, as indicated above, is that municipal courts are limited by Article VI, § 14, to “punitive” fines of only $50, and that the recovery of municipal fines is in the nature of a “debt.” The latter was said by the Tennessee Supreme Court several times in City of Chattanooga v. Myers, 787 S.W.2d 921 (ten. 1990), which analyzed at length the question of whether municipal offenses were criminal or civil offenses, and concluded that:

…for 130 years proceedings to recover fines for the violation of municipal ordinances have been considered civil for the purpose of procedure and appeal…The basis of the cases, accepted in Allen-Briggs is that an appeal to circuit court of a judgment of a municipal court –even when the defendant is the appellant—is an appeal in a civil action brought by the municipality to recover a “debt.” Being such, where requested, the appealing defendant is entitled to a jury trial as in any other civil case, despite the fact that no direct penalty of imprisonment or a fine greater than $50 is involved. [At 928]

In addition, it is doubtful that municipal courts can jail defendants for the failure or refusal to pay the fine in municipal ordinance violation cases, the recovery of a municipal fine being in the nature of an action in debt. Article I, Section 18, of the Tennessee Constitution provides that, “the Legislature shall pass no law authorizing imprisonment for debt in civil cases.” Prior cases held that Article I, Section 18 was not a bar to imprisoning a defendant for failure to pay a fine. [See O’Dell v. Knoxville, 388 S.W.2d 150 (Tenn. App. 1964) However, although Article I, Section 18 was not at issue in Davis, it appears to me that Davis made it clear that a sentence of imprisonment for the violation of a municipal ordinance would not hold legal water under Article V, Section 14, let alone Article I, Section 18, of the Tennessee Constitution.

It was also held in Anderson v. Ellington, 300 F. Supp. 789 (M. D. Tenn. 1969) that costs in a criminal case (and presumably a civil case) are not a part of the punishment, and the imprisonment of a defendant for failure to pay such costs is a violation of the Thirteenth Amendment to the U.S. Constitution.

But a limited number of methods for collecting unpaid fines and costs arising from municipal ordinance violation cases are outlined below. All of them have some serious limitations or drawbacks. Where the municipal court has a large caseload, a drawback common to most of those methods is the cost of administration. Computer technology has reduced that cost somewhat, but tracking unpaid fines and costs and applying collection mechanisms is still an expensive, time-consuming job.
Judgment in Civil Action

There are two statutes that authorize municipal courts to recover unpaid fines in a civil judgment. The first is Tennessee Code Annotated, § 40-24-105(b) which provides that, “When any court of this state, including municipal courts for violation of municipal ordinance imposes a fine upon an individual, the court may direct as follows” [there follows a list of what the court can do with respect to fines it imposes] Under Tennessee Code Annotated, § 40-24-103, “a fine may be collected in the same manner as a judgment in a civil action but shall not be deemed part of the penalty, and no person shall be imprisoned under this section in default of payment of costs or litigation taxes.” This statute also authorizes the collection of fines, costs, and litigation taxes by civil judgment to be done by the city attorney, in the following language: “The district attorney general or the county or municipal attorney, as applicable, may in such persons discretion, and shall, upon the order of the court, institute proceedings to collect the fine, costs and litigation taxes as a civil judgment.” That language suggests that absent an order of the court the city attorney has the discretion whether or not to collect such fines, costs and litigation taxes, but that if the court issues an order for him to collect them he has a mandatory duty to do so.

Although this statute is found in the criminal statutes, it appears to plainly apply to municipal courts. But I personally know of no city court that uses these statutes.

The second statute is Tennessee Code Annotated, § 6-54-303 that provides for the collection of municipal fines and costs, as follows:
(a) In all municipal courts where the judge has entered a judgment for fines and costs, and same remain unpaid for thirty (30) days thereafter, the court is authorized by and through its clerk to issue execution thereon from the court in the same manner and methods as prescribed in title 26, chapters 1-3, and the clerk shall assess the same fees and costs as allowable to clerks of general sessions court.
(b) For purpose of service of a levy of execution by garnishment, the police officers of the municipality are empowered to serve the same anywhere in the county.

A problem with both civil judgment statutes is that it is one thing to have judgments for small amounts of money, and quite another to successfully execute on them. The rules governing the execution of judgments obviously rely upon defendants having income or property upon which execution may issue. Another serious problem with using this method of recovery of municipal fines is that the civil judgment proves it is probably beyond many, if not most, municipal court clerks. But Tennessee Attorney General’s Opinion 98-153 opines that municipalities are authorized to issue executions and judgments under Tennessee Code Annotated, § 6-54-303.

Collection Agencies

Tennessee Code Annotated, § 40-24-105(d)(1) authorizes municipalities, by ordinance, to employ a collection agency to collect fines and costs that are delinquent over 60 days. The contract between the municipality and the collection agency must be in writing. The collection agency can be paid an amount not exceeding 40% of the sums collected.

Apparently, some cities have fairly good luck with using this method of recovery of municipal fines and costs.

Question 4: Are there any other remedies available to the city judge with respect to the disposition of municipal ordinance violations?

I can think of no such remedies, unless the city can develop a system for imposing and administering remedial fines; otherwise, the city court is limited to the imposition of $50 fines.


Sidney D. Hemsley
Legal Consultant