Ajootian v. Housing Bd. of Review of City of Providence

• Decision Date: 03 July 1964
• Docket Number: No. 1614,1614
• Parties: George AJOOTIAN v. HOUSING BOARD OF REVIEW OF the CITY OF PROVIDENCE. M. P.
• Court: Rhode Island Supreme Court

Page 905

201 A.2d 905

98 R.I. 370

George AJOOTIAN v. HOUSING BOARD OF REVIEW OF the CITY OF PROVIDENCE.

M. P. No. 1614.

Supreme Court of Rhode Island.

July 3, 1964.

George Ajootian, pro se.

William E. McCabe, David J. Kehoe, Providence, for respondent.

JOSLIN, Justice.

This is a petition for certiorari to review a decision of the housing board of review of the city of Providence denying the petitioner's appeal from a compliance order of the city's director of the division of minimum housing standards issued in accordance with the provisions of chapter 1040 of the Minimum-Standards Housing Ordinance. Pursuant to the writ the pertinent papers have been certified to this court.

The petitioner was notified in writing by the director that an examination of a tenanted dwelling house owned by him and located on Wickenden street in Providence disclosed about twenty violations of the ordinance. Thereupon petitioner claimed a hearing before the director or other 'proper person' and requested the director to disqualify himself from acting as the hearing officer on the ground that he should not act as both prosecutor and judge in the same proceeding. The director did not pass directly on the request for disqualification but instead, after a hearing at which petitioner was present, in effect ordered compliance with the notice of violation, from which order an appeal was duly prosecuted to the housing board of review.

The board took a view of the premises and at the hearing petitioner, admitting that the premises were 'not fit for a dog to live in,' asked that enforcement of the order be stayed pending eviction by him of the occupants of the property. The board denied the appeal, finding that 'the occupants occupying the instant premises to be living under overcrowded, substandard and deplorable conditions which in the opinion of the members of the Housing Board of Review is detrimental to the health, safety and welfare of said occupants * * *.' It is to review that decision which the board designated as a resolution that this petition for certiorari has been brought.

In issuing the writ we did not act in the exercise of our supervisory jurisdiction over inferior tribunals but rather under P.L.1956, chap. 3715, the enabling legislation pursuant to which the ordinance was enacted. It is provided in section 18 thereof that any person aggrieved by a decision of the board may present to this court a petition setting forth wherein the decision to be reviewed is illegal in whole or in part and specifying the grounds of illegality.

The petitioner, however, does not point to any illegality in the board's decision but assigns as reason for its quashing that the ordinance in conferring both executive and judicial powers upon the director violates the due process clause of art. XIV of the amendments to the federal constitution and the provisions of the state constitution relative to the division of powers of government and the judicial power. The unconstitutional delegation is found, the petitioner asserts, in subsecs. 3.3, 3.7, and 3.8 of the ordinance wherein it is provided that it is the director who not only issues a notice of violation of the provisions of the ordinance or rules or regulations adopted pursuant thereto but also determines after a hearing as provided for therein whether that notice should be sustained, modified or withdrawn.

The thrust of his contentions, as we understand them, is that the alleged unconstitutional action of the director in exercising both the functions of prosecutor and judge was at least sub silentio approved by the board and that such approval so taints the proceedings before it with illegality that it should be set aside by us. A consideration of his argument so construed raises the issue of the nature of the proceedings before the board and requires us to determine whether it exercises an appellate jurisdiction or in the alternative reviews de novo compliance orders issued by the director.

To resolve that question we go to the enabling legislation. Although subsec. 5.14 of the ordinance provides that 'All hearings of the Housing Board of Review shall be 'de novo',' it does not control. When the local legislature creates an administrative tribunal pursuant to a legislative grant of authority, its function is determined by the legislature and its jurisdiction can neither be enlarged nor restricted by provisions contained in local ordinances. See Mello v. Board of Review, R.I., 177 A.2d 533.

The controlling statutory provision is contained in sec. 16 of chap. 3715 wherein it is provided that in hearing and deciding appeals from a compliance order issued by the director who is referred to therein as 'the enforcing officer,' the board 'may * * * reverse or affirm wholly or partly, or may modify any order, requirement, decision or determination of the enforcing officer and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the enforcing officer from whom the appeal was taken.' Moreover, in circumstances where as a result of unusual conditions a literal enforcement of its terms would result in undue hardship, the board in order that substantial justice may be achieved has the additional authority under chap. 3715, sec. 15(b), to vary or modify the ordinance or...