Allnew v. City of Duluth
| Decision Date | 02 June 1997 |
| Docket Number | Civ. No. 97-187 (MJD/RLE). |
| Citation | 983 F.Supp. 825 |
| Parties | T. J. ALLNEW, individually and a member of the class, tenants of the San Marco Apartments, Duluth, Minnesota, Plaintiff, v. CITY OF DULUTH, Jim Mlodozyniec, individually and as a Duluth Housing Inspector, David Mattson, individually and as a Duluth Fire Marshal, Joe Helstrom, Jack Ball, Lynn Beechler, James Berry, Duane Flynn, Joe Johnson, David Krech, Ed Shamblott, Clair Strandlie, Dick Whitney, and Jerry Thompson, individually and as members of the Duluth Board of Appeals, Defendants. |
| Court | U.S. District Court — District of Minnesota |
T.J. Allnew, Duluth, MN, pro se.
Mary Alison Lutterman, Duluth City Atty., Duluth, MN, for Defendants.
1. That the Plaintiff's original Motion for a Temporary Restraining Order [Docket No. 3] shall be, and hereby is, denied.
2. That the Plaintiff's supplemental Motion for a Temporary Restraining Order [Docket No. 12] shall be, and hereby is, denied.
3. That the Plaintiff's Motion for Class Certification [Docket No. 13] shall be, and hereby is, denied.
REPORT AND RECOMMENDATION
March 17, 1997.
This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A) and (B), upon the following Motions:
1. The Plaintiff's original and supplemental Motion for a Temporary Restraining Order;
2. The Plaintiff's Motion for class certification; and
3. The Plaintiff's Motion to Strike.1
A Hearing on the Motions was conducted on March 10, 1997, at which time the Plaintiff appeared pro se, in forma pauperis, and the Defendants appeared by M. Alison Lutterman, Assistant Duluth City Attorney.2
For reasons which follow, the Motion to Strike is denied, and we recommend that the remaining Motions be denied.
The Plaintiff resides in an apartment which is located at 224 West Third Street, in Duluth, Minnesota, and which is included within a three building complex that is known as the "San Marco Apartments." The San Marco Apartments are owned by Roy M. Anderson ("Anderson"), and his wife Mary, who operate the facility as a multi-unit rental apartment complex. The Plaintiff is one of an unspecified number of tenants who, as of the date of this Report, continue to reside in the San Marco Apartments.
In accordance with the requirements of the Duluth City Housing Code, all multiple dwelling apartment buildings are to be operated under a three-year license. See, Duluth City Code § 29A-28. With respect to their operation of the San Marco Apartments, the Andersons' multiple dwelling license expired on December 1, 1994, and accordingly, they sought to renew their license. Affidavit of James Mlodozyniec, Exhibit 4. On April 25, 1995, as a precondition to the renewal of that license, a City Housing Inspector conducted a licensing inspection of the complex, and uncovered over 50 violations of the City Housing Code. Id., Exhibit 1. By a Notice dated May 9, 1995, the Inspector advised the Andersons of the violations, and he instructed that the violations should be remedied within 30 days. Id.
On March 7, 1996, three City officials conducted a reinspection of the property, in order to determine if the earlier violations had been corrected.3 Id., Exhibit 3. The reinspection disclosed that the former violations had not been remedied, and it revealed the presence of over 20 additional violations of the City's Housing and Fire Codes, including the absence from the complex of any fire alarm system that conformed with the requisites of State law. Id. By Notice dated March 12, 1996, the officials advised the Andersons of the existence of these violations, and directed that these additional violations be corrected within 30 days. Id.
The Andersons appealed the Notice of Violations of March 12, 1996, to the Duluth Building Appeal Board.4 At its regular meeting of July 10, 1996, the Board considered the Andersons' appeal. Affidavit of James Mlodozyniec, Exhibit 5. Anderson and the Plaintiff appeared at this meeting but, because of a conflicting appointment, they had to depart before the Board considered the Andersons' appeal. As a consequence, Anderson submitted a written statement to the Board. After receiving oral statements from the Defendants Dave Mattson ("Mattson"), and Jim Mlodozyniec ("Mlodozyniec"), the Board denied the Andersons' appeal by a unanimous vote, and recommended that the San Marco Apartments be condemned, both as being unfit for human habitation, and as being suitable for demolition. Id.
As a result of the Board's recommendation, on July 19, 1996, the Defendant Jerry Thompson ("Thompson"), who was then the City's Building Official, issued an Order which condemned the complex as being unfit for human habitation, and which directed that the complex was to be vacated within 30 days.5 Affidavit of James Mlodozyniec, Exhibit 6. The Andersons appealed these directives and, on August 14, 1996, Anderson wrote to Thompson requesting an extension of 30 days in the deadline to vacate the complex's tenants. In making this request, Anderson gave Thompson "[his] word as a gentleman that [he] would do everything possible to obtain a housing license within that thirty-day period * * *." See, Exhibits to Plaintiff's Motion for Temporary Restraining Order, (August 14, 1996 Letter from Roy Anderson to Jerry Thompson). Based upon this assurance, Thompson granted an extension until September 23, 1996, by which time the complex was either to be licensed by the City's Building Inspection Department, or be vacated of its inhabitants. Affidavit of James Mlodozyniec, Exhibit 7.
Notwithstanding the assurance given, on September 30, 1996, the San Marco Apartment complex was neither vacated nor licensed as a multiple dwelling. As a consequence, on that date, Mlodozyniec cited Anderson with the following violations of the Duluth City Code:
1. Failing to vacate tenants from a property which is condemned for human habitation, see, Duluth City Code § 29A-14(b) and (c);
2. Operating an unlicensed rental unit, see, Duluth City Code § 29A-33;
3. Failure to correct cited violations of the Housing and Fire Codes, see, Duluth City Code § 29A-8(a), (d) and (f), § 29A-7(c), and Uniform Fire Code § 12.106(A, B, and C), and Appendix 1-A; and 4. Performing plumbing work without a permit. See, Duluth City Code § 10-32.
Affidavit of M. Alison Lutterman, Exhibits 1, 2, and 3; Exhibits to Plaintiff's Motion for Temporary Restraining Order, (Ticket No. 2584).
In addition, on that same date, Mattson cited Anderson for installing an unapproved fire alarm system at the San Marco Apartments, without a permit, in violation of Uniform Fire Code § 14.104(g). Affidavit of M. Alison Lutterman, Exhibit 5. However, because the Andersons had appealed the earlier condemnation Order, the City subsequently dismissed the citation attributable to the Andersons having failed to vacate the apartment complex. Id., Exhibit 6. At the time of the Hearing in this matter, counsel for the Defendants advised that Anderson was scheduled to be arraigned, on March 14, 1997, for the remaining violations.
On November 7, 1996, and at the Andersons' request, the Office of the State Fire Marshal inspected the fire alarm system that the Andersons had installed in the apartment complex. Affidavit of James Mlodozyniec, Exhibit 8. This inspection revealed several shortcomings in the alarm system and, as a consequence, the State Fire Marshal refused to approve the system. Id., Exhibit 9. The parties have advised that the decision of the State Fire Marshal is currently on appeal to the State Department of Public Safety.
On December 11, 1996, the Building Appeal Board considered, and denied, the Andersons' appeal of the Order which condemned the San Marco Apartments as being unfit for human habitation. Id., Exhibit 10. The Andersons did not appeal this decision to the Duluth City Council, id., Exhibit 11, and, on or about February 1, 1997, the City posted several placards on the building complex which read as follows:
NO TRESPASSING. THIS BUILDING IS CONDEMNED AS UNFIT FOR HUMAN HABITATION BY THE BUILDING INSPECTION DIVISION.
February 10, 1997 Affidavit of T.J. Allnew, Exhibit B.
On or about this same date, Mlodozyniec attempted to deliver to each tenant of the complex, by certified mail, a notification that the complex had been condemned, and that any tenant found within the building on or after February 28, 1997, would be served with a citation, presumably for trespassing.6 See, Exhibits to February 11, 1997 Affidavit of T.J. Allnew.
At the Hearing in this matter, counsel for the Defendants confirmed that the tenants, who were still residing at the San Marco Apartments, could be cited for trespassing, but counsel expressly represented that the City would not take any action against the tenants until the State Department of Public Safety should rule upon the Andersons' request for an approval of the complex's fire alarm system. Further, counsel advised that the City regards the lack of an approved fire alarm system as the most serious Code violation at the San Marco Apartments, and that the City would withdraw the condemnation Order if the Andersons obtained State approval of their current alarm system.
On January 22, 1997, the Plaintiff commenced this putative class action, by the filing of a Complaint which he subsequently amended on January 30, 1997. In his Amended Complaint, the Plaintiff alleges that the Duluth Housing and Fire Codes are unconstitutional both facially, and as applied, and he accuses the Defendants of enforcing these...
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