The BOOKSTORE INC. v. LEONARD
| Decision Date | 07 April 2011 |
| Docket Number | 09-CV-1490-BR |
| Parties | THE BOOKSTORE, INC., an Oregon corporation; DANIEL COSSETTE; DONNA COSSETTE; MICHAEL WRIGHT; and LINDA WRIGHT, Plaintiffs, v. RANDY LEONARD, individually and in his capacity as Portland City Commissioner; MICHAEL ALDERMAN, individually and in his capacity as a Portland City Fire Inspector; JEFF MYERS, individually and in his capacity as a Portland Police Bureau Officer; JOSEPH BOTKIN, individually and in his capacity as a Portland Bureau of Development Services Inspector; HANK McDONALD, individually and in his official capacity as a Portland Bureau of Development Services Inspector; CITY OF PORTLAND, a municipal corporation; and PORTLAND GENERAL ELECTRIC, Defendants. |
| Court | U.S. District Court — District of Oregon |
OPINION TEXT STARTS HERE
RANDAL B. ACKER
Acker & Associates, PC
806 S.W. Broadway, Suite 550
Portland, OR 97205
(503) 228-2495
Attorneys for Plaintiffs
Portland City Attorney
TRACY POOL REEVE
Deputy Portland City Attorneys
1221 S.W. Fourth Avenue, Room 430
Portland, OR 97204
(503) 823-4047
Attorneys for Defendants Randy Leonard, Michael
Alderman, Jeff Myers, Joseph Botkin, Hank McDonald, and
City of Portland (hereinafter referred to as City
Defendants)
MARTIN C. DOLAN
Dolan Griggs LLP
1130 S.W. Morrison Street
Suite 630
Portland, OR 97205
(503) 228-7500
Attorneys for Defendant Portland General Electric
This matter comes before the Court on City Defendants' Motion (#43) for Summary Judgment. For the reasons that follow, the Court GRANTS City Defendants' Motion.
At some point in the early 1980s, Plaintiffs purchased property at Fourth Avenue and West Burnside Avenue in Portland, Oregon. Until November 2007 Plaintiffs Michael and Linda Wright operated Cindy's Adult Bookstore on the property. Plaintiff Daniel Cosette had limited involvement and Donna Cosette did not have any involvement in the operation of Cindy's. The record is unclear as to what portion of Cindy's or the property, if any, is owned by Plaintiff The Bookstore, Inc.
Although the property at issue contained two buildings (a one-story building on West Burnside and a two-story building on Fourth Avenue), the buildings shared a common structural wall and interior access, they looked like a single space from the inside, and Plaintiffs often referred to them as one building. Nevertheless, the buildings were identified as two separate tax lots, had different legal descriptions, and had separate electrical meters.
Cindy's was located on the first floor of the two-story building and was open to the public. The rest of the two-story building was used for storage, and the one-story building "had been used to construct booths."
On November 29, 2005, the City of Portland Bureau of Fire and Emergency Services (BFE) conducted a routine inspection of the property and required Plaintiffs to "provide annual service to fire extinguishers by [a] certified company" and to "restore lighted exit illumination to exit signs (internal)." Decl. of Michael Alderman, Ex. 1 at 2.
On May 31, 2007, Defendant Senior Fire Inspector (FI) Michael Alderman and two other City employees conducted a reinspection of the property to determine whether Plaintiffs had remedied the issues noted in the November 29, 2005, inspection.
According to City Defendants, FI Alderman found "extensive, serious fire code violations" during the May 31, 2007, inspection, which he believed posed "a grave risk to public health and safety." FI Alderman's Fire Inspection History Report for the May 31, 2007, inspection reflected 30 code violations at the property.
After the May 31, 2007, inspection, FI Alderman spoke with members of the Code Compliance Intervention Team (CCIT) about the property. The CCIT is an inter-bureau work group with participation by Portland Fire & Rescue (PF&R), the City of Portland Bureau of Development Services (BDS), and the Portland Police Bureau (PPB) and was formed to address properties that presented heightened public health and safety concerns. According to City Defendants, the CCIT chooses the properties to address by examining a number of factors including code violations, a history of high levels of police and/or fire services, and "exigent circumstances." City Defendants assert the purpose of the CCIT is to coordinate the approach of various City bureaus to properties that pose an elevated risk to public health and safety and to "comprehensively address" noncompliant conditions.
CCIT members select properties to bring to the attention of the team and, in particular, to the attention of Defendant City Commissioner Randy Leonard who coordinates the work of the CCIT. Commissioner Leonard makes the final decisions as to which properties to approve for CCIT work.
Defendant Portland Police Officer Jeff Myers was a member of the CCIT, and from 2003 to 2009 he worked in the Old Town/ Chinatown neighborhood of Portland where the property was located. In that capacity, Officer Myers gained substantial knowledge of the criminal and nuisance activity and livability issues in that area.
City Defendants allege that as a result of his community policing efforts, Officer Myers became aware of substantial criminal/nuisance activity at Cindy's; knew Cindy's was the subject of a high level of police services; and suspected, based on his observations, that Cindy's had building-code violations. After the May 31, 2007, inspection, Officer Myers brought Plaintiffs' property to the attention of the CCIT and Commissioner Leonard.
According to City Defendants, FI Alderman returned to the property on November 8, 2007, to determine whether the fire-code violations noted during the May 31, 2007, inspection had been corrected; to show the configuration of the structure to PF&R crews "to avoid injury or death in case they had to respond to a fire there[;] and to explain [to Plaintiffs] that a firewatch was being implemented." The Fire Inspection History Report for the property reflects "no hazards noted on this date" for November 9, 2007.1
Nevertheless, on November 19, 2007, FI Alderman, Defendant BDS Inspector (BDSI) Joe Botkin, and Defendant BDSI Hank McDonald conducted a comprehensive inspection of the property with Officer Myers acting "as an escort." According to City Defendants, "very serious building and electrical code violations were discovered" at the November 19, 2007, inspection, and, as a result, BDSI Botkin posted a "Dangerous Buildings" notice at the property and sent a written notice to Plaintiffs to repair or to demolish the building. The notice reflected the various conditions that BDSI Botkin and BDS required Plaintiffs to address:
The first condition determined to be in violation is as follows (this violation needs to be addressed and resolved prior to correcting subsequent violations listed in this notice):
1. Failure of roof system, whereas the roof is
in a state of disrepair and water is entering the building and electrical systems. -29.40.020.B, D, J, & K Other Conditions determined to be in violation are as follows. These conditions shall be addressed when the roof structure is considered secure from further failure.
3. Failure in drop ceiling system (OSSC 803.3; 803.9). - 29.40.020.B & F
4. Demolition without permit, electrical system is energized during demolition (OSSC 105; 3303.6). - 29.40.020.E, H & K
5. Limited energy system(s) installed without properly listed materials, and without permit (Oregon Revised Statute (ORS)). - 29.40.020.K 6. Open electrical boxes and wiring (National Electrical Code (NEC) 314.25; 314.17). -29.40.020.K
7. Misuse of electrical products, use of products not listed for electrical wiring (NEC 110.3). - 29.40.020.K
8. Use of cords, plug strips, and adapters for permanent wiring (NEC 110.3400.9)
9. Use of cords for fixtures which require permanent connections (exit and emergency lighting (NEC 700.e; 700.12; 700.16,400.9). -29.40.020.K
10. Cords run through walls/ceilings (NEC 400.8). - 29.40.020.K
11. Exit and emergency fixture(s) which are not working (OSSC chapters 10, 11). - 29.40.020.K
12. Unsafe electrical service (NEC. 110.3; 110.26; 230.70; 230.72; 230.74). -29.40.020.K
a) Main disconnects are not grouped.
b) Feeder to unknown location.
c) Standing water in front of Service equipment and panelboards.
d) Main fuses lack "handle to interconnect unfused service entrance conductors.
13. Plumbing fixtures removed without caps in waste piping (Uniform Plumbing Code (UPC) 301.1.1). - 29.40.020.K
14. Fixtures without proper venting; "S"-traps (UPC 901.0). - 29.40.020.K
15. Damage to storm water piping - water collecting in basement without disposal. -29.40.020.K
16. Waste piping in need of repair, improper connections to waste system, improper use and/or maintenance of waste system, to the point of an unsanitary condition (UPC 302.0; 304.0; 309.0; 310.1; 310.4). - 29.40.020.K
17. Improperly vented gas appliance. - 29.40.020. K
18. Due to the number of gas appliances that are in disrepair the City of Portland is requiring and [sic] evaluation by the Natural Gas Utility of the gas fired appliances for safety. - 29.40.020.K
Botkin Decl., Ex. 2 at 2-3 (emphasis in original).
According to City Defendants, the inspectors found workers doing unpermitted work under dangerous conditions, and, as a result, a Stop Work order was posted and Officer Myers called the Occupational Health and Safety Administration (OSHA) to report the issue. OSHA later determined the workers were scraping lead paint without protective gear. Although Plaintiffs contend there were not any workers engaged in unpermitted work under dangerous conditions, Plaintiffs do not dispute OSHA cited them for allowing workers to...
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