Dillard v. Louisiana State Uniform Construction Code Council

68 So. 3d 623, 201 La.App. 1 Cir. 1977, 2011 La. App. LEXIS 719, 2011 WL 2975810
CourtLouisiana Court of Appeal
DecidedJune 7, 2011
DocketNo. 2010 CA 1977
StatusPublished
Cited by5 cases

This text of 68 So. 3d 623 (Dillard v. Louisiana State Uniform Construction Code Council) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dillard v. Louisiana State Uniform Construction Code Council, 68 So. 3d 623, 201 La.App. 1 Cir. 1977, 2011 La. App. LEXIS 719, 2011 WL 2975810 (La. Ct. App. 2011).

Opinions

McDonald, j.

| gThis appeal questions whether the Louisiana State Uniform Construction Code Council (appellant in this appeal) has the authority to hold an administrative hearing over a third-party provider, pursuant to the Louisiana State Uniform Construction Code Law, LSA-R.S. 40:1730.21, et seq. The district court issued a permanent injunction prohibiting the Council from hearing the matter, agreeing with third-party providers, Ms. Karen Dillard and Mr. Delvin Portier, (appellees in this appeal) that the law requires administrative hearings to be in accordance with LSA-R.S. 49:992, et seq., and by the Division of Administrative Law. For the following reasons, we reverse the judgment of the district court and vacate the injunction.

FACTS

After the destruction of and damage to buildings and structures in Louisiana from Hurricanes Katrina and Rita in 2005, the legislature enacted LSA-R.S. 40:1730.21, et seq., to provide for a State Uniform Construction Code by Acts 2005, 1st Extraordinary Session, Number 12, effective November 29, 2005. The intent of the statute, as published, stated that “[t]he public policy of Louisiana is to maintain reasonable standards of construction in buildings and other structures in the state consistent with the public health, safety, and welfare of its citizens.” LSA-R.S. 40:1730.21 A. The legislature further clarified its intent, and the statute provides in pertinent part:

D. To further clarify the intent of the legislature, this Part continues to apply to a person who may act under authority of the Department of Public Safety and Corrections and that the allocation of inspection duties among local officials is not dictated by this Part but remains a matter for the local authority.
E. To secure these purposes, the Louisiana State Uniform Construction Code Council shall certify a person performing building codes enforcement including [625]*625building officials, plans reviewers, and inspectors.

|sThe act originally provided that LSA-R.S. 40:1730.21 through 40:1730.39, the State Uniform Construction Code, was to be effective on January 1, 2007. House Concurrent Resolution No. 36 of the 2006 Second Extraordinary Session was passed urging and requesting that the governor, by Executive Order, suspend the statewide effective date of the Louisiana State Uniform Construction Code until July 1, 2007. According to the Resolution, as of December 15, 2006, local governments throughout the state did not have adequate funding or personnel to effectively enforce the provisions of the statute by the January 1, 2007 effective date.

In order to perform their statutorily required function, Lafourche and Terre-bonne parishes contracted with the South Central Regional Planning and Development Commission, a governmental entity, to provide a building code enforcement officer for the two parishes. Mr. Michael Wich was appointed by the commission as building code enforcement officer for both parishes. Ms. Dillard and Mr. Portier are third-party providers1 who work in the two parishes. Mr. Wich filed numerous complaints with the Council against Ms. Dillard and Mr. Portier regarding their work as third-party providers.

In September 2009, the Council’s administrator sent a letter to Ms. Dillard and Mr. Portier, respectively informing them that the Council had received a formal complaint from Mr. Wich and that Ms. Dillard and Mr. Portier may have violated specified provisions of the Louisiana Administrative Code. These provisions were enacted by the Council to provide published rules to enforce the statute. In accordance with these rules, the Council instituted an “informal hearing” for the purpose of resolving the complaints against the appellees. The hearing was conducted by the Code Enforcement Advisory, a subcommittee |4composed of members of the Council. Both appellees, as well as Mr. Wich, the complainant, participated. At the conclusion, the committee addressed letters to Ms. Dillard and Mr. Portier advising that it was the recommendation of the committee that action, specified in the letters, be taken against them. Neither Ms. Dillard nor Mr. Portier agreed to the action proposed by the committee.

Thereafter, on December 16, 2009, letters were addressed to Ms. Dillard and Mr. Portier advising that the Council voted at its monthly meeting on December 9, 2009, to accept the recommendation of the committee with regard to their registration as third-party providers. Ms. Dillard’s third-party provider registration was partially suspended for a period of six months, during which time she was prohibited from performing any plan reviews or inspections on commercial projects. It was also proposed that Ms. Dillard complete 40 hours of training in commercial plan review and inspections and provide proof of attendance. The letter advised that Ms. Dillard’s registration would be renewed upon completion of these conditions. Mr. Portier’s third-party provider registration was suspended for a period of six months, during which time he was prohibited from performing any plan reviews or inspections on residential and commercial projects. Mr. Portier was advised that the registration would be considered for [626]*626reinstatement at the end of the six-month suspension.

Ms. Dillard and Mr. Portier both refused to accept the action of the Council, resulting in the Council filing formal charges against each of them on January 25, 2010. The hearing of the charges against Mr. Portier was set for Wednesday, February 24, 2010, and the hearing regarding the charges against Ms. Dillard was set for Thursday, February 25, 2010. On February 22, 2010, a Petition for In-junctive Relief was filed jointly by Ms. Dillard and Mr. Portier, which included a request for declaratory judgment on questions regarding the authority of the Council. A temporary restraining order (TRO) and a preliminary injunction were | ^requested to prevent the Council from proceeding with the scheduled hearings until a trial and a decision by the district court on the permanent injunction.

The district court granted the TRO and set a hearing on the preliminary injunction for March 10, 2010. At the March 10th hearing the parties agreed that the hearing would also serve as the trial on the permanent injunction. After receiving evidence and hearing testimony and argument, the court took the matter under advisement. On June 3, 2010, the district court issued written reasons and ruled that the hearing on the charges against Ms. Dillard and Mr. Portier was to be conducted by the Division of Administrative Law and granted the request for injunction. The district court did not address the other issues raised by the plaintiffs.

The Council has appealed, raising two assignments of error: (1) the trial court erred in issuing a permanent injunction prohibiting the Louisiana State Uniform Construction Code Council from presiding over an administrative hearing regarding third-party providers; (2) the trial court erred in ruling that any administrative hearings held pursuant to administrative actions of the Louisiana State Uniform Construction Council be referred to the Division of Administrative Law. The plaintiffs answered the appeal, raising several issues on which the district court failed to rule. This appeal will only address the issue decided by the district court, whether the statute creating the Council gave it the right to hold adjudicatory hearings.

LAW AND ANALYSIS

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Bluebook (online)
68 So. 3d 623, 201 La.App. 1 Cir. 1977, 2011 La. App. LEXIS 719, 2011 WL 2975810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillard-v-louisiana-state-uniform-construction-code-council-lactapp-2011.