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City of Portland v. Chau

Supreme Court of Maine

December 11, 2018

CITY OF PORTLAND
v.
SULAN CHAU

          Argued: October 25, 2018

          Roy T. Pierce, Esq. (orally), Jensen Baird Gardner & Henry, Portland, for appellant Sulan Chau

          Anne M. Torregrossa, Esq. (orally), City of Portland, Portland, for appellee City of Portland

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          SAUFLEY, C.J.

         [¶l] Sulan Chau-the owner of an apartment building in Portland- appeals from a judgment entered by the District Court (Portland, Goranites, J.) on the City of Portland's land use citation and complaint following a trial that Chau failed to attend. See M.R. Civ. P. 80K. In its judgment, the court found that the City had proved multiple code violations. The court imposed penalties on Chau of more than $500, 000 plus costs and attorney fees upon finding that conditions in her building violated fire, electrical, and life safety provisions of Maine statutes and the Portland City Code. Chau challenges only the court's determination of the penalties. We affirm the judgment.

         [¶2] Chau owns a five-unit apartment building on Woodford Street in Portland. Over the course of twenty-eight months, the City inspected the building repeatedly and notified Chau of violations in writing on eight occasions. Although she made a few improvements, she did not remedy significant life safety, electrical, and fire code violations that endangered her tenants.

         [¶3] The City ultimately commenced an enforcement action in the District Court in November 2017. See M.R. Civ. P. 80K. The court provided a language interpreter, and Chau appeared in person to make an initial appearance in December 2017. On the day of that appearance, a final hearing was scheduled for January 8, 2018. At that January hearing, an interpreter was again present, but Chau did not appear nor did an attorney appear on her behalf.[1]

         [¶4] The court determined that Chau had defaulted. The trial proceeded in her absence, and the court heard evidence concerning the multiple violations in order to determine what penalties should be imposed. The city presented testimony from the captain of the Portland Fire Department, the City's inspections director, and the City's code enforcement officer responsible for housing safety inspections. The court also admitted in evidence several records documenting the City's multiple inspections of the apartment building owned by Chau and the multiple notices of violations provided to her.

         [¶5] Based on the evidence presented, the court found that the City had proved multiple violations, including obstructed exits, lack of fire-rated doors, numerous incidents of bedbug infestation, lack of continuous handrails on stairs, lack of smoke and carbon monoxide alarms, electrical violations, and leaking sewage and other pipes. In its judgment, entered on January 11, 2018, the court found that some violations had been remedied, many of them soon after the City filed its complaint in the District Court. The court ordered that the still-existing handrail, bedbug, and leaking pipe violations be remedied within thirty days. It imposed civil penalties of $510, 300 based on the minimum per-day penalties established in 30-A M.R.S. §4452(3)(B) (2017) (authorizing the imposition of a penalty of $100 to $2, 500 per specific violation) and Portland, Me., City Code §6-l(a)(1), (3) (Nov. 19, 2018) (establishing a $200-per-day minimum penalty for a specific "significant code violation"[2]). The court ordered Chau to pay the penalties within thirty days. The court also ordered Chau to pay costs of $150 and attorney fees of $2, 820 within thirty days. See 30-A M.R.S. § 4452(3)(D) (2017). Recognizing that her default resulted in a failure to preserve appellate challenges to the findings of violations, Chau now appeals to us only from the determination of sanctions, arguing that the court incorrectly applied the statute governing penalties, 30-AM.R.S. § 4452(3)(E) (2017). See 14 M.R.S. § 1901 (2017); M.R. Civ. P. 8OK(j).

         [¶6] By statute, a court determining a penalty for a housing violation must consider several factors. Specifically,

[i]n setting a penalty, the court shall consider, but is not limited to, the following:
(1)Prior violations by the same party;
(2) The degree of environmental damage that cannot be abated ...

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