Magaziner v. Yavapai
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NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);
Ariz.R.Crim.P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
SUSAN MAGAZINER and SAM FAMILY
2003 TRUST,
DIVISION ONE
FILED: 09/08/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CV 10-0778
DEPARTMENT D
Plaintiffs/Appellants,
v.
YAVAPAI COUNTY DEVELOPMENT
SERVICES; YAVAPAI COUNTY BOARD
OF SUPERVISORS; JEANNE
GROSSMAYER; STEVE MAUK; BOYCE
MACDONALD; JOHN EDMAN,
MEMORANDUM DECISION
(Not for Publication – Rule
28, Arizona Rules of Civil
Appellate Procedure)
Defendants/Appellees.
Appeal from the Superior Court in Yavapai County
Cause No. V1300CV200980709
The Honorable Michael R. Bluff, Judge
AFFIRMED IN PART; VACATED IN PART; REMANDED
William P. Ring, P.C.
by
William P. Ring
Attorneys for Plaintiffs/Appellants
Flagstaff
Sheila Polk, Yavapai County Attorney
by
Jack H. Fields, Deputy County Attorney
Attorneys for Defendants/Appellees
Prescott
I R V I N E, Presiding Judge
¶1
Susan Magaziner and the SAM Family 2003 Trust (the
“Trust”)
appeal
from
the
superior
court’s
order
affirming
a
civil
penalty
Yavapai
for
County
a
non-permitted
Planning
and
lodging
Zoning
violation
Ordinance
under
(“Ordinance”)
sections 301 and 400. We hold that substantial evidence supports
the violation finding, but vacate the penalty and remand for
further proceedings consistent with this decision.
FACTS AND PROCEDURAL HISTORY
¶2
The
Trust
owns
a
house
in
Sedona
(“Property”).
Magaziner serves as the Trust’s authorized representative. After
receiving complaints from Magaziner’s neighbors, Yavapai County
Inspector Jeanne Grossmayer visited the Property on May 7, 2009.
A
man
answered
Grossmayer’s
knock
and
told
her
that
he
was
renting the Property for one week. Five days later, Grossmayer
cited Magaziner and the Trust for violating Ordinance § 301,
which
defines
lodging
as
“[t]he
rental,
lease
or
sale
of
a
dwelling unit on a daily or weekly basis or any other basis for
less than thirty (30) consecutive days.”
¶3
Grossmayer filed a notice of amended violation on June
16, 2009, citing Ordinance § 400 as an additional basis for the
charge. Ordinance § 400 designates use districts and provides,
in relevant part, that “[a]ny use or structure not specifically
permitted by District Provisions (or analogous to a permitted
use or structure) shall be deemed prohibited and unlawful (nor
shall same be considered an accessory use or structure for the
District).” The notice designates the Property’s use as “R1L-
2
35,” defined under § 410 as residential; single family limited.
Ordinance § 103 provides that “the rental, lease or sale of
dwelling
units
in
less
than
thirty
(30)
day
increments
is
prohibited in residential zones.”
¶4
Grossmayer returned to the Property on June 25, 2009,
and spoke to two women who informed her that they were renting
the Property for one week to celebrate their father’s birthday.
When Grossmayer returned again on August 7, 2009, she did not
enter
the
Property
because
she
saw
a
“private
property
no
trespassing” sign.
¶5
At
a
September
officer,
Magaziner
11,
testified
2009
that
hearing
she
had
before
received
notification of any of Grossmayer’s site visits.
a
hearing
no
prior
Grossmayer and
Magaziner’s neighbors testified about the short-term rentals of
the Property and disruptive noise emanating from it. Grossmayer
also
testified
advertising
that
to
offer
Magaziner
had
thirty-day
altered
rentals
of
her
the
internet
Property,
although the ads also mentioned uses for family reunions, small
retreats and company meetings.
¶6
The
hearing
officer
determined
that
Magaziner
had
committed the charged violation of the zoning ordinance on May
7,
2009.
The
officer
assessed
Magaziner 30 days
3
a
$1500
civil
fee
and
gave
to bring everything into compliance in other
words all the ads must be stopped and all
the other activities under the 30 day limit
single family must be stopped.
If this is
not stopped within the 30 days a $10,000.00
fine will be assessed that will be waived if
the property is brought into compliance.
¶7
The order, however, provides that the $10,000 penalty
could be set aside only if the defendants met the following
conditions by October 11, 2009: “1. CEASE ADVERTISEMENT OF HOME
FOR SHORT TERM LODGING AND OTHER NON-RESIDENTIAL USES
2.
CEASE
SHORT TERM LODGING AND OTHER NON-RESIDENTIAL RENTAL OF HOME.”
The order provided that the Developmental Services Department
would
assess
whether
the
conditions
are
met
within
the
applicable time.
¶8
Magaziner
submitted
no
evidence
of
compliance.
On
December 17, 2009, Grossmayer filed a noncompliance notice with
a “Yavapai County Hearing Office” caption stating:
Pursuant to web page advertisement as of
10/19/09
the
Yavapai
County
Development
Services Department has verified that the
defendant is not in compliance with the
Hearing Officer’s Judgment dated 9/11/09.
This matter will be turned over to the
County Attorney for further action.
¶9
Meanwhile,
Magaziner
appealed
to
the
Yavapai
County
Board of Supervisors (the “Board”), which upheld the hearing
officer’s ruling on October 20, 2009. Magaziner appealed to the
Yavapai County Superior Court on June 30, 2010, and argued: (1)
the civil penalty was excessive; (2) her due process rights were
4
violated
$10,000
because
fine;
she
(3)
received
the
no
hearing
hearing
officer
on
the
admitted
additional
hearsay
and
illegally obtained evidence; (4) the hearing officer’s decision
was not supported by substantial evidence; (5) the decision was
contrary to law; (6) the County has no authority to regulate web
advertising; and (7) the County improperly amended its notice of
violation.
¶10
The
finding: the
superior
fines
court
were
affirmed
excessive,
not
the
Board’s
no
judgment,
violations
of
due
process, there was substantial evidence to support the finding
of zoning violations, and the decision was not contrary to law.
Magaziner and the Trust timely appeal.
DISCUSSION
I.
Substantial
violation.
¶11
On
appeal,
superior
court’s
Evidence
Supports
Magaziner
decision
to
and
affirm
the
the
the
May
Trust
7,
2009
challenge
Board’s
ruling.
the
The
superior court may only determine if the Board’s decision is
“supported
by
substantial
evidence,
is
contrary
to
arbitrary and capricious or is an abuse of discretion.”
law,
is
A.R.S.
§ 12-910(E) (2003). In reviewing that determination, this court
answers the same question as the superior court. See Pima County
v. Pima County Merit Sys. Comm’n, 189 Ariz. 566, 569, 944 P.2d
508,
511
(App.
1997).
We
do
not
5
reweigh
the
evidence
or
substitute our judgment for that of the agency.
Shaffer v.
Ariz. State Liquor Bd., 197 Ariz. 405, 409, ¶ 20, 4 P.3d 460,
464 (App. 2000). Further, when a party appeals an ordinance’s
interpretation, our review is de novo. Speros v. Yu, 207 Ariz.
153, 156, ¶ 11, 83 P.3d 1094, 1097 (App. 2004).
¶12
court’s
Magaziner
decision
and
lacks
the
Trust
substantial
contend
that
evidentiary
the
superior
support.
They
maintain that evidence obtained during an entry of the property
without prior authorization from Magaziner is excluded by § 205,
which states:
B.
ZONING INSPECTION:
1.
Responsibility: The Chief Deputy Land Use
Specialist
is
responsible
for
investigating all complaints of suspected
violations of this Ordinance and other
applicable
codes
within
Development
Services jurisdiction.
2.
Inspection: With proper, prior permission
from the property owner or his agent, the
Land Use Specialist may, in the discharge
of his duties, and for good and probable
cause, enter private property, during
assigned working hours to inspect same in
connection with any application made
under the terms of this Ordinance, or for
any investigation as to whether or not
any portion of such property, building or
other structure was constructed or is
being
used
in
violation
of
this
Ordinance.
If
permission
to
enter
property is unobtainable, refused or
withdrawn, the Inspector shall follow
legally prescribed procedures for seeking
a
search
warrant
subject
to
the
protections provided for rights of the
6
property owner by the State of Arizona
and the United States Constitution.
(Emphasis added.)
¶13
Magaziner and the Trust argue that the evidence was
obtained during an illegal inspection because Grossmayer entered
the
Property
in
a
manner
not
prescribed
by
Ordinance
§
205(B)(2). We disagree. A New York court construed an analogous
town code to mean only that the code itself was not an authority
for entry. People v. M. Santulli, L.L.C., 910 N.Y.S.2d 336, 339
(N.Y.App. Term. 2010) (holding that an apartment owner lacked
standing to challenge the town zoning inspector’s entry onto
property
and
conviction).
sufficient
By
the
same
evidence
token,
supported
“the
the
provision
owner’s
does
not
eliminate any right of entry that would otherwise exist, and
consequently
cannot
afford
any
expectation
of
privacy
beyond
what would otherwise exist.” Id.
¶14
Similarly in this case, Ordinance § 205(B)(2) does not
define an authority to enter the Property and does not eliminate
any
right
205(B)(2)
of
nor
entry
the
that
Fourth
would
otherwise
Amendment
1
exist. 1
prohibits
Neither
Grossmayer
§
from
We note that the February 22, 2011 amendment to Ordinance §
205(B)(2) added language creating authority to enter as follows:
“The Land Use Specialist or designee may, in the discharge of
his duties during assigned working hours, enter private property
for the sole purpose of contacting the owner or occupant of
same, provided the property is not posted with ‘No Trespassing’
notices or otherwise secured.” (Effective March 24, 2010.)
7
entering the Property and knocking on the front door. As the
County points out, anyone may “openly and peaceably knock [on an
individual’s door] with the honest intent of asking questions of
the occupant thereof – whether the questioner be a pollster, a
salesman, or an officer of the law.” United States v. Hammett,
236 F.3d 1054, 1059 (9th Cir.) (citation omitted), cert. denied,
534 U.S. 866 (2001); accord State v. Olm, 223 Ariz. 429, 433, ¶
13, 224 P.3d 245, 249 (App. 2010) (explaining that “no Fourth
Amendment violation occurs when an officer, without a warrant,
crosses
the
curtilage
to
knock
on
the
front
door
to
ask
questions of a resident.”).
¶15
that
Moreover, the United States Supreme Court recognizes
tenants,
interest
in
not
landlords
leased
like
residences
Magaziner,
under
the
have
Fourth
a
privacy
Amendment.
Chapman v. United States, 365 U.S. 610, 616-17 (1961); accord
Santulli, 910 N.Y.S.2d at 339 (“[A] landlord does not have a
reasonable expectation of privacy with respect to property that
he has rented to a tenant, and that is occupied by that tenant”)
(citations omitted); cf. State v. Lucero, 143 Ariz. 108, 109-10,
692
P.2d
287,
288-89
(1984)
(holding
that
person
whose
name
appeared on a storage locker’s rental agreement, was responsible
for payment of its rent, and held a set of keys to the locker
had
apparent
authority
to
consent
to
the
locker’s
search).
Accordingly, assuming without deciding that the conversation at
8
the
front
leasing
door
the
constituted
Property
had
an
inspection/search,
authority
to
consent
the
persons
to
it
once
May
7
entry
Grossmayer lawfully arrived at the front door.
¶16
Even
assuming
that
evidence
from
the
should not have been considered, other substantial evidence in
the record sufficiently supports the finding that a violation
occurred on May 7, 2009. See DeGroot v. Ariz. Racing Comm’n, 141
Ariz. 331, 336, 686 P.2d 1301, 1306 (App. 1984) (“[I]n order to
reverse the agency’s decision, the trial court must find that
there
was
no
substantial
evidence
to
support
the
agency
decision.”).
¶17
During the hearing, Magaziner admitted that she had
engaged
in
short-term
rentals
of
the
Property
and
made
an
“attempt to really start to comply” when she received her first
call from the County on an unspecified date. Magaziner further
stated that she had cancelled a number of wedding reservations
and told the hearing officer: “I plan to comply.”
¶18
Ron
Mohney
(“Mohney”),
Magaziner’s
neighbor
and
the
spokesman for seven other neighbors, testified that Magaziner
had persisted in short-term rentals into August 2009. He and
other neighbors have observed groups coming as one family or
multiples of families, and staying on an average of three to
seven
days.
different
In
early
states
on
July,
the
Mohney
identified
Property.
9
six
According
cars
to
from
Mohney,
Magaziner’s
tenants
make
“a
lot
of
noise,”
engage
in
“screeching, yelling and laughing,” and “party and it goes past
midnight.”
¶19
As
of
September
10,
2009,
Magaziner
was
still
displaying online ads to use the property for small retreats,
family
meetings,
company
meetings,
and
other
commercial
purposes. Another neighbor stated that Magaziner’s promotional
site states groups of “above 60 people” will not be accepted.
This evidence substantially supports the finding of a zoning
violation on May 7, 2009. See, e.g., Price v. Zoning Bd. of
Appeals,
883
P.2d
629,
637
(Haw.
1994)
(upholding
a
zoning
violation determination based upon the vendor’s testimony that
he
was
selling
food
to
the
public,
and
upon
testimony
from
witnesses who had observed the lunch wagon’s operations on the
property).
¶20
In an effort to evade the consequences of this record,
Magaziner contends that all the evidence collected stemmed from
an
illegal
initial
contact
and
must
therefore
be
suppressed
under a “sour fruit” or “fruit of the poisonous tree” theory.
We
decline
to
consider
this
argument
because
Magaziner
is
asserting it for the first time on appeal. See Stewart v. Mut.
Of Omaha Ins. Co., 169 Ariz. 99, 108, 817 P.2d 44, 53 (App.
1991).
We
therefore
express
no
opinion
as
to
doctrine applies or if it may be raised upon remand.
10
whether
the
II.
Due Process Based on Admission of Hearsay
¶21
Magaziner and the Trust further contend that they were
deprived
of
consider
any
due
process
hearsay
because
evidence
the
Board
“important
was
to
entitled
the
case.”
to
A
violation of due process is a question of law that we review de
novo. In re MH 2006-002044, 217 Ariz. 31, 33, ¶ 7, 170 P.3d 280,
282 (App. 2007).
¶22
Pursuant to A.R.S. § 11-808(G) (2001), the Board has
adopted the Yavapai County Hearing Officer (“YCHO”) Rules of
Procedure for zoning violation cases. YCHO Rule 8 provides: “The
Arizona Rules of Evidence will not apply in cases coming before
the
Hearing
included
if
Officer.
the
Any
Hearing
important to the case.”
evidence
Officer
that
is
believes
offered
the
may
be
evidence
is
This is consistent with A.R.S. § 41-
1062(A)(1) (2004), which states in relevant part:
A hearing may be conducted in an informal
manner and without adherence to the rules of
evidence required in judicial proceedings.
Neither the manner of conducting the hearing
nor the failure to adhere to the rules of
evidence required in judicial proceedings
shall
be
grounds
for
reversing
any
administrative decision or order providing
the evidence supporting such decision or
order
is
substantial,
reliable,
and
probative. Irrelevant, immaterial or unduly
repetitious evidence shall be excluded.
¶23
Arizona
courts
have
held
that
an
administrative
decision may be sustained on reliable hearsay. Reynolds Metals
11
Co. v. Indus. Comm’n, 98 Ariz. 97, 101-03, 402 P.2d 414, 416-18
(1965) (rejecting the rule that a “residuum of legal evidence”
must be used to sustain a judgment along with hearsay). Awards
must be based on hearsay that has “rational probative force,”
id. at 103, 402 P.2d at 418, and
is “reliable,” meaning that
“the circumstances tend to establish that the evidence offered
is trustworthy.” Wieseler v. Prins, 167 Ariz. 223, 227, 805 P.2d
1044, 1048 (App. 1990).
¶24
of
Federal courts have likewise recognized that the use
hearsay
evidence
in
administrative
proceedings
does
not
violate the Due Process Clause:
We are aware that [the statute] provides that
in
conducting
a
hearing
the
deputy
commissioner “shall not be bound by common law
or statutory rules of evidence or by technical
or formal rules of procedure, except as
provided by this chapter; but may make such
investigation or inquiry or conduct such
hearing in such manner as to best ascertain
the rights of the parties. . . . This
relaxation of the ordinary rules of procedure
and
evidence
does
not
invalidate
the
proceedings, provided the substantial rights
of the parties are preserved. . . . Although
administrative agencies may be relieved from
observance of strict common law rules of
evidence,
their
hearings
must
still
be
conducted
consistently
with
fundamental
principles which inhere in due process of law.
Jones v. Indus. Comm’n, 1 Ariz. App. 218, 222-23, 401 P.2d 172,
176-77 (1965) (citing S. Stevedoring Co. v. Voris, 190 F.2d 275,
277 (5th Cir. 1951) (internal citation omitted)).
12
¶25
Pursuant to these authorities, a hearing officer is
not bound by the rules of evidence, and the hearing officer’s
reliance upon reliable hearsay did not violate due process.
See
State Div. of Fin. v. Indus. Comm’n, 159 Ariz. 553, 556, 769
P.2d 461, 464 (App. 1989) (explaining that an administrative law
judge is not bound by the rules of evidence); accord Price, 883
P.2d
at
637
proceedings,
allow
(“[T]he
unlike
admission
rules
those
of
of
evidence
applicable
to
hearsay
in
administrative
judicial
evidence.”).
The
proceedings,
rationale
for
relaxing the evidentiary rules in administrative proceedings “is
due in part [to] the absence of a jury.”
Id. at 637 n.8, 883
P.2d at 637 n.8 (citation omitted). Consequently, “the general
rule
is
that
hearsay
evidence
is
admissible
in
agency
proceedings.” Id.
¶26
Magaziner
and
tenants’
statements
were
the
Trust
fail
unreliable.
to
explain
Magaziner
also
why
the
does
not
allege that she was denied an opportunity to cross-examine at
the
August
2009
hearing.
Her
objection
pertains
to
the
statements obtained during Grossmayer’s site visits. Presumably,
Magaziner knew who was renting the Property on those dates and
could have attempted to call them to testify. On this record,
substantial
evidence
supports
the
violation
determination.
We
therefore find no abuse of discretion or due process violation
based on this ground.
13
III. Due Process Violation After The Evidentiary Hearing.
¶27
Magaziner contends that her due process rights were
also violated after the liability determination. According to
Magaziner, the financial sanctions were implemented without a
hearing to determine her compliance with the judgment. She also
complains
that
the
County
lacks
authority
to
regulate
advertising on the internet.
¶28
We
lacks
begin
express
argument
misses
with
authority
the
Magaziner’s
to
ultimate
argument
regulate
point.
web
The
that
the
County
advertising.
hearing
officer
This
had
authority to sanction Magaziner for admittedly engaging in a
lodging violation and non-conforming use. The initial sanction
was
stayed
pending
demonstration
of
her
compliance
with
the
regulation and agreement to alter the website. Because there was
a basis for the sanction, we affirm the authority to enter the
initial sanction for the zoning violation itself, even assuming
that the County lacked authority to sanction on the basis of web
advertising.
¶29
More troubling are Magaziner’s due process arguments
based upon post-hearing events. It is fundamental that a party
with a protected interest enjoys the due process right to offer
evidence and confront adverse witnesses.
See, e.g., Gaveck v.
Ariz. State Bd. of Podiatry Exam’rs, 222 Ariz. 433, 437, ¶ 14,
215
P.3d
1114,
1118
(App.
2009).
14
The
County
contends
that
Magaziner never chose to exercise that right. She submitted no
evidence of her own compliance by the October 11, 2009 deadline,
or thereafter, to the hearing officer nor did she contact the
Zoning Enforcement Office.
¶30
We are persuaded, however, that due process required
more. This is not a case where a definite penalty was imposed
with a possibility of having it reduced or eliminated if the
violator proves compliance with certain specified requirements.
In
such
a
case,
failure
of
the
violator
to
act
by
proving
compliance simply leaves in place the set penalty. Here, the
$10,000 penalty was imposed subject to a determination of the
Developmental Services Department. No specific burden of proof
was imposed on Magaziner, and how compliance would be measured
was not clearly defined.
¶31
As Magaziner and the Trust point out, this case is
analogous
to
determine
what
a
probation
a
penalty
case
will
in
be
that
or
if
subsequent
a
penalty
actions
will
be
modified. Due process requires that a defendant receive notice
and a hearing before probation is modified. State v. Korzuch,
186 Ariz. 190, 193, 920 P.2d 312, 315 (1996). We have found a
due process violation when a juvenile received no notice of a
hearing or the reasons for it. Pinal County Juv. Action No. J169, 131 Ariz. 187, 189, 639 P.2d 377, 379 (App. 1981). In this
case, the Trust and Magaziner received no prior notice of a non-
15
compliance
determination,
nor
were
they
provided
with
an
opportunity to dispute that determination in a hearing.
¶32
Magaziner additionally claims that the non-compliance
decision was improperly left to the prosecuting authority.
This
is an issue that the superior court did not address, but the
County makes no effort to refute on appeal. Pursuant to A.R.S. §
11-808(F) (2001), a hearing officer “shall determine whether a
zoning violation exists” and “may impose civil penalties.” The
“zoning
violation
inspector,”
to
the
in
hearing
contrast,
officer,”
only
“reports
A.R.S.
§
a
zoning
11-808(E),
and
“presents evidence showing the existence of a zoning violation.”
A.R.S. § 11-808(F).
¶33
Here, the notice of violation from the “Yavapai County
Hearing Office” identifies Grossmayer as a “land specialist.”
Ordinance § 205 provides that a “land use specialist” has the
duty to “administer and enforce [the] Ordinance including the
receiving of applications, the inspection of premises and the
issuing of permits.” Grossmayer was thus a “zoning inspector”
within the meaning of A.R.S. § 11-808. There is no evidence that
the Board ever appointed Grossmayer as a hearing officer, nor
have we been provided with any authority that a hearing officer
is entitled to delegate non-compliance determinations to a “land
specialist” who also prosecuted the zoning violation.
16
¶34
For
these
reasons,
we
hold
that
the
conditional
$10,000 penalty should not have been imposed without providing
Magaziner and the Trust with notice and an opportunity to be
heard. We therefore vacate the penalty. This holding obviates
the
need
to
consider
whether
the
sanction
imposed
was
permissible. We also need not reach additional arguments that
Yavapai
County
lacked
the
authority
to
regulate
web-based
advertising or that the related Ordinance was vague. Further, we
decline to address the notice amendment argument because it has
not
been
sufficiently
developed
for
the
purposes
of
review.
Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d
391, 393 n.2 (App. 2007). These issues are also waived because
they were not previously raised before the superior court. See
Stewart, 169 Ariz. at 108, 817 P.2d at 53.
¶35
Finally, we deny Magaziner and the Trust’s request for
attorneys’
fees
on
appeal
pursuant
to
A.R.S.
§
12-348(A)(1)
(2003). Section 12-348(A)(1) permits an award of attorneys’ fees
and costs to the prevailing party in a “civil action brought by
the state or a city, town or county against the party.” A “civil
action” is defined as “an action brought to enforce, redress, or
protect a private or civil right; a noncriminal litigation.”
Black’s Law Dictionary 32 (8th ed. 2004).
¶36
imposed
Here, Yavapai County did not bring suit, but merely
civil
fines
for
the
zoning
17
violation.
This
did
not
constitute a “civil action” within the meaning of the statute.
We therefore deny the request for attorneys’ fees.
CONCLUSION
¶37
We affirm the superior court’s evidentiary rulings and
liability determination, but vacate the $10,000 civil penalty
because
the
County
determined
noncompliance
without
affording
notice and a hearing to Magaziner and the Trust. On remand, the
superior
court
procedures
will
outlined
direct
in
this
the
County
decision.
to
comply
Specifically,
with
it
the
shall
order the County to conduct a hearing presided over by a hearing
officer, not a prosecutor.
/s/
PATRICK IRVINE, Presiding Judge
CONCURRING:
/s/
JOHN C. GEMMILL, Judge
/s/
PHILIP HALL, Judge
18
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