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City of Fargo v. Rakowski

Supreme Court of North Dakota

April 12, 2016

City of Fargo, Plaintiff and Appellee
v.
William Rakowski, Defendant and Appellant

Page 815

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Douglas R. Herman, Judge.

         Casey W. Moen, (argued) and Ian McLean (appeared), City of Fargo Prosecutor's Office, Fargo, ND, for plaintiff and appellee.

         Jonathan T. Garaas, DeMores Office Park, Fargo, ND, for defendant and appellant.

         Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Crothers, Justice.

          OPINION

Page 816

           Daniel J. Crothers, Crothers, Justice.

          [¶1] William Rakowski appeals after a district court granted summary judgment in favor of the City of Fargo. Rakowski argues the district court erred because Fargo did not have authority to assess a re-inspection fee, Fargo was required to have a search warrant before re-inspecting the house, the re-inspection fee constituted an illegal bill of attainder, Fargo's claim was barred by double jeopardy and res judicata and he was entitled to relief under 42 U.S.C. § 1983. We affirm.

         I

          [¶2] Rakowski owns rental houses in Fargo. In November 2011 Fargo inspected one of the houses owned by Rakowski and found the garage was deteriorating, the siding on the house was deteriorating, two egress window wells were collapsing and one window was broken. Fargo notified Rakowski of the need for repairs and re-inspection. The house was re-inspected on December 12, 2011, December 29, 2011, January 23, 2012 and February 27, 2012. Fargo charged Rakowski a single $100 fee for the January 23, 2012 re-inspection, which Rakowski did not pay. Fargo brought a small claims action to collect the fee, Rakowski removed the claim to district court and both parties moved for summary judgment. The district court granted summary judgment in favor of Fargo and Rakowski appeals.

         II

          [¶3] Rakowski argues the district court erred granting summary judgment because Fargo did not have authority to charge a re-inspection fee. Our review of summary judgment is well established:

Page 817

" Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record."

Hamilton v. Woll, 2012 ND 238, ¶ 9, 823 N.W.2d 754 (quoting Wenco v. EOG Res., Inc., 2012 ND 219, ¶ 8, 822 N.W.2d 701).

          [¶4] Inspection of rental properties is permitted by state law and Fargo ordinance. Section 40-05-01(1), N.D.C.C., provides in relevant part:

" The governing body of a municipality shall have the power:
1. Ordinances. To enact or adopt all such ordinances, resolutions, and regulations, not repugnant to the constitution and laws of this state, as may be proper and necessary to carry into effect the powers granted to such municipality or as the general welfare of the municipality may require . . . . The governing body of a municipality may adopt by ordinance the conditions, provisions, and terms of a building code, a fire prevention code, a plumbing code, an electrical code, a sanitary code, vehicle traffic code, or any other standard code . . . . Fines, penalties, and forfeitures for the violation thereof may be provided within the limits specified in this chapter notwithstanding that such offense may be punishable also as a public offense under the laws of this state."

          [¶5] Fargo's city inspector John Mrozla found Rakowski in violation of the International Property Maintenance Code (" IPMC" ). The IPMC compiles minimum requirements and standards for an existing structure's light, ventilation, space, heating, sanitation, protection from hazards and safe and sanitary maintenance. IPMC § 101.2 (Int'l Code Council, Inc., 2012). Chapter 31 of the Fargo Code of Ordinances adopted the 2012 edition of the IPMC by reference. Fargo Municipal Code § 31-0101. The IPMC provides for a code official who is given authorization to inspect existing premises and issue notices and orders to enforce the code's provisions. IPMC § 104.1-5 (2012). The code also ...


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