Although district court does not have appellate jurisdiction over local code enforcement, it can do a de novo review of the record but not de novo trial: HIGHVIEW MANOR ASSOCIATION LLC V. LOUISVILLE METRO HEALTH DEPT. (COA 6/13/2008)

HIGHVIEW MANOR ASSOCIATION LLC V. LOUISVILLE METRO HEALTH DEPT.
GOVERNMENT:  Review of municipal code and enforcement (bingo halls)
2007-CA-000233
PUBLISHED: REVERSING IN PART, VACATING IN PART, AND REMANDING
PANEL:  KELLER PRESIDING; CLAYTON, MOORE CONCUR
JEFFERSON COUNTY
DATE: 6/13/2008

COA accepted discretionary review in this matter to determine the scope of a district court’s authority to review a decision of a local code enforcement pursuant to KRS 65.8831.

The underlying matter involves citations and fines imposed against bingo hall owners by the Louisville-Jefferson County Metro Government’s Code Enforcement Board for violations of the Smoke Free Law, Louisville Metro Ordinance No. 123-2005.   The facilities argued that they were exempt from application of the Smoke Free Law, as they leased their premises to charitable organizations that conducted bingo games as authorized by KRS 238.500, et seq., and thus were private organizations.

In response, the Health Department argued that the private organization exception did not apply, as there was no evidence that the facilities were not open to the general public, and that the district court was limited to a review of the record created before the code enforcement.

In its Findings and Order on April 26, 2006, the district court found that a conflict existed in the statutes regarding its jurisdiction: KRS 24A.010 provides that it does not have appellate jurisdiction, while KRS 65.8831 provides that in an appeal of a decision of the code enforcement board, the district court is limited to a review of the record the board created.

The district court determined that it had original jurisdiction of the matter.  The district court further determined that the facilities were exempt from enforcement of the Smoke Free Law and that the charitable organizations that rented the bingo halls were exempt.

COA presumed the General Assembly (and, in turn, the Louisville Metro Government) was aware that the district court had no appellate jurisdiction pursuant to KRS 24A.010(3) when it enacted KRS 65.8831, which limited the district court to a review of the record created before the code enforcement board.  The district court is not permitted to conduct a de novo trial, but instead is merely permitted to review only that evidence and testimony introduced before the code enforcement board.  The district court may not take additional evidence, but must confine itself to the board’s record. It is incumbent upon the code enforcement board to ensure that its record is sufficient to provide for meaningful review.

Because it does not have appellate jurisdiction, the district court may conduct a de novo review of that evidence and is not confined to a determination as to whether the board’s decision was arbitrary.

Therefore, the circuit court erred when it held that the district court could only review the board’s action for arbitrariness.

Accordingly, COA reversed the circuit court’s holding in this regard and remanded this matter to the circuit court to address the merits of the district court’s decision, which must be supported by the board’s record.

On remand, the circuit court shall first determine whether the district court properly concluded that the organizations operating the bingo games were private organizations. If so, then the circuit court must next determine whether the district court properly applied the private organization exemption to the owners of the respective facilities.

For the foregoing reasons, the Jefferson Circuit Court’s Opinion and Order is hereby reversed in part and vacated in part, and this matter is remanded to the circuit court for further proceedings consistent with this opinion.

By Michael Stevens

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