124 So. 3d 1157
La. Ct. App.2013Background
- DMK Acquisitions purchased a hurricane-damaged strip‑mall property in New Orleans in April 2007, received Economic Development grant funds, but left the site largely vacant and unrepaired through the June 7, 2012 administrative hearing.
- City code inspectors (initial inspection Oct. 2011; re‑inspection June 7, 2012) documented missing siding, deteriorated roof and studs, exposure of structural elements, high grass, and no work in progress; inspection reports and photographs were entered into the administrative record.
- Community members and neighborhood associations testified about chronic vacancy, visible deterioration, safety hazards, depreciation of nearby property values, and requested enforcement (some sought demolition).
- DMK submitted photos showing recent grass cutting and a June 6, 2012 engineer’s letter opining the building was structurally sound and fenced; DMK’s representative testified and denied imminent collapse, blamed bureaucratic delay, and requested additional time.
- The Hearing Officer (HO) concluded the property was blighted and a public nuisance, imposed fines and daily penalties; the Civil District Court affirmed; DMK appealed to the Fourth Circuit.
Issues
| Issue | Plaintiff's Argument (City) | Defendant's Argument (DMK) | Held |
|---|---|---|---|
| Was the HO required to administer oaths to witnesses? | Administrative hearings allow relaxed procedures; testimony may be admitted without formal oath; witnesses identified on record suffice. | Failure to swear witnesses (and presence of unidentified speakers) violated due process and APA; testimony should be sworn. | Testimony‑under‑oath requirement in La. R.S.13:2575 exists but non‑swearing here was waived by DMK’s failure to object; HO’s practice not reversible error. |
| May unsworn City representative (non‑attorney) present and testify? | Representative may present case; no showing he held himself out as attorney; any oath error waived. | Non‑attorney prosecutor both represented City and testified without oath; improper and prejudicial. | No reversible error: transcript shows he identified as Code Enforcement rep, not counsel; any objection was waived. |
| Were inspector reports (hearsay) admissible and competent evidence without the inspector present? | Under APA, hearsay/documentary reports with indicia of reliability are admissible and can be competent evidence; reports were standard forms and corroborated by other evidence. | Inspector reports are hearsay that cannot be sole basis of an adverse finding and precluded cross‑examination. | Reports were admissible and competent under Chaisson standard (some degree of reliability); this case was not decided solely on hearsay, so residuum rule concerns unnecessary. |
| Were HO’s factual findings (blight and public nuisance) supported by the record? | Evidence of chronic vacancy, lack of maintenance, and adverse neighborhood impact established blight/public nuisance; HO also took judicial notice. | DMK’s structural engineer showed building structurally sound; this undermines blight finding. | Structural soundness does not preclude blight/nuisance finding; record (inspections, community testimony, photos) supports HO’s conclusion; decision not arbitrary or capricious. |
Key Cases Cited
- Chaisson v. Cajun Bag & Supply Co., 708 So.2d 375 (La. 1998) (administrative hearsay may be competent if it has reliability/trustworthiness)
- Clark v. Louisiana State Racing Comm’n, 104 So.3d 820 (La. App. 4 Cir. 2012) (standard of appellate review of administrative decisions under APA)
- Williams v. Louisiana Tax Comm’n, 611 So.2d 724 (La. App. 4 Cir. 1992) (discussion of hearsay and competence in administrative contexts)
- Bourque v. Louisiana State Racing Comm’n, 611 So.2d 742 (La. App. 4 Cir. 1992) (cross‑examination and due process in administrative hearings)
- LaFrance v. Weiser Security Service, Inc., 815 So.2d 339 (La. App. 4 Cir. 2002) (documentary records as competent administrative evidence)
- Rothbard v. Gerace, 354 So.2d 225 (La. App. 4 Cir. 1978) (residuum rule: hearsay may corroborate but not solely support administrative decisions)