STATE OF INDIANA ) IN THE MONROE CIRCUIT COURT

) SS:
COUNTY OF MONROE ) CAUSE NUMBER 53C08-171 1-OV-000037

CITY OF BLOOMINGTON
DEPARTMENT 0F HOUSING AND
NEIGHBORHOOD DEVELOPMENT,
Plaintiff,

VS.

JEFFREY JONES,
Defendant.

FINDS 0F FACT AND CONCLUSIONS 0F LAW

On April 16, 2019, this matter came before the Court for Bench Trial on Plaintiff’s

Verified Complaint (and Amended Complaint) for Violations ofthe City ofBloomington

Municipal Code. Plaintiff, City of Bloomington Depanment of Housing and Neighborhood

Development (“HAND”) appeared by its representative John Hewett, and by counsel Christopher

J. Wheeler. Defendant, Jeffrey Jones (“Jones”) appeared in person and by counsel. Carl P. Lamb.

Witnesses'were sworn and evidence presented, and the Court being duly advised in the premises,

now FINDS and ORDERS as follows:

l. This Courthas jurisdiction over the parties and subject matter of this case, it having been

stipulated by the panics through their pleadings.

2. The Court has received into the record by stipulation of the parties through their pleadings

for evidentiary purposes the following:

a. The City of Bloomington (“City”) is a duly incorporated second class city by operation

of Indiana Law and has the power to regulate the use, improvement and maintenance

of real property and the location, condition and maintenance of structures and other

improvements and has enacted Title 16 of the Bloomington Municipal Code which is

the Residential Rental Unit and Lodging Establishment InSpcction Program (“BMC
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 Title 16”).

Jones owns the real estate located at 3225 S. Walnut Springs Drive, Bloomington, IN

(the “Pr0perty”).

The Property is subject to BMC Title 16.

BMC Title 16 § 16,10,030 permits the City t0 assess a fine 0f up t0 $2,500.00 for each
'

violation of BMC Title 16.

BMC Title 16 § 16.10.020 states that each day a violation of BMC Title 16 exists is

considered a separate and distinct violation of BMC Title 16.

The occupancy permit for the Property expired on November 18, 2014.

The cycle inspection process 0n this Property was completed on March 29, 2018.

HAND issued an invoice 0n March 27, 2018.

Jones paid the invoice 0n June 11, 2018.

The' Court has received into the record by joint stipulation of the parties for evidentiary

purposes the following:

The tenant complaints (also known as Rental Complaints), Complaint Inspections, and

Remaining Violation Inspection Reports, as alleged in both paragraph eight (8) 0f the

HAND’s November 15, 2017, Verified Complaint for Violations of The City 0f

Bloomington Municipal Code, and paragraph three (3)(e) ofthe HAND’S July 10, 201 8,

Amended Complaint are valid and admitted into evidence.

The following HAND’s Exhibits are admitted into evidence:

Exhibit 1
— Tenant Complaint — Unit 3283
ii. Exhibit 2 — Notice of Complaint InSpection - Unit 3283
iii. Exhibit 3 — Tenant Complaint — Unit 3257
iv. Exhibit 4 — Notice 0f Complaint Inspection — Unit 3257
Exhibit 5 — Tenant Complaint — Unit 3261
vi. Exhibit 6 — Notice 0f Complaint Inspection — Unit 326 1
vii. Exhibit 7 — Tenant Complaint — Unit 3253

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 viii. Exhibit 8 — Notice 0f Complaint Inspection — Unit 3253
Exhibit 9 — Photos related t0 Complaint Inspection — Unit 3253
'

Exhibit 10 — Tenant Complaint — Unit 3255

xi. Exhibit 11 — Notice of Complaint Inspection - Unit 3255
xii. Exhibit 12 — Tenant Complaint — Unit 3257
xiii. Exhibit 13 — Complaint Inspection Report — Unit 3257
xiv. Exhibit 14 — Tenant Complaint — Unit 3279
Exhibit 15 — Notice 0f Complaint Inspection — Unit 3279
xvi. Exhibit 16 — Tenant Complaint — Unit 3249
xvii. Exhibit 17 — Notice 0f Complaint Inspection — Unit 3249
xviii. Exhibit 18 ~ Tenant Complaint — Unit 3291
xix. Exhibit 19 — Notice 0f Complaint Inspection — 3291
xx. Exhibit 22 — Off-cycle Inspection Report from September 19, 201 8.
xxi. Exhibit 23 — Ofi-cycle Remaining Violation Report from November 30, 20 1 8.
xxii. Exhibit 26 — Tenant Complaint, Complaint Inspection Report — Units: 3291, 3249,
3279, and 3257.

The Court takes judicial notice of BMC Title 16.

The Court has raceived the following exhibits into evidence by Jones without obj ection:

a. HAND Billing statement;

b. Check stub deposited to HAND
Proceedings to enforce municipal ordinances which do not provide for imprisonment as a

sanction are civil actions. Wirgau v. Stare, 443 N.E.2d 327, (Ind. Ct. App. 1982).

Accordingly, the city need only establish Violations of municipal ordinances by a

preponderance 0f the evidence. Biedinger v. City ofEasr Chicago, 154 N.E.2d 58, 59—63

(Ind. Ct. App. 1958).

HAND alleges that Jones violated BMC Title 16 § 16.03.030(a) by permitting the

Property to be occupied without a valid occupancy permit dating back t0 November 18,

2014.

TEE OCCUPANCY PERMIT

a. The evidence can be divided for simplification purposes by the three (3) separate

group inspections conducted by HAND during the time period ofNoxgember 18, 2014
 through April 15, 2019.

. The Court finds that the five (5) inspections that are the basis for the original

complaint filed by HAND are violations 0f BMC Title 16.

That the occupancy permit for the Property issued by HAND under BMC Title I6 for

the property expired on November 18, 2014. The cycle inspection process for renewal

0f this occupancy permit was not completed until March 29, 201 8, and therefore the

occupancy permit has remained expired since November 18, 2014.

. That the Amended Complaint and Answer to Amended Complaint and the evidence

submitted at the Bench Trial corrects any misstatement in paragraph #7 of the original

complaint that the Property had a valid Occupancy Permit on November 15, 2017.

Mr. John Hewett testified for HAND. Mr. Hewett is the program manager for the

rental inspection program for HAND. He has been the program manager since 2008.

His daily responsibilities include reviewing the inspection reports, conducting

inspections, and supervising the inspectors. Mr. Hewett testified that he is familiar

with the Property and very familiar with the I-LAND file for the Property.

Mr. Hewett testified that once a cycle inspection process is completed, HAND then
issues a billing invoice and will not issue an occupancy permit until the invoice has

been paid.

. HAND issued an invoice t0 Jones on March 27, 201 8.

. The invoice was paid by Jones on June 11, 2018.

The Court finds that the policy of HAND in issuing a renewal occupancy pennit is

that the Property must be in compliance AND the invoice issued by HAND, after the
cycle inspection is complete, must be paid.

That a notation 0n an invoice does not negate a property owner’s responsibility to be

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 incompliance pursuant to BMC Title 16 § 16.03.030(c) before an occupancy pennit

will be issued.

. Mr. Hewett, testified that HAND will not issue a new occupancy permit for a rental
property until the property is in full compliance with the BMC.

BMC Title 16 § 16.03.030(c) states that “No occupancy permit shall be issued by

the HAND department until the residential rental unit and premises have been
inspected pursuant t0 Section 16.03.040 and all provisions of the Bloomington

Municipal Code have been met.”

. MI. Hewett testified that HAND could not issue the occupancy permit t0 J0nes at the
time Jones paid the invoice because Jones had not met all provisions 0f the BMC;

refening t0 four (4) new tenant complaints that were filed and found valid by HAND
between the time HAND issued the invoice 0n March 27, 201 8 and the time Jones
finally paid the invoice on June 11, 2018. (See HAND ’s
Exhibits 12 — 19, and 26).

. HAND’S Exhibit 26 shows that the four (4) new tenant complaint inspections were

conducted by HAND between the time in which HAND issued its invoice to Jones on
March 27, 2018, and Jones paid the invoice on June 11, 201 8, each of which was

found to be valid by HAND per stipulation of the parties.

At page one of HAND’S Exhibit 26, a complaint inspection of Unit 3291 ofthe
Property was conducted 0n 6/1 1/201 8, and HAND noted a violation of BMC Title
I6 for a faulty air conditioning unit.
At page two 0f HAND’s Exhibit 26, a complaint inspection 0f Unit‘3249 0f the
Property was conducted 0n 6/1 1/201 8, and HAND noted violationslof BMC Title
16 for mold, damage to a wall, and a hole in the floor.
iii. At page three of HAND’S Exhibit 26, a complaint inspection of Unit 3279 ofthe
Property was conducted 0n 6/6/2018, and HAND noted violations df BMC Title 16
for a missing smoke detector, and stained ceilings.
iv. At page four of HAND’S Exhibit 26, a complaint inspection of Unit 3257 of the
PrOperty was conducted 0n 5/3 1/201 8, and HAND noted multiple violations of
BMC Title 16 including faulty air conditioning unit, faulty dishwasher, mold, and
torn linoleum flooring.
0. Mr. Hewett testified that these tenant complaints were not all fillly corrected by

Jones until October or November 0f 2018.

. Mr. Hewett testified that HAND conducted an off—cycle inspection on September 11,
201 8. HAND’S Exhibit 22, stipulated by the parties as admitted into evidence, and

identified by the parties as the off-cycle report, shows that an inspection 0f the

Property was conducted by HAND on September 11, 2018, with the report issued to

Jones on September 19, 2018.

. The report identifies in excess of 500 violations 0f BMC Title 16 consisting 0f

missing 0r inoperable smoke detectors, electrical violations, plumbing violations,

presence 0f mold and mildew and the like.

Mr. Hewett testified that Jones had not corrected all of the violations noted in the off-

cycle inspection report as 0f the latest inspection 0f the Property 0n April 15, 2019.

According to this time line, at no time since November 18, 2014, was the Property in

full compliance with BMC Title 16.

Jones introduced into evidence Jones’s Exhibit “A” which was an invoice from

HAND with a notation on the invoice stating that the “rental permit will be issued
upon receipt of payment”.

. In spite 0f this notation, it is clear under BMC Title 16 § 16.03.030(c) that “No

occupancy permit shall be issued by the HAND department until the residential
rental unit and premises have been inspected pursuant to Section 16.03.040 and all

provisions 0f the Bloomington Municipal Code have been met.”

. HAND properly followed BMC Title 16 § 16.03.030(c) by not issuing a permit on

this Property because all provisions of the BMC had been met.
9. Therefore, the Court finds that HAND has shown by a preponderance of the evidence that
the occupancy permit for the Property has been and as of April 16, 2019, still is expired.

10. OCCUPANCY. BMC Title 16 § 16.03.030(a) provides that “[n]o owner 0f a residential

unit shall allow such unit t0 be occupied by a tenant without first obtaining a valid

occupancy permit 0r temporary occupancy permit fiom the HAND department.”

a. Jones testified that he owns five (5) buildings at the property with thirty-eight (3 8)

units. Numerous tenant complaints have been filed against Jones by tenants 0f this

Property throughout the course of the Title I6 Occupancy Permit renewal process.

Those tenant complaints were stipulated by the parties as being valid tenant

complaints. Those tenant complaints are as follows:

i. Tenant complaint for Unit 3283.

1. HAND’s Exhibit 1 shows that the tenant filed a complaint with
HAND 0n 2/21/2017.
2. HAND’S Exhibit 2 shows that the tenant complaint was inspected
by HAND on 2/21/2017.
3. Noted violations include cleaning the HVAC' vents on ceilings 0f
the entire unit, securing a smoke detector hanging by its wires from
the ceiling of the living room, replacing deteriorated flooring
around a toilet, repair a bathtub faucet that is constantly running.
HAND’S Exhibit 8 also shows that this tenant complaint was still

not complied as 0f 8/25/2017.

ii. Tenant complaint for Unit 3257.

1. HAND’s Exhibit 3 shows that the tenant filed a complaint with
HAND on 3/10/2017.
2. HAND’S Exhibit 4 shows HAND inspected the tena'nt complaint
on 3/10/2017.
3. The noted violation was to clean and service an almost constantly
running HVAC system.
4. HAND’S Exhibit 8 shows that this tenant complaint was still not
complied as of 8/25/2017.

iii. Tenant complaint for Unit 3261.

1. HAND’S Exhibit 5 shows that the tenant filed a complaint with
HAND.
2. HAND’S Exhibit 6 shows HAND inspected the tenant complaint
on 6/13/201 7.
 3. The noted Violation was to repair the air conditionerJ
4. HAND’S Exhibit 8 Shows that this complaint was still not
complied as of 8/25/2017.

iv. Tenant complaint for Unit 3253.

1. HAND’S Exhibit 7 shows that the tenant filed a complaint with
HAND on 8/21/2017.
2. HAND’S Exhibit 8 shows HAND inspected the tenant complaint
0n 8/25/2017.
3. Noted violations included determining and eliminating the source
of moisture causing the mold and damage in the master bathroom
and eliminating the mold and mildew in the master bathroom.

v. Tenant complaint for Unit 3255.

1. HAND’S Exhibit 10 shows that the tenant filed a complaint With
HAND 0n 10/18/2017.
2.. HAND’S Exhibit 11 shows HAND inspected the tenant complaint
0n 10/1 9/2017.
3. Noted violations include repairing all living room windows so they
open easily and can be held in position by their own hardware,
repairing the faucet and garbage disposal in the kitchen, cleaning
the HVAC, repair 0r replace a bedroom Window, repair the
deteriorated window sill, detennine and eliminate leaking toilets in
the bed and hall bathrooms, and repair numerous other broken
Items.

vi. Tenant complaint for Unit 3257.

1. HAND’S Exhibit 12 shows that the tenant filed a complaint with
HAND on 5/29/2018.
2. HAND’S Exhibit 13 shows HAND inspected the tenant complaint
0n 5/3 1/20 1 8.
3. Noted violations include repairing the air conditioner, repair the
dishwasher, replace torn linoleum flooring 1n the laundry room.

vii. Tenant complaint for Unit 3279.

1. HAND’S Exhibit 14 shows that the tenant filed a complaint with
HAND 0n 6/4/20] 8.
2. PLAND’S Exhibit 15 shows HAND inspected the tenant complaint
0n 6/6/201 8.
3. Noted Violations include replacing a missing smoke detector,
repairing, cleaning and surface coating the ceilings in the hallway
and bedroom, and repair or replace the roof of the entire building.

viii. Tenant complaint for Unit 3249.

1. HAND’S Exhibit 16 shows that the tenant filed a complaint with
HAND 0n 6/6/2018.
 2. HAND’s Exhibit 17 shows HAND inspected the tenant complaint
on 6/11/2018. ‘

3. Noted violations include removing mold, repairing holes in walls,

repairing a wall that is leaking water into the apartment above the
sliding glass door.

ix. Tenant complaint for Unit 3291.

1. HAND’S Exhibit 18 shows that the tenant filed a complaint with
HAND 0n 6/8/2018.
2. HAND’S Exhibit 19 shows HAND inspected the tenant complaint
0n 6/1 1/2018.
3. The noted violation was to repair the air conditioning unit.

b. BMC Title 16 § 16.03.040(e) provides that it is and “shall be the responsibility ofthe

owner of each residential rental unit to schedule all required inspections and re-

inspections required by this title.”

BMC Title 16 § 16. 10.020(c) provides that a “violation continues to exist until

corrected and verified by the director or his designees.” This section 0f Title 16 goes

on to say that correction of a violation “includes, but is not limited t0:

(1) Cessation 0f an unlawful practice;

(2) Remediation 0f a violation;
(3) Payment 0f fees 0r fines;
(4) Vacancy 0f a residential rental unit;
(5) Vacancy of a lodging establishment; and/or
(6) Other remedy acceptable t0 the City.”

. MI. Hewett testified that the process followed by HAND in any “cycle”, whether it’s
a renewal cycle, a tenant complaint cycle, or an off—cycle, is, that after‘HAND

inspects the property HAND issues an inspection report, which outlines all 0f the
violations of Title 16 so the property owner can make Thle
corrections. property

owner then calls for re-inspection to inspect the violations. If there arc any items not

complied 0r corrected then HAND issues a remaining violations report. And this
process goes on until all noted cycle inspection violations have been corrected.
e. By stipulation, the parties agree that Jones’ occupancy permit for the Property expired

on November 18, 2014, and that the cycle inspection process for the renewal cycle for

the Property was not completed until March 29, 201 8. The invoice was paid t0

HAND 0n June 11, 201 8. After completion 0f the renewal cycle inspection process,

but prior to payment 0f the invoice, new valid tenant violations were filed with

HAND. These tenant complaints were cured sometime in October or November 201 8.

In addition, an off—cycle inspection was conducted 0n September 11, 201 8. The off-

cycle violations were still not fully complied with as of April 15, 2019. No evidence

was presented showing that Jones corrected all of the Title I6 violations by vacating

the Property.

If Jones had corrected the violations noted in the reports issued by HAND by causing
the Propefiy t0 be vacated, then, in accordance with BMC Title 16 § 16.03.040(e) it

would have been Jones’ responsibility to schedule HAND to re~inspect the Property
t0 determine that, in fact, the Property was vacated, and, therefore, all complied. The

evidence shows this did not occfir as Mr. Hewett testified, Jones had, as recently as

April 15, 2019, the day before this bench trial, scheduled re-inspections by HAND.

According t0 Mr. Hewett’s testimony, the re-inspection of April 15, 2019 showed the

Property still in violation 0f Title 16 for failure t0 correct noted violations in the Off-

Cycle Inspection Report.

The evidence shows it is more likely than not that the Property has remained occupied

by tenants, without a valid Title 16 occupancy permit issued for the Property.

THE OFF-CYCLE.
8. HAND’S Exhibit 22 shows that the off-cycle inspection took place on September 11,

2018 and contains the Off—Cycle Report.

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 b. This report shows that all five (5) of Jones’ buildings were inspected.

c. HAND’s Exhibit 22 shows that more than 500 noted violations of BMC Title 16 were
found. These violations include over thirty (3 0) separate smoke detector issues,

whether the smoke detectors were out dated, missing, inoperable, etc. These noted

violations also include innumerable instances of deteriorating conditions on the

Property such as:

i. Windows not opening easily, (page 3, Unit 3241);

ii. Walls and ceilings throughout the unit in the living room, bedroom and bathroom
have cracks and holes, and windows do not open easily (page 4, Unit 3242);
iii. Repair/replace the air conditioning system (page 4, Unit 3245);
iv. Replace damaged carpeting, walls have holes and cracks, missing outlet cover
leaky water heater (page 6, Unit 3247);
plates, repair or replace
v. Repair the bathroom floor and replace or repair the damaged deteriorated floor
covering, decking and structural members (page 7, Unit 3247);
vi. Repair or replace the entry door and dead bolt (page 7, Unit 3249);
vii. Deadbolts not latching and Door not fitting in frame (page 9, Unit 3253);

The Off~Cycle Report contains 46 pages showing plumbing, electrical and general

maintenance Violations.

d. A Remaining Violation Inspection Report (HAND’S Exhibit 23) was issued 0n

November 30, 201 8, showing that none of the over 500 violations noted in the Off-

Cycle Report had been resolved.

e. Mr. Hewett testified that as of April 15, 2019, Jones had not corrected all of the noted

violations in the Off—Cycle Report.

12. After caIefully reviewing the stipulations, all 0f the documentary evidence, and the

testimony 0f all witnesses, the Court finds that HAND has met its burden by a
preponderance of the evidence.

13. Jones violated BMC Title 16 § 16.03.03 0(a) by permitting the Property to be occupied

without a valid occupancy permit dating back to November 18, 201 4, however, because

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 HAND’S Complaint filed November 15, 2017 prayed that the Court find J01:165 in

violation 0f BMC Title 16 “dating back to February 21, 2017”, the Court finds that Jones
is in violation dating back to February 21 , 2017.

14. The property has been in violation 0f BMC Title 16 § 16.03.03 0(a) from February 21,

2017 until April 16, 2019, for a total 0f 754 days.

15. The purpose for the adoption of BMC Title 16 by the City 0f Bloomington’s Common

Council is, in part, “to ensure the public health, safety and welfare insofar as they are

affected by the continued occupancy 0f structures and premises used as a residential

rental unit.” BMC Title 16 § 1 6. 0]. 030(a). Another purpose for the adoption of BMC

Title 16 by the City 0f Bloomington’s Common Council is, in part, “t0 assist in the

elimination of blight, t0 promote maintenance 0f property, and to thereby ensure public

health, safety and welfare.” BMC Title 1 6 § 16.01.030(c).

16. Insofar as Jones has failed to ensure the health, safety and welfare of his tenants as

occupants 0f this rental Property, it is appropriate for the Court to assess a civil penalty

against Jones in the amount of $75,400.00 ($100.00 x 754 days) for permitting the

property to be occupied by his tenants Without a valid occupancy permit for a period in

the'
excess 0f two (2) years while failing and refusing t0 properly maintain Property.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that,

1. Jones violated BMC Title 16 by allowing the Property t0 remain occupied without a

valid occupancy permit issued by the City;

Jones violated BMC Title 16 by failing and refusing t0 properly maintain the
Property.

Jones shall do one 0f two things in regards to the Property:

a. Have said property brought into compliance with all requirements‘ 0f Title 16 0f

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 the Bloomington Municipal Code and inspected by HAND no later than (30) days
from the date of this Order; or

Have all tenants/occupants vacate the Property no later than thirty (30) days from
the date of this Order and maintain said residential rental unit in a state of vacancy
until such time as Jones presents a valid HAND issued Title l6 Occupancy Permit
to this Court.

Should Jones fail t0 comply in fiJll with Paragraph 3 above, then HAND shall
immediately issue a 30-day Notice to Vacate with a copy of this Order attached to

each of the tenants/occupants of the Property. The City of Bloomington may enter

upon Jones’ Property to effect issuance and enforcement of the notice. Jones shall

not permit the Property to be re-occupied until Jones presents a valid HAND issued
Title 16 Occupancy Permit to this Court.

The fine of $75,400.00 assessed herein shall be suspended pending compliance with

paragraph 3 above. If Jones presents a valid HAND issued Title 16 Occupancy Permit

to this Court, the Court may consider reducing the fine.

If Jones fails to present a valid HAND issued Title 16 Occupancy Permit to this Court

within 30 days, the fine of $75,400.00 ($100.00 x 754 days) for his violations of Title

16 of the Bloomington Municipal Code, shall be entered as a Judgment against Jones

and paid via the Monroe County Clerk.

Jones shall pay court costs.

@M
7.

so ORDERED, this 4th day ofJune, 2019.

(1
Judge Judith C. Benckart )

Mo oe Circuit Court 8
Distribution:
Christopher Wheeler for Plaintiff
Carl Lamb for Defendant

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