                                  Cite as 2017 Ark. App. 638


                  ARKANSAS COURT OF APPEALS
                                        DIVISION IV
                                       No. CR-17-109


                                                  Opinion Delivered: November   29, 2017
GARLAND TRICE
                                 APPELLANT APPEAL FROM THE JEFFERSON
                                           COUNTY CIRCUIT COURT
V.                                         [NO. 35CR-15-588]

CITY OF PINE BLUFF
                                   APPELLEE HONORABLE JODI RAINES
                                            DENNIS, JUDGE

                                                  AFFIRMED


                                 BART F. VIRDEN, Judge

        Garland Trice appeals the Jefferson County Circuit Court’s decision finding him

 guilty of violating City of Pine Bluff Ordinance section 16-1(b)(1), Failure to Remove or

 Abate a Nuisance. Trice was assessed a $1000 fine and sentenced to 30 days’ jail time,

 suspended contingent upon razing the property. We affirm.

         Trice is the designated agent for Medic Transport, which is the owner of the “Sahara

 Temple” located at 620 South Main Street in Pine Bluff’s historic district. On July 25, 2014,

 part of the third-floor roof of the Sahara Temple collapsed. Trice was out of the state at the

 time, but he immediately asked an associate to assess the damage. Trice also engaged the

 services of Keith Fix, a principal engineer at Red Pepper Consulting, Inc., who assessed the

 state of the building. In the letter dated July 31, 2014, Fix explained that part of the third-

 floor roof had collapsed likely due to the failure of the weakened trusses. The walls that
                                Cite as 2017 Ark. App. 638

were not fully attached to the roof remained standing, while the walls that were in the path

of the shifting roof collapsed. Fix opined that there was no immediate danger of total

collapse, but he recommended closing off traffic in front of the building to the centerline of

the roadway until demolition of the collapsed area was complete, and he suggested that

Trice take mitigating measures regarding the remaining roof. Fix also recommended that

access to the perimeter surrounding the building should be restricted.

       Trice received a letter from the Department of Inspection and Zoning (Inspection

and Zoning) dated August 4, 2014, in which he was informed that he was in violation of

Ordinance No. 6042 section 102.2, which sets forth that “the owner or the owner’s

designated agent shall be responsible for the maintenance of buildings, structures and

premises.”   The letter informed Trice that he was expected to have the property

rehabilitated or demolished according to the required timeframes regarding “major” and

“minor” violations. A City of Pine Bluff Inspection Department building inspection report

also dated August 4, 2014, described fifteen “major” structural issues. Trice was informed

that he must obtain permits to either repair or demolish the building and that failure to

repair or demolish would result in the presentation to the Pine Bluff City Council (the City

Council) of a resolution declaring the property a nuisance and ordering its abatement. The

Inspection and Zoning letter provided that Trice may appeal a declaration of nuisance status

at the planning and development meeting.

       On September 8, 2014, Trice submitted a “Plan for Addressing 620 Main Natural

Disaster (Collapse)” to Inspection and Zoning. Trice explained that this was a “cursory”

plan and that a “more comprehensive plan will be provided when we get additional


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information from the structural engineer and architect.” In a letter dated September 10,

2014, Mitzi Ruth of Inspection and Zoning responded, reminding Trice that “when your

contracts with the structural engineer, and architect, are completed, we ask to be provided

with the documents and plans involving both parties for review within our department.

Once approved, necessary permits will be issued.”

       On September 14, 2014, the Pine Bluff City Council (City Council) voted to amend

ordinance 16-1. The amendment to section (b)(1) made it a misdemeanor offense to fail to

abate a nuisance, and it also allowed the imposition of a fine of up to $1000 and detainment

in the county jail for up to 180 days.

       In a letter dated November 3, 2014, Inspection and Zoning informed Trice that this

was his final notice of condemnation and that a hearing on whether to order removal of the

structure would be held on December 1, 2014. On November 4, 2014, Trice faxed

Inspection and Zoning a one-page outline of his plan to renovate the building:

       Phase I
       1. Clean and remove debris from 7th Avenue
       2. Bring North West wall down to 2nd level
       3. Bring North West wall down to 2nd level alone with West wall
       4. Salvage roof material
       5. Asbestos assessment
       6. Secure remaining roof
       7. Weatherize windows

       Phase II
       1. Replace roof
       2. Rehab exterior of building

       Phase III
       1. Remodel first level

       Phase IV
       1. Remodel 2nd level balcony

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       Estimated Time
       28-36 months

       Note: Ongoing asbestos test reveal none.
       See attachment

       Inspection and Zoning responded that this plan was inadequate because it lacked

professional statements and stamped plans from an architect or a structural engineer and

because the project timeline of 28 to 36 months was unreasonable.

       On November 18, 2014, the planning and development committee met with Trice

to discuss the Sahara Temple, and pursuant to that meeting, it placed the building on the

condemnation list. On December 1, 2014, the City Council discussed a resolution to declare

the Sahara Temple a nuisance and order its abatement. During that discussion, an alderman

moved to amend, noting that Trice intended to appeal the notice of condemnation to the

Code Enforcement Board of Zoning Adjustments and Appeal (the Board). The City

Council decided to remove the Sahara Temple from the list until the appeal could be heard.

On December 8, 2014, Trice filed a notice of appeal with the Board contesting the City

Council’s decision that the building should be condemned. In his appeal he made three

requests:

       1. That the Pine Bluff City Council follow ordinance #5444 and Due Process Rights
       built into the ordinance.

       2. That the decision of Planning and Development Committee be tossed; i.e., null
       and void.

       3. That Pine Bluff City Council pull from its agenda any action on 622 Main Street. 1
       1
       At other places in the record, the address of the Sahara Temple is listed as 620 S.
Main Street.


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       In December 2014, the Board was inactive due to the recent deaths of some of its

members. On December 15, 2014, the vacant positions on the Board were filled, and the

Board reconvened.

       Trice received a notice of hearing scheduled for January 20, 2015. Subsequent to

that hearing, the Board informed Trice in a letter dated January 25, 2015, that he did not

succeed in his appeal. The Pine Bluff Police Department Quality of Life Division issued a

“Final Council Notice of Condemnation” on January 26, 2015.

       On February 17, 2015, the City Council passed a resolution declaring Sahara Temple

a nuisance. On March 20, 2015, the police department informed Trice by letter that he

would be issued a citation for failure to demolish his condemned property if he did not

obtain a demolition permit and begin work within 5 days. The letter included notification

that the City Council had amended section 16-1 of the city ordinances in September 2014

making it unlawful for the owner of a condemned property to not raze the property. A

citation for failure to abate a nuisance was issued by the Pine Bluff Police Department on

April 20, 2015.

       Trice appealed to the district court, and a bench trial was held on June 14, 2016.

Trice was assessed $1100 in fines and 30 days in jail suspended dependent on razing the

building.

       Trice appealed to the circuit court, and a bench trial took place on October 24, 2016.

At the trial the following relevant testimony was offered. Shawn Howell, the chief of the

Pine Bluff Fire Department, testified that on July 25, 2014, the fire department received a

call about a possible explosion on Main Street. When he arrived, he observed that the roof

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of the Sahara Temple had partially collapsed, and he was concerned that the building might

collapse. Howell explained that the “collapse zone” of a building is one and a half times the

height of the building, which was about 60 feet around the Sahara Temple. Howell testified

that he secured the area to prevent damage to the adjacent buildings and injury to drivers

and pedestrians.

       Keith Fix, the structural engineer from Red Pepper Consulting Trice had engaged

to assess the building, testified that weak trusses were the most likely cause of the collapse.

Fix testified that the remaining freestanding walls should not be left standing because they

are a collapse hazard but that the building itself is “not in any sort of danger of any sort of

imminent collapse.” Fix testified that the walls did not have to be torn down if someone

were to “come up with a framing system for the roof that was integrated into using those

walls as-is[.]” Fix also offered that when he inspected the building in July 2014, he observed

what he thought might be loose masonry, but he was not certain. Fix explained that loose

masonry was a debris hazard, and he testified that he recommended that a mason examine

the building.

       Mitzi Ruth, the current director of Inspection and Zoning and chief inspector during

the events leading up to the trial, testified that she had communicated with Trice about his

options regarding the property and had explained to him how to acquire a permit. Ruth

testified that she specifically informed Trice that he must provide stamped architectural plans

or a structural engineer’s plans that would show that the building would meet code

requirements, and she explained that these plans are required by the State.




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       Ruth also testified about the hearing of Trice’s appeal. She clarified that because some

Board members had died and had not been replaced, the Board was not active around

December/January. Ruth explained that she had not given Trice notice about the possibility

of appealing to the Board because it was not active at that time, but the letter sent to Trice

informed him of his right to appeal to the Planning and Development Department.

       Architect Henry Sadler, who sits on the Historic District Commission, testified that,

even if a building is located within the historic district, if there is an emergency involving

the possibility of collapse the building code enforcement board has the authority to

determine that demolition is necessary.        Sadler explained that the Historic District

Commission would not be involved in such cases and that Trice had never petitioned the

Historic District Commission for a special permit regarding the character of the building.

Sadler also stated that he considered Trice’s plan for renovation inadequate. Lloyd Holcomb,

First Ward Alderman and member of the planning and development committee, testified

that he also had concerns about the adequacy of Trice’s plan for renovation when he had

heard Trice’s appeal. He testified that the planning committee heard Trice’s appeal and

decided to put the building on the condemnation list. Holcomb explained his personal

concern about the Sahara Temple that Trice’s plan for renovation was insufficient.

       Frank Washington, a building contractor and member of the Board, testified that he

had inspected the building the day the roof fell in and that he had been very concerned

about collapse. He also testified the first appeal in this case came to the Board in 2015 after

the Board had been reformed, and he voted to deny the appeal. Washington explained that

after the Board makes a decision, the matter goes back to the City Council.


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       Joe Harrell, a lieutenant with the Pine Bluff Police Department, testified that he was

assigned to work the Quality of Life Division, a purpose of which is code enforcement.

Harrell recounted that he issued a citation on April 20, 2015, after having determined that

no action had been taken regarding the demolition or repair of the building.

       Defense counsel moved for dismissal at the close of the City’s case, and the motion

was denied.

       Garland Trice offered testimony that he owns the Sahara Temple, and though he

was out of state when the roof partially collapsed in July 2014, he very quickly began to

deal with the issue. Trice explained that Mitzi Ruth had given him permission to remove

the debris, which had amounted to 15 trailer loads. Trice testified that initially he had a

permit but that it was withdrawn, and he was forced to stop repairs. At the trial, Trice

disagreed with the inspection report setting forth 15 “major” problems with the structure,

and he denied that he was ever verbally told that he needed plans from an architect or

stamped plans from a structural engineer, although he admitted that he might have gotten

that information from a letter. Trice explained that contracting with an architect to obtain

plans for a roof was in “phase two” of his plan to renovate the building and that first he

wanted to complete “phase one,” which centered on removal of debris and any

environmental hazards that may exist. Trice asserted that he had begun working on the

third-floor demolition—with a permit—within thirty days of when he received notice of

condemnation.




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       Trice testified that the Board heard his appeal, but he explained that he did not have

a chance to appeal to the city planning commission. Trice renewed his previous motion to

dismiss, and it was denied.

       On November 9, 2016, the circuit court entered an order finding Trice guilty of

failure to abate a nuisance. Trice was assessed a $1000 fine and was ordered to serve 30 days

in jail; however, the circuit court suspended Trice’s sentence contingent on his razing the

property. Trice filed a timely notice of appeal.

                                         II. Issues on Appeal

       Trice raises two main points on appeal. First he argues that the event giving rise to

the cause of action happened before the amendment of the ordinance; and thus, the circuit

court erred by applying section 16-1(b)(1) retroactively to his case. Second, Trice asserts

that his due-process rights were violated because the proper entities had not handled his

case. Trice breaks his procedural due process argument into four parts: (1) whether the

Historic District Commission had jurisdiction over his property located in the historic

district; (2) whether the City interfered with his compliance by wrongfully denying the

necessary permits; (3) that the Board of Adjustments and Appeals was not in place when the

roof collapsed, when the City condemned his property, or when a resolution was heard and

passed declaring his property a nuisance; and (4) whether the property was ever properly

certified as a nuisance as required by the ordinance.




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                   A. Ex Post Facto Application of Ordinance 16-1(b)(1)

       Trice argues that the “event giving rise to the cause of action” is the July 25, 2014

collapse of the building, and because the collapse took place two months before ordinance

section 16-1(b)(1) was amended in September 2014, application of the amended statute is

an ex post facto violation. We disagree. In fact, Trice’s citation for failure to abate the

nuisance is the event giving rise to the cause of action, and this event occurred around seven

months after section 16-1(b)(1) had been amended.

       In Duncan v. State, 337 Ark. 306, 307–08, 987 S.W.2d 721, 722 (1999), our supreme

court described how an ex post facto violation occurs:

       Article 1, § 10, of the United States Constitution provides that “(n)o state shall . . .
       pass any bill of attainder, ex post facto law, or law impairing the obligation of
       contracts. . . .” Article 2, § 17, of the Arkansas Constitution similarly provides, “No
       . . . ex post facto law . . . shall ever be passed. . . .” A law is in violation of the Ex
       Post Facto Clause if it is retroactive and it disadvantages the accused by altering the
       definition of criminal conduct or by increasing the punishment for the crime.

       The application of ordinance section 16-1(b)(1) is violative of the Constitution if it

retroactively alters the definition of “failure to abate a nuisance” or if it increases the

punishment for failure to abate a nuisance after Trice had been cited for the crime of failing

to abate that nuisance. Trice was cited for violating the city code by failing to abate a

nuisance months after the ordinance had been changed; thus, no ex post facto application

of the punishment for failure to abate a nuisance occurred. On this point we affirm.




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                                           B. Due Process

                      1. Whether the Historic District Commission had jurisdiction

       Generally, procedural due process requires that a hearing before an impartial decision

maker be provided at a meaningful time and in a meaningful manner before a governmental

decision that deprives individuals of a liberty or property interest. See Mathews v. Eldridge,

424 U.S. 319, 333 (1976). Trice argues that the Historic District Commission was the

proper entity with jurisdiction over his case and that the City improperly exercised

jurisdiction; therefore, his right to due process was violated. We disagree.

       Trice asserts that the Historic District Commission is the entity charged with

“preserving the property, keeping it up, and making sure structures are in compliance,” and

the City failed to “consult or advise” the Historic District Commission to determine if

action was necessary regarding his property. We take issue with Trice’s characterization of

the purpose and authority of the Historic District Commission. At the trial, architect Henry

Sadler, who is on the Historic District Commission, testified that building owners could

apply for “certificates of appropriateness” from the Historic District Commission. Sadler

explained that such permits allow cosmetic and structural modifications—anything that

would affect the “historical character” of the building. Sadler further testified that “if a

building code official deems that it is necessary to do an emergency demolition, they

wouldn’t come through the Historic District Commission.”

       Arkansas Code Annotated section 14-56-203 provides that,

       [c]ities of the first class, cities of the second class, and incorporated towns may order
       the removal or razing of, or remove or raze, buildings or houses that in the opinion


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       of the city council or town council have become dilapidated, unsightly, unsafe,
       unsanitary, obnoxious, or detrimental to the public welfare and shall provide by
       ordinance the manner of removing and making these removals.

Ark. Code Ann. § 14-56-203 (Supp. 2017).

       Furthermore, section 2-360 of the Pine Bluff City Ordinances sets forth the

following:

       This division [Historic District Commission] shall not prevent the restoration,
       rehabilitation, renovation, preservation, alteration, construction, or demolition of
       any such feature that the building inspector or similar agent of the city shall certify is
       required for the public safety.

Pine Bluff, Ark., Code § 2-360 (2017).

       Trice cites no authority superseding the statute giving authority to cities to order

removal of unsightly and unsafe buildings detrimental to public welfare. The City declared

Trice’s building a public nuisance and blocked off the street and the perimeter of the

building in part to prevent injury to the public. The issues regarding the Sahara Temple

went beyond the character of the building and into the safety of the public; therefore, the

authority to determine the status of the building belongs to the City, and due process was

achieved. On this point we affirm.

                2. Whether the City interfered with Trice’s compliance by denying permits

       Trice argues that there is no requirement in any city ordinance that the petitioner

must submit plans from an engineer or an architect in order to obtain a repair permit; thus,

Inspection and Zoning violated his due-process rights when his request for a repair permit

was denied on that basis. Trice also argues that Fix’s assessment of the state of the building

is an adequate plan for renovation and that Trice’s experience, qualifications, and licensure


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are sufficient such that a permit for repair should have been issued to him. Trice cites no

authority to support his argument, and his argument is not well taken.

       Municipal corporations have the power to regulate the repair of buildings. Ark. Code

Ann. § 14-56-201 (Repl. 1998). In order to make an informed decision about whether

repair is feasible and will promote public safety, Inspection and Zoning reasonably exercised

its regulatory power by requesting more detailed plans from an engineer or an architect, as

is shown in the written correspondence in the record. Mitzi Ruth testified that Trice’s plan

for renovation did not set forth how he would stabilize the partially collapsed third floor

roof, and she explained that an architect’s or structural engineer’s plan would be necessary

for the city to “know it would meet code.” Trice testified that contracting with an architect

to obtain plans for a roof were a part of his renovation plan, but he did not intend to produce

the plans until “phase two” after the debris had been removed. Trice does not demonstrate

how the Inspection and Zoning’s refusal to issue a repair permit under these circumstances

is a procedural due process violation. 2 On this point, we affirm.

              3. The City did not have the proper board in place during the events of 2014

       Trice asserts that the Board was not in place during 2014 when the roof collapsed,

when the City condemned his property, and when the City declared his property a nuisance.

Ruth testified that several members of the Board had died and had not been replaced as of




       2
        The August 4, 2014 letter included the direction that the price of the repair permit
would be based on the estimated cost of repairs. Trice did not include an estimated cost of
repairs in either of the plans for renovation he submitted to Inspection and Zoning;
therefore, he failed to meet one of the requirements for obtaining a permit.


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early December 2014. The record shows that new Board members were instated on

December 15, 2014, and Trice and others testified at trial that the Board heard his appeal

early in 2015; however, Trice does not clearly explain how he was denied due process or

how he was adversely affected by the nonexistence of the Board during the specified events.

Failure to cite authority or develop an argument is reason to affirm. Ashley v. State, 358 Ark.

414, 191 S.W.3d 520 (2004). Trice failed to develop his argument or provide any supporting

authority, and we affirm.

                            4. The certification of 620 Main Street as a nuisance

       Trice argues for the first time on appeal that 620 Main Street was never properly

certified as a nuisance as required by the ordinance, thus, he was denied procedural due

process. Trice did not appeal to the circuit court the Board’s decision declaring his property

a nuisance, and he is barred from raising this issue now. See Ark. Code Ann. § 14-56-

425(a)(1) (Supp. 2017) (Appeals from the final administrative decision by a municipal body

shall be taken to the circuit court of the appropriate county.)

       Affirmed.

       KLAPPENBACH and BROWN, JJ., agree.

       Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.

       Althea Hadden-Scott, for appellee.




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