KENNETH M. CROOK A/K/A KENNETH CROOK A/K/A K MICHAEL CROOK A/K/A KENNETH MICHAEL CROOK A/K/A MIKE CROOK, APPELLANT
CITY OF MADISON, MISSISSIPPI, APPELLEE
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/12/2012. TRIAL JUDGE: HON. JOHN HUEY EMFINGER. TRIAL COURT DISPOSITION: AFFIRMED CONVICTION OF TWO COUNTS OF VIOLATING A CITY ORDINANCE OF THE CITY OF MADISON AND FINE OF $300 ON EACH COUNT. DISPOSITION: AFFIRMED - 03/25/2014. MOTION FOR REHEARING FILED: 04/08/2014 - DENIED.
FOR APPELLANT: STEVE C. THORNTON.
FOR APPELLEE: JOHN HEDGLIN.
ISHEE, J. LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS AND FAIR, JJ., CONCUR. MAXWELL AND JAMES, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
MODIFIED OPINION ON MOTION FOR REHEARING
[¶1] The motion for rehearing is denied. We withdraw our original opinion and substitute this modified opinion.
[¶2] In 2011, Kenneth Michael Crook was convicted of two counts of violating a city ordinance in the City of Madison (the City) and sentenced to pay a fine of $300 on each count. Crook appealed the judgment to the Madison County Circuit Court, which affirmed Crook's conviction and sentence. Aggrieved, Crook now appeals the circuit court's judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
[¶3] On July 15, 2008, the City adopted an ordinance entitled " Rental Inspection and Property Licensing Act" (RIPLA). An amended version was later adopted on May 18, 2010. The stated purpose of RIPLA is " to preserve and promote the public health, safety, and general welfare of the City's residents . . . and to assure the proper maintenance of the City's residential rental housing stock." RIPLA requires owners of single-household or multiple-household dwellings located in the City to obtain a rental license in order to rent a property.
[¶4] To obtain the rental license, owners must submit a written application with a licensing fee of $100 per rental unit to the City's building official. Further, owners must post a $10,000 bond, collateral, or letter of credit per rental unit as surety for any future correction orders that may be issued by the building official pursuant to RIPLA. The rental license is valid for one year. Upon obtaining a rental license, owners must be issued a current and valid certificate of compliance that must be displayed at each rental property.
[¶5] As a condition to the issuance of the rental license, owners must consent to inspections of all portions of the premises and dwelling by the building official. The purpose of the inspections is to ensure compliance with RIPLA provisions. The building official must provide the owner with reasonable advance notice of the date and time of the inspection. If an owner or a tenant refuses entry, the building official must obtain a judicial warrant authorizing
entry. Any person who violates any provision of RIPLA is guilty of a misdemeanor and must pay a fine of $300 per day for a violation of each offense.
[¶6] Crook owns residential property located at 127 Cypress Drive in Madison, Mississippi (Cypress Drive property). On August 14, 2008, the City's building and permit department sent a letter to all owners of rental property in the City informing them of the newly adopted RIPLA. The letter outlined the requirements of RIPLA, including the steps needed to be taken to ensure compliance.
[¶7] At the time, the City believed Crook's Cypress Drive property was a rental property, so he received a copy of the letter. Subsequently, Crook was sent another letter on October 20, 2008, from the City stating that it had not received a licensing fee from Crook for the Cypress Drive property. This letter informed Crook of the consequences that would occur should a RIPLA violation be found.
[¶8] On February 12, 2009, Crook filled out an application for a rental license and paid the $100 licensing fee. Crook, however, never posted a $10,000 bond, collateral, or letter of credit as surety. Therefore, Crook was not issued a rental license. On March 11, 2009, Angie Gelston, a code-enforcement officer for the City, filed charges against Crook at the Madison Police Department for violating RIPLA. Gelston alleged that Crook had continued to rent the Cypress Drive property without a rental license despite notifications that to do so was in violation of RIPLA. Crook sent the City a letter on March 26, 2010, requesting the return of the licensing fee and stating that he would be personally occupying the Cypress Drive property, thereby removing it from the reach of RIPLA.
[¶9] On May 20, 2010, Bill Foshee, the City's director of building and permits and code enforcement, sent a letter to Crook alleging that Crook was in violation of Section 8 of RIPLA for renting the Cypress Drive property without a current rental license. Foshee also informed Crook that he had fifteen days from the date of the letter to comply with RIPLA or all utilities would be discontinued pending compliance.
[¶10] Crook responded to Foshee on June 1, 2010, stating that RIPLA was not applicable or enforceable since the Cypress Drive property was no longer being used for rental purposes. Crook avered that he had entered into an option-to-purchase contract with Tammy Thompson. Subsequently, Foshee reported the violation to the Madison Police Department and an arrest warrant was issued for Crook. Crook was arrested on October 6, 2010, for renting the Cypress Drive property without a license in violation of RIPLA.
[¶11] On January 13, 2011, Crook was convicted in Madison Municipal Court on two counts of violating RIPLA. Crook appealed his charges to the County Court of Madison County. Crook filed a motion to dismiss, alleging: (1) RIPLA was unconstitutional, and thus invalid; (2) the warrants issued for his arrest were invalid for lack of probable cause; and (3) RIPLA violated state law. At trial, Crook, Gelston, Foshee, Thompson, and Duke Swyers testified.
[¶12] Crook testified that Swyers resided at the Cypress Drive property from approximately November 2007 to November 2009. He maintained that Swyers wanted to buy the house from the very beginning. Crook stated that he and Swyers had an oral agreement for a purchase price and that rental payments would go towards a down payment on the property. Crook admitted, however, that there was never a written contract, and
the agreement to purchase subsequently ceased when Swyers moved out in November 2009. Subsequently, Crook stated, he entered into a written option-to-purchase agreement with Thompson on March 13, 2010. He asserted that he informed Thompson that he had no intention of renting the Cypress Drive property.
[¶13] Gelston testified that she had driven by the Cypress Drive property on several occasions and that Crook was not the person occupying the home. Rather, she observed other people living in the home. She could not testify, however, that anyone occupied the home on March 11, 2009, the date she signed her affidavit, but stated she knew it was a rental home based on prior conversations with Crook and the incomplete application for the rental license. Foshee testified that he had also been to the Cypress Drive property numerous times and saw vehicles in the driveway, but that he never saw Crook or anyone else at the home. He stated that he knew Crook was renting the Cypress Drive property on July 1, 2010, because he had been contacted by Crook's tenant, Thompson.
[¶14] Thompson testified that she entered into an option-to-purchase contract with Crook in March 2010. She maintained, however, that she never intended to purchase the home and Crook knew of her intentions. She admitted under oath that Crook instructed her not to tell anyone it was a rental property and that Crook would sometimes ask to spend the night on the couch, so he could give the appearance that he was occupying the home. Duke Swyers testified that from 2007 to 2009, he rented the Cypress Drive property from Crook. He stated that he had discussed entering into an option-to-purchase contract with Crook in October 2008, but ultimately decided against it. Further, he maintained that he never signed any purchase agreement or verbally agreed to purchase the home.
[¶15] After a bench trial on June 22, 2011, the county court upheld Crook's convictions. Crook was then sentenced to pay a fine of $300 plus court fees. Crook appealed the judgment to the Madison County Circuit Court. The circuit court upheld the judgment of the county court on December 12, 2012. Aggrieved, Crook now appeals, arguing: (1) RIPLA is constitutionally defective because it contains an unconstitutional condition; (2) RIPLA is void because it violates Mississippi law; (3) the arrest warrants issued were not supported by probable cause; and (4) the trial court's decision was based on insufficient evidence and was against the overwhelming weight of the evidence.
STANDARD OF REVIEW
[¶16] " The standard of review for a judgment entered following a bench trial is well settled. In a bench trial, the trial judge is 'the jury' for all purposes of resolving issues of fact." Sendelweck v. State, 101 So.3d 734, 738-39 (¶ 19) (Miss. 2012). " The Mississippi Supreme Court has stated that: for review of the findings of a trial judge sitting without a jury, the appellate court will reverse only where the findings of the trial judge are ...