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Zoning Bulletin November 10, 2010 1 Volume 4 I No. 21 ( . ) Enforcement— County Code Requires Civil Penalties For Violations Be Paid Prior to a Hearing on the Issue Property owner challenges code as violative of the 14th Amendment Citation: Dowd v. New Castle County, 2010 WL 3735289 (D. Del., Sept. 21, 2010) DELAWARE (09/21/10) —This case involved a challenge to the con- stitutionality of an ordinance, which allowed a county to collect civil penalties for property code violations prior to providing a hearing on the issue. The Background/Facts: Damon and Roy Morris resided on prop- erty (the "Property ").in the county. In and around 1996, Mrs. Morris constructed a brush pile. The brush pile was approximately six feet by three and a half feet in size. In May 2009, the county's Department of Land Use received a complaint alleging that the brush pile violated the county's Property Maintenance Code (the "PM Code "). The county found the Morrises' brush pile constituted "outside storage of debris" in violation of PM Code § 302.1. On October 2, 2009, the county is- sued the,Morrises a "ticket" and assessed a $S0 fine. Under the PM Code, the county had an "Instant Ticketing System for Common Violations" (the "ITS "). The ITS could be used to issue tickets for violations of certain PM Code sections, including "outside storage of debris." The PM Code provided that the county's code en- forcement official (the "Code Official ") must issue a $50 ticket for vio- lations that remained uncorrected within 10 days of the notice of al- leged violation. For each 24 -hour period that the violation continued, a new civil penalty could be assessed. The PM Code specified that tickets had to be paid in order for an appeal to be received. The Morrises disagreed that any violation of the PM Code exist- ed. They noted that the National Wildlife Federation recognized their brush pile as an official Certified Wildlife habitat. The Morrises were unable to appeal their ticket without fast paying the civil penalty, which at the time of appeal amounted to $100. Eventually, the Morrises brought an action in federal district court. Their action was a class action on behalf of all county residents who had been fined under the ITS. The Morrises alleged that enforcement of the PM Code using the ITS (which allowed the county to collect civ- il penalties for violations prior to providing a hearing on the issue) vio- lated their procedural due process rights under the 14th Amendment to the United States Constitution. The 14th Amendment provides that "[n]o state shall ... deprive any person of life, liberty, property, without due process of law." © 2010 Thomson Reuters 5 29