City faces potential lawsuit after code enforcement search declared unconstitutional

ST. GEORGE – On Tuesday, city officials met with St. George attorney Aaron Prisbrey who has threatened to file a federal class action lawsuit against the City of St. George on behalf of his client, St. George resident Jeff Rowley, along with thousands of other St. George residents. Prisbrey said he believes the people of St. George have been subjected to illegal code enforcement penalties since 2003. The meeting followed close on the heels of a code-enforcement hearing on Monday in which the administrative judge, Brian Filter, ruled that pictures taken of Rowley’s backyard by code-enforcement administrators violated Rowley’s Fourth Amendment rights, and were not admissible as evidence.

As discussed in a recent St. George News column, Prisbrey contends that, since 2003, St. George code enforcement administrators have conducted thousands of illegal property inspections, levying massive fines against homeowners for what are sometimes minor zoning infractions. The illegal inspections, Prisbrey said, are a matter of policy for the city, citing St. George Ordinance 1-12A-16, which states that code enforcement administrators are “authorized to enter upon any property or premises,” and that a search warrant is necessary only if the property owner explicitly forbids officials to enter the property.

According to a letter sent by Prisbrey to St. George Attorney Shawn Guzman, the ordinance allowing warrantless property searches “is a blatant violation of Fourth Amendment protected right against unlawful warrantless seizures.” Prisbrey said he believes that more than 3,600 St. George residents have likely been subjected to such illegal searches. Prisbrey said that he bases this number on code enforcement administrator Jeff Cottam’s testimony in an earlier hearing where Cottam estimated that he enters private property in 20 percent of his investigations

“There were approximately 9,000 “Courtesy Notices” sent out in the past five years,” wrote Prisbrey in his letter. Prisbrey also wrote that, in the 10 years since the ordinance was adopted, there were likely double that number, or 18,000 citations handed out by the code enforcement division.

“Assuming that Mr. Cottom’s testimony is correct and 20 percent of all searches of property are done without a warrant,” Prisbrey said, “we should have a class of approximately 3,600 citizens who have been affected.”

“We have to wait until we hear back from the city before we file the lawsuit,” Prisbrey said. He has agreed to work to reach a settlement with the city, if possible, and has stated that he is willing to drop the case, provided the city repeal ordinance 1-12A-16 allowing enforcement officials to cross property lines without permission, and if the city agrees to reimburse all residents who have been cited as the result of illegal investigations.

Prisbrey is one of the founding members of a group known as the CAITS Institute. According to their facebook page, CAITS stands for Citizens Against Incumbent Tyrannical Servants, and that the group is “committed to eliminating government oppression at the local level in Southern Utah.” CAITS Institute recently garnered attention at the Dixie Round-up Rodeo Parade by outfitting a bus with signs stating “Dan Must Go!” alongside a picture of St. George Mayor Dan McArthur. CAITS Institute has stated that they believe McArthur’s 25-year tenure as mayor has left him out-of-touch with the voters who put him in office. A recent posting on the institute’s website states that “the problem with lifetime government officials is that they forget they are public servants and turn into bullies.”

“I don’t approve of CAITS Institute’s tactics,” wrote City Councilman Jon Pike on a post on the CAITS Institute Facebook page. Pike, who is running against McArthur in the upcoming mayoral race, has rejected an endorsement from the CAITS Institute.

Pike, along with the rest of the City Council, is working closely with Prisbrey in an effort to prevent the potentially costly lawsuit, which has not yet been filed. Pike said that he is confident that a settlement will be reached within the next few weeks.

Marc Mortensen, assistant to the city manager, is also hopeful that the city will reach a settlement with Prisbrey.

“Both sides are working together to address the issue and the discussion yesterday was positive,” Mortensen said on Wednesday.

According to Prisbrey, the City Council will be discussing the terms of the settlement in a closed session this afternoon. If an agreement is reached, it is still unclear what the settlement will ultimately look like; however a recent statement from Pike may give an indication of which direction the council is heading.

“I’m willing to look backwards to see if there are cases in which we inappropriately went on people’s property,” Pike said. “We should consider reversing those cases and reimbursing the fines.”

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Email: mflynn@stgnews.com

Twitter: @mflynnSTGN

Copyright St. George News, SaintGeorgeUtah.com LLC, 2013, all rights reserved.

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11 Comments

  • Maggie October 10, 2013 at 9:32 am

    Ah yes, let’s not work it out ,let’s make some lawyer rich and taxpayers poorer. Sounds like DC to me.

  • Matthew Sevald October 10, 2013 at 9:46 am

    If only we collectively had the testicular fortitude to also hold the Washington lifers accountable as well. Good job to CAITS and Brian Filter for protecting the citizens from the overreach of government.

  • NO_SIX October 10, 2013 at 10:09 am

    I’m curious — is Rowley footing the bill or is the attorney planning on being compensated thru settlement or judgement ??
    I would contribute a couple of bucks to help move this case forward

  • Abused Citizen October 10, 2013 at 11:28 am

    My neighbors and I have been victim of this for the past several years. As of the last few weeks it has become worse with threatening letters being sent, and city workers trampling through our yards. This week they walked through my yard so they could take pictures of my yard/house, and my neighbors. Behind our yards is a wash that will never be able to have anything built on it, We have tried for years to get the city to come clean it out, due to fire hazards and health hazards, they ignore our calls. We took it into our own hands and cleaned up part of the area near our yards. Since it’s cleaned up they are telling us to get away and leave it alone. And that we are violating zoning laws by having stuff in our yard.
    I wish I could afford to have a wall built.

  • DoubleTap October 10, 2013 at 11:31 am

    I strongly support CAITS position on this issue. Not only is code enforcement used by McArthur to help in filling the city coffers, code enforcement is prejudicial in who it cites and does not cite, for violations.
    McArthurs business on Telegraph is in violation of his own departments policies. Yet, he has not been cited to date. Why not??? When McArthur decided he needed code enforcement “bullies” nearly 10 years ago, he realized that his clever idea was a very effective way to help in bringing in revenue for the city. How could he go wrong?? McArthur’s time as Mayor has reached its expiration date and it is time for him to go. Along with the abusive code enforcement department…at least the unconstitutional sections of it.

  • What's Weird October 10, 2013 at 1:31 pm

    What’s weird is that most St George women seem oblivious to city politics and keep their mouths shut about flagrant civil rights violations by the city. However, bring up the subject about nursing babies, and they’ll talk all day about babies latching onto their boobs. Most guys in St George seem oblivious to about everything except their guns and trucks and good ole boy stuff. The poor voter turnout best demonstrates the majority of the city population is oblivious to city news and politics .

  • Aaron Tippetts October 10, 2013 at 1:47 pm

    Some years ago Ivins city was engaged in these same type of rights violations. If ever St. George was the goose then Ivins is the gander. I would hope to see similar reform throughout the suburbs

  • Anon Utahn October 10, 2013 at 5:04 pm

    Kudos to Jeff Rowley for challenging the City of St. George’s ordinance.

    It’s a shame that other St. George property owners lacked the means and/or desire to retain legal counsel to challenge this ordinance during the past decade.

    In the future, St. George property owners should know that organizations like the Institute of Justice and Utah’s Private Property Ombudsman may be of assistance in challenging municipal tyranny.

  • I. Luv Attorneys October 10, 2013 at 10:40 pm

    Headline: Ambulance Chaser Uses “Bully” Pulpit To Oust Incumbent Mayor for unknown reasons. New group to form. Citizens against tyrannical attorneys seeking compensation for people who don’t give a sh%$ about their property. “CATASCFPWDGASATP”, All settlement revenue will go to the attorneys and class action “sewers”. No compensation will be used for the betterment of said properties.

  • Winona Davies October 11, 2013 at 8:31 pm

    We moved to St. George because of the codes! We spent 4 years in a rural part of Southern Nevada, with the most awful messes on every street. Trailers anywhere and everywhere with junk in every yard (all large lots), trash, and weeds on every side. We were so grateful for the clean, neat streets and beautiful yards and homes here. I grew up here, and I know Mr. Rowley…his home was always a mess and a model for the hoarders in our midst. I may not agree with the specific tactics, but I sure do agree with the idea and the interest in keeping our community a clean, beautiful place to live!

  • Double Standards October 12, 2013 at 9:51 am

    Why do some businesses get to operate by a second set of standards (unwritten) while another must conform to the city codes? Example is the junkyard next to the mayor’s welding shop obviously gets a pass when operating according to city codes.

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