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New Mexico Construction Industries Division v. Cohen

Court of Appeals of New Mexico

August 23, 2019

RABBI Y'HOSHUA COHEN, Respondent-Appellant.

          APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY Angie K. Schneider, District Judge

          Hector H. Balderas, Attorney General Sally J. Galanter, Special Assistant Attorney General Albuquerque, NM for Appellee

          Rabbi Y'Hoshua Cohen Alto, NM Pro Se Appellant



         {¶1} Respondent Y'Hoshua Cohen appeals the district court's order requiring him to allow investigators, acting under the authority of the New Mexico Construction Industries and Manufactured Housing Division (the Division), to enter his property to inspect for code violations. Respondent, pro se, argues, among other things, that the order violates his Fourth Amendment right to be free from unreasonable searches and seizures. Concluding that an administrative search warrant supported by probable cause was required to conduct the search of Respondent's premises, we reverse and remand with instructions to the district court to issue findings determining whether probable cause has been shown to support the issuance of an administrative search warrant.


         {¶2} Respondent's property is located in Alto, New Mexico. Evidence presented at trial demonstrated that Respondent, while he also lived there, rented out parts of his property as "apartments" to tenants. At the heart of this case is whether Respondent conducted new construction without a permit on his property to create these "apartments," contrary to NMAC, entitled "Permits required."

         {¶3} The Division is charged with adopting and enforcing codes and standards for construction. NMSA 1978, § 60-13-1.1 (1989). The Division received two written complaints regarding Respondent's property. It received a letter from an attorney on behalf of Jennifer Wright, a former tenant of Respondent, regarding the unsafe conditions of Respondent's property. Ms. Wright's affidavit, attached to the letter, stated she had significant health issues from renting from Respondent, including headaches and nausea she attributed to a swamp gas smell and either no or inadequate venting in the home. The attorney's letter requested that the Division "take whatever action appropriate under your authority to immediately inspect and determine whether the apartments are safe for occupancy." The Division also received a letter from the planning director of Lincoln County, Curt Temple, expressing concern with Respondent's property. Mr. Temple wrote that the Lincoln County planning office had received complaints for several years about Respondent's property and that the "complaint has always been about the multiple additions that have occurred on the property without proper permits, or inspections." Mr. Temple also asked that the Division inspect the property to ensure Respondent was in compliance with the building code.

         {¶4} Soon thereafter, the Division's inspectors attempted to inspect the property to look for code violations, but Respondent denied access. The Division then issued an order requiring Respondent to schedule an inspection. The order stated that the Division received a complaint alleging that Respondent had constructed additions to his home without obtaining permits and that the additions are commercially leased or rented. Respondent did not permit the inspection and instead filed a petition for a writ of mandamus in the First Judicial District. The First Judicial District Court granted the Division's motion to quash the petition, ordering the case dismissed with prejudice and finding that the Division had the statutory authority to conduct an inspection and pursue any related relief.

         {¶5} The Division then filed a petition in the Twelfth Judicial District seeking a court order to enforce its "administrative order" demanding entry to inspect Respondent's property. The Division asserted that it had a right to enter the property to inspect for violations based on NMSA 1978, Section 60-13-42(A) (2011), which provides in part: "A state certified inspector may, during reasonable hours, enter any building or go upon any premises in the discharge of the inspector's official duties for the purpose of making an inspection of work performed or for the purpose of testing any installation authorized within the jurisdiction of the inspector's trade certification."

         {¶6} Respondent filed an answer to the petition in which he argued, in part, that the Division could not simply secure an order from the district court to enforce its administrative order and that under the Fourth Amendment, a search warrant based on probable cause was required. The district court ultimately held a trial on the merits where the Division presented witness testimony and introduced exhibits into evidence. Omar Halama, the Division's compliance officer, Thomas Maese, the Division's chief inspector, and Clay Bailey, LP Gas Bureau Chief, each testified about complaints the Division had received and each of their fruitless efforts to obtain consent to search Respondent's property. For the presentation of his case, Respondent testified by way of making a statement and represented that there had not been any new construction since he purchased the property.

         {¶7} In its oral findings, the district court stated that it was basing its findings and conclusions "on the totality of what was submitted." The district court issued a written "Trial Order" (order) directing that the Division would inspect the property within twenty days of the order. In it, the district court made the following findings: (1) the Division has an obligation to conduct an investigation upon receipt of complaints as to life and property safety, (2) the Division has the statutory authority and the statutory right to conduct an inspection and to pursue any relief based on its statutory duty to protect life and property safety, and (3) the Division has a statutory duty to protect life and property by ensuring code compliance. Otherwise, the district court made no findings of fact.


         I. The Fourth Amendment

         {¶8} The primary question before us is whether the Division can enforce its administrative order statutorily or whether an administrative search warrant is required. Respondent argues that the district court order permitting the Division to search his property violates his Fourth Amendment rights because it is a "nonconsensual, warrantless, administrative" entry. Quoting Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 844 (10th Cir. 2005), Respondent contends that a search warrant was required for the Division to search his property because "New Mexico's interest in safeguarding the well-being of the public by prohibiting unsafe construction does not necessarily equate with a need for nonconsensual, warrantless, investigative entries."

         {¶9} In response, the Division argues that the Fourth Amendment is not implicated by a court order to inspect a building when no entry or inspection occurred without judicial authorization. Thus, the Division contends that the district court did not err in ordering the search to take place. Moreover, the Division argues that even if the Fourth Amendment does apply, ...

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