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Date: 06-28-2021
Case Style:
CHRISTOPHER K. WHIPPLE Vs. THE CITY OF NEW ORLEANS DEPARTMENT OF SAFETY AND PERMITS
Case Number: 2020-CA-0111
Judge: Rosemary Ledet
Court: COURT OF APPEAL
FOURTH CIRCUIT
STATE OF LOUISIANA
Plaintiff's Attorney: William R. H. Goforth
ASSISTANT CITY ATTORNEY
Shawn Lindsay
DEPUTY CITY ATTORNEY
Churita H. Hansell
CHIEF DEPUTY CITY ATTORNEY
Donesia D. Turner
SENIOR CHIEF DEPUTY CITY ATTORNEY
Sunni J. LeBoeuf
CITY ATTORNEY
Defendant's Attorney:
Description:
New Orleans, LA - Criminal defense attorney represented Christopher Whipple with alleged violations of certain shortterm rental (“STR”) ordinances charge.
In July 2016, Mr. Whipple purchased residential property located at
1117 Monroe Street in New Orleans, Louisiana (the “Property”). About one year
later, in June 2017, Mr. Whipple obtained a temporary STR permit for the
Property. The permit had a one-year term, which expired in June 2018. Before the
permit expired, Mr. Whipple applied for a renewal permit. The City denied his
application because it had temporarily prohibited the issuance or renewal of
temporary STR permits through an Interim Zoning District.1
1 Mr. Whipple did not appeal the City’s denial of his application for a renewal permit.
RML
DLD
TGC2
In July 2018, the City served Mr. Whipple with a Notice of Violation,
2
citing
him for violating four STR ordinances; those ordinances can be grouped together
as follows:
City of New Orleans Code (“CCNO”) § 26-613(b) and City Zoning
Ordinance (“CZO”) § 20.3.LLL.1(b), which both require a license to operate
a STR;
3
and
CCNO § 26-615(b) and (c), which respectively require a permit holder to
prominently display the permit on the front façade of the property and to
include a valid permit number on any listing advertising or soliciting the
property for use as a STR.
In March 2019, an administrative hearing was held. At the hearing, the
hearing officer swore in the City’s STR administrator and Mr. Whipple; and the
City and Mr. Whipple introduced various documentary evidence. The City’s
evidence included the Assessor’s Office information for the Property, reflecting
Mr. Whipple’s correct address for purposes of providing notice; the expired STR
permit for the Property, reflecting Mr. Whipple’s lack of a STR permit as of July
2019; and six screenshots of the Property advertised on digital vacation rental
platforms—VRBO and HomeAway4— between July 2018 and March 2019 (the
“Screenshots”).
2
The City issued a second notice of violation to Mr. Whipple in October 2018, which cited the
same four alleged violations. For ease of discussion, we refer to one Notice of Violation.
3
The version of CCNO cited in the Notice of Violation became effective on April 1, 2017. At all
times relevant to this appeal, CCNO § 26-613(b) provided, in part, as follows: “[n]o Property
shall be utilized as a Short Term Rental, as defined by the [CZO], without an authorized [STR]
License Permit”; CZO § 26.6 defined a “STR” as “[r]ental of all or any portion thereof of a
residential dwelling unit for dwelling, lodging or sleeping purposes to one party with duration of
occupancy of less than thirty (30) consecutive days”; and CZO § 26.6 defined a “use” as “[t]he
purpose or activity for which land or a structure is designed, arranged, or intended, or for which
it is occupied or maintained.”
4
See Spacil v. Home Away, Inc., 219CV00983GMNEJY, 2020 WL 184985, at *1 (D. Nev. Jan.
13, 2020) (observing that “HomeAway operates an online platform allowing property owners
and managers to list properties for relatively short-term rent by individuals and families traveling
to the location of the property rented. VRBO.com is one of the services offered by
HomeAway”); Santa Monica Beach Prop. Owners Ass’n, Inc. v. Acord, 219 So.3d 111, 113, n. 2 3
At the close of the hearing, the hearing officer found that Mr. Whipple had
violated the four ordinances cited in the Notice of Violation and imposed a fine of
$500 per violation (the maximum per day fine) and the $75 hearing costs—$2,075
total. Mr. Whipple appealed the hearing officer’s decision to the district court. The
district court affirmed the hearing officer’s decision. This appeal followed.
DISCUSSION
Pursuant to La. R.S. 13:2575(A), the City is authorized to regulate public
health, housing, and environmental violations. A property owner who is found to
have violated the City’s regulations is authorized to appeal to the appropriate state
district court. La. R.S. 13:2575(H). The statute, however, is silent as to the
standard of review. This Court has borrowed the general provisions of the
Louisiana Administrative Procedure Act (“APA”), La. R.S. 49:950, et seq., as the
governing standard of review. See DMK Acquisitions & Properties, LLC v. City of
New Orleans, 13-0405, p. 8 (La. App. 4 Cir. 9/18/13), 124 So.3d 1157, 1163; see
also Nola Bourbon, LLC v. City of New Orleans, 19-0847, p. 2 (La. App. 4 Cir.
1/29/20), 290 So.3d 225, 227 (observing that the general provisions of the APA
apply to cases involving municipal housing and land use ordinances).
Under the APA, a party aggrieved by a decision of a district court acting in
an appellate capacity is entitled to appeal to the appropriate circuit court of appeal,
(Fla. Dist. Ct. App.2017) (observing that “VRBO—which is short for ‘Vacation Rentals by
Owner’—is a website on which owners can advertise their houses and other properties for rent”);
HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 679 (9th Cir. 2019) (observing that
“[w]ebsites like those operated by the Platforms are essentially online marketplaces that allow
‘guests’ seeking accommodations and ‘hosts’ offering accommodations to connect and enter into
rental agreements with one another”).4
as in other civil cases. La. R.S. 49:965.5
“The standard of appellate review of a
decision by an administrative agency is distinct from and narrower than that which
pertains to general appellate jurisdiction over civil and criminal appeals.” Holladay
v. Louisiana State Bd. of Med. Examiners, 96-1740, p. 4 (La. App. 4 Cir. 2/19/97),
689 So.2d 718, 721. The exclusive grounds upon which an administrative decision
may be reversed or modified on appeal are enumerated in La. R.S. 49:964(G). Id.,
96-1740, p. 5, 689 So.2d at 721. Summarized, those grounds are as follows:
[Administrative] decisions are subject to reversal or modification only
upon two conditions—(1) prejudice to “substantial rights of the
appellant” based on (2) findings, conclusions, or decisions that are:
[a.] in violation of constitutional or statutory provisions; [b.] in excess
of the agency's statutory authority; [c.] made according to unlawful
procedure; [d.] affected by other error of law; [e.] arbitrary,
capricious, or characterized by abuse of discretion; or [f.] not
supported and sustainable by preponderance of the evidence.
Brandee Ketchum and Andrew Olsan, Louisiana Administrative Law: A
Practitioner’s Primer, 68 LA. L. REV. 1313, 1369 (2008).
On appeal, Mr. Whipple raises three types of issues—evidentiary,
administrative, and constitutional.
Evidentiary Issues
Mr. Whipple’s evidentiary argument is that the district court erred in
affirming the hearing officer’s decision because it was based on “unsubstantiated
hearsay” and “incompetent and unverified” documentary evidence. Simply put,
Mr. Whipple’s argument, as he framed it before the district court, is that “all of the
5 When a court of appeal reviews the judgment of a district court acting in an appellate capacity,
no deference is owed “just as no deference is owed by the Louisiana Supreme Court to factual
findings or legal conclusions of the court of appeal.” Nola Bourbon, 19-0847, p. 2, 290 So.3d at
227 (internal citations and quotations omitted). “[A]n appellate court sitting in review of an
administrative agency reviews the findings and decision of the administrative agency and not the
decision of the district court.” Id.5
documents introduced were hearsay documents, which were unsworn to and
otherwise inadmissible.” This argument is not persuasive.
“Administrative bodies are usually not bound by the technical rules of
evidence.” Louisiana Household Goods Carriers v. Louisiana Public Service
Comm’n, 99-3184, p. 9 (La. 6/30/00), 762 So.2d 1081, 1089. Thus, competent
hearsay evidence may be admissible in administrative proceedings. Evans v.
DeRidder Mun. Fire, 01-2466, p. 12 (La. 4/3/02), 815 So.2d 61, 70 (observing that
“[h]earsay statements may be admissible in an administrative hearing, provided the
evidence is determined to be competent”).
Competent evidence in the administrative proceeding context means
evidence having “some degree of reliability and trustworthiness” and “of the type
that reasonable persons would rely upon.” Chaisson v. Cajun Bag & Supply Co.,
97-1225, pp. 12-13 (La. 3/4/98), 708 So.2d 375, 382.6
“[M]ost hearsay evidence in
administrative hearings is generally reliable documentary evidence, such as
correspondence, physician’s reports, and the like.” Id., 97-1225, p. 11, 708 So.2d at
382. Nonetheless, the question of whether hearsay evidence is competent evidence
must be determined “on a case-by-case basis under the particular facts and
circumstances.” Id., 97-1225, p. 13, 708 So.2d at 382.
Here, the principal evidence that the City introduced to establish the
violations was the Screenshots. An investigator, working under the City’s STR
administrator, took the Screenshots on multiple days between July 2018 and March
2019. Applying the Chaisson standard, we determine that the Screenshots are
competent hearsay evidence that the hearing officer did not err in allowing to be
6
See La. R.S. 49:956(1) (providing that “[a]gencies may admit and give probative effect to
evidence which possesses probative value commonly accepted by reasonably prudent men in the
conduct of their affairs”).6
introduced. See Chaumont v. City of New Orleans, 20-0017, p. 10 (La. App. 4 Cir.
6/3/20), ___ So.3d at ___, 2020 WL 2898133, *6 (observing that “considering the
nature of web-based short-term rentals, screenshots of the online rental
advertisements appear to be the type of evidence that reasonable persons would
rely upon to demonstrate violations of the City’s regulations”). Mr. Whipple’s
evidentiary argument is unpersuasive.
Administrative issues
Mr. Whipple’s administrative argument is that the district court erred in
dismissing his appeal without requiring the hearing officer to dictate into the
record her findings of facts and conclusions of law as required by an APA
provision, La. R.S. 49:958 (the “APA Provision”), which provides:
A final decision or order adverse to a party in an adjudication
proceeding shall be in writing or stated in the record. A final decision
shall include findings of fact and conclusions of law. Findings of fact,
if set forth in statutory language, shall be accompanied by a concise
and explicit statement of the underlying facts supporting the findings.
Assuming the APA Provision applies here,7
the jurisprudence has held that when
“the findings and reasons therefor are necessarily implicit in the record and the
administrative determination is supported and sustainable by a preponderance of
the evidence, the administrative decision is not invalid merely because the
[agency] failed to explicitly articulate that which is self evident.” In re Ark-La-Tex
Antique & Classic Vehicles, Inc., 05-1931, p. 7 (La. App. 1 Cir. 9/15/06), 943
So.2d 1169, 1174; see also State Farm Fire & Cas. Co. v. Louisiana Ins. Rating
7 Given this court has borrowed the general provisions of the APA as the governing standard of
review in this context, it would be logical to find the APA Provision applicable here as well. We
acknowledge, however, that the City has expressly adopted only the APA’s evidentiary
provisions. See CCNO § 6-36(g) (providing that “[a]ny administrative adjudication hearing held
under the provisions of this article shall be conducted in accordance with the rules of evidence of
the Administrative Procedure Act, R.S. 49:950 et seq.”).7
Comm’n, 97-0368, p. 6, n. 5 (La. App. 1 Cir. 4/8/98), 710 So.2d 819, 823). Such is
the case here.
The hearing officer’s rationale is necessarily implicit in the record. The
principal issue here is whether the Property was used as a STR without a permit in
violation of CCNO § 26-613(b) and CZO § 20.3.LLL.l(b). If so, then, by
definition, the other two ordinances—CCNO § 26-615(b) and (c)—were violated
given that both require a permit. The Screenshots establish Mr. Whipple’s use of
the Property as a STR during a period that he undisputedly lacked a permit. The
attempt to rent the Property on digital, vacation rental platforms—VRBO and
HomeAway—without a permit was sufficient to establish a violation of all four
ordinances. Given our determination that the Screenshots are competent hearsay
evidence, coupled with Mr. Whipple’s lack of a permit, the hearing officer’s
decision that Mr. Whipple violated all four ordinances is supported by a
preponderance of the evidence. Accordingly, Mr. Whipple’s administrative
argument is unpersuasive.
Constitutional issues
Mr. Whipple’s primary constitutional argument is that the district court erred
in failing to find the City’s STR ordinances violate the First, Fourth, Fifth, and
Eighth Amendments of the United States Constitution and failing to find the
ordinances were unconstitutionally vague in violation of the Due Process Clause of
the Fourteenth Amendment. None of the constitutional issues Mr. Whipple raises
on appeal was properly raised in either the district court or administrative hearing
below;
8
hence, none of the constitutional issues is properly before this court. See
8 We acknowledge that Mr. Whipple attempted to raise these issues in the district court;
however, he did so in an untimely filed reply memorandum, which the district court refused to 8
Council of City of New Orleans v. Washington, 09-1067, p. 3 (La. 5/29/09),
9 So.3d 854, 856 (observing that “appellate courts will not consider issues raised
for the first time, which are not pleaded in the court below and which the district
court has not addressed”).
9
Furthermore, Mr. Whipple’s federal constitutional
challenge is directed to the City’s current STR ordinances, which were not in effect
at the time of Mr. Whipple’s administrative hearing.10 For these reasons, Mr.
Whipple’s constitutional argument is not properly before us.
Outcome: For the foregoing reasons, the judgment of the district court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: