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Maine's rule 80-K: permitting regulatory officials to prosecute cases in Maine's court system.

"Legal action is resorted to when all other means have failed in the time period considered reasonable. It is sometimes said that to resort to legal action is to admit failure." These words, from Joseph A. Salvato's landmark work Environmental Engineering and Sanitation, express the feeling with which code enforcement officers (CEOs) and other regulatory professionals must deal in their professional careers. Despite the inner conflict expressed by Salvato, the enforcement person is still responsible for obtaining compliance. Recognizing this problem, the State of Maine moved to permit non-lawyers to prosecute cases on behalf of the municipality or state agency in the state's District Court system by enacting Chapter 796 of the Public Laws of 1983.

This law was the culmination of roughly five years of work by various groups that included municipal officials, state agencies and individual code enforcement officials. The effort was led in large part by the lobbying work and legal expertise of the Maine Municipal Association (MMA). The goal of the passage of the law was to develop a method which would provide a rapid, less formal and less expensive system for the prosecution of "land-use" laws, without lessening the due process protection afforded by the existing Superior Court system.

To facilitate this law, the State of Maine Law Court drafted a rule of procedure indexed as Rule 80-K of the District Court Rules of Civil Procedure. It is by index heading "Rule 80-K" that the procedure has become popularly known.

Prior to the enactment of the law and the adoption of Rule 80-K by the courts, the code enforcement officer only had two options: a matter could be brought by the municipality's legal counsel before the Superior Court having jurisdiction for the municipality; or the case was brought into the Superior Court system because only the Superior Court system had injunctive and corrective power (1).

Most communities in Maine do not employ full-time legal staff. Instead, they budget a dollar amount each year for contracted legal services. The code enforcement officer with an unresolved case found him or herself forced to compete with other municipal problems for a portion of the legal budget. Even those larger Maine communities with full-time legal counsel found it hard to handle the code enforcement cases due to the typically small number of legal staff, the demands placed on them due to the diverse nature of municipal government, and ever-increasing workloads. An additional frustration, from a budgetary as well as a compliance standpoint, was the one to two year period often required to litigate cases in the Superior Courts.

The only alternative to using the town's legal services was to approach the district attorney's office at the county level. The district attorney'"s office deals primarily with criminal cases: criminal case loads and the unfamiliarity with the individual laws, ordinances and codes adopted by each municipality within each county simply made it impossible for the district attorney to take any but the most serious cases.

Certification training and authorization

According to Rule 80-K, before a non-lawyer code enforcement officer can bring a case before the court, a two-part training and authorization process must be completed.

The training program features an eight-hour seminar designed to acquaint the code enforcement officer with the intricacies of the rule, the rules of evidence, and proper courtroom demeanor.

Following the day-long seminar and an opportunity for study and review, a three-hour written examination is required. Successful completion of the exam awards the code enforcement officer a "Certificate of Familiarity of Courtroom Procedures--Rule 80-K."

After receiving this certificate, the code enforcement officer must next receive formal authorization from the municipal officers to represent the municipality in the courts. This authorization is kept on file by the clerk of the court who serves the code enforcement officer's municipality. A key point raised repeatedly throughout the certification training program is, even when authorization from the municipal officers is received, constant communication between the municipal officers and the code enforcement officer must be maintained. This communication is no different than would occur normally between the municipal officers and in-house legal counsel, or contracted legal counsel. However, the fear was that the municipal officer might be left out of the information loop because the enforcement issue would have originated with the code enforcement officer and be prosecuted by the same person. This would not only be inappropriate, but would endanger support for the rule.

Applicable laws

When Rule 80-K was in its early conceptual form, its goal was to provide rapid accessibility to the court system for the prosecution of land-use violation. Through its development and implementation, the concept of what constituted "land-use" came to be very liberally interpreted, so that in its final form, Rule 80-K came to encompass the large number of varied laws, ranging from those regarding subsurface wastewater disposal to electrical installations.

The procedure

When the requisite time for compliance set forth in the Notice of Violation and Order to Abate has passed, or when a situation exists where "irreparable harm" may occur, the code enforcement officer begins the enforcement process by preparing and serving on the alleged violator a copy of a Land Use Citation and Complaint. The Land Use Citation and Complaint is a five-page, uniform complaint and court summons drafted by the court system and filled out by the code enforcement officer. In a case involving "irreparable harm," provision is made in the rule to ask the court to issue a temporary restraining order until such time as the court can hear the matter.

A copy of the Land Use Citation and Complaint having been served on the violator, the original is filed with the court.

Between the time of service of the complaint and the scheduled date of appearance in court, several things can occur that make a full hearing unnecessary. The violator may comply with the order and abate the violation(s). If compliance were the only concern of the municipality, and no monetary sanctions are deemed appropriate, the code enforcement officer may petition the court for withdrawal of the case without prejudice.

The second avenue that may be pursued during the time between service of the complaint and the court date is the Consent Decree. The Consent Decree is an opportunity for the code enforcement officer to negotiate a resolution to the problem, including a fine if one is desired, with the alleged violator. It gives the CEO an opportunity to be creative. In addition to monetary fines, such things as removal of the violation, restoration of the site in accordance with specifications written into the consent, timetables for completion, and an admission of guilt from the violator are possible. This admission can be valuable in that many environmental/health laws (for example, the Resource Conservation and Recovery Act) carry harsh penalties for willful violators or repeat offenders.

Even in a situation such as described, a Consent Decree, ratified by the court and containing an admission of guilt but no penalties, may impress upon the violator the seriousness of the matter and lessen the chances that the code enforcement officer will be forced to deal with the same situation with the same violator again.

When a consent agreement is reached between the parties, it then must be ratified by the court. Failure to comply with the provisions of the Consent Decree then puts the violator in the precarious position of being in contempt of court. This fact usually is made clear to the violator by the court, and the court reserves the right to review and modify the provisions and language of a consent decree prior to placing it imprimatur on the agreement.

If compliance cannot be obtained before the summons date, and a Consent Decree cannot be reached, the CEO must be prepared to present his or her case to the court in a formal hearing.


Hearings are conducted in open court. The hearing is described as a summary proceeding, thereby allowing some latitude in the manner in which the court hears the case. The amount of latitude permitted is at the discretion of the presiding judge: therefore, unless the code enforcement officer is aware in advance of who will hear the case, and unless the CEO is familiar with the judge's personal style, it is best to be prepared to follow a formal hearing process. This process is integrated into the Rule 80-K training.

As in any action brought before a court by a governmental action, establishing the burden of proof rests on the plaintiff.

The burden of proof in a Rule 80-K case requires establishing that the alleged violator is guilty of the offense "by a preponderance of the evidence." In establishing this standard of proof, the code enforcement officer must convince the court that the evidence presented by the agency or by the city bringing the action outweighs the evidence presented by the violator in his or her defense; either because the agency or town presented a greater amount of credible evidence, or because what was submitted was more convincing than what the alleged violator submitted in his or her defense. The court must be convinced that it is more likely than not that the violation has been committed, or exists. Put another way, the code enforcement officer must prove that it is more probable than not that each element of the offense exists as a fact (2).

Presenting the agency's case can be relatively simple or may be complex and time-consuming. Generally, it is best to apprise the court of the complexity of a case to allow for the proper allocation of the court's time, thus preventing delays, continuances, and breaks in the case's continuity.

Presenting the case may be as simple as the code enforcement officer taking the stand and narrating the circumstances of the case, then supporting the narrative with the introduction of supporting evidence such as notices of violation, photographs, maps and diagrams.

The case becomes much more complicated when the code enforcement officer's case requires the questioning of witnesses. The examination of witnesses is a skill that trial lawyers spend years developing. Code enforcement officials, especially those with solid scientific backgrounds, have developed through our use of the scientific method good questioning skills -- but it is unreasonable to expect that any code enforcement officer will ever be able to acquire the courtroom questioning techniques of a trial lawyer. Instead, those experienced in the use of Rule 80-K have learned to keep the examination of witnesses as simple and direct as possible, keeping the line of questioning narrow and focused.

Whether the case is presented entirely by testimony of the code enforcement officer or by the testimony of witnesses, it is necessary to introduce evidence. There is nothing in the Rule 80-K process that exempts the process from the Maine Rules of Evidence. As a result, the code enforcement officer must have a basic understanding of the rules of evidence. The rules of evidence are very complex, but with a CEO's solid understanding of three major concepts, the agency can readily impart to the court the necessary facts to support its case. The three concepts are relevance, foundation/reliability, and heresay.

Relevance is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In other words, to be relevant, the evidence must have clear bearing on some fact in the case which the code enforcement officer is attempting to prove.

Foundation is the underlying basis for a piece of evidence which must exist before the court will allow it to be admitted. For example, when introducing a photograph, the CEO or the witness, through questions directed to him or her, must lay the foundation as to the accuracy of the photograph; that the person who took the photo is familiar through personal observation with what is shown in the photo, and that it is a true and accurate depiction.

Heresay is only one of the exclusionary rules of evidence, but it is by far the most often applied. Rule 801 of the Maine Rules of Evidence defines "heresay" evidence as "a verbal or written statement made or an act performed out of court which is offered into evidence to prove the truth of the statement or act." "Heresay" rules require witnesses who can testify, under oath, from personal knowledge about what they say, and who can be cross-examined (2, 3).

Some additional legal concepts of which the code enforcement officer should have a basic understanding include the proper way to introduce evidence such as photographs, documents and diagrams; the use of expert witnesses; the introduction of telephone conversations; the right of entry; the concept of search and seizure; and the "chain of custody" as it pertains to real evidence.

Penalties and corrections

If the code enforcement officer has demonstrated to the court, by a preponderance of the evidence presented, that the violation existed, the court must decide the case in favor of the municipality or agency.

If a local ordinance was violated, the penalty provision of the ordinance specified is imposed. If the violation involved one of the state laws described in Table 1, the penalties are established as follows:

* The minimum penalty for starting construction or undertaking a land use activity without a required permit shall be $100, and the maximum penalty shall be $2,500.

* The minimum penalty for a specific violation shall be $100, and the maximum penalty shall be $2,500.

* The maximum penalty may exceed $2,500, but shall not exceed $25,000 when it can be shown that there has been a previous conviction of the same party within the past two years of the same law or ordinance.

The law stipulates that the court should consider a variety of factors in setting a penalty, including:

* Prior violations by the same party;

* the degree of environmental damage that cannot be abated or corrected;

* the extent to which the violation continued following a municipal order to stop; and

* the extent to which the municipality contributed to the violation by providing the violator with incorrect information or by failing to take timely action (4).

Finally, the law states that the fines shall be inured to the benefit of the town or city. In deciding what amount to request as a fine, and if asked by the court, the code enforcement officer should take into account the expenses incurred by the municipality, as well as the seriousness of the violation. The judge also may take into account the attitude and behavior of the defendant.

In addition to monetary penalties, the court is authorized to order correction. The court may ask the CEO for guidance when correction requires technical expertise. If the court finds the violation was willfully committed, it must order correction unless correction would result in a threat to public health and safety, cause substantial environmental damage, or result in a substantial injustice. Further, the court may, and in most cases will, enjoin the violator from committing the offense again. Failure to comply with the court's decision in the absence of a pending appeal places the violator in jeopardy of being held in contempt of court. A contempt order is a separate offense that also forces compliance with the original decision.

Rule 80-K to date

Statewide figures for the first six years of Rule 80-K violations are not available. A limited survey based upon the examination of cases filed at 13 district courts within the coastal zone of the state of Maine was performed over the summer of 1986.

The survey revealed that 33 cases had been filed under the Rule. Eighteen had been settled in favor of the town (Consent Decree or voluntary dismissal). Six cases resulted in the judge finding in favor of the town or agency after the hearing; two cases were dismissed in favor of the defendant; and seven were still in litigation at the time of the survey.

The survey, conducted by the Maine Municipal Association, concluded that the Rule 80-K experience had been successful up to that time. Even code enforcement officers who had not filed cases indicated in interviews that the threat of speedy prosecution had caused violators to comply voluntarily. Another finding of the survey was that many CEOs had attorneys assist them, but that as they gained experience, they opted for a larger role, assuming more responsibility for their cases.

The conclusion section of the MMA report goes on to state that although the town/agency had been successful in most cases, in either getting voluntary compliance or a court order to eliminate the violations, many attorneys felt that "more serious" violations should be brought to the Superior Court due to the hectic nature of the District Court. They felt that Superior Court was more conducive to a full discussion of intricate legal issues and complex facts, and that Superior Court judges were also perceived as having greater expertise in land-use laws. These conclusions were not contested by code enforcement officers, but all were quick to point out the approximate 18-month wait to get into Superior Court, versus weekly availability of time slots in District Court. Most cases brought by CEOs are straightforward, and those that are not are readily accommodated by the ease with which Rule 80-K permits transfer of the case to Superior Court by either side filing a simple motion (5, 6, 7).

The Maine Municipal Association is undertaking a more comprehensive review of Rule 80-K. The completion date for the study has not been set. It is clear that the rule's use was low at the beginning, but is increasing as courts, municipal officers and code enforcement officers become more familiar with it. It may be hard to assess the full impact and success of the rule because as the public has become more aware of this new enforcement tool, compliance, according to many CEOs, has increased and the number of repeat violators has decreased. The threat and immediate access to the courts may be the most valuable aspect of the rule.

Bangor, Maine did not use Rule 80-K until mid-1987. From that time to December 1990, the municipality has instituted 35 cases under the rule. In all cases, the municipality has obtained voluntary compliance permitting the case to be withdrawn, reached a consent agreement with the violator, or prevailed in court. Fine awarded total $6,598. More satisfying than the amount of fines amended is that every case has resulted in removal of the violation and/or compliance with the original order issued by the municipality.

The increasing use of the rule and the positive experiences of Bangor, the state's fifth largest community, are expected to be echoed in the upcoming statewide study by the MMA. If this holds true, it can be expected that the number of cases will escalate dramatically as more municipalities, state regulatory agencies and code enforcement officers recognize Rule 80-K's value in protecting our citizens and the environment.

Daniel M. Wellington, R.S., City of Bangor, Code Enforcement and Fire Prevention, 73 Harlow St., Bangor, ME04401.


1. Seel, R.W. and G.C. Wood (1987), Enforcement of Local Land Use Law Violations Using District Court Civil Rule 80-K, Maine Municipal Association, April, p. 3-5.

2. Seel, R.W. (1988), Handbook for Local Code Enforcement Officers, Maine Municipal Association, p. 39-43.

3. Grad, F.P. (1990), Public Health Law Manual, American Public Health Association, Washington, D.C., p. 217-219.

4. Seel, R.W. and G.C. Wood (1987), Enforcement of Local Land Use Law Violations Using District Court Civil Rule 80-K, Maine Municipal Association, April, p. 65-66.

5. Seel, R.W. (1986), "Prosecuting Land Use Violation," Maine Townsman Magazine, August.

6. Maine Municipal Association, Evaluation and Report--Rule 80-K and 30 M.R.S.A. Sec. 4966.

7. Livengood, W.W. (1986), "Some Code Enforcement Successes," Maine Townsman Magazine, November.
COPYRIGHT 1993 National Environmental Health Association
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Author:Wellington, Daniel M.
Publication:Journal of Environmental Health
Date:Apr 1, 1993
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