White Is Convicted Of Violating Ordinance He Helped Pass In 2003
By Jack Gurner
WATER VALLEY – Ward Two Alderman Fred White was found guilty in City Court last Thursday of violating the “junk ordinance” and was fined $500 and given 90 days in jail.
Municipal Judge Trent Howell told White that he would suspend the jail time if the alderman would bring his property into compliance within 90 days.
Police charged the Alderman on Feb. 12 after complaints that non-operable and wrecked cars were parked behind and to the side of his business, Super Lube and Tire at 341 South Main St.
White was first served notice of violation of the ordinance on Aug. 23, 2008. The notice gave him 30 days to come into compliance. At that time he was also given a copy of the ordinance.
Former Alderman Tommy Swearengen brought attention to the issue 18 months ago at the Jan. 9, 2008, special called meeting of the board. Swearengen, who pushed to get the original ordinance passed, said that something had to be done “concerning Fred and the junk yard.”
“I think we need to do something about that before it gets too big and Fred can still move those cars,” Swearengen said.
The nine-section municipal law commonly referred to as the “junk ordinance” actually has a 62-word title. It refers to junk, abandoned vehicles, overgrown grass/weeds, and abandoned or burned structures, among other things.
It was passed in December of 2003 and became effective on Feb. 22, 2004. All five aldermen – including White – voted for it. The “junk ordinance” is sometimes confused with the Zoning and Development Ordinance from 2006. The entire text of the “junk ordinance” is posted to the Herald website at www.yalnews.com.
When White was charged on Feb. 12, his initial appearance was set for Mar. 5. At that time he was granted a continuance until Apr. 2. On that date White phoned in a not guilty plea and a trial was set for Apr. 30.
White was not in court on Apr. 30 for the trial and when contacted by phone told court officials that he didn’t know he had to appear.
“This matter has got to be addressed,” Howell said at the time, “I an not expecting any more continuances.”
Howell then set another trial for Jun. 25. He added that would give both the city and White ample time to prepare.
At that time City Prosecuting Attorney J. Katherine Ward asked to be recused from the case. Ward told Howell that she didn’t want there to be an appearance of prejudice because of her prior dealings with White.
Mayor Bill Norris appointed Oxford Attorney T. Swayze Alford to act as Special Prosecutor.
The trial began Thursday with Howell asking for the witnesses to be sworn in. He turned to White and asked if he had any witnesses. “I don??t see why I need any,” White replied.
The only witness to testify, Water Valley Police Officer Lan Smith, said that she was assigned to investigate the auto shops around town to see if they were in compliance with the ordinance.
Smith described going to several businesses, making an investigation at each, and taking photographs. Alford asked if White’s business was among those she visited. She said it was and identified White, who was seated to her left at the conference table.
Alford asked Smith what she observed at White’s business and she described finding his business in violation of sections seven and eight of the ordinance.
The prosecutor asked her to describe specifically what she saw that indicated White was in violation. Smith held one of the photos and said, “There were several vehicles out to the back of the business that were visible from the roadway that appeared to be wrecked vehicles. There were three vehicles sitting to the side of the business that had grass growing up around them and leaves all up around them. And, all this was visible from Main Street.”
Howell asked White if he had seen the photo and did he have any objections to its admissibility. White said that the three cars in the photo all ran and were for sale. Howell interrupted and asked again if he had any objection to their admissibility. White said he did and Howell said, “Let me hear your objection.”
“These three cars are running,” White said. “I think they were speaking of cars that are not running, junk cars. Those cars are running. They are still there, but they still can run. Those cars are for sale.”
As testimony continued, Officer Smith said that on Aug. 23, 2008, White was served with a notice of violation of the ordinance. The notice gave White 30 days to come into compliance with the ordinance.
Alford asked what was done after Aug. 13. and Smith answered that on Feb 12, 2009, she was assigned to do a follow-up investigation. Alford then began the procedure to enter three photographs taken that day into evidence. Howell told him to show the photos to White.
“The pictures are fine,” White said. “If y’all want to enter them, enter them wherever you want to. The cars are there and they are still there.”
Alford asked Smith what was done at that point and Smith said, “Due to his business not being in compliance with the city ordinance, he was issued a complaint and a citation for violation of the city junk ordinance and given a court date of March 5.”
Alford asked if Smith had gone to the business since Feb. 12 and Smith said that she had been to the business that day. He asked if there had been any change and she answered there had not been.
“So, we’re now here almost a year removed from the first photographs and you observed many of these vehicles to be in the same place they were almost a year ago,” Alford said.
The prosecutor completed his examination of the officer and the judge explained to White that he could now ask Smith questions. He cautioned White that it was not time for him to tell his side of the story. He would be given that opportunity later.
“I’ll wait till my turn,” White said.
Howell asked, “What did you say about an attorney?”
“I don’t need one,” White answered.
There was a brief discussion of the ordinance and whether or not a copy needed to be entered into evidence. The decision was made to enter a certified copy.
All right Mr. White. It shifts to you,” Howell said.
White began his testimony, “I don’t have a problem moving those cars, but I cannot get in there and get them moved until it drys out.”
White explained that the cars where in a swampy area. “Once it rains it is a month or two before I can even walk in there let alone get a truck in there to move those cars.”
“What I don’t understand is why when I put those cars there, the law allowed me to do it. Now all of a sudden the law tells me I can’t do it. Ain’t there a grandfather clause in there that would permit me to leave those cars there?”
White was apparently confused about the date the “junk ordinance” became effective. It went into effect on Feb. 22, 2004. White’s business was issued a business license in February 2006, two years later.
White went on to explain that some of the cars were involved in legal matters and he couldn’t dispose of them because they could be involved in court cases. “As soon as I am clear to move those cars, you’ve got my word I’ll move them,” he said.
After White finished his statement, Howell gave Alford permission to cross-examine the alderman.
“Mr. White what I understand you saying is you understand you are in violation of the ordinance, you just can’t do anything about it,” Alford said.
White repeated his previous comments about the area being wet and Alford repeated that White understood he is in violation.
“I don’t see why I am,” White said.
“Then why are you moving the cars if you are not in violation of the ordinance?” Alford asked.
“Because I’m tired of people worrying the hell out of me about those cars sitting back there, “White said.
“And, it’s your testimony that it hasn’t been dry enough to move those cars anytime since August of 2008…almost a year,” said Alford.
White added there might have been times when it was dry enough, but he might not have time to move the cars that day.
“Okay, first it’s got to get dry enough and then it got to be convenient for you,” Alford said.
“You pick the answer you want,” White said.
After several more minutes of discussion about the weather and other factors, Alford asked White about erecting a fence as outlined in section eight of the ordinance.
“There wasn’t anything prohibiting you from erecting a fence around your property, was there?” Alford asked.
“Yes,” said White. “Money.”
“I checked on the cost of a fence,” White added, “and I couldn’t afford it.”
Alford went over the facts of the case once again, asked White if he had received a copy of the complaint, and asked if he had done anything to try to correct any of the problems on his property. When White didn’t respond, Alford said, “The answer is you haven’t done anything.”
“Didn’t I just answer that,” White said.
Alford asked “At some point you were the one who got the vehicles back there and left them where they were, right?”
“Yeah, I put them back there,” White responded.
Alford finished his questioning and Howell asked White if there was anything he would like to add to his testimony.
White responded that Alford was trying to blow everything out of proportion. “I told you what I can do and you know that if I tell you I am going to do it will be done. That’s all I am going to say.”
Alford then addressed each point of the case and said that by White’s own admission that he is in violation of the ordinance. Alford said that the city had given the alderman ample time to correct the violations and he had made no effort to do so.
Howell asked White if he had anything else to say by way of argument. White responded, “Undoubtedly this guy don’t live in Water Valley. He don’t know how many rains we’ve been getting over the last eight or ten months.”
White’s response drew quiet laughter from several of the spectators.
Howell asked if either said had anything else to add and he then asked to see the documents including a copy of the ordinance. After reading for a few moments, Howell described the intent of the ordinance that among other things was enacted to protect the health and welfare of the public. An ordinance such as this is not an uncommon one,” Howell explained. “Most progressive municipalities have similar ordinances.”
Howell said that the city had met their burden of proving that White had violated the ordinance. “It is most unfortunate that it has gotten to this point. In the fact that it has, I really don’t think anybody is to blame but Mr. White.”
“The court will fine Mr. White $500 plus costs,” Howell said. “As to any jail time, I am going to give Mr. White 90 days in jail. But, I am going to suspend the jail time conditioned on the removal of the items or bringing his property into compliance with the ordinance within this same 90 day period.”
Howell also set an appeal bond at $500 plus a cost bond at $300 and suggested to White if he wished to appeal that he get an attorney.
“Let me be clear with my ruling so there is no misunderstanding Mr. White. In addition to the fine and costs, you have a 90 day jail sentence. But, that jail sentence will be suspended conditioned on you bringing your property into compliance within the next 90 days.”
Howell asked Alford and then asked White if they had any questions. Alford had none, but White said he did.
“I sat here and told you judge that I was not able to get in there and get that stuff out due to the weather. You ignored everything I said like I am lying to you or something. It has not been dry enough for me to get in there. I don’t think it is fair for you to sit up and charge me $500 for something I couldn’t help.”
Howell said, “I think that I have been overly fair with you and I think the city has been overly fair with you. Certainly you have had ample time to bring yourself into compliance. And, I think it is most unfortunate.”
The judge added, “But again, any litigant or defendant who does not like the court’s ruling may look at the option of going to a higher court. That’s why I have gone ahead, as a precaution, to set an appeal bond and a cost bond for you.”
“I’m looking at this as one charge. The city could bring multiple counts for the number of days that have passed. But, I think that would be overly harsh and oppressive and I am not going to entertain that at this time.”
Howell again told White that he had 30 days to appeal and suggested strongly that he get an attorney if he intended to do so.
BE IT ORDAINED BY THE MAYOR AND BOARD OF ALDERMEN
OF THE CITY OF WATER VALLEY
TITLE: ORDINANCE TO REGULATE THE DISCARDING, ABANDONING,
OR ACCUMULATING OF GARBAGE, TRASH, JUNK, DEBRIS, OR OTHER SIMILAR ITEMS, AND TO CONTROL OVERGROWN GRASS/WEEDS WITHIN THE CORPORATE LIMITS, AND TO REGULATE ABANDONING OF JUNK VEHICLES, CARS, TRUCKS, BUSES, TRACTORS, SALVAGE MOBILE HOMES, BOATS, OTHER SIMILAR ITEMS OR PARTS THEREOF, AND TO REGULATE THE REMOVAL OF BURNED OUT STRUCTURES, ABANDONED BUILDING, AND OTHER ABANDONED STRUCTURES.
SECTION 1. PURPOSE AND INTENT.
The purpose and intent of this Ordinance is to prohibit the discarding, abandoning or accumulating of garbage, trash, junk, debris or other abandoned property such as Junk Vehicles, Cars, Trucks, Buses, Tractors, Salvage Mobile Homes, Boats, other similar items or parts thereof, within the corporate limits, except at duly authorized and maintained disposal sites and to control overgrown grass/weeds within the corporate limits, and to control burned-out and abandoned structures within the corporate limits. It is the intent of the Mayor and Board of Aldermen that all property within the corporate limits be maintained in a well-kept manner which will preserve property values, present a pleasing appearance, and alleviate conditions detrimental to the health, safety and general welfare of the citizens of the City of Water Valley.
SECTION 2: DEFINITIONS.
For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
A. ABANDONED PROPERTY. Wrecked or derelict property having no value other than nominal salvage value, if any, and which has been left abandoned and unprotected from the elements and shall include inoperative or partially dismantled motor vehicles, mobile homes, farm equipment, tractors, boats, machinery, refrigerators, washing machines, plumbing fixtures, furniture, or other similar articles no matter what type of condition, which have been discarded or abandoned on any public property or private lot, within the corporate limits of the City.
B. DEBRIS. Fragments of or accumulations of pieces of metal, cloth, rubber, plastic, lumber, or any other natural or manufactured mineral or vegetative matter.
C. BUILDING INSPECTOR. The primary enforcement officer shall be a designee of the Mayor and Board of Aldermen.
D. GARBAGE. Any waste parts of food or other discarded animal or vegetable matter subject to bacterial decay.
E. JUNK. Pieces, parts, or discarded whole units of metal (including, but not limited to vehicles), rubber, plastics, glass, lumber, scrap ferrous or non-ferrous material or other objects manufactured either from mineral or vegetative materials.
F. TRASH. Broken parts of trees, prunings, clippings, or other pieces of fragments of vegetative matter, fragments of paper, card board or other related matter.
G. BURNED-OUT STRUCTURE. A structure that has remained burned-out for more than six months.
H. OVERGROWN GRASS/WEEDS. Grass and/or weeds over 12 inches in height and which cover a substantial portion of the area, except for land in current use for agricultural purposes, and is abutting or located within 200’ of a public street.
I. JUNK VEHICLES – Cars, Trucks, Buses, Trailers, Salvaged Mobile Homes or parts thereof, or any other related matter that is beyond repair.
SECTION 3: CARE OF PREMISES.
It shall be unlawful for the owner or occupant of any property in the City of Water Valley to utilize the premises of said property for open storage of any abandoned motor vehicle, refrigerator, stove, glass, building material, building rubbish or similar items. It shall be the duty and responsibility of every such owner or occupant to keep the premises of said property clean and to remove from the premises, all such abandoned items as listed above, including but not limited to weeds, dead trees, trash, garbage, or rubbish of any kind, burned out structures and abandoned structures.
SECTION 4: OFFENSIVE ACCUMULATIONS PROHIBITED.
It shall be unlawful for any person to make, use, or permit in any dwelling, house, shop, store, factory, outhouse, cellar, yard, lot or any other place within the City, a noisome or offensive liquid, or substance of any character whatever prejudicial to the health, or so offensive to the sight or smell as to be a nuisance to the neighborhood or liable to become so.
SECTION 5: WEEDS PROHIBITED; ABATEMENT.
It shall be unlawful for any person owning or occupying any lot, parcel, or property abutting, or within two hundred (200) feet of any public street within the City to permit weeds, grass, brush, or other undesirable vegetation to grow to a height in excess of twelve (12) inches.
SECTION 6: BURNED OUT STRUCTURES; ABANDONED BULDINGS; OTHER ABANDONED STRUCTURES.
It shall be unlawful for any property owner to allow a burned out house or burned out structure or any abandoned building or other abandoned structure that is deemed by the building inspector to be beyond repair to exist on said property.
SECTION 7: JUNK VEHICLES: CARS, TRUCKS, BUSES, TRACTORS, SALVAGE MOBILE HOMES, OR OTHER SIMILAR ITEMS, OR PARTS THEREOF.
Junk vehicles described above are prohibited from being located within the City of Water Valley except within completely enclosed buildings or garages or at vehicle salvage yards, vehicle repair shop storage areas and wrecker service yards. The above mentioned vehicle salvage yards, mobile home salvage yards, vehicle repair shop storage areas, and wrecker service yards must be in compliance with Section 8 of this Ordinance.
SECTION 8: SCREENING OF JUNK YARDS, VEHICLE SALVAGE YARDS, VEHICLE REPAIR SHOP STORAGE AREAS, WRECKER SERVICE YARDS, OR USED-MOBILE HOME SALVAGE YARDS.
Within one (1) year from the effective date of this ordinance, all existing junkyards, vehicle salvage yards, vehicle repair shop storage areas and wrecker service yards where junk vehicle or wrecked vehicles are stored shall be screened from adjacent properties by opaque fencing and landscaping. All new junkyards, vehicle salvage yards, vehicle repair shop storage areas, and wrecker service yards shall provide said screening prior to obtaining a privilege license.
SECTION 9. CLEANLINESS OF PROPERTY AND PENALTY.
(a) It shall be the duty of all persons owning and/or occupying property in the City of Water Valley to keep and maintain said property in a clean and sanitary condition at all times. Any person who is an owner and/or occupant of said property who fails to comply with any section of this ordinance, within seven (7) days after being notified by the Building Inspector or the Chief of Police to remedy such condition, shall be guilty of a misdemeanor and punished with a fine not exceeding five hundred dollars or by imprisonment not exceeding ninety (90) days, or both, for each twenty-four (24) hours or fraction thereof of maintenance of such condition, after being notified. Each twenty-four (24) hours or fraction thereof shall constitute a separate offense.
(b) If the owner and/or occupant of the property fails to comply, the City may do all things necessary to bring the property into compliance under Section 21-19-11 of the Mississippi Code of 1972, Annotated, as amended, which is adopted and incorporated herein by reference, and the owner and/or occupant shall be civilly liable for all costs and expenses incurred by the City as provided by statute in bringing the property into compliance.
(c) A property owner and/or occupant may be held liable under one or both subsections (a) and (b) above. Liability of owners and/or occupiers under subsection (b) above shall be joint and several.
Larry Hart, Mayor
DATE: __ DECEMBER 2, 2003____
Certified by the City Clerk
FEBRUARY 22, 2004___