Restaurant occupancy certificate properly revoked

Where the State Building Code Technical Review Board revoked appellant restaurant’s certificate of occupancy for, among other things, making alterations and additions to the premises without permits, the circuit court correctly upheld the revocation.

Overview

Zaaki operated a restaurant in Fairfax County. In October 2019, after receiving a complaint, Fitzgerald, an assistant county building official, examined the public areas of the restaurant and noted many alterations and additions that had been made without permits.

At a later visit, accompanied by a fire marshal, Fitzgerald noted there were 102 people on the premises, which was licensed for a maximum of 49. On Nov. 8, 2019, the county building official issued a revocation notice for appellant’s certificate of occupancy.

A week later, appellant was told the occupancy certificate would be restored if six conditions were met. Appellant refused the offer and began pursuing judicial and administrative remedies. Appellant sought to have the revocation stayed pending appeal to the “Fairfax County Board of Building Code Appeals. The Building Official denied this request, and the Board subsequently upheld the revocation.”

At a hearing before the Technical Review Board (TRB), “Fairfax County presented unrebutted evidence of Building Code violations that occurred between 2013 and 2019.

“The violations included removal of counters in 2014, a fabric addition converted into a glass enclosure without a permit in 2016, installation of gas-fired heaters and exhaust fans without final inspections in 2017, construction of a roof structure and electrical work without permits in 2018, and the additional violations that Fitzgerald and the fire marshal observed in 2019.

“Appellant argued that VCC § 116.3 required the Building Official to issue multiple notices of violation before revoking a certificate of occupancy, that the violations were time-barred under VCC § 115.2.1, and that the Building Official’s actions violated due process. …

“The TRB found repeated violations of the VCC and upheld the Board’s decision. The TRB ruled that the enforcement was not time-barred and VCC § 116.3 authorized the Building Official to revoke appellant’s certificate of occupancy. Appellant appealed the TRB decision to the circuit court, which affirmed the TRB ruling.”

Revocation

Appellant challenges “the TRB’s interpretation of VCC § 116.3. That section provides in pertinent part as follows: ‘A certificate of occupancy may be revoked or suspended … where there are repeated violations of the [Building Code] after the certificate has been issued. … The revocation or suspension shall be in writing and shall state the necessary corrections or conditions for the certificate to be reissued or reinstated[.]’ …

“Appellant contends that VCC § 116.3 must be read in conjunction with the subsections of VCC § 115. VCC § 115.1 makes it punishable as a misdemeanor for any ‘owner … to violate’ the VCC provisions.

“VCC § 115.2 requires that before imposing criminal sanctions, the Building Official shall ‘issue a written notice of violation to the responsible party’ if the violations have not been ‘corrected or complied with within a reasonable time.’ VCC § 115.3 provides that this notice of violation is a prerequisite to criminal enforcement.

“Appellant interprets VCC § 116.3 as also requiring written notice of a violation before the Building Official can revoke a certificate of occupancy. Appellant argues that without the prerequisite notice, it had no reasonable opportunity to comply, and therefore, the revocation was invalid. …

“Here, VCC § 116.3 and VCC § 115.2 address different actions available to the Building Official. VCC § 115.2 establishes a criminal penalty after continued violations following written notice; it specifies in detail what information must be included in the notice and who must receive it.

“The plain language of VCC § 116.3, by contrast, contains no reference to a ‘notice of violation’ as a condition precedent to revoking a certificate of occupancy; it merely provides that a certificate of occupancy ‘may be revoked’ after ‘repeated violations.’ Appellant asks us to read the words ‘notice of’ into the regulation. We decline to do so.”

Other matters

“Appellant argues that not only was the Building Official required to notify appellant of the violations, he also was required to issue a corrective work order and allow a reasonable amount of time for compliance before revoking the certificate of occupancy. Appellant cites no applicable legal authority for this contention. …

“Appellant also contends that the statute of limitations precluded the Building Official from issuing the revocation notice. Appellant relies on VCC § 115.2.1 and Code § 19.2-8, neither of which applies here. Code § 19.2-8 establishes a statute of limitations for various criminal misdemeanor offenses and specifies a two-year limitation for prosecutions of criminal violations of the Building Code. However, it does not limit the civil enforcement process. …

“[T]he matter before us did not arise from a criminal conviction; it is a civil administrative appeal. VCC § 116.3 differs significantly from VCC § 115.2 and provides for civil enforcement of the Building Code. Enforcement under VCC § 116.3 is not constrained by the criminal statute of limitations. Accordingly, we find that the circuit court did not err by upholding the TRB’s ruling declining to apply the statute of limitations. …

“Appellant also asserts that its due process rights were violated because the Building Official declined to issue a stay of the revocation pending the TRB appeal. …

“[C]ourts have held that due process is not violated by a failure to provide a pre-deprivation hearing when ‘immediate action was necessary to eliminate an emergency situation’ and adequate post-deprivation process was provided. …

“Here, although the revocation harmed appellant’s business interest, the Building Official was exercising a legitimate public interest in protecting the health and safety of patrons. If appellant had been allowed to continue operating once the extensive violations of the Building Code had come to the attention of the Building Official, it is reasonable to conclude that citizens could have been endangered.

“Appellant chose not to remedy the violations or pursue its request for an emergency injunction in circuit court. Appellant was ultimately afforded an administrative hearing which sufficiently protected due process rights.”

Affirmed.

Zaaki Restaurant and Café, LLC v. Virginia Department of Housing and Community Development State Building Code Technical Review Board, et al. Record No. 0318-21-4, Jan. 18, 2022. CAV (O’Brien) from the Circuit Court of Fairfax County (Shannon). Aristotelis A. Chronis for appellant. Justin I. Bell, for appellee Virginia Department of Housing and Community Development State Building Code Technical Review Board. Sara G. Silverman for appellees Jay Riat, Building Official for Fairfax County, Virginia and Fairfax County, Virginia. VLW 022-7-012, 13 pp. Unpublished.