Opinion
Case No. 20010319-CA.
FILED December 19, 2002. (Not For Official Publication)
Fourth District, Provo Department, The Honorable Anthony W. Schofield.
Jay Peterson, Provo, Appellant Pro Se.
David C. Dixon, Gary L. Gregerson, and Gary A. McGinn, Provo, for Appellees.
Before Judges Billings, Bench, and Greenwood.
MEMORANDUM DECISION
Jay Peterson appeals from the district court's order affirming the Provo administrative court's finding that he violated Provo City Code § 14.10.080 (2001) by having an illegal accessory building on his property. We affirm.
Peterson argues that his due process rights were violated because he did not receive adequate notice that Provo City (the City) would claim that his violation of section 14.10.080 included the failure to obtain required building permits. "[W]here notice is ambiguous or inadequate to inform a party of the nature of the proceedings against him or not given sufficiently in advance of the proceeding to permit preparation, a party is deprived of due process." Nelson v. Jacobsen, 669 P.2d 1207, 1212 (Utah 1983). The City posted a "Notice of Violation" on Peterson's door that included the municipal code section violated, a description of the violation, and the corrections required to bring the property into compliance. The notice read, in relevant part, "[r]emove the [s]torage units from the R-1 zone, or comply with the [b]uilding [c]odes and comply with the zoning requirements." Section 14.10.080 requires an accessory building to "[c]omply with the latest adopted edition of the Uniform Building Code." Provo City Code § 14.10.080(5)(c). In addition, the City argued during the administrative hearing that Peterson was in violation of section 14.10.080, in part, because he had failed to obtain the necessary building permits for his storage units. Therefore, we conclude that Peterson had adequate notice that his violation under section 14.10.080 included his failure to obtain building permits for the storage units on his property.
Next, Peterson argues that he cannot be held in violation of the City's code based on hearsay evidence that he did not possess a building permit. "The strict rules of evidence and procedure that apply in a courtroom, . . . need not apply in an administrative hearing. Hearsay and other forms of evidence that might be inadmissible in a court of law may be considered during an administrative hearing." Tolman v. Salt Lake County Attorney, 818 P.2d 23, 28 (Utah Ct.App. 1991). During the hearing, the City argued that Peterson did not obtain a building permit as required under the City's code. The City based its argument on the absence of building permits on file with the City's building permit records office.
The hearing officer then allowed Peterson thirty days to obtain the required building permits. The hearing officer's finding that Peterson failed to obtain the necessary building permits was not based solely on hearsay evidence that one did not exist, but also on Peterson's inability to produce proof of the permits after being given a reasonable time to do so. Therefore, no error exists.
Finally, Peterson argues that his due process rights were violated because the hearing officer was biased based on his employment with the City. "Where a party to an adversarial proceeding can demonstrate actual impermissible bias or an unacceptable risk of an impermissible bias on the part of a decision maker, the decision maker must be disqualified." V-1 Oil Co. v. Department of Envtl. Quality, 939 P.2d 1192, 1197 (Utah 1997). Where an agency employee does not take part in a particular case as an investigator or advocate, the risk of "the will to win" bias is minimal. Id. at 1203. There is no evidence that the hearing officer served in any investigative or adversarial role in regard to this case. Further, there is no indication in the record of actual bias. Thus, Peterson's due process rights were not violated.
Therefore, we affirm.
WE CONCUR: Judith M. Billings, Associate Presiding Judge, and Russell W. Bench, Judge.