Zaaki Rest. & Café, LLC v. Dep’t of Hous. & Cmty. Dev. State Bldg. Code Tech. Review Bd., 2022 Va. App. LEXIS 15, 2022 WL 145160 (Va. Ct. App. Jan. 18, 2022)
Zaaki Restaurant and Café, LLC (“Zaaki”) had a non-residential use permit to operate a restaurant. In 2013, the Fairfax County Department of Code Enforcement (the “Department”) cited Zaaki for violating the Uniform Statewide Building Code (“USBC”) by constructing unpermitted additions and issued a notice of violation and two criminal summonses to Zaaki pursuant to the Virginia Construction Code (“VCC”). The summonses were resolved by nolle prosequi. In 2019, the Department inspected the property from public areas, and observed various violations, including Zaaki exceeding the maximum permitted occupancy. On November 8, 2019, the Department issued a revocation notice of Zaaki’s certificate of occupancy (“CofO”) that identified 8 VCC violations dating back to 2013, identified safety hazards, specified required corrective actions, and contained information on Zaaki’s right to appeal. Zaaki appealed to the Fairfax County Board of Building Code Appeal (“BCA”), which upheld the revocation. Zaaki appealed the BCA decision to the Virginia Department of Housing and Community Development State Building Code Technical Review Board (“TRB”), which found repeated violations of the VCC, upheld the BCA’s decision, ruled the enforcement was not time-barred, and ruled that VCC § 116.3 authorized the Department to revoke Zaaki’s certificate of occupancy. Zaaki appealed to the circuit court, which affirmed the TRB’s ruling. Zaaki appealed the circuit court’s decision.
The Court affirmed the circuit court’s decision dismissing Zaaki’s administrative appeal. VCC § 116.3 provides that a CofO may be revoked or suspended where there are repeated violations of the Building Code after the CofO has been issued. Nothing in VCC § 116.3 requires the Department to provide notice of violation or to issue a corrective work order before revoking a CofO. The administrative record contained evidence that supported a finding Zaaki’s additions and structural modifications between 2013 and 2019 without a permit constituted repeated violations. The 2-year statute of limitations for criminal prosecutions under VCC § 115.2.1 and Virginia Code § 19.2-8 did not apply because: (1) there never was a final inspection for Zaaki’s alterations or renovations because all the alterations and renovations were undertaken without a permit; and (2) the matter involved a civil administrative appeal, not a criminal conviction. Enforcement under VCC § 116.3 is not constrained by the criminal statute of limitations. As to due process rights, the Supreme Court has specified factors for determining whether a hearing is required before suspending a business license: (1) the private interest affected; (2) the possibility of any additional or different safeguards; and (3) the government’s interest in the action. Although Zaaki’s business interest was harmed by the Department’s revocation of its CofO, the Department was exercising a legitimate public interest in protecting the health and safety of patrons, Zaaki chose not to remedy the violations or pursue its request for an emergency injunction in circuit court, and Zaaki was afforded an administrative hearing, which sufficiently protected its due process rights. The Department’s observations of violations from public spaces was not an illegal search. Finally, the Departments revocation notice was not issued in bad faith because it was issued based on substantiated violations, was in writing, listed 8 corrective actions necessary for reinstatement of the CofO, and explained the public safety basis for the revocation. VCC § 116.3 provides no timeframe for issuing a revocation notice to a permit holders, so delay in serving the revocation notice on Zaaki was immaterial.
