CONSENT JUDGMENT MARICOPA COUNTY V WARNER.PDF
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ALLISTER ADEL MARICOPA COUNTY ATTORNEY By: JONATHAN C. SIMON (029750) Deputy County Attorney simonj@mcao.maricopa.gov CIVIL SERVICES DIVISION 225 West Madison Street Phoenix, Arizona 85003 Telephone (602) 506-8541 Facsimile (602) 506-4317 ca-civilmailbox@mcao.maricopa.gov MCAO Firm No. 00032000 Attorney for Plaintiff Maricopa County IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA MARICOPA COUNTY, a political subdivision of the State of Arizona, Plaintiff, v. Larry Warner and Jane Doe Warner, individually and as husband and wife; Franklin Mize and Jane Doe Mize, individually and as husband and wife; Amanda Ahumada and John Doe Ahumada, individually and as husband and wife; Menard Koke and Jane Doe Koke, individually and as husband and wife; Ysidro Ahumada and Jane Doe Ahumada, individually and as husband and wife; John Gleason and Jane Doe Gleason, individually and as husband and wife; Danny Warner and Jane Doe Warner, individually and as husband and wife; Johnny Cash Barker and Jane Doe Barker, husband and wife; Unknown Heirs of Hilda M. Barker, John Does I-X and Jane Does I-X, their respective spouses, Doe Corporations I-X, No. CV2021-014035 CONSENT JUDGMENT (Honorable Joan M. Sinclair) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Doe Limited Liability Companies I-X, Doe Partnerships I-X, and Doe Other Entities I- X, Defendants. I. DEFINITIONS A. “Complaint” means the Verified Complaint for Civil Penalties and Injunctive Relief, No. CV2021-014035, filed by plaintiff Maricopa County in Maricopa County Superior Court on September 7, 2021. B. “Compliance Date” means the date that the County provides written notification to the Defendants that the Property is in compliance with Sections V and VI of this Consent Judgment. C. “County” means Maricopa County. D. “Defendants” means, collectively, Franklin Mize, Amanda Ahumada, and Ysidro Ahumada. E. “Effective Date” shall be the date that this Consent Judgment is entered by this Court. F. “Health Code” means the Maricopa County Environmental Health Code. G. “MCESD” means the Maricopa County Environmental Services Department. H. “MCZO” means the Zoning Ordinance for the Unincorporated Area of Maricopa County. I. “Motion for Injunctive Relief” means the Verified Application for Temporary Restraining Order (with Notice), Application for Order to Show Cause, and Motion for Preliminary Injunction filed by the County against Defendants in Maricopa County Superior Court on or about September 7, 2021. J. “P&D” means the Maricopa County Planning & Development Department. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 K. “Parties” refers collectively to the County on the one hand, and Defendants on the other hand. L. “Property” means property located in the County and at 4524 W. Southern Avenue, Laveen, AZ 85339. II. BACKGROUND AND RECITALS A. Defendants reside on and occupy the Property. B. For several years before filing the Complaint, the individual Defendants as defined in this Consent Judgment have resided and continue to reside on the Property. At the time this action was commenced, numerous other individuals resided on the Property in makeshift living structures and R.V.s, resulting in the accumulation of improperly stored human waste, putrescent garbage, uncontained refuse, rubbish, trash, junk, and debris, resulting in multiple health hazards and public nuisances. C. The above-described acts and omissions violate Arizona statutes, the Health Code MCZO, constitute as a matter of law a public nuisance and are harmful to the environment and public health. A.R.S. §§ 11-815(C); 36-601(A)(1)(5)(12)(17); Health Code Ch. II, § 1, Regs. 2(a)(1) and 2(b); Health Code Ch. II, § 3 Reg. 1; and MCZO Ch. 11 § 1116, Arts. 1116.1 and 1116.2. D. On September 7, 2021, the County filed a Complaint [Doc. 1] and Motion for Injunctive Relief [Doc. 2] seeking civil penalties and injunctive relief pursuant to A.R.S. §§ 11-815(D); 11-815(H); 12-1801 et. seq.; 36-183.04; 36-183.05; 36-601(c); and Ariz. R. Civ. P. 65 E. On September 21, 2021, each of the Defendants was properly served via personal service. F. On October 13, 2021, this Court held a virtual Order to Show Cause hearing and set an evidentiary hearing on the Motion for Injunctive Relief. G. The Defendants admit that they were properly served in this action, that jurisdiction is proper in this Court and that the County is the proper venue. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 H. The Parties consent to the terms and entry of this Consent Judgment and acknowledge that neither of the Parties has made a promise of any kind or nature other than what is set forth in this Consent Judgment, and agree to this Consent Judgment voluntarily and after due consideration. I. It is in the best interests of the Parties to enter into this Consent Judgment. Except as provided in this Consent Judgment, the Parties hereby intend to completely and finally settle and release Defendants’ civil liability for the violations described in the Complaint and the Motion for Injunctive Relief, and hereby jointly move the Court to enter this Consent Judgment. NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows: III. JURISDICTION AND VENUE A. The Court has jurisdiction over the subject matter of this action and the Parties pursuant to A.R.S. §§ 11-815(H), 12-123, 36-601(c) and other applicable Arizona law. B. Venue is proper in the County pursuant to A.R.S. § 12-401 and other applicable Arizona law. IV. BINDING EFFECT A. This Consent Judgment constitutes and embodies the full and complete understanding of the Parties and supersedes all prior understandings or agreements, whether oral or in writing, which pertains to the subject matter contained herein. B. The Parties hereby consent to the terms and entry of this Consent Judgment and agree not to contest its validity in any subsequent proceeding. This Consent Judgment applies to and is binding upon the Parties, and, as applicable, Defendants’ officers, directors, agents, servants, employees, attorneys, successors and assigns and all persons, firms and corporations acting in concert or participation with Defendants. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 C. Defendants certify that their counsel undersigned is fully authorized to agree to the terms and conditions of this Consent Judgment, to execute it on their behalf and to legally bind them to its terms. V. CIVIL PENALTIES A. By February 1, 2022, Defendants shall cease and desist any and all uses and activities at the Property that are not in full compliance with the Health Code, MCZO, administrative compliance orders, Arizona, federal, and local statutes, regulations, ordinances, and laws as well as this Consent Judgment and this Court’s orders in this case. B. For so long as Defendants reside on the Property, and there is no change of ownership thereof, the Defendants further agree to keep the Property in compliance Health Code, MCZO, administrative compliance orders, Arizona, federal, and local statutes, regulations, ordinances, and laws as well as this Consent Judgment and this Court’s orders in this case for a consecutive period of 365 days, or until February 1, 2023. C. If Defendants timely comply with sections V(A)-(B) of this Consent Judgment, the County agrees to waive payment of any civil penalties sought in the Complaint. D. If, however, Defendants fail to timely comply with section V(A)-(B) of this Consent Judgment, and at the time non-compliance occurs, the Defendants both (1) reside on the Property; and (2) there has been no change of ownership thereof, the Defendants agree to pay civil penalties in the amount of $10,000.00 (“Civil Penalties”) to the County within thirty (30) days of the County’s notice to the Defendants of such noncompliance. E. Beginning on the Effective Date, pre-judgment and post-judgment interest will accrue on the Civil Penalties at the highest legal rate. F. The Parties agree that the Civil Penalties constitute a debt for a fine, penalty or forfeiture payable to and for the benefit of a governmental unit, is not compensation for actual pecuniary loss, and is specifically non-dischargeable under 11 U.S.C. § 523(a)(7). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Upon entry of this Consent Judgment, the County shall be deemed a judgment creditor for purposes of collection of the Civil Penalties. VI. PERMANENT INJUNCTION A. Defendants agree to a permanent injunction to cease and desist any and all uses and activities at the Property that are not in full compliance with the Health Code, administrative compliance orders, Arizona, federal, and local statutes, regulations, ordinances, and laws, this Consent Judgment and this Court’s orders in this case B. In addition to and notwithstanding the terms specified herein, after February 1, 2022, Defendants shall remove all uncontained refuse (including garbage) and rubbish from the grounds of the Property. C. By February 1, 2022, Defendants shall ensure that any vehicles or R.V.s on the Property are not used as shelters of inhabitance. D. Defendants shall permit County representatives to make reasonable entry onto the Property to ensure compliance with the Health Code, MCZO, Arizona statutes, administrative compliance orders, this Consent Judgment and this Court’s orders in this case. VII. NOTIFICATION OF COMPLIANCE Upon the County’s determination that the Property is in compliance with the terms of this Consent Judgment, the County shall provide written notification of such compliance to Defendants. VIII. AUTHORIZATION OF SHERIFF Should Defendants fail to comply with the terms of this Consent Judgment to the County’s satisfaction, he Sheriff of the County is hereby authorized to close and prevent any and all uses and activities on the Property that are not in full compliance with the Health Code, MCZO, administrative compliance orders, Arizona statutes, this Consent Judgment and this Court’s orders in this case. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 IX. NOTICES AND SUBMISSIONS A. Documents, materials or notices submitted in accordance with this Consent Judgment shall be deemed submitted when postmarked, return receipt requested, accepted for delivery by a commercial delivery service, sent by electronic mail (with email addresses provided under separate cover), or hand-delivered. B. Documents, materials or notices from Defendants shall be sent as follows: Maricopa County Attorney’s Office ATTN: Jonathan C. Simon Maricopa County Attorney’s Office Civil Services Division 225 West Madison St. Phoenix, Arizona 85003 simonj@mcao.maricopa.gov MCESD ATTN: Amanda Bond Interim Enforcement Supervisor | Quality & Compliance Division Maricopa County Environmental Services 3800 N. Central, Ste. 300 Phoenix, Arizona 85012 P&D ATTN: Charles Hart Code Compliance Supervisor Maricopa County Planning and Development Department 301 W. Jefferson St., Suite 170 Phoenix, AZ 85003 C. Documents, materials and notices from the County shall be sent as follows: James B. Rolle Law Offices of James B. Rolle 608 E. Missouri Ave., Ste. 200 Phoenix, Arizona 85012 Email: jbrolle3@hotmail.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 D. The Parties shall promptly notify all other Parties in writing to any changes in the contact information listed in this Section IX, and this Consent Judgment will be modified accordingly. The Parties agree to cooperate in the filing of any court documents required to effectuate this modification. X. MATERIAL BREACH AND ENFORCEMENT A. In the event Defendants fail to comply with the terms of this Consent Judgment, including the terms set forth in Sections V and VI, it shall constitute a material breach and violation of this Consent Judgment. B. Upon a material breach of this Consent Judgment, the County, in its sole discretion, is immediately authorized to: i. Enforce the Civil Penalties pursuant to any and all means provided at law and equity; and/or ii. Enforce this Consent Judgment through the Court, in which case Defendants shall be liable for interest and additional penalties pursuant to the provisions of the Health Code, MCZO, administrative compliance orders, and Arizona statutes; and/or iii. Declare the Consent Judgment null and void, in which case the County may pursue the Complaint or re-file this action against Defendants and any other individual or entity as provided by law and equity. In this event Defendants shall be barred from alleging the affirmative defenses of estoppel, laches, claim preclusion, issue preclusion or the expiration of any statute of limitations. XI. RELEASE Except as provided in this Consent Judgment, upon fulfillment of all of its obligations created by this Consent Judgment, Defendants, and, as applicable, all of its past, present, and future directors, officers, shareholders, employees, agents, trustees, attorneys, successors, assigns, parent corporations, subsidiaries and related persons are 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 hereby released from any and all civil liability to the County for any and all violations, real or alleged, known or unknown, relating to the allegations in the Complaint. This Release does not cover criminal liability under any local, state or federal ordinance, regulation, statute rule or other requirement. As of the Effective Date, Defendants shall release the County and its agencies, departments, officials, employees or agents—including without limitation MCESD and MCZO —from any and all claims or causes of action against it arising under or related to the allegations contained in the Complaint. XII. SEVERABILITY This Consent Judgment is not severable. If any Section of this Consent Judgment is declared by this Court to be invalid or unenforceable, the entire Consent Judgment is rendered invalid and the Parties shall return to the positions they occupied prior to the execution of this Consent Judgment. XIII. APPLICABLE LAW The validity, meaning, interpretation, enforcement and effect of this Consent Judgment shall be governed by the law of the State of Arizona. XIV. COSTS OF SUIT Each Party shall bear their own costs and attorney fees in this action. XV. RESERVATION OF RIGHTS A. Entry of this Consent Judgment is solely for the purpose of settling the Complaint and except as expressly set forth herein, does not preclude the County, or any other department, agency or officer of the County, or any subdivision thereof—including without limitation MCESD—from instituting other administrative, civil or criminal proceedings as may be appropriate now or in the future, or initiating a civil or criminal action against Defendants for violations of ordinances, regulations, statutes, rules, compliances orders or other requirements. B. This Consent Judgment does not encompass issues regarding violations, sources, operations, facilities or processes of Defendants not expressly covered by the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 terms of this Consent Judgment and is without prejudice to the rights of the County arising under any law. The County reserves the right to take any appropriate legal action against Defendants for violations which are not alleged in the Complaint or referenced in this Consent Judgment. The County reserves the right to take any and all appropriate action necessary to protect the public health, welfare or the environment. C. Nothing in this Consent Judgment shall constitute a permit of any kind, or modification of any permit of any kind, under federal, state or local law. Nothing in this Consent Judgment shall in any way alter, modify or revoke federal, state or local statutes, ordinances, regulations, rules, compliance orders or other requirements or shall this Consent Judgment affect or relieve Defendants in any manner from its obligations to apply for, obtain and comply with applicable federal, state and local permits. Compliance with the terms of this Consent Judgment shall be no defense to an action to enforce any such permits or requirements. The County does not, by its consent to the entry of this Consent Judgment, warrant or aver that compliance with this Consent Judgment will constitute or result in compliance with Arizona law. Notwithstanding the County’s review and approval of any materials submitted pursuant to this Consent Judgment, Defendants shall remain solely responsible for compliance with any other applicable federal, state or local ordinance, regulation, statute, rule, compliance order or other requirement. Any submissions made to the County pursuant to this Consent Judgment shall not be interpreted as a waiver or limitation of the County’s authority to enforce any federal, state, or local ordinance, regulation, statute, rule, compliance order or other requirement, including permit conditions. D. The County shall have the right to take enforcement action for any and all violations of this Consent Judgment and reserves the right to pursue all legal and equitable remedies. E. The entry of this Consent Judgment shall not serve as a basis for any defenses of claim-splitting, estoppel, laches, claim preclusion, issue preclusion or waiver 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 challenging the County’s legal right to bring an action regarding matters not expressly covered by this Consent Judgment. XVI. MODIFICATION Any modification of this Consent Judgment must be in writing and approved by the Parties and the Court, except that any extensions for the performance of any requirement of this Consent Judgment may be requested in writing by Defendants and consented to in writing by the County. XVII. RETENTION OF JURISDICTION The Court shall retain jurisdiction over both the subject matter of this Consent Judgment and the Parties to effectuate and enforce this Consent Judgment, or to provide further orders, direction, or relief as may be necessary or appropriate for the construction, modification or execution of this Consent Judgment. XVIII. TERMINATION A. The provisions of this Consent Judgment shall be deemed satisfied upon completion by Defendants of all of their obligations in this Consent Judgment to the satisfaction of the County. B. After Defendants have fully complied with this Consent Judgment, and upon written request by Defendants, the County shall execute and file a satisfaction of judgment with this Court and in any county in which this Consent Judgment was recorded. ORDERED this ___ day of ________________, 2022. Judge of the Superior Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 CONSENT TO JUDGMENT I, Franklin Mize, have read the foregoing Consent Judgment in its entirety, agree with the statements made therein, consent to its entry by the Court, and agree that I will abide by the same. DATED this ___ day of ________________, 2022. Franklin Mize 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 CONSENT TO JUDGMENT I, Amanda Ahumada, have read the foregoing Consent Judgment in its entirety, agree with the statements made therein, consent to its entry by the Court, and agree that I will abide by the same. DATED this ___ day of ________________, 2022. Amanda Ahumada 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 CONSENT TO JUDGMENT I, Ysidro Ahumada, have read the foregoing Consent Judgment in its entirety, agree with the statements made therein, consent to its entry by the Court, and agree that I will abide by the same. DATED this ___ day of ________________, 2022. Ysidro Ahumada 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 CONSENT TO JUDGMENT Bill Gates, on behalf of Plaintiff Maricopa County, hereby acknowledges that he is authorized, as the Chairman of the Maricopa Board of Supervisors, to sign this Consent Judgment, has read the foregoing in its entirety, agrees with the statements made therein, consents to its entry by the Court, and agrees that Maricopa County will abide by the same. DATED this ___ day of ________________, 2022. Chairman Maricopa County Board of Supervisors ATTEST: Clerk of the Maricopa County Board of Supervisors DATED this ___ day of ________________, 2022. APPROVED as to FORM: Deputy County Attorney DATED this ___ day of ________________, 2022.