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Violations Dismissed for Failure to Prove Proper Mailing

The owner of a multi-million dollar car parking facility hired Adam Leitman Bailey, P.C. to defend against city violations which threatened to shut down operations. The violation alleged that there were more parking spaces than the certificate of occupancy permitted.

In preparation for the hearing, Adam Leitman Bailey, P.C. obtained photographs and witness statements to defend against the violation. However, further analysis of the notice of violation itself revealed that the city might not have mailed the violation to the owner as they should have.

At the first hearing, Adam Leitman Bailey, P.C. demanded that the inspecting officer be present to respond to the firm’s allegations of improper service. The hearing was then adjourned twice more as the inspecting officer failed to show up each time. At the fourth hearing, with the inspecting officer again absent, Adam Leitman Bailey, P.C. argued that the trial had to proceed and the judge agreed.

Adam Leitman Bailey, P.C. then provided case law to show that it was the burden of the Department of Buildings (DOB) to prove that the Notice of Violation had been properly mailed. The judge agreed that the city had responsibility for maintaining the records and advised that if the city could not produce the necessary documents then case would be dismissed. Despite searching for over an hour, the city attorney was unable to find the specific record that would show that the violation had been properly mailed. Consequently, the judge dismissed the violation, and the parking facility continued its operations.

Colin Kaufman and Pete Reid represented the owner in this action in front of the Environmental Control Board.

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