Court orders 'milk truck' returned to May

By Thomas Wilson
STAR STAFF
twilson@starhq.com

   A Circuit Court judge ruled Friday that a refrigerated truck seized by the City of Elizabethton under its "nuisance" ordinance must be returned or compensation of $475 paid by the city to its owner.
   Judge Thomas Seeley ruled that Elizabethton physician Dr. Joe May was entitled to receive his refrigerated "milk truck" back from the city because the city failed to follow the ordinance that initiated the truck's seizure.
   "The city did not follow its own ordinance," said Seeley, who heard May's lawsuit against the city in Carter County Circuit Court on Friday afternoon.
   The lawsuit's origins came when Capt. Tom Bowers ticketed a refrigerated truck located at May's 1427 West G. Street property on Sept. 19, 2001. He returned on Oct. 9 to find the truck had not been moved and cited May into Elizabethton City Court under the city's newly created nuisance ordinance. City Judge Lewis Merryman dismissed the violation but May filed suit after he was unable to retrieve the truck from the city.
   In his opening statement, May's attorney, David Crockett, argued that due process through the court system was necessary before any government entity could seize personal property. He also stated that his client's issue was not with the seizure of his truck but its failure to be returned based on the dismissal in City Court.
   Seeley interrupted Crockett's statement to rule that both city ordinances were constitutional and agreed with Merryman's ruling that the truck did not pose a nuisance. He also told Crockett he felt the city did have the legal power to seize the truck based on the ordinance contained in section 203.
   Seeley opined that the city did not have to apply the nuisance ordinance to seize an abandoned vehicle. He told both parties a separate ordinance -- Title 13, section 203 of the municipal code -- granted the city broader authority to seize vehicles that might constitute a threat to public safety or welfare.
   The attorney representing the city, Errick Herrin, argued pre-deprivation and post-deprivation due process issues had been met by the city via the initial notice issued to May in September 2001 and his citation into City Court 20 days later.
   Bowers testified in court that when he encountered May's truck the first time, he affixed a citation order to the truck's windshield. He described to the court that he found the truck having at least one window down, the license tag expired since 1989 and one flat tire.
   Bowers testified that he returned on Oct. 9, 2001 to find the vehicle had not been moved. He testified that he cited May to appear in City Court. According to the police report, when Bowers issued a citation to May personally on that date, he became abusive and began cursing, complaining to the officer that he pays excessive taxes and gets no service in return. Merryman dismissed the charge against May on Oct. 15, 2001.
   Under cross-examination by Crockett, Bowers testified he received one direct complaint from a neighbor of May, who advised him of a second complaint made by another neighbor. He stated that he did not learn who owned the vehicle until roughly one day after issuing the citation.
   May testified that he had moved the truck from West Elk Avenue to property owned by him at 1427 West G St. in 1992. The truck had remained there through 2001. He told the court he had used the truck strictly as a refrigerated storage unit for the apples and apple cider he sold. However, he denied the truck was inoperable or abandoned.
   "It was operable but we didn't take it on the highway," he stated. "We only used it to store fruit."
   After Merryman's ruling, May testified he met with both Police Chief Roger Deal and City Manager Charles Stahl to recover the truck. He stated he was informed by Stahl he could only retrieve the truck if he paid the towing charge and storage fee incurred by the city. May stated he then initiated legal efforts to retrieve the truck.
   Under cross-examination, May acknowledged he had spent little time around the truck in the three to six-month period before it was towed away by the city. He also confirmed he had no intention of operating the truck on the highway.
   "You'd been putting that truck off for another day since 1992," Herrin told May.
   Elizabethton Chief Building Officer Larry Miller testified that his office had received complaints about the truck and a building also on the property in early 2000. Miller referred to a letter sent to May in April of 2000 advising him of the complaints. Miller testified that May called him complaining of the letter and stated to him the only way he would move the truck "would be to sell it."
   "He used a lot of profanity," Miller testified. The department sent May another letter in October of 2000 regarding the condition of the building Miller stated.
   Elizabethton City Council passed an ordinance creating a "nuisance" law in December 2000. Bowers was assigned as the city's full-time code enforcement officer shortly thereafter.
   In his ruling, Seeley found both ordinances were legal. However, he found that the city had not met the merits of its own ordinance in citing May. Seeley ruled that since May was cited under the nuisance ordinance, and ruling made by Merryman stating the truck did not constitute a nuisance, the citation did not stand.
   "I wouldn't want this truck parked near my house," Seeley said. "I think Mr. May is entitled to relief."
   It was disclosed during Bowers' testimony that the truck had been purchased at a public auction in September of 2002 by Butch's Auto Sales and Salvage. The truck was one of several vehicles sold at the auction. The city received a total of $475 from the auction.
   Seeley ordered the city to either return the truck to May or pay him the $475 received from the auction. He also ordered May not to bring the vehicle back to his West G. Street property or he could be cited under the ordinance not containing the nuisance provision.