Mall owner appealing ruling on city code violations, fine
A July court decision finding the company that owns the Marshalltown Mall guilty of violating city codes, fining them $6,500 and giving them 30 days to rectify the problems is being appealed.
In Marshall County appellate court on Tuesday, District Associate Judge Paul Crawford asked if defense attorney Jeff Hazen, representing the Marshalltown Development Group, was appealing a continuation denial, and if he was asking the court to set aside the guilty verdict and reopen the hearing. Hazen told Crawford that was correct and added he believed the previous motion to continue should have been granted.
Hazen filed the appeal after a trial was held without the defense present. Shortly before the July trial, he submitted a motion to continue as he was unable to attend due to illness. Magistrate Judge Tom Hillers denied the last-minute motion for continuation and ruled in favor of the city. He found the Marshalltown Development Group to be in violation of various city codes, including the following:
• Equipment not being maintained to ensure safety of occupants.
• Non-compliance with orders and notices.
• Fire protection and life safety systems required by city code or the International Building Code were not installed, repaired, operated, tested and maintained.
• Fire detection, alarm and extinguishing systems were not maintained in an operative condition at all times.
• All areas of a building containing water-filled piping which does not have other means of freeze protection were not maintained at a minimum temperature of 40 degrees F.
• The means of egress serving a room or space was not illuminated during times the room or space was occupied.
• In the event of power supply failure, in buildings that require two or more exits or access to exits, an emergency electrical system did not automatically illuminate interior exit access stairways and ramps, exit passageways, vestibules and areas used for exit and exterior landings for exit doorways leading directly to the exit discharge.
Explaining the continuation denial after the trial, Hillers wrote that it was proper due to Hazen’s failure to file a timely continuance request earlier despite calling in sick for hearings prior in the week.
“Defense counsel knew he was sick days prior to this trial yet he failed to make arrangements for coverage or seek a continuance of this trial and instead only sought a continuance of trial one hour in advance,” Hillers wrote. “Due to defense counsel’s delay in seeking a continuation of trial and the serious and imminent risk of danger to the public based on plaintiff’s allegations, the court properly denied defendant’s motion to continue and the defendant’s application for reconsideration regarding the same should also be denied.”
Responding to Hillers determination during Tuesday’s appeal, Hazen said he could have filed an earlier continuation, but based on his experience, the request would not have been granted.
“I did not anticipate [still] being sick,” he said. “I felt better Thursday evening, and it changed overnight. It appears from the filings in the case, the trial was held . . . I do not think it was fair.”
Hazen said he tried to contact the Marshall County clerk of court on the trial date at 8:02 a.m., two minutes after opening for business. He did not have the phone number for City Attorney Steven Leidinger, nor for Hillers, which is why he tried to make contact through the clerk.
Hazen said since the trial was in magistrate court, which is held three days out of the week, it could have been rescheduled to a later day. By denying the continuation, he argued his client had been injured and suffered prejudice.
Hazen added since he was not at the trial, he was unable to provide his own witness and cross-examine the city’s witness, Marshalltown Fire Department Marshal Josh Warnell. He would like the opportunity to do so.
Crawford wants to consider what happened at the July trial between the city and the Marshalltown Development Group before he rules on the appeal. Crawford said he requested the audio recording of the trial but had not yet received it.
“I am not going to make a decision,” he said. “I will put it in writing and file it to the electronic court filing system.”
Marshalltown Development Group, a holding company of the New York-based Kohan Retail Investment Group owned by Mike Kohan, neglected to pay the electric bill for the mall, which is what led to the code violations. In November 2023, electricity was shut off in the main areas, such as the hallways, the bathrooms and the parking lot.
The electric bill still has not been paid, and numerous tenants without external entrances have relocated, including Black Iron Barbell, Game Haven, Remix Dance Academy and Oliver Beene.
Businesses with external entrances, such as Hobby Lobby, Mama DiGrado’s and Fridley Plaza 9 Theatre, were able to stay in the mall.
Contact Lana Bradstream at 641-753-6611 ext. 210 or lbradstream@timesrepublican.com.