T-R FILE PHOTO A new trial will be held for the city code violations at the Marshalltown Mall. The case is being sent to magistrate court for trial scheduling.

A new trial has been ordered for the city fire code violations at the Marshalltown Mall.

Last Friday, Judge Paul Crawford set aside the previous ruling and ordered a new trial in magistrate court after Marshalltown Development Group, the owner of the mall, was found guilty in July of the violations, fined $6,500 and given 30 days to rectify the problems.

Crawford wrote that the decision to deny the request of attorney Jeff Hazen for continuation of the trial was “unreasonable and a clear abuse of discretion.”

Hazen represents the mall owner and asked for a continuation due to his absence caused by illness. He submitted the request one hour before the trial was scheduled to commence. Magistrate Judge Tom Hillers denied the last-minute motion for the continuation, stating the gravity of the situation, and ruled in favor of the city.

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.

During an October appellate hearing, Crawford asked if Hazen was appealing the continuation denial, 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.

New trial order

In Crawford’s written statement on Friday, he wrote Hazen was not at fault for being sick. He added he would apply rules of procedure which require continuation motions be filed without delay after the grounds become known to the requesting attorney. Crawford wrote Hazen called the Marshall County Clerk of Courts at 8:02 a.m., two minutes after opening on the day of the July trial. Hazen was told the clerk would notify the magistrate and to submit a written motion to continue, which he did at 8:31 a.m., one hour before the start of the trial.

The judge wrote it was suggested Hazen was at fault for failing to alert the court of his illness earlier in the week, failing to get the opinion of the city attorney, Steven Leidinger, on the continuance and failing to send over another attorney from his law firm to cover the trial for him.

In response to those suggestions, Hazen said he did not plan to get sick; Leidinger was based in Cedar Rapids and was probably on the way to Marshalltown at the time and Hazen did not know his cell phone; and the clerk nor the magistrate notified Hazen’s firm continuation was being denied.

“Matters could have been handled more smoothly by all involved, but the court is not going to make a finding of fault or negligence against Mr. Hazen,” Crawford wrote.

Crawford wrote people do get sick, and there was no indication Hazen prolonged his illness to delay the July trial.

He also found Hazen’s illness and absence from the trial did not cause prejudice to the city, a party which chose to use an attorney at a law firm with a travel time of more than one hour away. However, Crawford added being unable to reach Leidinger because of a lack of a cell phone number was a weak argument.

“Hazen or his office could have called the office of opposing counsel,” Crawford wrote. “Staff there would certainly know how to get a message to [Leidinger] or maybe even provide his cell phone number to enable Mr. Hazen to speak directly with him about his illness and the request for a continuance.”

The judge further wrote there was a two-way failure of communication regarding the motion to continue, filed one hour before the trial started. The court did not let Hazen know the motion was going to be denied. If Hazen would have known that, he would have asked another attorney from his office to be present.

However, Crawford wrote motions to continue are not guaranteed to be granted. Therefore, Hazen’s firm needed to follow the Boy Scout’s motto of “always be prepared” and have an attorney available to go to court to act as a substitute.

Crawford also addressed Hillers saying the “gravity of the situation” is a reason to deny a continuance. Marshalltown Development Group’s alleged violations of city fire codes puts the facility and the businesses at risk. While Crawford wrote he understood the risk, criminal cases also pose similarly grave situations.

“This court cannot envision any criminal trial, no matter how grave a crime, proceeding if the attorney for the accused is ill on the day of trial,” he wrote.

Substantial justice would have been obtained if the continuance had been granted, and Hillers would have heard both sides of the case. Since magistrate court occurs three days a week in Marshall County, scheduling a retrial would not require a lengthy delay.

July trial

During the July trial, the Marshalltown Development Group was found to be in violation of various city codes including:

• 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.

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, 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.