Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Public Nuisance – Petitioner is unable to demonstrate that Florida Statutes, § 893.138, which provides authority to local administrative boards to abate drug-related and other criminal behavior, is unconstitutional – Petitioner was given adequate notice and a reasonable amount of time to abate the nuisance prior to the City filing its abatement complaint – undisputed testimony showed that property was a known “drug hole” – Petitioner should have taken action to eliminate the drug activity – Petition denied.  Fields v. City of St. Petersburg, No. 03-5078AP-88A (Fla. 6th Cir. App. Ct. Sept. 24, 2004). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

RUFUS FIELDS,

                        Petitioner,

vs.                                                                                                Appeal No. 03-5078AP-88A

                                                                                                    UCN522003AP005078XXXXCV

CITY OF ST. PETERSBURG,

                        Respondent.

________________________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari and the Response.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The Petitioner, Rufus Fields (Fields), seeks review of the Order on Respondent’s Motion for Rehearing, entered November 18, 2003, in which the Respondent, City of St. Petersburg, Nuisance Abatement Board (Board), reduced fines imposed to $1,250.00, from $2,500.00, and kept costs imposed at $1,957.02.  In reviewing the administrative action taken by the Board, the Court must consider whether Fields was afforded procedural due process, whether the essential requirements of law were observed and whether the Board’s action is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action).

            The record shows that Fields owns multi-unit rental property located at 1782 and 1782 ˝ 19th Street South, located within the City of St. Petersburg. [1]   On December 19, 2002, a search warrant was executed at 1782 ˝ following a supervised purchase of marijuana from the residence.  As the property was not owner-occupied, the City of St. Petersburg Police Department sent a letter to Fields, dated January 23, 2003, informing Fields of the drug activity that resulted in the execution of the search warrant and notifying Fields that he could be subject to fines, investigative costs, and other sanctions should the Board determine that his property is a public nuisance.  Fields was advised that he should contact Officer Lopez, the Community Police Officer, for information on how he could protect himself and his property.

            Between April 8, 2003 and July 7, 2003, the City conducted an undercover investigation in which 9 supervised, or controlled, drug buys occurred at 1782 ˝.  On July 9, 2003, a search warrant was executed at the residence resulting in the seizure of narcotic evidence and the arrest of 2 individuals.  On July 18, 2003, the Board filed its Complaint for Abatement of Nuisance against Fields, alleging that the City had reason to believe that conduct constituting a public nuisance had occurred at the property.  After a noticed hearing on the matter, the Board found the property to be a public nuisance and imposed fines of $2,500.00, $250 for each incident of illegal conduct, and costs totaling $1,957.02.  Following the Board’s consideration of Fields’ Motion for Rehearing, the Board voted to reduce the fines to $1,250.00 and leave the costs the same.

            In his Petition, Fields argues that Florida Statutes, § 893.138, and the City Code, Sec. 19-67, both facially and as applied, violate due process and constitute an unlawful exercise of police power.  Fields further asserts that the Board failed to provide him with notice and an opportunity to abate the nuisance before imposing sanctions.  In addressing these issues, the Court initially finds that Fields is unable to demonstrate that either § 893.138 or Sec. 19-67, which provide authority to local administrative boards to abate drug-related and other criminal behavior, are unconstitutional.  See State Farm Mutual Automobile Insurance v. Warren, 805 So.2d 1074, 1077 (Fla. 5th DCA 2002)(explaining that the burden of proving the unconstitutionality of a statute is upon the party challenging its validity); see also Department of Law Enforcement v. Real Property, 588 So.2d 957, 961 (Fla. 1991)(stating that all doubts as to the validity of a statute are to be resolved in favor of constitutionality where reasonably possible).

            Further, the Court finds that Fields was given adequate notice and a reasonable amount of time to abate the nuisance prior to the City filing its complaint.  As set forth in Powell v. City of Sarasota, 857 So.2d 326, 328 (Fla. 2d DCA 2003), “[a]n adequate opportunity to abate a nuisance necessarily includes notice that criminal activity that might constitute a nuisance is occurring, coupled with a reasonable amount of time to end the criminal activity.”  As set forth above, Fields was sent on letter on January 23, 2003, putting him on notice that he and his property could become subject to the Board’s jurisdiction based on drug activity observed at the property in December 2002.  Although Fields evicted the tenant within 3 days of receiving the letter, the record shows that Fields made virtually no effort to ensure the new tenant did not engage in drug activity.  Numerous drug buys occurred after the January 23, 2003, letter.

            The undisputed testimony showed that the property was a known “drug hole” and that debris consistent with drug activity was readily visible on the grounds of the property.  Additionally, most of the drug transactions occurred through a cardboard flap in the lower apartment window, the same manner in which drugs were sold in December 2002.  Hence, even without the January 2003 letter, Fields should have reasonably known about the drug activity and taken action to eliminate it.  See Powell, 857 So.2d at 328 (providing that a property owner would have an adequate opportunity to abate a nuisance if the drug sales were so obvious that the property owner reasonably should have known about them).  Therefore, the Court finds that Fields’ request for certiorari relief must be denied.

           

            It is therefore,  

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby denied. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of September 2004.

 

 

 

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

 

 

 

 

 

 

 

 

Copies furnished to:

 

Robert W. Hitchens, Esquire

6464 First Avenue North

St. Petersburg, FL  33710

 

Sherman W. Smith, Esquire

St. Petersburg Police Department

1300 First Avenue North

St. Petersburg, FL  33705

 

 

 

 

 

 

 

 

 

 



[1] These proceedings concern only the 1782 ˝ property, a detached building in the rear of the lot consisting of 2 apartments.