Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement - appellant did not seek review of final appellate order- City provided a Massey hearing - nothing in Massey or any other case allows appellant the right to re-try or re-litigate original issues that were already litigated and upon which a final ruling was entered- the collateral estoppel doctrine forbids a party from re-litigating identical issues that were previously litigated-nothing in the record indicates that appellant made any attempt to correct the violations- Petition denied.  Howarth v. Code Enforcement Board, City of New Port Richey, 51-2003-AP-000019WS (Fla. 6th Cir. App. Ct. April 11, 2005). 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

RONALD HOWARTH,                    

                        Petitioner,

v.

 

CODE ENFORCEMENT BD,

CITY OF NEW PORT RICHEY                                 Case No: 51-2003-AP-000019WS

                        Respondent. .

____________________________/

 

 

Daniel P. Rock, Esq.

Attorney for Appellant

 

Kevin A. DiTanna, Esq. 

Attorney for Appellee

 

ORDER AND OPINION 

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response and the Reply.[1]  Upon consideration of the same, the record, as well as oral argument, and being otherwise fully advised, the Court finds that, notwithstanding the harsh result, the Petition must be denied as set forth below.

            In reviewing the administrative action taken by the City, this Court must consider whether Petitioner Howarth was afforded procedural due process, whether the essential requirements of law were observed and whether the City’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). 

            On October 16, 2001, the City of New Port Richey sent out a notice of land use violations to petitioner. The notice indicated that petitioner was in violation of "building without  a permit."  It then went on to state '[t]here has been a screen porch and another structure erected on this property without obtaining a permit."  The letter then read :  'Solution: To conform to the code and apply for a permit, bring in a copy of your survey and the necessary drawings to the building department.' It was requested that the violation be removed within 15 days. The notice informed the petitioner to call the inspector when the violation had been abated, so the property could be inspected.   The notice also advised petitioner that if he did not believe he was in violation, he should contact the office.

            A hearing was held on December 11, 2001.  Petitioner appeared pro se. The board found petitioner to be in violation of building without  a permit and public nuisance.  A $150.00 administrative fee was imposed and was to be paid within 30 days. A fine of $100.00 per day was imposed for each day past December 18, 2001 that a permit was not issued.  A fine for $100.00 per day was imposed for each day past 60 days of the issue date of the permit that a final inspection had not been called for and approved.

            Petitioner, again pro se, appealed the decision of the Board to the Circuit Court and the court, per Judge Swanson, ruled in favor of the board and affirmed the original decision of the board at the first hearing.  Petitioner did not seek review of that decision.

            On February 7, 2003, the city filed and later recorded a lien pursuant to the board's decision at the first hearing and the appellate decision. However, the lien contained an incorrect calculation, and the city withdrew the original lien on October 31, 2003.   Thereafter, as a result of  Massey v. Charlotte County,  842 So. 2d 142 (Fla. 2d DCA 2003)[2] the city provided petitioner appellant with a notice of code enforcement board hearing regarding the filing of an order imposing penalty/lien. 

            On November 12, 2003, a pre-deprivation hearing was held in conformance with the decision in Massey.  Appellant attended this hearing represented by Daniel P. Rock, Esquire.[3] Counsel argued that the structure in question had been there before appellant actually purchased the property.  Counsel sought to introduce evidence that the structure existed prior to appellant's purchase. Counsel also sought to introduce documents indicating that there were building permits in 1987 issued when the mobile home was installed, but that the city does not have records of what those building permits were for.  (These documents were from microfilm of the Property Appraiser's records and were not certified).   Counsel then argued that he had a hard time understanding why there was a lien imposed on a property owner who purchases an existing structure.  Counsel also challenged the $150.00 administrative fee imposed, arguing that the city has less than 50,000 people. Finally, counsel argued, building without  a permit does not create a nuisance. Counsel requested (1) that the city try to research the permit  applications back in 1987; and (2) the matter be deferred another 30 days to allow the city to research.

            Counsel for Respondent then argued the purpose of the hearing was to consider the three factors in Massey, and not re-litigate the case; as this case has already been upheld on appeal. The three factors to be considered are (1) the gravity of the violation; (2) any actions taken by the violator to correct the violation; and (3) any previous violations committed by the violator. Counsel advised the board to consider the evidence in the 'packet' as well as the evidence submitted by opposing counsel at the hearing, and decide whether or not to reduce the proposed lien. Counsel argued that 'when you buy a piece of property, you buy the benefits and the burdens; so if there is a violation on the property at the time you purchase it, then you unfortunately have to take title to those problems.' Counsel again argued that they were not there to re-litigate whether or not the city correctly found him in violation of  the code. Counsel advised the board that the affidavit of Mr. Brevoort (inspector; who was present at the hearing) said that all of the violations that appellant was found in violation of at the original time still existed as of the date of the hearing.

            The petitioner then went before the board and told them that he  "smarted" off to the board at the first hearing and was not prepared; he testified that he figured he would just appeal and get it settled by someone who would listen to him.  However, when he tried to appeal it, the Judge said he could only rule on the evidence that he presented at the time of the hearing. So that all of the information he uncovered after the hearing, was dismissed. He then testified that after that appeal, he attempted to obtain a permit but found out he could not even get one. Finally, he testified that he had an affidavit from a neighbor who would be willing to come in and testify that the structures existed before appellant purchased the property.

            The board, after hearing arguments of counsel and receiving and reviewing testimony, evidence, and affidavits from the petitioner and the city, ruled that the proposed lien should be recorded in the public records of Pasco County against appellant and the property.  The lien was in the amount of  $68,000. 00 (680 days @ 100 day).

            As noted by the Court above, notwithstanding the extremely harsh result in this case, the Petition for Writ of Certiorari must be denied. Here, appellant appealed the first decision finding him in violation of the code and imposition of the lien. The decision below was affirmed and petitioner did not seek review of that order.  Accordingly, that order still stands and those issues may not now be re-litigated in this Court.  Thereafter, the City provided a Massey hearing to consider (1) the gravity of the violation; (2) any actions taken by the violator to correct the violation; and (3) any previous violations committed by the violator.  As argued by the City, nothing in Massey or any other case allows appellant the right to re-try or re-litigate original issues that were already litigated and upon which a final ruling was entered. In fact, the collateral estoppel doctrine forbids a party from re-litigating identical issues that were previously litigated in a contest that resulted in a final decision of a court of competent jurisdiction. Gentile v. Bauder, 718 So. 2d 781 (Fla. 1998); Rice-Lamar, v. City of Fort Lauderdale, 853 So. 2d 115 (4th DCA 2003); Sarasota County v. Town of Longboat Key, 515 So. 2d 1018 (Fla. 2d DCA 1987); City of Oldsmar v. State, 790 So. 2d 1042 (Fla. 2001).  . The only issue at the time of the Massey hearing was whether the property existed in the same condition as at the time of the first hearing, original appeal and the Massey hearing.  Nothing in the record indicates that appellant made any attempt to correct the violations. Accordingly, this Court finds that the administrative action taken by the City, afforded petitioner procedural due process, observed the essential requirements of law, and was                                             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). 

Therefore, it is,

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

            DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ________ day of  March, 2005.

 

                                                                                    _____________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    __________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

                                                                                                                                                                                                                                                                                   

Copies furnished to:

Daniel P. Rock, Esq.

Kevin A. DiTanna, Esq. 

 

 



[1] Although this case was styled  as an appeal, an action of this nature is governed by Florida Rule of Appellate Procedure 9.100 © and therefore will be treated as a Petition for Writ of Certiorari.

[2] Massey requires a municipality, prior to imposing a code enforcement lien against an individual and their property, to provide the owner with some sort of pre-deprivation or post-deprivation hearing at which time property owners have the opportunity to challenge the facts upon which the lien order was based once it was issued. Specifically, the amount of the fines imposed and the propriety of the lien depended upon factual findings that the property owners were never given an opportunity to protest;  these finding involved: (1) the gravity of the violation; (2) any actions taken by the violator to correct the violation; and (3) any previous violations committed by the violator.  Thus, to remedy the risk of improper seizure, there must be some type of procedure to allow the property owner to address these new findings. Massey v. Charlotte County,  842 So. 2d 142, 147 (Fla. 2d DCA 2003).

[3] This Court is mindful of the fact that petitioner was unrepresented at the first hearing in which the lien had been imposed and during the course of the appeal, at which time the decision of the board was affirmed and for which petitioner did not seek further review.  Thus, Attorney Rock, who did not become involved in this case until the time of the Massey hearing, unfortunately, does not have the option to re-litigate the issues previously litigated by petitioner, who represented himself.