Petition
for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and
Commissions of Local Government: ADMINISTRATIVE – Code Enforcement - petitioner's admission cured any problems there may
have been in denying the continuance- there was competent substantial evidence
to support the boards order to cure the violation within 45 days-petitioner
admitted violation; violation existed for 3 years; it was hurricane season; the
utilities are already hooked up; job is
done except for having a licensed mobile home installer pull the permit; county
building inspection staff recommended 30 days; the permit and inspection is
simple to obtain; usual permitting process is complete within 30 days -Petition
denied. Gaeto
Family Trust v.
IN
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF
THE STATE OF
APPELLATE
DIVISION
GAETO FAMILY TRUST,
Petitioner,
v.
Respondent.
_________________________/
Nicholas L. Ottaviano, Esq.
Attorney for Appellant
Kristy A. Wooden, 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] In this case, petitioner raises two issues
(1) whether the Board's denial of the request for a continuance denied
petitioner due process; and (2) whether the board's findings are supported by
competent, substantial evidence and whether the board applied the correct
law. Upon consideration of the same, as
well as the record, and being otherwise fully advised, the Court finds that the
Petition must be denied as set forth below.
In reviewing the
administrative action taken by the County, this Court must consider whether petitioner
was afforded procedural due process, whether the essential requirements of law
were observed and whether the County's action is supported by competent
substantial evidence. See Haines
City Community Development v. Heggs, 658 So.2d 523, 530 (
The petitioner in this case, "Gaeto", appeared at a violation hearing before the Construction Code Enforcement board on July 21, 2004. The purpose of the hearing was to address the violation of failing to obtain the proper permits for one double wide mobile home.
At the hearing, petitioner stated that he was presented with a letter that morning allegedly sent to him, but he did not know who signed for it. He stated that he is not guilty and further stated "if the question is, is there a permit for the mobile home that [answer] is no, but . . . with two totally different wordings and two totally different meanings [on the notice] and what's on your agenda it makes it very hard to enter a plea."
The county explained that the complaint is the letter but the agenda is just a general summarization. At that point petitioner stated that he understood and answered that he is not guilty.
Petitioner explained that he is trustee of the property and that there is no permit on the property but that he did not 'engage' in it (the violation). However, he admitted that as trustee, he did hire somebody to pull the permit. Petitioner then objected to service and stated that he did not receive service. He stated that he learned about the hearing through a person he knew in the zoning department but that he was not served. He stated that his signature on the card and his signature on his driver's license does not match. He also testified that the signature did not match any signature of any person that lives in his house or any person he authorized to sign for this. He asked for a continuance.
The board reviewed the documentation regarding the mailing of the notice. The county established through county staff, Mr. Lero, that the address on the return receipt was the address listed on the property appraiser screen and that there was a signature on the card and the card was received stamped by the post office on June 16. The letter was dated June 9 and it is the habit or policy of the enforcement office to mail out letters at or shortly after the letter on the dates of the letters. Thus based on the habit of the office, it was mailed out June 9 or shortly thereafter. The motion to continue was denied.
Inspector Gary Smith was shown pictures that he took of appellant's mobile home. He explained that the mobile home was set up without the required permits. He testified that there were no permits posted at the site. He explained that he did a search on the day of the violation and also a search on July 19 (before the hearing) to see if there were any permits issued for the mobile home and he testified that there were not. Smith explained that the unit is just existing there but did not know if it was hooked up to utilities. He testified that the installer is required to pull the permit before the unit ever comes onto the property and that it is illegal to store it there. Smith confirmed that the notice of violation was sent to the correct address. All the evidence was accepted.
Petitioner then called the inspector (Smith) as a witness and asked him if he had any direct knowledge of what the post office does with the mail after he turns it over to them; Smith said that he did not. Smith also stated that he did not give anything directly to petitioner or bring anything directly to the address of the mobile home. He then asked Smith if he could explain the wording on the agenda versus the wording on the notice of hearing because he could not understand why there is such a wide variety and 'in essence' is what makes him unprepared for the meeting. Smith stated that he could not answer that question. Smith also testified that he was not the author of the letter.
Petitioner then stated he was caught off guard. He went on to state "I found out about this . .. very late last week. . . found the date out last night. Went on the web and found out there was a hearing today." . He further stated "it's been my testimony that I did not receive this. . . . once it hits the post office department I assume that members of the post office are just like everybody else in the world . . .they make mistakes. Maybe it was delivered next door and the next door neighbor signed for it, maybe it was delivered in a different street. "
At that point, the county asked "just so I'm clear you are testifying that you knew about the alleged violation last week?" and petitioner responded "at the end of last week. Yeah, absolutely, you're clear." He was then asked if he contacted anyone in the building department between last week and the day of the hearing and appellant stated that he did, and was aware of the violation on the property "prior to that." He went on to state that he was aware of the violation but was not aware that there was a hearing and was working diligently to get the violation taken care of. He explained that he applied for the permit on June 3 so he was aware of the violation. He then testified that it is his intention to cure the violation. The county said "[t]hat's all we're looking for here is just a cure for the violation and how much time that you think you're going to need to do that?" Petitioner stated "[u]nfortunately this is a legislative issue. . . .I got a phone call when I first found about this and . . . there was a phone call a message left on my recorder last night telling . .. me that the building department is . . . declined to issue me a permit."
Lero then explained that petitioner was looking to pull the permit as the owner/builder for the home; but Florida Statute, section 320, requires a licensed installer to install the home. Lero explained that all petitioner needed to do was hire a mobile home installer, who is properly licensed, and then the permit would be issued.
When asked again how long it would take him to have the mobile home tied down properly or remove it, petitioner said he would like 180 days. He said "ts been there for three years doesn't hurt anybody." He also stated that there are utilities in it, but no one is living there.
The staff recommended he have 30 days to obtain his permit and complete all of his final inspections and if not an appropriate per day fine be assessed against this property. Lero then called Ralph Peterson, Central Permitting Manager, who explained that it is his job to process and issue permits. He told the board that according to the records, petitioner's permits are already in house, and approved, pending an authorized contractor on the job. He testified that his standard process is thirty days from the start to finish. County staff was concerned because it was hurricane season, and did not want to extend the time longer than 30 days.
The board found petitioner guilty of failing to obtain the proper permits to install a double wide mobile home on the property. Petitioner was given thirty days to obtain the proper permits and final inspections or face a two hundred fifty dollar per day fine.
Petitioner then asked for sixty days. The board ultimately allowed forty five days to cure the violation.
The first issue raised by petitioner is whether the board's denial of his request for a continuance denied him due process. This Court finds that there is adequate evidence in the record from which the board could find he received adequate notice. Moreover, although there would have been no prejudice to grant the continuance; there was also no prejudice in going forward with the hearing, particularly in light of the fact that petitioner admitted that he was guilty of the violation. Thus, petitioner's admission cured any problems there may have been in denying the continuance.
The second issue raised by petitioner is whether or not the board's findings are supported by competent substantial evidence and whether the board applied the correct law. This Court finds that there was competent substantial evidence to support the boards order to cure the violation within 45 days. For example, the petitioner readily admitted that he was in violation; the home had no permit and violation had existed for at least 3 years; it was hurricane season; the utilities are already hooked up and the job is done except for having a licensed mobile home installer pull the permit; county building inspection staff recommended 30 days; the permit and inspection is simple to obtain; Gaeto, being aware of the violation and requirement of a permit, made application on June 3, 2004; the permit has been approved in house, pending an authorized contractor on the job; and the usual permitting process is complete within 30 days. Furthermore, although the applicable Florida Statute, Section 320 had been amended; that amendment was not substantive. As stated by respondent, at the time Gaeto attempted to pull the permit a licensed contractor was required for installation pursuant to FS 320.8249(1). That section provides that "[a]ny person who installs a mobile home shall obtain a mobile home installers license from the Bureau of Mobile Home and Recreational Vehicle Construction of the Department of Highway Safety and Motor Vehicles pursuant to this section. Said license shall be renewed annually, and each licensee shall pay a fee of $150.00." The change in the law briefed by Gaeto is non-substantive regarding the need for a licensed installer. After June 10, pursuant to FS 320.8285(3), a permit can be issued to a homeowner but the permit must reflect the name and license number of a licensed installer. The testimony of the permitting supervisor at the hearing was the permit was complete pending an authorized contractor on the job.
Therefore,
it is,
ORDERED
AND ADJUDGED that the Petition for Writ of Certiorari is DENIED.
DONE
AND ORDERED in Chambers, at New Port Richey,
_____________________
Primary Appellate Judge
__________________
Daniel D. Diskey
Circuit Judge
______________________
Circuit Judge
Copies furnished to:
Nicholas Ottaviano, Esq.
Kristy A. Wooden, 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.