Petition for Writ of Certiorari to Review
Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code enforcement-no evidence that the
petitioners fall within the statutory definition of a repeat violator; essential requirements of law were not
observed by the board imposing daily fines; the board is a creature of statute and once the city opted to have a
code enforcement board, it was prohibited from enforcing its ordinances by any
other manner except that described in chapter 162. Petition granted. Mancuso
v. Code Enforcement Board, City of New Port Richey,
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
PHILIP and KAREN MANCUSO,
CODE ENFORCEMENT BOARD
CITY OF NEW PORT
Thomas P. Altman, Esq.
Attorney for Petitioner,
Kevin G. Brick, Esq.
Attorney for Respondent.
ORDER AND OPINION
THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response and the Reply. Upon consideration of the same, as well as the record, and being otherwise fully advised, the Court finds that the Petition must be granted and the order below is QUASHED.
reviewing the administrative action taken by the City, this Court must consider
whether petitioner 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 (
are the owners of a residential duplex property in the City of
There is trash and debris on this property including an abandoned appliance.
Solution: Remove all the trash and debris and the appliance. This is a repeat violation and fines as determined by the code enforcement board may commence as of the date of initial inspection.
The notice also requested that the violation be removed "within FORTHWITH days from the date of this notice." The letter further stated "[t]his is the only letter you will receive. Your next communication from us will involve enforcement action. . . . ". The letter also stated that the owners will not receive an additional warning before they begin formal enforcement action and noted that this was the only letter they would receive. The officer attached a violation detail and description.
Petitioners also received a second letter, dated January 18, 2005, which stated:
There is an unlicensed vehicle on this property.
Solution: Remove Vehicle
The notice requested that the violation be removed within 20 days from the date of the notice. The letter further stated "[t]his is the only letter you will receive. Your next communication from us will involve enforcement action. . . . ". The letter also stated that the owners will not receive an additional warning before they begin formal enforcement action and noted that this was the only letter they would receive. The officer attached a violation detail and description.
On January 28, 2005, petitioner's received another letter, advising petitioner's that they were repeat violators and further advising them of the fines that may be levied. The letter stated "[y]ou have previously been issued a notice to correct such violation; however, our records indicate your failure comply." The letter advised the petitioners that the matter was to be presented to the Board on February 8, 2005, and enclosed a violation detail and description as well as a Notice of Hearing. The notice of hearing said "[i]f the violation is corrected and then recurs or if the violation is not corrected by the time specified for correction by the Code Enforcement Inspector, the case may be presented to the Code Enforcement Board even if the violation has been corrected prior to the Board hearing."
A hearing was held. At the hearing, the inspector stated that this was a repeat case and showed photos "from the original case where it was found in violation of the exact same ordinances . . . ". The inspector explained that "[t]his is from last year in May. The case was heard in June of '04. These are just a few representative photos from that original case." The inspector then went through the photos from January 7; January 11; January 12; January 18; January 21; and January 24. He further explained "[o]n the 31st I was there and progress being made. As you can see, this is the area where the refrigerator and the other trash and debris was. You can see here now there's garbage bags and remnants stacked. And a lot of that trash and debris that was by that vehicle is now confined and out by the alley getting ready for pick-up." He stated that it was still there yesterday afternoon.
Petitioner Philip Mancuso testified that both of the apartments are rentals and that he does not live there. He acknowledged that he was notified about the violations through a letter. Mancuso stated that he called the inspector that day and told him "this weekend I'll have everything gone. I went and I cleaned it up that weekend with a truck. Everything was gone. . . .But this is a tenant's car next door. It's not my car. So, you know, I can't touch it. . . . And the pictures you saw from last year, the reason that car was there is they were tenants. They put that car there. So I went to the police and I said, . . . it's my property. Tenants are sticking cars in it that don't belong. The police said, 'we suspect that's a stolen car. Don't touch it. It's not your car. Leave it there.' That's why that car was there." He complained that it was due to renting to a HUD tenant and that they are very difficult to get rid of. Mancuso admitted that he was aware of the way the house looked but complained "there is nothing you can do about it." He stated that he would straighten out the yard and 'they' would keep throwing stuff out there. He stated that he would go to the police and the police would tell him that there wasn't anything he could do about it. Mancuso stated that the property is clean now; "[e]verything was cleaned within a week of me getting a letter from the inspector."
The inspector was then asked when the last time he inspected the property was and he replied "[t]his property was observed this morning." Mancuso continued to testify that he can only do so much because the properties are rentals.
Following Mancuso's testimony, an unknown voice said "Mr. Chairman, . . . can you do me a favor and inform this gentleman that--the reason why he's here and what's going to happen as a result of the fact that he was here before? . . . And that this is a repeat violation. And kind of give him a little bit of an understanding of what it means to be a repeat offender and stuff like that? . . Because I got a feeling that he is just not aware of exactly what's going--what's coming down the pike here." At that point, the chairman explained "Once we find something wrong with your property . . .the fine starts immediately from the day that it's found. Otherwise it would start after you came in here. But due to you being a repeat violator, your fine has been accumulating since the day that it was found." The chairman further explained "[w]hat I'm trying to say, though, is that you're getting the letter after the fine is starting to accrue again. You understand? He sees it. It takes him a couple of days to process the letter and send it to you. And then you finally get it. By that time, the fine has already started for three or four days because we're not going to manage the property for you. That's your job." He explained that he can not just be reactive to the letter; he needs to be proactive and make sure "there's not stuff out there." He further explained "[b]ecause if you're waiting for him to send you a letter every time that he sees something, you're already four or five days behind." Mancuso stated that he understood. The chairman stated that he was not picking up on his own inspection and people are turning him in. He explained that he has to get there sooner and have it done before the inspector sees it. Mancuso went on to explain that the car belonged to the tenant and his wife died; the tenant was trying to fix up the car so he could sell it. The chairman replied "All that garbage on the side does not pertain to the car. I mean, you must think I'm a complete idiot." Mancuso replied "[n]o, you must think I am." The chairman said "[n]o" and Mancuso stated "[b]ut I'm not going to argue any more."
At that point, a motion was made that recommend petitioners be found in violation of Chapter 6, 11 and 15 of the code. All were in favor and the board ultimately imposed $150.00 administration fee paid within 30 days as a repeat violator and a daily fine of $250.00 per day from 1/12/05 to 2/8/05, totaling $6750.00 for a grand total of $6900.00. An order was entered on February 8, 2005. Petitioners seek review in this Court raising four issues. This Court finds the following issues [(1),(3), and (4)] to have merit.
1) Does the record support a finding that Mancuso was a repeat violator?
3) Whether the essential requirements of the law were observed by the board in imposing daily fines?
4) Did the code enforcement board have the authority to impose a $150.00 administrative fee?
The first argument raised by the petitioners is important. Under Florida Statute 162.09(1), a fine may be levied by the Board "for each day the violation continues past the date set by the enforcement board for compliance." However, if a "repeat violation" is involved, the beginning date for the daily fines is "the date the repeat violation is found to have occurred by the code inspector." In short, the fines could begin a lot earlier if a repeat violation is involved. Also, under 162.09(2)(a), the daily fines could go from $250.00 a day to $500.00 a day. The first issue here is whether or not this was a repeat violation. "Repeat violation" is specifically defined under 162.04(5). A "repeat violation" involves a violation of a code or ordinance provision "by a person who has been previously found through a code enforcement board or other quasi-judicial or judicial process, to have violated or who has admitted violating the same provision within 5 years prior to the violation…". There is no evidence or argument that demonstrates that a prior violation of the same code provision was found by the code enforcement board or any other quasi-judicial or judicial process or admitted to by the petitioners. It's certainly true that the order from which this appeal is taken mentions that they are treating the petitioners as repeat violators and the code inspector's "opening statement" says it is a "repeat case" and the that the petitioners were "found in violation", but there's no reference to any evidence or prior formal findings upon which such a conclusion/finding might be based. Thus, this Court finds that there is no evidence at all, let alone competent evidence, that the petitioners fall within the statutory definition of a repeat violator.
petitioner's third argument addresses the issue of whether the essential
requirements of the law were observed by the board in imposing daily
fines. Massey v.
the petitioners raise the issue of whether or not the board had the authority
to impose a $150.00 administrative fee. The
City, once again, argues that they are not proceeding under Chapter 162. However, this argument is completely without
merit since section 3.04.01 of the City of
to Goodman v. County Court in
ORDERED and ADJUDGED that the Petition for Writ of Certiorari is GRANTED and the Final Order is quashed.
DONE AND ORDERED in Chambers at New Port Richey,
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Thomas P. Altman, Esq.
Kevin G. Brick, Esq.
 The second
point raised by petitioner deals with proper notice under
 Article I section 18 of the Florida Constitution provides that no administrative agency may impose any penalty except as provided by law. Administrative agencies are creatures of statute and have only such powers as statutes confer. The city code enforcement board as an administrative agency therefore derives any quasi judicial power only by statute, and not by municipal code. The board is a creature of statute and once the city opted to have a code enforcement board, it was prohibited from enforcing its ordinances by any other manner except that described in chapter 162.
 3.04.01 Created.
1. There is hereby created a code enforcement board of the city pursuant to the Local Government Code Enforcement Board Act, F.S. 162.03(2).
2. The city, in accordance with F.S. Section 162.03(2), hereby adopts an alternate code enforcement system giving the code enforcement board the authority to, among other things, hold hearings and assess fines against violators of the City of New Port Richey City Code of Ordinances.
(Ord. No. 1470, § 1, 10-6-98; Ord. No. 1526, § I, 5-2-2000; Ord. No. 1773, § I, 9-20-2005)