Administrative: CODE ENFORCEMENT—Due Process—Notice of code violation hearing not sent in compliance with sections 162.06(2) and 162.12(1)(a), Florida Statutes (2009), after certified mail returned unclaimed.  Statute requires notice may be provided by posting and by first-class mail directed to the addresses furnished to local government with proof of mailing or affidavit of mailing.  Appellants denied due process because they did not have notice of code violation hearing.  Order of Code Enforcement Board reversed and City directed to release liens.  Blackburn and Danish v. Code Enforcement Board of the City of St. Petersburg, No. 10-000007AP-88A (Fla. 6th Cir. App. Ct. October 12, 2010).

 

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

CATHERINE E. BLACKBURN and

KARIN A. DANISH, 

      Appellants                                                Case No. 10-000007AP-88A

                                                                      UCN522010AP000007XXXXCV

v.

 

CODE ENFORCEMENT BOARD OF THE

CITY OF ST. PETERSBURG, FLORIDA

      Appellee.

______________________________________/

 

Opinion Filed  ______________

 

Appeal from decision of

Code Enforcement Board,

City of St. Petersburg, Florida

 

Catherine E. Blackburn Esq.

Attorney for Appellants

 

John C. Wolfe, Esq.

Milton A. Galbraith, Jr., Esq.

Attorneys for Appellee

 

PER CURIAM.

          Appellants Catherine Blackburn and Karin Danish appeal Appellee Code Enforcement Board of the City of St. Petersburg, Florida's January 27, 2010, denial of their application to release or reduce the liens imposed on August 25, 2009, September 22, 2009, October 27, 2009, and November 17, 2009, pursuant to section 162.09(2)(c), Florida Statutes (2009).  We reverse with directions.

          The Appellants are the owners of tenant occupied property located on 6th Avenue North in the City of St. Petersburg (hereinafter "the subject property").  On March 17, 2009, pursuant to an "internal complaint," a City of St. Petersburg codes inspector found the subject property to be in violation of a city ordinance because the garage door was off the track.  A notice of violation was sent to the owners of the subject property at the address of record with the Pinellas County Tax Collector on 26th Avenue South, St. Petersburg ("the address of record").  The violation continued.  On June 15, 2009, notice that a hearing concerning the violation at the subject property would be conducted on July 22, 2009, was sent to the Appellants at the address of record by certified mail, return receipt requested.  The certified letter was returned to the City on July 7, 2009.  The envelope had a forwarding sticker which stated "notify sender of new address" and listed an address on 46th Street, St. Petersburg.  Markings on the envelope indicated that two attempts to deliver the certified letter were made by the post office before the letter was returned to the City with the notation "unclaimed." 

          The scheduled code violation hearing was conducted on July 22, 2009, and the Appellants did not appear.  An order was entered giving the Appellants until August 16, 2009, to correct the violation at the subject property or a $100 per day fine would be imposed.  The order was sent by certified mail to the address of record.  The certified letter was returned to the City on August 12, 2009.  The envelope had a forwarding sticker which stated "notify sender of new address" and listed the address on 46th Street.  Markings on the envelope indicated that two attempts to deliver the certified letter were made by the post office before the letter was returned to the City with the notation "unclaimed." 

          The Appellants have represented that they did not receive notice of the violation at the property until October 1, 2009.  However, testimony was received that in August 2009 Ms. Danish received correspondence concerning a lien amnesty program for the violation at the subject property.  Ms. Danish contacted a code enforcement officer and learned there was a problem with the garage door at the subject property.  Although allegedly there were attempts, the violation was not corrected until November 23, 2009, and liens totaling $9,300 were placed against the property.  The Appellants filed an application for release or reduction of liens on December 14, 2009.  After hearing testimony from the Appellants the Code Enforcement Board determined that it would take no action to release or reduce the fines and liens assessed against the Appellants.  This appeal followed.

 

Standard of Review

          Under section 162.11, Florida Statutes (2009), an appeal of a Code Enforcement Board's order to the circuit court “shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board.”  Sarasota County v. Bow Point on Gulf Condo. Developers, LLC, 974 So. 2d 431, 433 n.3 (Fla. 2d DCA 2007).  When the circuit court in its appellate capacity reviews local governmental administrative action, “three questions are asked: whether due process was afforded, whether the administrative body applied the correct law, and whether its findings are supported by competent substantial evidence.”  Lee County v. Sunbelt Equities, II, Ltd. P'ship, 619 So. 2d 996, 1003 (Fla. 2d DCA 1993).  The circuit court is not permitted to go further and reweigh the evidence presented to the administrative agency.

Analysis

          The Appellants complain they were denied due process because the City failed to send notice of the July 22, 2009, code violation hearing to their correct address after the City had been notified by the post office of their a new address when certified letters were returned.  They cite to the case of Little v. D'Aloia, 759 So. 2d 17 (Fla. 2d DCA 2000), to support their position. 

          In the Little case the City of Temple Terrace sent a notice of violations of the municipal code to the Littles at the Orlando physical address of record for the owners and to an Orlando post office box of record.  The certified mail notice sent to the physical address was returned unsigned and unclaimed.  The notice sent to the post office box was returned due to an incorrect box number.  On the face of the envelope the postal service provided the city with the correct post office box number.  Thereafter, the city issued a notice of hearing concerning the violations at the property.  The notice was only sent to the incorrect post office box.  The Littles claim they did not receive notice of the hearing and thereafter liens were imposed upon the property when the violations were not corrected.

          The Second District Court of Appeal noted that the code enforcement board did not receive notice from the post office with the correct post office box number for the Littles until after the notice of hearing had been mailed.  It stated, "The City sent no renotice of hearing after it became aware of the correct post office box number."  Id. at 18.  The appellate court concluded that the Littles' due process rights had been violated.  It stated, "Because the City had actual notice of the corrected post office box, in addition to the knowledge of the abortive first mailing to the residence address, it would have been reasonable under these circumstances to use the corrected box number in light of the deprivation of property the Littles were potentially facing."  Id. at 20.[1]  The Second District Court of Appeal reversed the final summary judgment of foreclosure and vacated all subsequent orders based on it, including any deed issued as a result of a judicial sale.

          The Little case involves the interpretation of the 1997 version of section 162.12, Florida Statutes (1997), which merely stated:

          162.12. Notices

          (1) All notices required by this part shall be provided to the alleged violator by certified mail, return receipt requested; by hand delivery by the sheriff or other law enforcement officer, code inspector, or other person designated by the local governing body; or by leaving the notice at the violator's usual place of residence with any person residing therein who is above 15 years of age and informing such person of the contents of the notice.

 

The statute was substantially amended in 1999 and in 2000.  The legislature explained the reason for the amendment to the statute in the 1999 Session Laws: 

          WHEREAS, Florida's procedures for local government code enforcement are meant to secure speedy compliance with local codes and ordinances while protecting the rights of property owners and the public health, safety, and welfare, and

WHEREAS, the procedures set forth in chapter 162, Florida Statutes, contain several alternative methods of code enforcement for local governments to choose from, but the choices are in need of some clarification regarding legislative intent, and
. . . .

WHEREAS, creating a presumption of receipt of a notice sent by certified mail, return receipt requested, when properly addressed to the owner, would alleviate the current problem of violators evading or greatly delaying code enforcement proceedings by refusing to sign for such notice, and
. . . .

          WHEREAS, it is the intent of the Legislature to cure the ambiguities and loopholes in chapter 162, Florida Statutes, just described. . . .

 

Ch. 99-360, § 6, Laws of Fla. (emphasis added.)  The statute applicable to the present case states:

162.12. Notices

          (1) All notices required by this part shall be provided to the alleged violator by:

                    (a) Certified mail, return receipt requested, provided if such notice is sent under this paragraph to the owner of the property in question at the address listed in the tax collector's office for tax notices, and at any other address provided to the local government by such owner and is returned as unclaimed or refused, notice may be provided by posting as described in subparagraphs (2)(b)1. and 2. and by first class mail directed to the addresses furnished to the local government with a properly executed proof of mailing or affidavit confirming the first class mailing . . . .

 

          If a city code violation is found to be continuing after notice and time to correct the violation has been given, a hearing can be requested by a code inspector.  Under section 162.06(2), Florida Statutes (2009), written notice of a hearing on a code violation must be hand delivered or mailed as provided in section 162.12, Florida Statutes (2009).  

          In the present case, at the January 27, 2010, hearing on the application for release or reduction of the liens, the Appellants complained to the Code Enforcement Board of the lack of notice for the July 22, 2009, hearing on the code violation.  Evidence presented at the January 27, 2010, hearing supports a finding that the City sent the notice of the July 22, 2009, hearing by certified mail to the owners' address of record.  The evidence also demonstrated that the certified mail was returned "unclaimed."  Under such circumstances section 162.12(1)(a) provides that legal notice may be given by posting the notice at the violating property in addition to sending a copy of the notice by first-class mail to the address furnished to the City by the owner.  To provide evidence of giving notice by this means there must be "a properly executed proof of mailing or affidavit confirming the first class mailing." 

          In this appeal the City has filed an answer brief with an appendix.  The appendix includes the affidavit of Agnieszka Brooks, a codes investigator for the City.  The affidavit discusses the fact that "standard practice" for the City is that the notice of the July 22, 2009, hearing would have been provided by first-class mail and by posting a notice at the property that was in violation.  The affidavit is dated June 4, 2010.  The record before this Court does not demonstrate that this evidence was provided to the Code Enforcement Board by sworn testimony at the January 27, 2010, hearing or that the proof of mailing or any affidavit in support of a determination that legal notice had been given was presented to the Board at the January 27, 2010, hearing.

Conclusion

          This Court concludes, as did the Second District Court of Appeal in Little, that the Appellants have demonstrated they were denied due process of law when they did not receive legal notice of the violations hearing in accordance with section 162.12(1).  The liens imposed on the subject property must be released.  As relief is granted to the Appellants based on a violation of due process, this Court does not discuss the remaining arguments presented on appeal.

          The order denying the Appellants' application for release or reduction of liens is reversed and the City shall take the necessary action to release the liens on the subject property recorded at OR BK 16689, PG 2062; OR BK 16711, PG 15; OR BK 16743, PG 1279; and OR BK 16762, PG 1080.

          Reversed with directions.

          DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 12th day of October, 2010.

 

Original order entered on October 12, 2010 by Circuit Judges Linda R. Allan, George W. Greer, and John A. Schaefer.

 

Copies furnished to:

 

Catherine Blackburn, Esq.                               John Wolfe, Esq.

6144 9th Avenue South                                   Milton A. Galbraith, Jr., Esq.

Gulfport, FL 33707                                          P.O. Box 2842

                                                                      St. Petersburg, FL 33731



[1]   The appellate court stated had the notice been sent to the correct physical address of record for the Littles in addition to the incorrect post office box address the notice would have been sufficient.  Id. at 20.