Administrative: CODE ENFORCEMENT Due Process Evidence No violation of due process because Pinellas County Code Enforcement Board Special Magistrate did not demonstrate bias toward Appellant/Defendant. In review of non-final order denying motion to suppress, burden is on Appellant/Defendant to demonstrate error. Final order affirmed. Colucci v. Pinellas County, FL, No. 10-000041AP-88A (Fla. 6th Cir. App. Ct. November 9, 2011).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

MICHAEL J. COLUCCI,

Appellant, Case No.: 10-000041AP-88A

UCN: 522010AP000041XXXXCV

v.

 

 

PINELLAS COUNTY, FLORIDA,

Appellee.

______________________________________/

 

Opinion Filed ______________

 

Appeal from decision of

Code Enforcement Board,

Pinellas County, Florida

 

Michael J. Colucci

Pro se Appellant

 

James L. Bennett, County Attorney

David W. McCrea, Asst. County Attorney

Attorneys for Appellee

 

 

PER CURIAM.

Appellant Michael Colucci appeals the "Order on Repeat Violation Imposing Fine, Lien and Costs" entered by the Special Magistrate for the Pinellas County Code Enforcement Board on August 16, 2010, nunc pro tunc April 30, 2010. We affirm.

Standard of Review

Under section 162.11, Florida Statutes (2010), an appeal to the circuit court of an order of a special magistrate of the code enforcement board "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 a final order of 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).

However, a non-final order ruling on a motion to suppress is clothed with a presumption of correctness concerning historical facts; but appellate courts are to review the mixed questions of law and fact that determine search and seizure issues. See Perez v. State, 919 So. 2d 347, 359-60 (Fla. 2005); see also Majors v. State, 36 Fla. L. Weekly D1355 (Fla. 1st DCA June 23, 2011). In the appeal of the interlocutory order denying the motion to suppress, the burden is on Mr. Colucci as the appellant to demonstrate that the actions of the code enforcement officer amounted to an illegal search and to show error in the denial of the motion. See Perez, 919 So. 2d at 359-60; United Am. Lien & Recovery Corp. v. Primicerio, 924 So. 2d 848, 853 (Fla. 4th DCA 2006)(quoting Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979)); see also Miles v. State, 953 So. 2d 778, 779 (Fla. 4th DCA 2007) ("The initial burden on a motion to suppress an illegal search is on the defendant to make an initial showing that the search was invalid."); Palmer v. State, 753 So. 2d 679, 680 (Fla. 2d DCA 2000).

Arguments on Appeal

Mr. Colucci raises two arguments on appeal. First, he claims that his due process rights were violated because Special Magistrate Herbert E. Langford, who presided over the matter below, was biased against Mr. Colucci and failed in his duty to be a neutral and impartial fact finder. Second, Mr. Colucci asserts it was reversible error for Special Magistrate Langford to have denied his motion to suppress photographs of the subject property that were submitted into evidence. Mr. Colucci argues that the photographs allegedly were obtained in violation of his rights under the Fourth Amendment to the United States Constitution.

 

 

 

Analysis

Due Process

Mr. Colucci acknowledges in his brief, and Pinellas County agrees, that because code enforcement hearings are quasi-judicial proceedings, participants are not entitled to the same due process rights afforded to a party to a full judicial hearing. See Lee County v. Sunbelt Equities, II, Ltd. P'ship, 619 So. 2d 996 (Fla. 2d DCA 1993); Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3d DCA 1991). Such hearings are not controlled by strict rules of evidence and procedure. See Seminole Entm't Inc. v. City of Casselberry, 811 So. 2d 693, 696 (Fla. 5th DCA 2001). Both Mr. Colucci and Pinellas County agree that the participants in a code enforcement hearing are entitled to minimum due process and to an impartial decision maker. See Fla. Water Servs. Corp. v. Robinson, 856 So. 2d 1035, 1039 (Fla. 5th DCA 2003); see also Fla. R. Civ. P. 1.490(d) ("All grounds of disqualification of a judge shall apply to magistrates.")

In his brief, Mr. Colucci argues that Special Magistrate Langford showed bias against him and in favor of Pinellas County through the Special Magistrate's comments on the record and his actions at the hearings. Mr. Colucci notes that at the May 10, 2010, hearing, Mr. Colucci's attorney, James Grinaker, Esq., requested a continuance because he recently had been retained. In response to the request, the Special Magistrate inquired of the County concerning the date of the County's affidavit of noncompliance and he calculated the possible penalties Mr. Colucci faced if the continuance was granted and the matter continued for thirty days.

This Court finds that the fact that Special Magistrate Langford wanted to ensure that Mr. Colucci and his attorney fully understood the possible consequences of the granting of a continuance does not demonstrate a bias on the part of the Special Magistrate or show that before evidence was presented he had predetermined that a fine would be imposed. At the conclusion of the May 10, 2010, hearing the Special Magistrate explained that he was merely "talking the possibilities" concerning fines that could be imposed. (Pet. App. 2, p. 18).

As further evidence of bias, Mr. Colucci directs the Court to the dialogue between the Special Magistrate and Attorney Grinaker when counsel was allowed to withdraw the motion for continuance. The Special Magistrate stated, "Okay. We'll withdraw the motion. Okay. Okay. Is, um, okay with that one I think the factual issues is (sic) you're not going to change. The legal issues counsel is ready any ways, you know, um, so." (Pet. App. 2, p. 13). This statement does not demonstrate bias on the part of the Special Magistrate or a predisposition to rule in favor of the County. When viewed in context, the statement is merely the Special Magistrate's manor of stating that he understood that counsel for Mr. Colucci was ready to proceed upon the facts and law that would be presented.

Mr. Colucci asserts that the Special Magistrate demonstrated bias when he reconsidered Attorney Grinaker's motion for continuance after the presentation of some legal argument relating to alleged violations of Mr. Colucci's Fourth Amendment rights. It is clear when the transcript of the May 10, 2010, hearing is examined that the Special Magistrate recognized that Attorney Grinaker was presenting argument that should have been presented in a motion to suppress. The Special Magistrate continued the hearing to enable Attorney Grinaker to file a proper written motion to which the County could respond. There was no violation of Mr. Colucci's due process rights by this action.

Further, Mr. Colucci references a statement made by the Special Magistrate that allegedly demonstrates that the Special Magistrate identified himself with the County. When referring to fines, the Special Magistrate stated "seems like either we whack him or we don't." (Pet. App. 2, p. 10). The Special Magistrate's statements at the May 10, 2010, hearing when taken in context do not demonstrate that the Special Magistrate was identifying himself with the County. Further, when the transcripts from all the evidentiary hearings are examined it is clear that there was no violation of Mr. Colucci's right to have a neutral decision maker. Mr. Colucci's arguments that his due process rights were violated are without merit.

Motion to Suppress

As noted above, when appealing a non-final order denying a motion to suppress, the decision of the Special Magistrate has the presumption of correctness and the burden is on the appellant to demonstrate error. See Miles, 953 So. 2d at 779; United Am. Lien & Recovery, 924 So. 2d at 853; Perez, 919 So. 2d at 359-60; Palmer, 753 So. 2d at 680.

An evidentiary hearing was conducted on July 12, 2010, to consider Mr. Colucci's motion to suppress and the County's response to the motion. On July 21, 2010, the Special Magistrate entered a non-final order disposing of Mr. Colucci's motion. The Order sets out a statement of the case, but does not have a factual recitation concerning any evidence presented at the hearing and does not make any statements relating to legal issues. In the portion of the Order setting forth the Special Magistrate's ruling, it merely states, "The Respondent's Motion to Suppress Evidence is hereby denied."

In his brief, Mr. Colucci raises two arguments, first, he claims that the driveway and carport are part of the curtilage of his property and Code Enforcement Officer Ange could only enter those areas if he had a warrant to search for code violations. There was no search warrant, therefore, it is asserted that any evidence Officer Ange obtained from entry to the driveway or carport was illegally obtained in violation of the Fourth Amendment and should have been suppressed.

Second, it is alleged that Officer Ange took numerous photographs of Mr. Colucci's backyard that is surrounded by a fence. It is asserted in the brief that the backyard is part of the curtilage of Mr. Colucci's property and Officer Ange "thrust his hand through the fence to take these photos" or lifted the camera over and above the fence to take photographs of the backyard. Mr. Colucci claims that these photographs were illegally obtained in violation of his Fourth Amendment rights and should have been suppressed. Attached to the Motion to Suppress are three photographs. Two of the photographs depict a wooden fence with a hand holding a camera and the third depicts a vinyl fence and the top portion of a man's head on the other side of the fence. In his brief, Mr. Colucci claims the photographs depict Officer Ange taking photographs over and through his fence and from Mr. Colucci's carport.

The burden is on Mr. Colucci as the appellant overcome the presumption of correctness of the Special Magistrate's non-final order denying the motion to suppress by demonstrating that the action of the code enforcement officer amounted to an illegal search and that the Special Magistrate erred when he denied the motion. See Miles, 953 So. 2d at 779; United Am. Lien & Recovery, 924 So. 2d at 853; Perez, 919 So. 2d at 359-60; Palmer, 753 So. 2d at 680.

In Mr. Colucci's appellate appendix at Exhibit 4 is an unsigned, open letter directed to the Court.[1] In the letter, Mr. Colucci represents that the appendix does not contain a transcript of the July 12, 2010, hearing on the motion to suppress because the audio recording could not be transcribed by his transcriptionist due to a problem with audio quality. Mr. Colucci has not supplied this Court with a statement of evidence of the July 12, 2010, evidentiary hearing pursuant to Florida Rule of Appellate Procedure 9.200(b)(4).

Although there is no transcript or statement of evidence for the hearing on the motion to suppress, the Court may consider other portions of the appellate record to determine if an appellant's arguments have merit. See Chaiken v. Suchman, 694 So. 2d 115, 117 (Fla. 3d DCA 1997). With regard to the Special Magistrate's ruling on the Motion to Suppress, the only portions of Mr. Colucci's appellate appendix relating to the motion are (1) Mr. Colucci's Motion to Suppress with three photographs attached; (2) the County's Response to the Motion to Suppress with attached "Adult Case Progress Dockets" of the Clerk of Court from prior County Court convictions of Mr. Colucci for violations of ordinances[2] and a photograph of the backyard of a residence with a date stamp of June 18, 2009; and (3) the Order Denying Motion to Suppress Evidence entered on July 21, 2010. The Court also has considered (4) the parties' briefs; and (5) the County's appellate appendix that contains photographs and copies of the Clerk of Court's dockets admitted into evidence during the proceedings below.

In his brief, Mr. Colucci presents legal arguments and asserts that Officer Ange violated his Fourth Amendment rights by entering his driveway and carport and by photographing his backyard. Mr. Colucci does not summarize or discuss the evidence that was presented at the July 12, 2010, evidentiary hearing.

In its Answer Brief, the County notes that Mr. Colucci relies on the three photographs attached to his motion to suppress that were admitted into evidence at the July 12, 2010, evidentiary hearing. The County states that Mr. Colucci argued at the hearing that the three photographs depict Officer Ange violating his Fourth Amendment rights. The County asserts that the unauthenticated, undated photographs submitted by Mr. Colucci do not prove any violation of his Fourth Amendment rights.

Further, the County states in the Answer Brief that at the July 12, 2010, evidentiary hearing it argued that the three undated photographs submitted into evidence by Mr. Colucci at the hearing appear to have been taken on June 18, 2009, during the prosecution of Mr. Colucci in the County Court cases almost a year prior to the present action against him. The County states that the Magistrate's determination to deny the motion to suppress is supported by the fact that the three photographs submitted by Mr. Colucci's do not exhibit a violation of his Fourth Amendment rights, and the photographs taken in 2010 are not the "fruit of the poisonous tree." See State v. Frierson, 926 So. 2d 1139, 1143-44 (Fla. 2006)(discussing the three factors to consider in determining whether exclusionary rule forbids use of evidence as set forth in Brown v. Illinois, 422 U.S. 590, 603-04 (1975)).
Other than the unsworn statements made in the appellate briefs filed by the parties, this Court has no evidence to demonstrate what testimony or legal arguments were presented to the Special Magistrate at the July 12, 2010, hearing. Further, because the order summarily denies the motion to suppress without comment, this Court does not know the legal basis of the Special Magistrate's decision. This Court finds that Mr. Colucci as the appellant has failed to meet his burden to demonstrate that the actions of the code enforcement officer amounted to an illegal search and to show the Special Magistrate erred when he entered the non-final order denying the motion to suppress after the July 12, 2010, evidentiary hearing. See Miles, 953 So. 2d at 779; United Am. Lien & Recovery, 924 So. 2d at 853.

Conclusion

The Court concludes that the Pinellas County Code Enforcement Board Special Magistrate did not violate Mr. Colucci's due process rights and Mr. Colucci has failed to demonstrate that the Special Magistrate erred when he denied the Motion to Suppress. Mr. Colucci raises no other issues on appeal challenging the Special Master's final order. Accordingly, the August 6, 2010, "Order On Repeat Violation Imposing Fine, Lien and Costs" of the Pinellas County Code Enforcement Board Special Magistrate is affirmed.

Affirmed.

 

DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this ____ day of November, 2011.

 

Original order entered on November 9, 2011 by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

 

Copies furnished to:

 

Michael Colucci

4020 41st Avenue North

St. Petersburg. FL 33714

 

James L. Bennett, County Atty

David W. McCrea, Asst. County Atty

315 Court Street, 6th Floor

Clearwater, FL 33756



[1] The unsigned letter dated July 7, 2011, was not filed with the Special Magistrate below and was not filed with the Court for consideration during these appellate proceedings until it was included in Mr. Colucci's appendix as an exhibit.

 

[2] State v. Colucci, Case Nos. CTC09-09390COANO; CTC09-10760COANO; CTC09-09386COANO; CTC09-09385COANO; and CTC09-09378COANO.