Administrative: CODE ENFORCEMENT – Due Process – City’s interpretation of its code’s language was reasonable and gave proper notice to persons responsible for compliance. No denial of procedural due process when Appellant had notice of violating specific sections of the Largo Code of Ordinances, and he was given a meaningful opportunity to be heard at a Code Enforcement Board hearing. Appeal denied. Buffington v. City of Largo Code Enforcement Bd., No. 12-000011AP-88B (Fla. 6th Cir. App. Ct. October 31, 2012).
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
GARY S. BUFFINGTON,
v. Ref. No.: 12-000011AP-88B
CITY OF LARGO, FLORIDA
ORDER DENYING APPEAL
Appellant, Gary Buffington, was issued a notice on December 29, 2011 to correct violations of the City of Largo Code of Ordinances. Appellant was in violation of Section 11-47: Duty of Owners and Occupants (debris); and Section 11-75: Inoperable Vehicle(s) Violation. On January 10, 2012, the City sent Appellant a Statement of Violation/Notice of Hearing, informing Appellant that the violations still existed and setting the case for hearing before the Code Enforcement Board on January 26, 2012. Appellant owns the property but does not live there, renting the property to his tenant, Mr. Weston. Mr. Weston appeared with Appellant at the Board hearing and stated that he was the owner of the items cited. At this hearing, a code enforcement officer presented evidence of the violations in the form of photographs taken of the property. After hearing evidence from both parties, the Board found that Appellant was a repeat violator in violation of Section 11-47 and Section 11-75 of the City of Largo Code of Ordinances. Appellant was ordered to correct the violations and assessed a fine that would accrue until the property came into compliance. It is this order from which the Appellant appeals.
An appeal as of right from administrative action is reviewed by this Court to determine: (1) whether procedural due process was accorded; (2) whether the essential requirements of the law have been observed; and (3) whether the administrative findings and judgment were supported by competent, substantial evidence. See City of Deerfield Beach v. Vaillant, 419 so.2d 624, 626 (Fla. 1982). Appellant argues that the Board should have directed the Notice of Violation to the tenant rather than to him, the property owner, and the City’s failure to do so denied Appellant procedural due process.
Appellant contends that under the ordinance, the occupying tenant, Mr. Weston, was the real violator. As such, Appellant argues that the Board should have directed the Notice of Violation to the tenant rather than to him, the property owner. Appellant bases this argument on the definition of “owner” in Section 11-46 which states:
Sec. 11-46. Definitions.
The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Owner means occupant or in the event of a vacant building or real property without a structure, the person, corporation, partnership, company, trust, estate or any combination of other business or legal entities, singular or plural, which is a record owner as recorded on the current tax rolls of the county.
Because Appellant is not the occupant of the property, he argues that the tenant, not him, should be found in violation of Sec. 11-47 which states:
Sec. 11-47. Duty of owners and occupants.
(a) No person who shall own, occupy or act as agent for the owner of any private property shall fail to remove or cause to be removed weeds, overgrowth, vegetation, debris and other materials or matter which constitute a hazard to health, safety or proper fire control from any such property.
(b) All tenants or occupants of any private real property abutting on any street in the city, or if no tenant or occupant, then the owner thereof shall be required to keep that part of the street between such property lines and the curb lines or drivable area of the street of which such property abuts in a clean and sanitary condition at all times by keeping the same free from excessive weed growth and trash of all kinds and by keeping the grass mowed.
The Board disagreed with Appellant’s interpretation of the statute, finding that it is the property, not the occupant, which is in violation of the Code. The title of Section 11-47 supports the Board’s interpretation. The title “Duty of owners and occupants” makes it clear that both the owner and occupant of a property are brought under the statute. Section (a) is explicit in stating that no person who shall own or occupy any property shall fail to remove debris. The Board’s interpretation is also supported by the introductory sentence in Section 11-46 creating an exception for the listed definitions “where the context clearly indicates a different meaning.” In this case, the context clearly indicates that the owner and occupant could be two different people, and both parties are responsible under the statute. If Section 11-47 was meant to apply only to occupants and not owners, the drafters would have used only the word “owner” in the statute, a word that also encompasses occupants under Section 11-47’s definition of owner. By titling Section 11-47 “Duty of owners and occupants,” the drafters have made it clear that both the owner and the occupant are responsible.
Procedural due process requires both “fair notice and a real opportunity to be heard at a meaningful time and in a meaningful manner.” Massey v. Charlotte County, Florida, 842 So. 2d 142, 146 (Fla. 2d DCA 2003). Appellant was on notice that he was being cited for violating the City of Largo Code of Ordinances, knew the specific Code sections he was being cited for violating, and was given a meaningful opportunity to be heard at the January 26, 2012 Code Enforcement Board hearing. Although Appellant may disagree with the Board’s interpretation of the Code provision, the Board’s interpretation was certainly reasonable, and it cannot be said that Appellant was denied procedural due process. Therefore, it is
Copies furnished to:
GARY S. BUFFINGTON
2181 INDIAN ROCKS ROAD #3
LARGO, FL 33774
MARY HALE, ESQUIRE
PO BOX 296
LARGO, FL 33779-0296
CHAIRMAN OF THE MUNICIPAL CODE ENFORCEMENT BOARD
CITY OF LARGO
PO BOX 296
LARGO, FL 33779-0296