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
APPELLATE DIVISION
GARY S. BUFFINGTON,
Appellant,
v. Ref.
No.: 12-000011AP-88B
UCN:
522012AP000011XXXXCV
CITY OF LARGO, FLORIDA
Appellee.
___________________________________/
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
ORDERED AND ADJUDGED that the above styled appeal is DENIED.
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