Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Public Nuisance – due process – City denied homeowner due process by failing to give homeowner an opportunity to abate nuisance before public nuisance action was brought – Petition granted.  Katrina Washington v. City of St. Petersburg, No. 04-0031AP-88A (Fla. 6th Cir. App. Ct. Jan. 26, 2005). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

KATRINA WASHINGTON

n/k/a KATRINA GREEN,

                        Petitioner,

vs.                                                                                                Appeal No. 04-0031AP-88A

                                                                                                    UCN522004AP000031XXXXCV

CITY OF ST. PETERSBURG,

                        Respondent.

________________________________________________/

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari and the Response.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The Petitioner, Katrina Washington, n/k/a Katrina Green (Green), seeks review of the Judgment for Attorney’s Fees and Investigative Costs, entered March 13, 2004, in which the Respondent, City of St. Petersburg, Nuisance Abatement Board (Board), ordered Green to pay $1,753.48 in attorney’s fees and costs after concluding that property owned by Green is a public nuisance.  In reviewing the administrative action taken by the Board, the Court must consider whether Green was afforded procedural due process, whether the essential requirements of law were observed and whether the Board’s action is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action).

            The record shows that Green is the owner of property located at 1101 21st Street South, St. Petersburg, Florida.  Green is domiciled and resides in Bronx, New York.  Green inherited the subject property upon her mother’s death in early 1993.  Green’s brother, Terry J. Washington (Washington), resided at the property at the time of the mother’s death and continued to reside there through his arrest on September 16, 2003.[1]  On seven different occasions from August 7, 2003 through September 16, 2003, the St. Petersburg Police Department utilized the services of confidential informants to make supervised purchases of crack cocaine and other illegal drugs from the residence.  These drug transactions always occurred inside the residence.  On September 16, 2003, a search warrant was executed at the residence resulting in the arrest of Washington and a female, Lisa Kelsey. 

            On February 9, 2004, the City filed a Complaint for Abatement of Nuisance against Green and a hearing was held before the Board on March 10, 2004.  At the hearing, Officer Lopez, the Community Police Officer for the neighborhood, testified that he never notified Green that there was a suspicion of drug activity in her residence.  Green, likewise, testified that she never knew there was drug activity in the residence until being notified by the City’s legal department after the search warrant had been executed.  Although Green testified that she knew her brother had used drugs earlier in his life, Green had no knowledge that he used drugs in the residence.  The Board declared the property a public nuisance and imposed a fine of $1,500.00, $250.00 for each of the six dates on which illegal activity occurred.  The Board stayed imposition of the fine pending further order.  However, the Board imposed attorney’s fees and investigative costs in the amount of $1,753.48.  The Board voted against staying the imposition of attorney’s fees and investigative costs, even though two Board members and the City Attorney expressed concern that Green had not been afforded an opportunity to abate the nuisance as required by due process.

            Green argues that the entry of the judgment against her violated procedural due process as Green was not given an opportunity to abate the nuisance.  This Court agrees.  As held by the Second District Court of Appeal in Powell v. City of Sarasota, 857 So.2d 326 (Fla. 2d DCA 2003) and Maple Manor, Inc. v. City of Sarasota, 813 So.2d 204 (Fla. 2d DCA 2002), property owners must be given an adequate opportunity to abate a nuisance before a public nuisance action can be brought. “An adequate opportunity to abate a nuisance necessarily includes notice that criminal activity that might constitute a nuisance is occurring, coupled with a reasonable amount of time to end the criminal activity.”  See Powell, 857 So.2d at 328.  No such notice was provided to Green in this case. 

            Further, although Green testified that her brother had drug problems in the past and that her siblings told her “something was going on,” there was no evidence presented that Green knew there was drug activity on the property or that the drug activity was so obvious that she should have reasonably known about it.  See Powell, 857 So.2d at 328.  This holding is consistent with this Court’s recent decision in Fields v. City of St. Petersburg, Appeal No. 03-5078AP-88A (Fla. 6th Cir. App. Ct. Sept. 24, 2004)(denying certiorari relief when the homeowner was provided with written notice of drug activity six months before the abatement action was filed and the subject residence was a known “drug hole”).  Therefore, it is,        

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby granted and the Judgment for Attorney’s Fees and Investigative Costs is quashed. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of January 2005.

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

Copies furnished to:

 

Ronald L. Nelson, Esquire

341 Third Street South

St. Petersburg, FL  33701

 

Milton A. Galbraith, Esquire

Post Office Box 2842

St. Petersburg, FL  33731

 

 

 

 

 

 

 

 

 

 


[1] Green’s testimony indicated that Washington was incarcerated at the time of the Board’s hearing on March 10, 2004, and had not resided in the home since his arrest on September 16, 2003.  There is no dispute that the nuisance, or drug activity, abated upon his arrest.