Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – City departed from the essential requirements of law in failing to consider affidavits completed by Code Enforcement Officer as required by the City’s Code – Affidavit that was completed 3 days before fine hearing found that property was code compliant – City must comply with its Code in providing notice to property owner of cited code violations – Petition granted. Jackson v. City of Oldsmar, Appeal No. 05-0082AP-88A (Fla. 6th Cir. App. Ct. Oct. 4, 2006).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

SHARON L. JACKSON

Petitioner,

vs. Appeal No.05-0082AP-88A

UCN522005AP000082XXXXCV

CITY OF OLDSMAR,

Respondent.

__________________________________________/

ORDER GRANTING AMENDED PETITION FOR WRIT OF CERTIORARI

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

The Petitioner, Sharon L. Jackson (Jackson), seeks review of the Findings of Fact, Conclusions of Law and Order (Order), entered September 8, 2005, by the Code Enforcement Board (Board) of the Respondent, City of Oldsmar (City). In reviewing the administrative action taken by the Board and the City, the Court must consider whether Jackson was afforded procedural due process, whether the essential requirements of law were observed and whether the Order 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 Jackson is the owner of real property located at 310 Bayview Boulevard. There is a single family residence located on the property. On July 21, 2005, Robert M. Rehmer, a Code Enforcement Officer, issued a Statement of Repeat Violation/Notice of Hearing which stated that Jackson was being cited for repeat code violations, specifically violating the City’s Code, Section 26, Nuisances, High Grass. The matter was scheduled for a hearing before the Board on September 1, 2005. At the hearing, a different Code Enforcement Officer, Louis Kikis, testified that the property had been cited on three previous occasions for high grass, junk, trash and debris, and that Jackson still had two outstanding fines, $ 1,000.00 and $ 750.00, as a result of these violations. Kikis testified that Rehmer had been to the property on July 20, 2005, and taken pictures of the overgrowth and debris. These pictures were introduced into evidence. Rehmer did not testify or appear at the hearing.

Kikis testified that he returned to the property on August 30, 2005, and that the property was not in compliance. Kikis could not locate the photos he had taken on August 30th. Jackson testified that she had she had hired someone to regularly mow the grass and to haul away the debris. Jackson testified that her husband’s friend also mowed the grass and that she was “in shock” to learn that the property had not been mowed. Jackson had not been to the property since July 22, 2005. After the hearing, the Board entered its Order finding Jackson was in a third repeat violation of Board Order CE04-0214, Chapter 26, Article III, Nuisances, High Grass. The Board imposed a fine of $ 100.00 per day “until the property is brought into compliance.”

Before this Court, Jackson argues that the Board’s action denied her due process, is contradictory to the essential requirements of law, and is not support by competent substantial evidence. Upon review of the City’s Code and the record on appeal, the Court finds that certiorari relief must be granted. Initially, as set forth in this Court’s Order Granting, In Part, Motion to Strike Exhibits, et. al., entered May 18, 2006, the Court will not consider Petitioner’s Exhibit AD5, invoices from Dano Lawn and Tree Service, as this was not presented to the Board during the hearing. See Altchiler v. Department of Professional Regulation, 442 So.2d 349, 350 (Fla. 1st DCA 1983)(stating that when a party on appeal includes in an appendix material or matters outside of the record, or refers to such material or matters in its brief, it is proper for the court to strike the same).

However, the Court will consider Petitioner’s Exhibit AD3, Affidavit of Compliance, dated September 13, 2005, and Exhibit AD4, Affidavit of Compliance, dated July 18, 2005, to the extent that the Court finds that the Board departed from the essential requirements of law in not considering these affidavits. See Haines, 658 So.2d at 527; see also Housing Authority of the City of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004)(explaining that in determining whether there has been a departure from the essential requirements of law, the appellate court “should not be as concerned with the mere existence of legal error as much as with the seriousness of the error”). Resolution No. 97-01, which establishes Rules of Procedure for the City’s code enforcement proceedings, specifically requires affidavits of compliance or non-compliance to be filed with the Board for their consideration. See Resolution No. 97-01, Rule 5. Enforcement, Section 2. The Court is troubled by the fact that these affidavits were not provided to the Board prior to the hearing, particularly since the September 13th affidavit, sworn to by Rehmer, states that the property was in compliance on August 29, 2005, just 3 days before the hearing. The Court finds that the failure of the City to timely provide the Board with these affidavits is fundamental error that goes to the foundation of this case and, standing alone, requires certiorari relief. See State v. Osvath, 661 So.2d 1252, 1254 (Fla. 3d DCA 1995)(explaining that the appellate court may notice on its own a fundamental error which goes to the foundation of the case or goes to the merits of the cause of action); see also Marinelli v. G. C. Weaver, 187 So.2d 690, 694 (Fla. 2d DCA 1966)(same).

While the Court needn’t address the remaining issues, the Court makes the additional findings for the sake of clarity on remand and for the of sake judicial economy to avoid potential multiple, piecemeal appeals. First, the Court finds that the appealed Order does not provide a scheduled date of compliance as required by Resolution No. 97-01, Rule 4. Hearings, Section 1, k. and Rule 5. Enforcement, Section 1. While Section 2-133 states that an order “may” include a specified date of compliance, the intent evidenced throughout the Code and Resolution 97-01 is to put the violator on notice as to what needs to be corrected within a time frame established by order. See e.g. Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1287 (Fla. 2000)(explaining that a statute should be construed in its entirety and as a harmonious whole). Hence, the Court finds that the Board should include a scheduled date of compliance if another Order is entered.[1]

Second, the Court finds that the Board must consider whether Jackson was given proper notice of all the applicable code violations. The Court notes that the record is void of any evidence that Jackson was cited for junk, trash or debris, only that she was cited for high grass. The City’s Code requires that a notice to abate nuisance must specifically set forth a description of what constitutes a nuisance and what acts are necessary to abate the nuisance. See Code Sec. 26-82(1)-(5); see also Powell v. City of Sarasota, 857 So.2d 326, 327 (Fla. 2d DCA 2003)(explaining that an adequate opportunity to voluntarily abate a nuisance must be afforded to the property owner prior to the imposition of penalties pursuant to city ordinances).

Third, the Board must consider whether the City had an obligation to abate the nuisance itself, and assess the costs for such abatement against Jackson, instead of assessing fines against Jackson.[2] The Court finds that Code Section 2-134(a) provides that the Board may assess a fine against a violator for failing to correct a violation within a time prescribed by order. (emphasis added). However, Code Section 26-82(5) states that if a violator fails to correct a cited nuisance, “the city will abate such nuisance and assess the cost thereof against such property owner/violator.” (emphasis added). Likewise, Code Section 26-83 states: “Upon the failure of the person to whom notice to abate a nuisance is served pursuant to the provisions of this article to abate the nuisance, the city manager or other duly designated official of the city shall proceed to abate such nuisance. . .” (emphasis added).

Contrary to the Board’s argument, this language is mandatory and there is no language in Section 26 to suggest that the City has the “option” of abating a nuisance when a violator fails to timely do so. To the extent that there is a conflict between Section 2, which discusses code enforcement proceedings in general, and Section 26, which addresses specifically nuisance proceedings, Section 26 controls. See Palm Beach County Canvassing Board, 772 So.2d at 1287 (stating that when two statutory provisions conflict, the specific statute controls over the general statute). Therefore, it is,

ORDERED AND ADJUDGED that the Amended Petition for Writ of Certiorari is granted and the Order is quashed. The Respondent’s Motion for Attorney’s Fees is denied.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of September 2006.

________________________________

JOHN A. SCHAEFER

Circuit Judge, Appellate Division

______________________________ ______________________________

LAUREN LAUGHLIN BRANDT C. DOWNEY, III

Circuit Judge, Appellate Division Circuit Judge, Appellate Division

Copies furnished to:

Sharon L. Jackson

89 Winward Island

Clearwater, FL 33767

Thomas J. Trask, Esquire

595 Main Street

Dunedin, FL 34698

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[1] The Court notes that Jackson was apparently having her lawn mowed at least every 2 to 4 weeks according to the compliance dates listed in the affidavits.

[2] The Court reiterates that the decision to grant certiorari relief in this case is not based on these findings.