Administrative: CODE ENFORCEMENT—Substantial, competent evidence—There was no violation of due process and Special Magistrate for the County Code Enforcement Board followed the essential requirement of law.  Special Magistrate's conclusion that there was a repeat violation of County Code of Ordinances s. 58-304 for the accumulation of "garbage, refuse, rubbish, junk, debris, or similar noxious material of any kind," findings of fact, and the judgment are supported by competent, substantial evidence.  Judgment affirmed.  Brown v. Pinellas County, No. 09-000041AP-88A (Fla. 6th Cir. App. Ct. October 22, 2010).

 

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

KENNETH M. BROWN

     Appellant,                                                           Appeal No.: 09-000041AP-88A

                                                                                UCN: 522009AP000041XXXXCV

v.

                                                                               

PINELLAS COUNTY, FLORIDA

      Appellee.                   

______________________/

 

Opinion Filed ______________

 

Appeal from a decision of the

Special Magistrate for the Pinellas

County Code Enforcement Board

 

Kenneth M. Brown, Pro se

 

David McCrea, Esq.

Assistant County Attorney for Appellee

 

PER CURIAM.

          Appellant Kenneth Merrill Brown appeals the ”Order on Repeat Violation Imposing Fine, Lien and Costs" of the Special Magistrate for the Pinellas County Code Enforcement Board.  We affirm.

          Under section 162.11, Florida Statutes (2009), an appeal of a code enforcement board's order to the circuit court “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 local governmental administrative action, there is a three-part standard of review: (1) whether procedural due process was accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative agency's findings and judgment are supported by competent, substantial evidence.  Lee County v. Sunbelt Equities, II, Ltd. P'ship, 619 So. 2d 996, 1003 (Fla. 2d DCA 1993). 

Procedural Due Process

          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, 842 So. 2d 142, 146 (Fla. 2d DCA 2003).

          On July 13, 2009, a hearing was conducted before a Special Magistrate for the Pinellas County Code Enforcement Board to consider a repeat violation of Pinellas County Code of Ordinances Section 58-304.  This code section entitled "Prohibition against excessive accumulation of certain materials" states:   

          No person shall dump or cause to be dumped, or place or cause to be placed, or leave or permit to accumulate any garbage, refuse, rubbish, junk, debris, or similar noxious material of any kind or cause or permit the untended growth or excessive accumulation of weeds or other plant material on any property situate in the unincorporated area of the county, whether improved or unimproved.

 

          At the July 3, 2009, hearing Magistrate Langford announced that the matter at hand was a repeat violation hearing.  He noted that at a hearing conducted on April 28, 2008, Mr. Brown had been found to be in violation of Code Section 58-304 which relates to the accumulation of "any garbage, refuse, rubbish, junk, debris, or similar noxious material of any kind."  Code Enforcement Officer Berutti testified that the repeat violation was observed on May 26, 2009, and an affidavit of repeat violation and request for hearing dated May 26, 2009, was prepared by Code Enforcement Officer Hinton.  The magistrate stated that the affidavit of repeat violation indicated that a copy was mailed to Mr. Brown on May 26, 2009.  Mr. Brown asserts that notice was not given on May 26, 2009, because he did not receive it. 

          Section 162.06(3), Florida Statutes (2008), states:

          If a repeat violation is found, the code inspector shall notify the violator but is not required to give the violator a reasonable time to correct the violation.  The code inspector, upon notifying the violator of a repeat violation, shall notify an enforcement board and request a hearing.  The code enforcement board, through its clerical staff, shall schedule a hearing and shall provide notice pursuant to s. 162.12.

 

(Emphasis added).  Mr. Brown has failed to include in his appendix a copy of the affidavit of repeat violation to enable this Court to determine if the affidavit has a notation that a copy was mailed to Mr. Brown as was indicated by the magistrate. 

          Florida Rule of Appellate Procedure 9.220(a) states that "[i]n any proceeding in which an appendix is required, if the court finds that the appendix is incomplete, it shall direct a party to supply the omitted parts of the appendix."  Mr. Brown has filed an appendix in this case in accordance with Florida Rule of Appellate Procedure 9.190(c)(4) that is incomplete.  However, this Court will not require a supplemental appendix because the failure to give Mr. Brown notice of the violation on May 26, 2009, is harmless error.  As this Court noted in Deer v. Pinellas County, 13 Fla. L. Weekly Supp. 849a (Fla. 6th Cir. App. Ct. 2009),

          [t]he apparent failure to give notification of the violation to the Petitioners before setting a hearing date and issuing a notice of hearing is a due process concern.  However, this due process omission is essentially a harmless error because Fla. Stat. § 162.06(3) also states that "[t]he case may be presented to the enforcement board even if the repeat violation has been corrected prior to the board hearing, and the notice shall so state.  If the repeat violation has been corrected, the code enforcement board retains the right to schedule a hearing to determine costs and impose the payment of reasonable enforcement fees upon the repeat violator.  The repeat violator may choose to waive his or her rights to this hearing and pay said costs as determined by the code enforcement board.

 

          Therefore, even if Petitioners were properly issued a Notice of the Violation prior to the Notice of Hearing, and even if Petitioners corrected that violation before that hearing date, the Petitioners would still have been liable for the fines, fees and costs.  

 

In Deer, this Court determined there was no due process violation due to the failure to notify the repeat violator of the violation at the property prior to the notification of the violation hearing.  In the present case, if in fact the affidavit and request for hearing was not mailed to Mr. Brown, there was the same harmless error. 

          At the hearing, the magistrate indicated that the notice of the July 13, 2009, repeat violation hearing was mailed to Mr. Brown on July 1, 2009.  Mr. Brown contested this statement.  However, he admitted that the notice of hearing was posted at his property on July 2, 2009, and includes a copy of the posted notice in his appendix.  By this statement Mr. Brown has conceded that he was properly notified of the July 13, 2009, hearing.  Mr. Brown appeared at the hearing and presented testimony.  There has been no showing of a violation of due process.

Essential Requirements of Law

          In his appellate brief Mr. Brown claims that there has been no repeat violation.  Magistrate Langford stated that Mr. Brown was before him on April 28, 2008, for a hearing on a previous violation of Code Section 58-304 for accumulation of trash and debris on the same property.  Although this argument was not presented to the magistrate at the July 13, 2009, hearing, Mr. Brown claims on appeal that the issue involved at the April 28, 2008, hearing was a " 'garbage can'  issue."  Therefore, the current violation does not amount to a repeat violation of Code Section 58-304. 

          Because this argument was not presented to the magistrate at the July 13, 2009, hearing it is not properly raised for the first time on appeal.  However, in the interest of justice this Court takes judicial notice of its own records.  We find that the "Order on Repeat Violation Imposing Fine, Lien and Costs" in Code Enforcement Case Number CM09-00012, entered after the April 28, 2008, hearing was the subject of a petition for writ of certiorari in Brown v. Pinellas County, Case Number 08-000022AP-88B.  The order supplied by Mr. Brown in that certiorari proceeding indicates that a violation of Code Section 58-304 was observed by the code enforcement department on May 7, 2007, and the violation had been corrected by the time of re-inspection on April 25, 2008.[1]  The petition was dismissed by this Court on August 27, 2008, and no further review was sought by Mr. Brown. 

          A "repeat violation" is defined in section 162.04(5), Florida Statutes (2008), as meaning "a violation of a provision of a code or ordinance by a person who has been previously found through a code enforcement board or any other quasi-judicial or judicial process, to have violated or who has admitted violating the same provision within 5 years prior to the violation, notwithstanding the violations occur at different locations."  The violation in the present case was observed on May 26, 2009, within five years of the previous May 7, 2007, violation, and thus meets the definition of repeat violation.[2]  Mr. Brown's argument is without merit.

          At the July 13, 2009, hearing an affidavit prepared by Code Enforcement Officer Hinton who inspected the property on May 26, 2009, and a photograph taken on that date were admitted into evidence based on the testimony of Code Enforcement Officer Berutti.  This evidence was properly admitted into evidence because formal rules of evidence do not apply to hearings before a code enforcement board special magistrate.  See §§ 162.07(3), 162.03(2), Fla. Stat. (2008).  Officer Berutti testified that on July 8, 2009, she revisited the property and found it to be in compliance.  The magistrate noted that the photographs admitted into evidence were "pretty graphic.  There's the before and there's four that shows that on July 8 it was in compliance."  Although Mr. Brown has included the July 8, 2009, photographs in his appendix, he has failed to include a copy of the May 26, 2009, photograph of the violation.  However, at the July 13, 2009, hearing Magistrate Langford gave a detailed description of the "garbage, refuse, rubbish, junk, debris, or similar noxious material" that was depicted in the May 26, 2009, photograph.  (7/13/90 Transcript, p. 25-27).  This Court concludes from the description given at the hearing that the magistrate complied with the essential requirements of law when he concluded that there was a repeat violation of Code Section 58-304 on May 26, 2009, and continuing through July 8, 2009. 

          Mr. Brown argues in his appellate brief that the current violation actually was of Pinellas County Code of Ordinances Section 22-301, rather than Code Section 58-304.  Code Section 22-301, entitled "Sanitation" states:

          No person shall occupy as owner-occupant . . . any dwelling or dwelling unit designed or intended to be used for the purpose of living, sleeping, cooking or eating therein . . . which does not comply with the following requirements:

          . . . .

                    3) Garbage disposal. Every owner or occupant of a dwelling or dwelling unit shall place all garbage in a clean and sanitary manner in garbage disposal facilities or garbage/rubbish storage containers and arrange for regular garbage disposal service.

 

This argument was not raised at the July 13, 2009, hearing and is not properly before this Court for the first time on appeal.  However, in its response the County points out that County Code Enforcement has discretion to bring allegations against Mr. Brown under the law it deems most appropriate.  See State v. Bloom, 497 So. 2d 2 (Fla. 1986); A.D.W. v. State, 777 So. 2d 1101, 1103 (Fla. 2d DCA 2001).  The County opines that Mr. Brown likely could have been found to have violated Code Section 22-301 in addition to Code Section 58-304.  The Court agrees that the County has the discretion to charge Mr. Brown under Code Section 58-304 if it observes a violation that meets the definition of that code section. 

          This Court concludes that the magistrate observed the essential requirements of law when he determined that Mr. Brown was a repeat violator and had violated Code Section 58-304 from May 26, 2009, through July 8, 2009.

Competent, Substantial Evidence

          Upon review of the transcript of the July 13, 2009, hearing and the appendices, this Court concludes that the magistrate's findings and judgment are supported by competent, substantial evidence.

 

 

 

 

          Affirmed.

          DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 22nd day of October, 2010.

 

Original order entered on October 22, 2010 by Circuit Judges Linda R. Allan, George W. Greer, and John A. Schaefer.

 

Copies furnished to:

 

Kenneth Brown

421 N. McMullen Booth Road

Clearwater, FL 33759

 

David W. McCrea, Asst. County Atty

315 Court Street, 6th Floor

Clearwater, FL 33756

 


[1]   The County's appendix includes a copy of the order entered after the April 28, 2008, hearing. (Resp. App. E)

 

[2]   Mr. Brown also argues that his violations were "ruled abated by a county judge" and the County thereafter set up a new trial under "their magistrate system."  Although it is not clear, it appears that Mr. Brown may be referencing prior misdemeanor cases.  Once again in taking judicial notice of the Court's own records we note that in State v. Kenneth M. Brown, Case Number CTC06-006291COANO, a notice to appear for violation of Pinellas County Code Section 58-304 was issued February 13, 2006, for a violation that had been occurring since January 6, 2006.  Mr. Brown failed to appear at the hearing on the violation and after his arrest for failure to appear he posted a bond for $213 that subsequently was escheated.  In State v. Kenneth M. Brown, Case Number CTC06-018746COANO, a notice to appear for violation of Pinellas County Code Section 58-304 was issued June 19, 2006, for a violation that had been occurring since January 6, 2006.  On August 25, 2006, Mr. Brown was found to be guilty of a misdemeanor after a non-jury trial for violation of Code Section 58-304.  A judgment for a $130 fine was entered against Mr. Brown on September 22, 2006.  In State v. Kenneth M. Brown, Case Number CTC07-31223COANO, a notice to appear for violation of Pinellas County Code Section 58-304 was issued on October 10, 2007, for a violation that had been occurring since May 7, 2007.  On January 25, 2008, Mr. Brown was found to be guilty of a misdemeanor after a non-jury trial for violation of Code Section 58-304.  A judgment for a $60 fine and $40 in court costs was entered against Mr. Brown on the same day.  None of these cases were abated and Mr. Brown's convictions were not appealed.  These convictions are final, prior convictions for violations of Code Section 58-304.