Appeal 09-000053AP-88A

Administrative: CODE ENFORCEMENT — Substantial, competent evidence — There was no violation of due process as Belleview Biltmore Owner notified of hearing to determine if there had been compliance with Town of Belleair Code as directed in November 8, 2007, amended order finding violation. Town of Belleair Code Enforcement Board followed the essential requirement of law and competent, substantial evidence was presented to support November 6, 2009, Order Imposing Penalty/Lien. The November 6, 2009, order was not vague and fine imposed does not violate the Eight Amendment to the United States Constitution. Order affirmed. Belleview Biltmore Owner, LLC, a foreign Limited Liability Company as Successor in Title to Belleair Biltmore Resort, Ltd. (properly known as Belleview Biltmore Resort, Ltd.) v. Town of Belleair, Belleair Code Enforcement Board, No. 09-000053AP-88A (Fla. 6th Cir. App. Ct. November 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

BELLEVIEW BILTMORE OWNER, LLC, a

foreign Limited Liability Company as

Successor in Title to BELLEAIR BILTMORE

RESORT, LTD. (properly known as

BELLEVIEW BILTMORE RESORT, LTD.), Case No.: 09-000053AP-88A

Appellant, UCN: 522009AP000053XXXXCV

TOWN OF BELLEAIR, BELLEAIR CODE

ENFORCEMENT BOARD

Appellee.

______________________________________/

Opinion Filed ______________

Appeal from decision of

Code Enforcement Board,

Town of Belleair, Florida

Timothy P. Driscoll, Esq.

Attorney for Appellant

Jay Daigneault, Esq.

David J. Ottinger, Esq.

Attorneys for Appellee

PER CURIAM.

Appellant Belleview Biltmore Owner, LLC, a foreign Limited Liability Company as Successor in Title to Belleair Biltmore Resort, Ltd. (properly known as Belleview Biltmore Resort, Ltd.) (hereinafter "Belleview Biltmore"), appeals the Appellee Town of Belleair, Belleair Code Enforcement Board's November 6, 2009, "Order Imposing Penalty/Lien." We affirm.

On December 5, 2005, a notice was issued to Belleview Biltmore's predecessor in title concerning violations of the Town of Belleair Code of Ordinances by the Hotel. On February 12, 2007, a second notice was issued to Belleview Biltmore's predecessor in title concerning Code violations by the Hotel. On May 2, 2007, a hearing was conducted before the Board. Belleview Biltmore's predecessor in title was found to be in violation of the Town Code and an order was entered nunc pro tunc to May 2, 2007, finding that from February 9, 2007, Belleview Biltmore's predecessor in title "did allow non-compliant roof coverings to remain on roofs" at the Hotel. The Board concluded that Belleview Biltmore's predecessor in title was in violation of "Sections 26-36(1), and (6), 26-37(4), and 66-8(a) of the Belleair Town Code, Chapter 34, Sections 511, 511.1 of the Florida Building Code and Chapter 15, Sections 1501 and 1501.1 of the Florida Building Code." [1] Belleview Biltmore's predecessor in title was given until October 1, 2007, to bring the property into compliance with the cited Code provisions.

A hearing was conducted on October 30, 2007, to consider the request of the Hotel's new owner, Belleview Biltmore, to extend the date for compliance with the Town Code and the Florida Building Code as directed in the May 2, 2007, order. On November 8, 2007, an "Amended Order Finding Violation" was entered by the Board. The order states that the Board found that from February 9, 2007, the property owner "did allow non-compliant roof coverings to remain on roofs" at the Hotel. It concluded that Belleview Biltmore was in violation of "Sections 26-36(1), and (6), 26-37(4), and 66-8(a) of the Belleair Town Code, Chapter 34, Sections 511, 511.1 of the Florida Building Code and Chapter 15, Sections 1501 and 1501.1 of the Florida Building Code." The order stated that Belleview Biltmore was given until November 1, 2009, "to bring the property into compliance with the cited code sections," or pay a fine in the amount of $250 per day for each day the Hotel remains in noncompliance. No appeal was taken from the November 8, 2007, final order and this order is not the subject of the current appeal.

A hearing was conducted on November 2, 2009, to determine if Belleview Biltmore was in compliance with the Town Code and the Florida Building Code. After the hearing was concluded an order was entered on November 6, 2009, imposing a $250 per day fine for each day the violations exist past the November 1, 2009, date set for compliance. This is the order that is the subject of the current appeal. Deficiencies in the prior orders of the Board, if any, cannot be raised in the current appeal as the time for such argument has passed.

Standard of Review

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). The circuit court is not entitled to make separate findings of fact or to reweigh the evidence. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 529 (Fla. 1995).

Analysis

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). At the November 2, 2009, hearing the Hotel managing director, the Hotel engineer, and the Hotel architect appeared and testified on behalf of Belleview Biltmore and counsel for Belleview Biltmore appeared and presented argument. Belleview Biltmore was properly notified of the hearing and it had the opportunity to be heard. There was no due process violation.

Essential Requirements of Law and Competent Substantial Evidence

Belleview Biltmore argues that the Board departed from the essential requirements of law because it ignored the overwhelming evidence demonstrating the effectiveness of the remedial measures Belleview Biltmore had taken to repair the roof. It is also asserted that the Board failed to provide a reasonable time to correct any alleged violation and failed to consider the criterion required by section 162.09(2)(b), Florida Statutes (2009). It is asserted that the November 6, 2009, order is arbitrary and capricious.

At the November 2, 2009, hearing testimony was presented by Fred Hawes, a Town of Belleair Building Official. He stated that he inspected the Hotel at 7:30 a.m. on the morning of the hearing and found it not to be in compliance as directed by the November 8, 2007, order. He prepared an Affidavit of Non-Compliance that was admitted into evidence. Although Mr. Hawes testimony alone could be found to be insufficient to support the November 6, 2009, order; additional testimony was presented by Richard Heisenbottle, Belleview Biltmore's architect.

Mr. Heisenbottle testified that upon acquiring the property the new owner immediately reroofed areas of the Hotel that "as a practical matter, could be reroofed." He conceded, "I don't take issue with what Mr. Hawes has said. This roof is by no means, in compliance with the current Code. He knows it. Any (inaudible) architect who—would certainly know it in a minute." (App. 1, p. 21). Mr. Heisenbottle opined that in order to complete the roof to meet Code requirements there must be a full restoration of the building.

The architect stated that even if a "ninth coat of roofing" was applied to the roof it would look better but it still would not be Code compliant. (App. 1, p. 21). He explained, "[A]ll of that [roofing material] has to go. It has to be replaced. The plywood has to be replaced with, in some cases, enhanced joists; has to be clipped on from the very top of the building to hold any foundation clips (inaudible) to hold (inaudible) in the event of a hurricane." He described it as a "Herculean" task. (App. 1, 21-22).

Mr. Heisenbottle stated that work is not "underway" at the moment and Belleview Biltmore was still involved in zoning appeals. He admitted that other than "minor repair work that the staff makes on a day-to-day basis when they find it—when they find it necessary, . . . nothing else has substantially changed" in the preceding year. (App. 1, p. 31). These statements are more than merely conclusory testimony that the property is not in compliance with the November 8, 2007, order and the Codes.

Further, Mr. Heisenbottle requested that the Board "extend the time for compliance by giving the owner a two-year extension to permit and re-roof and properly get this building underway. . . ." (App. 1, p. 24-25). Counsel for Belleview Biltmore stated that in order to "address this roof" the answer is not merely to place an additional layer of shingles on top of the existing layers of shingles. It was explained that it is necessary to stabilize the structure from the foundation up. Counsel stated, "We'd obviously (inaudible) a new roof if we put one on first, go up there and make this roof hurricane compliant, code compliant, and do the job correctly." (App. 1, p. 27). Counsel requested an additional "two-year extension on this project." (App. 1, p. 27-28).

Belleview Biltmore also presented testimony of Managing Director Martin Smith and Ron Harn of the Hotel's Engineering Services. The men testified concerning repairs to the roof that have been performed in the past and those that are on-going in order to secure the Hotel from water intrusion. However, neither of these men testified that the roof had been brought into compliance with the Town Code or with the Florida Building Code in order to refute the testimony of Mr. Hawes and Mr. Heisenbottle.

On appeal, Belleview Biltmore argues that there is no evidence to demonstrate that the Hotel is in violation of any regulation and the record is replete with evidence regarding repairs that have been effective in maintaining the structure, preserving it, and keeping moisture from penetrating the roof. While the testimony cited by Belleview Biltmore demonstrates that the owner is protecting its investment in the Hotel by these actions, the evidence does not refute the testimony of Mr. Hawes or Mr. Heisenbottle that the roof still is not in compliance with the requirements of the Town Code or the Florida Building Code.

Section 162.09(2)(b) provides: "In determining the amount of the fine, if any, the enforcement board shall consider the following factors: 1. The gravity of the violation; 2. Any actions taken by the violator to correct the violation; and 3. Any previous violations committed by the violator." The testimony presented at the November 2, 2009, hearing demonstrates that evidence concerning these three factors was presented to the Board and these factors were considered by the Board.

Belleview Biltmore characterizes questions of a Board member at the conclusion of the hearing about actions which could be taken by the Hotel as an "attempt to garner illegal exactions from Belleview in exchange for fines." The Court finds this characterization is without merit.

The Board observed the essential requirements of law and its findings and the November 6, 2009, order are supported by competent, substantial evidence.

The Eighth Amendment to the United States Constitution

Belleview Biltmore argues that the November 6, 2009, Order Imposing Penalty/Lien is vague because it fails to identify, specifically, what Belleview Biltmore must do to bring the Hotel into compliance. It asserts that it is impossible for Belleview Biltmore to stop the running of the fines and it cannot determine what it must do to stop the fines. It concludes that the fines are patently excessive and violate the Eighth Amendment prohibition of excessive fines. The Excessive Fines Clause of the Eight Amendment limits the government's power to extract payments, whether in cash or in kind, "as punishment for some offense." Dep't of Envtl. Prot. v. Zabielinski, 785 So. 2d 517, 519 (Fla. 3d DCA 2000).

The November 6, 2009, order is not vague. It references the November 8, 2007, Amended Order Finding Violations and states that the November 8, 2007, order required Belleview Biltmore to take "certain corrective action" by November 1, 2009, which it had failed to do. The November 8, 2007, order indicates that Belleair Biltmore has allowed "non-compliant roof coverings to remain on the roofs at the subject properties" and cites to the sections of the Belleair Town Code and the Florida Building Code with which the roof is not in compliance. The Code Enforcement Board is not required to instruct a non-compliant property owner in detail as to what specific corrective actions must be undertaken to bring a property into compliance with the cited Code provisions.

Further, with regard to the argument that the fines imposed by the November 6, 2009, order violate the Eight Amendment to the United States Constitution, there is a "strong presumption that the amount of a fine is not unconstitutionally excessive if it lies within the range of fines prescribed by the legislature.” Browning v. Angelfish Swim School, Inc., 1 So. 3d 355, 359 (Fla. 3d DCA 2009); see Moustakis v. City of Ft. Lauderdale, 338 Fed. Appx. 820, 2009 WL 2004183 (11th Cir. July 13, 2009)(not published). The courts are required to “grant substantial deference to the legislature's determination of the appropriate punishment for an offense.” Browning, 1 So. 3d at 359 (citing Riopelle v. Dep't of Fin. Servs, 907 So. 2d 1220, 1223 (Fla. 1st DCA 2005)).

The $250 per day fine is authorized by section 162.09(2)(a). Additionally, it was discussed at the hearing that that Belleview Biltmore may move to reduce the fine once it has complied with the requirements of the November 8, 2007, order. See § 162.09(2)(c). The fine is not excessive.

The November 6, 2009, order is not vague; this matter does not involve a violation that is irreparable or irreversible in nature; it is not impossible for Belleview Biltmore to comply with the order; and there has been no violation of the Eighth Amendment to the United States Constitution.

Conclusion

This Court concludes that procedural due process was accorded, the essential requirements of law have been observed, and the Board's findings and the November 6, 2009, Order Imposing Penalty/Lien are supported by competent, substantial evidence.

Affirmed.

DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this ____ day of November, 2010.

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

Copies furnished to:

Timothy P. Driscoll, Esq.

535 Central Ave.

St. Petersburg, FL 33701

Jay Daigneault, Esq.

595 Main Street

Dunedin, FL 34698

David Ottinger, Esq.

201 N. Franklin Street

Suite 2200

Tampa, FL 33602

[1] Belleair Code of Ordinances sections 26-36(1), and (6) states:

"Nuisance" defined.

For the purposes of this article, the word "nuisance" is hereby defined as any person doing an act, or omitting to perform a duty, or suffering or permitting any condition or thing to be or exist, which act, omission, condition or thing either:

(1) Injures or endangers the comfort, repose, health or safety of others;

. . . .

(6) Interferes with the comfortable enjoyment of life and property or tends to depreciate the value of the property of others

Belleair Code of Ordinances section 26-37(4) states:

Certain acts, conditions, etc., declared nuisances.

In addition to those acts or conditions declared to be nuisances in the land development code, the maintaining, using, placing, depositing, leaving or permitting to be or remain on any public or private property of any of the following items, conditions or actions are hereby declared to also be and constitute a nuisance; provided, however, these illustrations shall not be deemed or construed to be conclusive, limiting or restrictive:

. . . .

(4) Any building or other structure which is in such a dilapidated condition that it is unfit for human habitation, or kept in such an unsanitary condition that it is a danger to the health, safety and welfare of people residing in the vicinity thereof, or presents a fire hazard.

Belleair Code of Ordinances section 66-8(a) states:

Adoption of technical codes and provisions of comprehensive plan.

(a) Building code. For the purpose of establishing rules and regulations for the erection, construction, alteration, repair, moving, removal, conversion, demolition, occupancy, equipment, use, height, area and maintenance of buildings and structures in the town, the Florida Building Code, and all revisions and amendments thereof as adopted by the State of Florida, referred to in this land development code as "Standard Building Code," of which three copies are now and shall remain on file in the office of the town clerk for public use, is hereby adopted as fully as if incorporated and set forth at length in this section.

Florida Building Code, Chapter 5‚ Section 511 REROOFING ; Chapter 5‚ Section 511‚ (1),

511.1 General.

Materials and methods of application used for recovering or replacing an existing roof covering shall comply with the requirements of Chapter 15 of the Florida Building Code, Building. Roof repairs to existing roofs and roof coverings shall comply with the provisions of this code.

Exception: Reroofing shall not be required to meet the minimum design slope requirement of ¼:12 in Section 1507 of the Florida Building Code, Building for roofs that provide positive roof drainage (high-velocity hurricane zones shall comply with Sections 1515.2.2.1 and 1515.2.2.2 of the Florida Building Code, Building).

Florida Building Code, Chapter 15‚ Section 1501‚ (1), 1501.1 Scope
The provisions of this chapter shall govern the design, materials, construction and quality of roof assemblies, and rooftop structures.

Exception: Buildings and structures located within the high-velocity hurricane zone shall comply with the provisions of Section 1503.6 and Sections 1512 through 1525.