IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA APPELLATE DIVISION MARK R. REINHARDT APPELLANT, Case No: 14-000009-AP UCN522014AP000009XXXXCI v. CITY OF DUNEDIN CODE ENFORCEMENT BOARD APPELLEE ______________________________________________/ __________________________________________________________________ ON APPEAL FROM THE CITY OF DUNEDIN CODE ENFORCEMENT BOARD CASE NO. DCEB-13-773 __________________________________________________________________ APPELLANT'S INITIAL BRIEF __________________________________________________________________ Mark R. Reinhardt Appellant, pro se 12 Wilson St. Amissville, VA 20106 540-937-7977
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IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
Fla., 1976); and AGO 82-7. Cf. Colonnade Catering Corp. v. United States,
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397 U.S. 72 (1970), and Michigan v. Tyler, 436 U.S. 499 (1978).
…
“Both business or commercial premises and private residences are afforded
protection from unreasonable searches by s. 12, Art. I, State Const., and the
Fourth Amendment to the U.S. Constitution. See v. City of Seattle, supra, in
which the U.S. Supreme Court held that administrative inspections of
commercial structures as well as private residences are forbidden by the
Fourth Amendment when conducted without a warrant; and Jones v. City of
Longwood, Florida, 404 So.2d 1083 (5 D.C.A. Fla., 1981), in which the
court, in a wrongful death action, stated that an ordinance requiring the
building inspector and fire chief to periodically inspect all buildings and
structures within the city was qualified by the Fourth Amendment and could
not authorize inspection of private property without a warrant.
…
“Therefore, it is my opinion that a municipal code inspector is without
authority to enter onto any private, commercial or residential property to
assure compliance with or to enforce the various technical codes of the
municipality or to conduct any administrative inspections or searches
without the consent of the owner or the operator or occupant of such
premises or without a duly issued search or administrative inspection
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warrant. The procurement and issuance of administrative inspection warrants
is governed by the provisions of ss. 933.20-933.30, F.S. However, owner-
occupied family residences are exempt from the provisions of ss. 933.20-
933.30, F.S., and as to those residences a search warrant or the prior consent
and approval of the owner is required.”
As is plainly evident in the instant case, the warrantless entry by the code inspector
constituted an unreasonable search, and per Article I, Section 12 of the Florida
State Constitution no evidence gathered by such a search may be considered.
Therefore the Board should not have accepted the evidence in either of the
hearings it held and the subsequent Final Order should not have been issued.
Notice of Hearing Required Under Statute
FS §162.06 governs the enforcement procedures by code enforcement boards and
FS §162.12 governs provisions of notice to alleged violators.
FS §162.06 reads, in pertinent part: “The code enforcement board, through its
clerical staff, shall schedule a hearing, and written notice of such hearing shall be
hand delivered or mailed as provided in s . 162.12 to said violator. ”
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Thus, as a notice of a hearing, the notices that the DCEB sent to Appellant for the
hearings that were scheduled on November 5, 2013 and the apparent second
compliance hearing per F.S. §162.06 must be “hand delivered or mailed as
provided in 162.12”.
Notice of Hearing Must Be Mailed via Certified Mail
FS §162.12(1) begins with “All notices required by this part must be provided to
the alleged violator by:” and follows in paragraph (a):
“Certified mail, return receipt requested, to the address listed in the tax
collector’s office for tax notices or to the address listed in the county
property appraiser’s database. The local government may also provide an
additional notice to any other address it may find for the property owner.
For property owned by a corporation, notices may be provided by certified
mail to the registered agent of the corporation. If any notice sent by certified
mail is not signed as received within 30 days after the postmarked date of
mailing, notice may be provided by posting as described in subparagraphs
(2)(b)1. and 2.;”
The notice for the compliance hearing held prior to the issuance of the final order
under appeal was a required notice under F.S. §162.06. The notice must be sent
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according to F.S. §162.12(1)(a). Appellant did not receive any notice of a
compliance hearing. Appellee has not entered a signed certified mail return receipt
into the record and a period of 30 days for notice to be sufficient could not have
elapsed in the time frame between the November 15, 2013 non-final order and the
final order of December 13, 2013, so it is impossible to consider the notice
“sufficient” under F.S. §162.12. Appellant does not know when this compliance
hearing was held, but it can only have been between the issuance of the non-final
order of November 15 and the final order of December 13. Thus, by not
possessing a signed certified mail return receipt and not waiting for the lapse of 30
days as required by F.S. §162.12(1)(a), there is no way that sufficient notice under
F.S. §162.12 could have been given. This is another instance where the
Appellee has departed from due process.
Requirements of Notice Not Met
FS §162.12 reads [emphasis added]: “Evidence that an attempt has been made to
hand deliver or mail notice as provided in subsection (1) , together with proof of
publication or posting as provided in subsection (2), shall be sufficient to show
that the notice requirements of this part have been met, without regard to whether
or not the alleged violator actually received such notice.”
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In the instant case, Appellant did not receive notice as provided in F.S. §162.12(1)
(a), and therefore the notice was not sufficient as described by statute.
Hearing Not Conforming to DCEB Rules of Procedure
The Rules of Procedure for the City of Dunedin Code Enforcement Board, Rule 4,
Section 1, states:
“The following procedures will be observed in hearings before the Board:
a. If it is established that proper notice of a hearing has been provided
to the Respondent, a hearing may proceed in the absence of the
Respondent.”
Additionally, the code inspector did not send an affidavit of compliance or non-
compliance via certified mail prior to the compliance hearing as specified in Rule
5, Section 2 of the DCEB Rules of Procedure, which states:
“The Code Enforcement Officer shall then issue an affidavit of compliance
or non-compliance which shall be filed with the Board. A copy of said
affidavit shall be sent to the violator by certified mail, return receipt
requested. ”
As has been shown above, proper notice of the hearing was not provided,
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prerequisites to that hearing were not performed, and yet a hearing was held in the
absence of Appellant where inadmissible testimony was heard which led to a final
order depriving the Appellant of real property. For the mere reasons of improper
notice this hearing should not have been held per Rule 4, Section 1 of the DCEB
Rules of Procedure [Appendix J]. The Appellee again departed from due
process by conducting a compliance hearing in the absence of Appellant when
the notice of the hearing and prerequisites to the hearing were not provided as
per F.S. §162.12(1) and DCEB Rule 4, Section 1a and DCEB Rule 5, Section 2.
CONCLUSION
The Appellee departed from due process first by conducting an extra-judicial
search of the subject property, then by failing to provide proper notice that is
sufficient under statute for a compliance hearing, and also by considering
information at two separate hearings that was obtained without consent or a
warrant. The Board should not have considered the information presented in the
first evidenciary hearing as it was not legally obtained. The second hearing
happened without sufficient notice and should have never happened. The final
order should have never been issued.
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In order to conduct a hearing, notice of the hearing must be sent in accordance with
statute, specifically the requirements under F.S. §162.06 and F.S. §162.12. Further,
the Rules of Procedure of the DCEB allow a hearing to proceed in the absence of a
respondent only if proper notice has been provided to the alleged violator. The
Rules of Procedure also require an affidavit of compliance or non-compliance to be
sent to the respondent via certified mail prior to the issuance of the final order
which was not performed. Notice was not sufficient, prerequisites were not
performed, the testimony was inadmissible, and the hearings should not have been
held.
As has been shown in the Argument above, the DCEB departed from due process
by:
1) conducting an extra-judicial search without consent of Appellant or
possession of an inspection warrant or search warrant
2) failing to provide notice conforming to F.S. §162.12 for a Compliance
Hearing
3) conducting a Compliance Hearing without determining that proper notice
was provided per Rule 4, Section 1-a of the DCEB Rules of Procedure
4) considering information at an Evidenciary Hearing and a Compliance
Hearing that was not obtained legally through consent or judicial process
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Since due process has not been met, the hearings should not have been held, and
the Order issued by the DCEB that is under appeal should not have been issued.
Therefore, as relief, Appellant seeks to have the Court reverse the Order
under appeal and to direct the City of Dunedin to release any and all
subsequent liens as a result of said Order.
I hereby swear and affirm that the foregoing is true to the best of my knowledge
and belief.
This Appellant's Initial Brief isRespectfully submitted by,
______________________Mark R. ReinhardtAppellant, pro se
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CERTIFICATE OF SERVICE
I hereby certify that on March 18, 2014 a copy of the foregoing has been furnished
by United States Mail to Appellee's counsel at Trask, Metz & Daigneault, LLP,
attn: Jay Daigneault, 1001 S. Fort Harrison Ave. Ste. 201, Clearwater, Florida
33756.
______________________Mark R. ReinhardtAppellant
CERTIFICATE OF FONT COMPLIANCE
I hereby certify that the font used in this brief is 14-point Times New Roman and
that the brief complies with font requirements of Rule 9.210(a)(2).
______________________Mark R. ReinhardtAppellant
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Applicable Statutes
FS 162.06 governs the enforcement procedures by code enforcement boards and FS 162.12 governs provisions of notice to alleged violators.
FS 162.06 reads, in pertinent part: “The code enforcement board, through its clerical staff, shall schedule a hearing, and written notice of such hearing shall be hand delivered or mailed as provided in s. 162.12 to said violator.”
FS 162.12 (1)
Evidence that an attempt has been made to hand deliver or mail notice as provided in subsection (1), together with proof of publication or posting as provided in subsection (2), shall be sufficient to show that the notice requirements of this part have been met, without regard to whether or not the alleged violator actually received such notice.
The period between the date of mailing and the hearing date was 14 days for the Evidenciary Hearing, and 12 days for the Compliance Hearing. The US Post Office will hold certified mail for 15 days before returning it to the sender. FS 162.12(1)(a) requires a 30-day return period for notices of hearings. Appellant received the certified letters for each hearing after the hearing date, but still within the 15 days it was held by the Post Office. The hearings were held before the required Notice was received, even though the Notice was still received within the return time period required under 162.12(1)(a). This is where the Appellee has departed from due process.
The notices for the hearing were required notices under 162.06. The notices must be sent according to 162.12(1)(a). By having fewer than 30 days between the date of mailing and the hearing, the notices did not conform with statute. As the notices were not properly conforming, the hearings should not have been held per Rule XXX of the DCEB Rules of Procedure.
All notices required by this part / notice of hearing is a notice under this part. 162.06
In the Rules of Procedure for the DCEB, Paragraph XXX states:
Therefore appellant seeks to have the Court vacate the order under appeal and to release any and all subsequent liens as a result of said order.
As such the Appellee cannot invoke jurisdiction over the Appellant because the requirements under the law that give it that jurisdiction have not been met.
The short interval between the dates shows that the board had no intention of providing a 30-day mail acceptance period. The law prescribes an adequate timeframe for a respondent to make an assessment of the alleged violations and formulate a response and/or actions in regard to the allegations. In fact, any response was precluded by the DCEB's actions in that the hearing was held before the expiration of the US Post Office return delivery period for certified mail.
The notion that a 12-day span between the date of notice and the hearing date is not sufficient is further reinforced by [Statute]:
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(2) In addition to providing notice as set forth in subsection (1), at the option of the code enforcement board or the local government, notice may be served by publication or posting, as follows:
(a)1. Such notice shall be published once during each week for 4 consecutive weeks
In the above statute, the timeframe of publication of notice is “4 consecutive weeks”, which matches the 30-day timeframe prescribed by XXXXX. There is nothing in the statute to suggest that it was the intention of Legislature to allow a municipality to put a certified letter in the mail without any regard to a reasonable response time and have that provide legal jurisdiction to levy fines upon and seize a citizen's property.
Evid. Hearingnotice time span
Compliance Hearingnotice time span
notices are required under statute, subject to service rules
board rules say hearing a hearing may proceed if there's “proper notice”
hearing should not have happened
departed from due process
order/liens should be reversed
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(1) A table of contents listing the issues presented for review, with references to pages.
(2) A table of citations with cases listed alphabetically, statutes and other authorities, and the pages of the brief on which each citation appears. See rule 9.800 for a uniform citation system.
(3) A statement of the case and of the facts, which shall include the nature of the case, the course of the proceedings, and the disposition in the lower tribunal. References to the appropriate volume and pages of the record or transcript shall be made.
(4) A summary of argument, suitably paragraphed, condensing succinctly, accurately, and clearly the argument actually made in the body of the brief. It should not be a mere repetition of the headings under which the argument is arranged. It should seldom exceed 2 and never 5 pages.
(5) Argument with regard to each issue including the applicable appellate standard of review.
(6) A conclusion, of not more than 1 page, setting forth the precise relief sought