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IN THE CIRCUIT COURT IN AND FOR ESCAMBIA COUNTY, FLORIDA
CIVIL DIVISION

WARD DEAN and KUMJA DEAN
Appellants,

vs.

DIVISION: "A"
ESCAMBIA COUNTY, FLORIDA,
Appellee.

CASE NO: 00-2027-CA-01

ON APPEAL FROM THE OFFICE OF CODE ENFORCEMENT
SPECIAL MASTER OF ESCAMBIA COUNTY, FLORIDA
SPECIAL MASTER G. THOMAS SMITH

APPELLEE ESCAMBIA COUNTY'S ANSWER BRIEF
Respectfully submitted,
David G. Tucker
County Attorney
Florida Bar No.: 0701327
/s/ Michael C. Godwin
By: Michael C. Godwin
Assistant County Attorney
Florida Bar No.: 0504254
14 West Government Street, Room 411
Pensacola, Florida 32501
Telephone: (850) 595-4970
Facsimile: (850) 595-4979

TABLE OF CONTENTS

PAGE(S)

Table of Contents i
Table of Citations ii-v
Preliminary Statement 1
Statement of the Case of Facts 2-3
Summary of Argument 4-6
Argument 7-15

I. CHAPTER 30, ESCAMBIA COUNTY CODE OF ORDINANCES,
AFFORDED THE APPELLANTS FULL AND FAIR CONSTITUTIONAL
DUE PROCESS. 7-9

II. THE SPECIAL MASTER POSSESSEDALL LAWFUL AUTHORITY
NECESSARY TO HEAR THE DEANS' CASE. 10-12

III. THERE IS NO CONFLICT BETWEEN SECTION 588.01 FLORIDA
STATUTES AND SECTION 7.04.00 OF THE ESCAMBIA COUNTY
LAND DEVELOPMENT CODE NOR DOES ENFORCEMENT OF
THE ESCAMBIA COUNTY LAND DEVELOPMENT CODE INTERFERE
WITH THE DEANS' PRIVATE PROPERTY RIGHTS AND THEIR
RIGHT TO BE FREE FROM GOVERNMENT INTRUSION. 13-15
Conclusion 16
Certificate of Service 17

TABLE OF CITATIONS

CITATION PAGE(S)
Davidson v. Howard.
438 So. 2d 899 (Fla. 41h DCA 1983) 5, 13
Department of Community Affairs v. Moorman.
664 So. 2d 930 (Fla. 1995) 6, 14
Fla. E. Coast. Industries v. State.
677 So. 2d 357 (Fla. 1 si DCA 1996) 8
In re Advisory Opinion to Governor.
225 So. 2d 512 (Fla. 1969) 12
LoftIer v. LoftIer .
620 So. 2d 1048 (Fla. 1 si DCA 1993) 11
Marrs v. State.

413 So. 2d 774 (Fla. 1st DCA 1982) 8
McNealv v. State.
549 So. 2d 248 (Fla. 51h DCA 1989) 11
McRae v. Robbins.
9 So. 2d 284 (Fla. 1942) 9
Miami v. Kayfetz.
92 So. 2d 798 (Fla. 1950) 7
Moorman v. Department of Community Affairs,
626 So. 2d 1108 (Fla. 3rd DCA 1993) 6, 14
Peoples Bank of Indian River County v. State. Dep't of Banking.
395 So. 2d 521 (Fla. 1981) 8

Southeastern Fisheries Assoc. v. Department of Natural Resources.
453 So. 2d 1351 (Fla. 1984) 8
State v. State Bd. of Education.
467 So. 2d 294 (Fla. 1985) 7
State ex rel. CIyatt v. Hocker.
22 So. 721 (Fla. 1879) 12
State ex rei. Munch v. Davis.
196 So. 491 (Fla. 1940) 9
State ex rel. Hawthorne v. Wiseheart.
28 So. 2d 589 (Fla. 1946) 11
State ex rel. Weber v. Register.
67 So. 2d 619 (Fla. 1953) 9
Stein v. Foster.
557 So. 2d 861 (Fla. 1990) 11
Town of Jupiter v. Andreff.
656 So. 2d 1374 (Fla. 1st DCA 1995) 9
Winter Haven v. A. M. Klemm & Son.
181 So. 153 (Fla. 1938), reh den 182 So. 841 7

STATUTES
Chapter 70, Florida Statutes (2000) 4, 9
§70.51(15)(b), Florida Statutes (2000) 2, 4, 9
§112.311(1), Florida Statutes (2000) 5, 12

(CITATION PAGES)

Chapter 162, Florida Statutes (2000) 7
§162.09, Florida Statutes (2000) 8
§ 162.11 , Florida Statutes (2000) 2
§162.12, Florida Statutes (2000) 4,9
Part II, Chapter 163, Florida Statutes (2000) 6, 13
§163.3161 -163.3245, Florida Statutes (2000) 14
§163.3211, Florida Statutes (2000) 14
Chapter 588, Florida Statutes (2000) 5, 13
§588.01, Florida Statutes (2000) 2, 5, 6, 13
§876.05, Florida Statutes (2000) 5, 10, 12
§876.05(1), F. S. (2000) 12

ORDINANCES

§1-8.5-8(e), Escambia County Code of Ordinances 4, 8
Chapter 30, Escambia County Code of Ordinances 4, 5, 7, 8, 11
§30-32, Escambia County Code of Ordinances 5, 10, 11
§30-34(d), Escambia County Code of Ordinances 3, 4, 8
§30-38, Escambia County Code of Ordinances 4, 9
§46-64, Escambia County Code of Ordinances 10

FLORIDA CONSTITUTION

Ar1. I, §9, Fla. Const. 14
Art. V, §5(b), Fla. Const. 12
Art. XVI, §2, Fla. Const. (1885) 5, 10

CITATION PAGE(S)
LAND DEVELOPMENT CODE

§2.02.00, Escambia County Land Development Code 2, 3, 13
§7.04.00, Escambia County Land Development Code 2, 3, 5, 6, 13
MISCELLANEOUS
Fla. R. App. P. 9.O3O(c)(1)(c) 2
Fla. R. App. P.9.11O(a)(3) 2

PRELIMINARY STATEMENT

In this brief, Appellants, WARD DEAN and KUMJA DEAN, may be collectively referred
to as the "Deans". The Appellee, ESCAMBIA COUNTY, FLORIDA, may be referred to as "Escambia" or "County". Citation to the record will be made by the letter "R" followed by the appropriate page number in the Appendix.

STATEMENT OF THE CASE AND OF THE FACTS

The Deans appeal the Order entered on October 3, 2000 (R-3) and a subsequent Amended Order entered on October 16, 2000 (R-4) by the Special Master of the Office of Code Enforcement of Escambia County, Florida.

This Court has jurisdiction over this matter pursuant to the provisions of Fla. R. App. P . 9.030(c)(1)(c), Fla. R. App. P.9.110(a)(3), and Section 162.11, Florida Statutes (2000).

On June 6, 2000, the Deans, whose address is XXXXXXXXXXXXXXXXXXXXX Pensacola,
Florida, were cited by Notice of Violation by the Escambia County Office of Code Enforcement for violations of Sections 2.02.00 and 7.04.00 of the Escambia County Land Development Code for the failure to secure from the County a permit for the construction of a wrought iron fence in their front yard and for violating the maximum four-foot height for such a fence. Thereafter, by letter dated July 12, 2000, they were ordered to abate the violation. (R-7; R-13; R-14).

On July 13, 2000, Ward Dean, in response to the July 12, 2000 letter of the County,
wrote to Officer Charles E. Walker of the Escambia County Code Enforcement Office, stating that he believed that there was a conflict between the Land Development Code and Section 588.01, Florida Statutes (2000) relating to the requirements of a general fence. (R-6a).
On July 28, 2000, a Petition for Hearing before the Office of Code Enforcement Special Master was issued to the Deans alleging violations of the Land Development Code. (R-8). On July 31st, 2000, a Notice of Code Enforcement Special Master Hearing Subpoena to Alleged Violator to Appear at the Said Hearing was issued to the Deans. (R-7b).
On August 11th 2000, Ward Dean sent a letter to Officer Charles E. Walker generally contesting the right of the Special Master to hear the Deans' case and citing, as his authority, to Section 70.51, Florida Statutes (2000) relating to the Florida Land Use and Environmental Resolution Act. (R-7b). On August 14, 2000, Ward Dean wrote to the Interim County

Administrator Thomas Forrest again generally stating his belief that the Special Master does
not have the authority to hear their case. (R-6c).
On August 15, 2000, a hearing was held in the Deans' case before the Special Master at which time the Deans contested the County's violation charges. (R-4). Thereafter, as a result of that hearing, the Special Master issued an Order in this case finding the Deans were in violation of Section 7.04.00, Land Development Code, in the construction of a fence that exceeds four feet in height as well as the failure to obtain a permit to construct such a fence under Section 2.02.00, Land Development Code. The Deans were given until October 20, 2000 to correct the violations and bring the fence into compliance. (R-2). On October 16, 2000 an Amended Order was issued by the Special Master after Ward Dean questioned a miscitation in paragraph 5 relating to Section 30-34(d), Escambia County Code of Ordinances. (R-3).

On October 25, 2000, the Deans filed a Notice of Appeal of their case in Escambia County Circuit Court.

SUMMARY OF ARGUMENT

The Deans generally and without specificity assert that certain portions of Chapter 30,
Escambia County Code of Ordinances, are allegedly vague and a proper notice of hearing was not afforded to them thereby violating their rights to substantive and procedural due process of the Florida and United States Constitutions.

Turning now to the Deans' procedural due process argument, the procedure adopted
in Chapter 30, Escambia County Code of Ordinances, afforded reasonable notice to the Deans. The Deans, who did appear and vigorously defended themselves, state that the Special Master did not provide them "timely notice" citing Section 70.51 (15)(b), Florida Statutes (2000), the Florida Land Use and Environmental Dispute Act, which is not relevant to this proceeding since this action is not a Harris claim under Chapter 70, Florida Statutes (2000), the Bert J. Harris, Jr. Private Property Rights Protection Act. Instead, Section 30-38, Escambia County Code of Ordinances, is the governing notice section, which in turn is based upon the statutory provisions of Section 162.12, Florida Statutes (2000).
The Deans assert the Special Master had no authority to hear their case alleging "there was no valid contract between Escambia County and G. Thomas Smith" permitting him to provide Special Master services, and Smith has "no oath of office on file" citing Section 876.05, Florida Statutes (2000) and Art. XVI, §2, Fla. Const. (1885). Taken as whole, it appears that the Deans essentially question whether Smith was functioning in a de jure or de facto Special Master capacity during the hearing of their case. They contend that the 1998 expiration of Smith's contract with the County extinguished his appointment as Special Master. However, Smith's de jure status as Special Master under Section 30-32 was not revoked by the end of the contract in 1998 but, instead, the County simply exercised an alternative contracting method as provided for in the County Purchasing Code to continue Smith's services and in no way disturbed his de jure authority.

Assuming that Smith's de jure status as a Special Master was in some fashion imperiled by the County not entering into a post 1998 formal contract, Smith remained a de facto Special Master with full authority under Chapter 30, Escambia County Code of Ordinances, to hear the Dean's case.

Turning now to the matter of the oath, Section 876.05, Florida Statutes (2000)
prescribes the oath which must be taken by an official before embarking on his duties. It is clear that Smith, as an independent contractual quasi-judicial hearing officer, is not a public officer as defined in Section 112.311 (1 ), Florida Statutes (2000) or an employee of the County necessitating that he subscribe to such an oath.

The Deans generally assert that there is a conflict between Section 588.01 Florida Statutes (2000), relating to the requirements of a general fence and Section 7.04.00 of the Escambia County Land Development Code, relating to the maximum heights of fences constructed in residential or commercial and industrial districts. The Deans' reliance on Section 588.01, Florida Statutes (2000) and Davidson v. Howard. 438 So. 2d 899 (Fla. 4th DCA 1983) is misplaced in this context. The Davidson Court was interpreting sections of Chapter 588, Florida Statutes (2000) which relates to legal fences and livestock at large. It has nothing to do with residential land development regulations implemented under Part II of Chapter 163, Florida Statutes (2000). Given that, Section 588.01, Florida Statutes (2000) cannot be. .in
conflict with Section 7.04.00, Escambia County Land Development Code.

The last assertion raised by the Deans is that their private property rights to be free from
government intrusion have been violated by the County citing Moorman v. Department of Community Affairs. 626 So. 2d 1108 (Fla. 3rd DCA 1993). The Moorman case relied upon by the Deans was later quashed and remanded by the Florida Supreme Court in Department of Community Affairs v. Moorman. 664 So. 2d 930 (Fla. 1995). In that case, the Supreme Court determined that landowners do not have an untrammeled right to use their property regardless of the legitimate environmental interests of the state, and the state has a right to use its police power to establish land-use regulations addressing environmental concerns.

The County, through the Escambia County Land Development Code, has established such a public environmental policy under its constitutional police powers, which does not

impinge the property rights of the Deans specifically here as it pertains to fencing. It created
a unified code addressing the rational concerns for the development and use of property that, has taken into account the Deans' right to improve their property by fencing; however, such
fencing must meet the standards of the Escambia County Land Development Code.

ARGUMENT

I. CHAPTER 30, ESCAMBIA COUNTY CODE OF ORDINANCES, AFFORDED THE APPELLANTS FULL AND FAIR CONSTITUTIONAL DUE PROCESS.

In their brief, the Deans generally and without specificity assert that certain portions of Chapter 30, Escambia County Code of Ordinances, are allegedly vague and a proper notice of hearing was not afforded to them thereby violating their rights to substantive and procedural due process of the Florida and United States Constitutions.

The lodestar for the Court's analysis of this issue is that Chapter 30, Escambia County Code of Ordinances, is prima facie valid as duly enacted legislation. Winter Haven v. A. M. Klemm & Son. 181 So. 153 (Fla. 1938), reh-den 182 So. 841.

It is well established that the general presumption in favor of the constitutionality of legislation applies not only to legislative acts, but also to municipal ordinances. Miami v. Kavfetz. 92 So. 2d 798 (Fla. 1950). Put simply, a legislature is deemed to have intended to enact a valid and constitutional statute, unless the enactment is clearly erroneous, arbitrary or wholly unwarranted. State v. State Bd. of Education. 467 So. 2d 294 (Fla. 1985). In the instant case, Chapter 30, Escambia County Code of Ordinances, was so duly enacted by the Board of County Commissioners of Escambia County for the express purpose "to promote, protect, and improve the health, safety, and welfare of the citizens of the County" creating "a code enforcement system to supplement existing lawful methods of assuring compliance with the County's codes and ordinances" pursuant to authority granted by the Florida Legislature in Chapter 162, Florida Statutes (2000). (R-9, §30-1).

Having said that, in considering first whether Chapter 30, Escambia County Code of Ordinances, violates substantive due process, the test to be utilized by the Court would be whether the ordinance is vague.
A vague statute or ordinance is one that does not give adequate notice of what conduct

it prohibits and which, because of that imprecision, invites arbitrary and discriminatory enforcement of its provisions by a government. Southeastern Fisheries Assoc. v. Department of Natural Resources. 453 So. 2d 1351 (Fla. 1984).

Under the Due Process Clauses of both the federal and state constitutions, a statute, or in this case, an ordinance, that either forbids or mandates the doing of an act must be declared void if its terms are so vague that people of common intelligence must necessarily guess at its meaning, and it differs in its application. Marrs v. State. 413 So. 2d 774 (Fla. 1st DCA 1982). For that reason, objective guidelines and standards must appear expressly in it, or be within the realm of reasonable inference from its language. Fla. E. Coast. Industries v. 677 So. 2d 357 (Fla. 1st DCA 1996).

It appears that the Deans chiefly allege as vague Section 30-34(d), Escambia County Code of Ordinances, which was mis-cited as Section 108.5-8(e) in the original October 3, 2000 Order of the Special Master, although the Deans also generally include "the ordinances and legislation the Deans were prosecuted under". (R-2, para.5). The reference to Section 108.5-8(e) appears to be a garbled citation to Section 1-8.5-8(e), the 1995 forerunner of the presently codified Section 30-34(d). (R-11 ). This mistake was later corrected in the October 16, 2000 r Amend Order identifying Section 30-34(d) as the correct section. (R-3). Section 30-34(d), which is bottomed on Section 162.09, Florida Statutes (2000), clearly allows the County to make repairs to the Deans' property to abate its violation, the cost of which shall be certified to the Special Master and may be added to the fines imposed pursuant to the Order. As contemplated above by the Supreme Court, a simple mis-citation in the Special Master's original Order can not make Section 30-34(d) vague since Section 30-34(d) is plainly not imprecise in its meaning and direction so as to cause the Deans to guess at its requirements.

Turning now to the Deans' procedural due process argument, the procedure adopted in Chapter 30, Escambia County Code of Ordinances, afforded reasonable notice to the Deans. Peoples Bank of Indian River Countv v. State. Dep't of Bankino. 395 So. 2d 155 (Fla. 1981).

One of the major purposes of such due process is to make certain that a person, who has been
sued, has an opportunity to defend against such an action. State ex rel. Weber v. Register. -67
So. 2d 619 (Fla. 1953).

Generally, notice must state the time and place of the hearing. McRae v. Robbins. 9 So. 2d 284 (Fla. 1942). It should be conveyed in a manner reasonably calculated to enable the opposing party to appear and be heard. Town of Jupiter v. Andreff, 656 So. 2d 1374 (Fla. 15t DCA 1995). Such notice is considered adequate if it results in the appearance of a party in sufficient time to protect his or her interests. State ex rel. Munch v. Davis. 196 So. 491 (Fla. 1940).

The Deans, who did appear and vigorously defended themselves, state that the Special Master did not provide them "timely notice" citing Section 70.51 (15)(b), Florida Statutes (2000), the Florida Land Use and Environmental Dispute Act, which is not relevant to this proceeding since this action is not a Harris claim under Chapter 70, Florida Statutes (2000), the Bert J. Harris, Jr. Private Property Rights Protection Act. Under the Harris Act, there is a statutory forty (40) day notice period before hearing. See also. (R-16).

Instead, Section 30-38, Escambia County Code of Ordinances, is the governing notice section, which in turn is based upon the statutory provisions of Section 162.12, Florida Statutes (2000). (R-9). Section 30-38 provides that certified mail may be employed for such a notice of hearing in a code enforcement case. By such notice, dated July 31, 2000, the Deans were so advised that hearing had been scheduled in this matter for August 15, 2000 before the Special Master giving them sufficient time for their case preparation. (R-7).

Therefore, as to their due process claims, the Deans fail to establish any due process violations which prevented them receiving a full and fair hearing from the Special Master in their case.

II. THE SPECIAL MASTER POSSESSED ALL LAWFUL AUTHORITY NECESSARY TO HEAR THE DEANS' CASE.

In their brief, the Deans assert the Special Master had no authority to hear their case alleging "there was no valid contract between Escambia County and G. Thomas Smith" permitting him to provide Special Master services, and Smith has "no oath of office on file" citing Section 876.05, Florida Statutes (2000) and Art. XVI, §2, Fla. Const. (1885). (R-15). Taken as whole, it appears that the Deans essentially question whether Smith was functioning in a de jure or de facto Special Master capacity during the hearing of their case.

The facts are briefly as follows:

On January 23, 1996, the Escambia County Board of County Commissioners entered into a hearing officer contract with G. Thomas Smith, Esquire, to serve as a County Code Enforcement Office Special Master "for a period not to exceed two (2) years" unless terminated earlier, pursuant to Section 30-32, Escambia County Code of Ordinances. (R-5, para. 6.1 ). After that contract expired in 1998, he was thereafter paid for his hearing services by direct payment voucher or at the time of the Dean hearing by purchase order contract. (R-12). The Deans state that with the January 23, 1998 expiration of Smith's contract, he thereafter lacked a valid County contract to perform these Special Master services.

However, they fail to take in to account Section 46-64, Escambia County Code of Ordinances, which governs County purchases of less than $50,000.00 that provides in the pertinent part:
The Board of County Commissioners hereby approves every agreement entered into and every purchase or award made in accordance with this article in an amount not to exceed $50,000.00 and all other purchases exempted from this article.

Because Smith's 1998-2000 direct payment vouchers and purchase order contracts were for less than $50,000.00 each, the County Code Enforcement Office could contract for these additional Special Master services. Such agreements have Board of County Commissioners automatic approval under Section 46-64, Escambia County Code of Ordinances, which allowed Smith to have had a continued County contractual relationship without the necessity of signing a second formal County agreement.
They contend that the 1998 expiration of Smith's contract with the County extinguished his appointment as Special Master. However, Smith's de jure status Special Master under Section 30-32 was not revoked by the end of the contract in 1998 but, instead, the County simply exercised an alternative contracting method as provided for in the County Purchasing Code to continue Smith's services and in no way disturbed his de jure authority. Buttressing this fact, the record is clear that there was no break in his Special Master hearing services to the County since 1996, or that the Board of County Commissioners in any way terminated his authority indicating that the parties contemplated no change in their 1996 contractual relationship. (R-12).

Assuming that Smith's de jure status as a Special Master was in some fashion imperiled by the County not entering into a post 1998 formal contract, Smith remained a de facto Special

Master with full authority under Chapter 30, Escambia County Code of Ordinances, to hear the
Dean's case. While recognizing Smith's position is that of a quasi-judicial hearing officer, the ...Courts have long held that if a de facto judge's actual authority suffers from some procedural
defect, his official acts remain valid. State ex rel. Hawthorne v. Wiseheart. 28 So. 2d 589 (Fla. 1946). These acts may become voidable, McNealy v. State. 549 So. 2d 248 (Fla. 51h DCA 1989), only upon a timely objection to the judge's authority and before final judgment has been rendered. Stein v. Foster. 557 So. 2d 861 (Fla. 1990). The failure to timely object to a judge's authority constitutes a waiver of any defect in his authority .Loffler v. Loffler. 620 So. 2d 1048 (Fla. 1st DCA 1993).
Given the above, in carrying out his duties as Special Master, Smith served a Special Master under the color of his uninterrupted 1996 appointment by the Board of County Commissioners. He followed dictates of Chapter 30, Escambia County Code of Ordinances, in finding the Deans' property in violation of the Escambia County Land Development Code and f' no reason now exists to void or otherwise disturb that decision.

Turning now to the matter of the oath, Section 876.05, Florida Statutes (2000) prescribes the oath which must be taken by an official before embarking on his duties. Art. V, §5(b), Fla. Const. The provisions of the statute apply to all employees and elected officers of the state, including the Governor and constitutional officers and all employees and elected officers of cities, towns, counties, and political subdivisions, including schools, colleges, and candidates for election. §876.05(1), F. S., (2000). However, it is clear that Smith, as an independent contractual quasi-judicial hearing officer, is not a public officer as defined in Section 112.311 (1), Florida Statutes (2000) or an employee of the County necessitating that he subscribe to such an oath.

A person who contracts with the government is not an officer of that government. Reaching back more that 100 years, the Supreme Court at that time recognized that the fact

that the duties of a particular position or governmental function do not depend on contract is
itself one of the criteria of a public office. State ex rel. Clyatt v. Hocker. 22 So. 721 (Fla. 1897). It is clear that Smith does enjoy public employment, but it would appear, as an independent contractor hearing officer, not as a County employee or officer. (R-4, page 7). Although every public office may be an employment, not every public employment is an office. In re Advisory: Opinion to Governor. 225 So. 2d 512 (Fla. 1969).

Therefore, for the reasons stated above, the Deans complaints relating to Smith's contract and oath are without factual foundation and legal merit.

III. THERE IS NO CONFLICT BETWEEN SECTION 588.01 FLORIDA STATUTES
AND SECTION 7.04.00 OF THE ESCAMBIA COUNTY LAND DEVELOPMENT
CODE NOR DOES ENFORCEMENT OF THE ESCAMBIA COUNTY LAND DEVELOPMENT CODE INTERFERE WITH THE DEANS' PRIVATE PROPERTY RIGHTS AND THEIR RIGHT TO BE FREE FROM GOVERNMENT INTRUSION.

In their brief, the Deans generally assert that there is a conflict between Section 588.01 Florida Statutes (2000), relating to the requirements of a general fence and Section 7.04.00 of the Escambia County Land Development Code, relating to the maximum heights of fences constructed in residential or commercial and industrial districts. (R-13).

The Deans admit their six-foot front yard fence is taller that the four-foot maximum residential height allowed by the Escambia County Land Development Code, in violation of Section 7.04.00, and it was built without a permit from the County, in violation of Section 2.02.00. (R-4, pages 23-24; R-6).
The Deans' reliance on Section 588.01, Florida Statutes (2000) and Davidson v. Howard. 438 So. 2d 899 (Fla. 4th DCA 1983) is misplaced in this context. The Davidson Court was interpreting sections of Chapter 588, Florida Statutes (2000) which relates to legal fences and livestock at large. In that case, the Court decided that the liability the plaintiffs sought to impose for a death, which occurred when a gasoline truck driven by the decedent hit a cow on the state road during the nighttime, had to be visited upon the owner of the cow in question, namely, the legal owner or person having custody of or in charge of the animal, and not the person who was merely the legal owner of the land on which the cow was grazing. It has nothing to do with land development regulations implemented under Part II of Chapter 163, Florida Statutes (2000).

Given that, Section 588.01, Florida Statutes (2000) cannot be in conflict with Section ,R 7.04.00, Escambia County Land Development Code. Section 7.04.00 is an integral part of the Escambia County Land Development Code established pursuant to the Local Government Comprehensive Planning and Land Development Act, set out in Sections 163.3161-163.324§., Florida Statutes (2000). These regulations govern the use of land and insure the compatibility of adjacent uses such as establishing a maximum height for fences in residentially zoned land. See also. §163.3211, F. S. (2000).
The last assertion raised by the Deans in their brief is that their private property rights to be free government intrusion have been violated by the County citing Moorman v. Department of Community Affairs, 626 So. 2d 1108 (Fla. 3rd DCA 1993).

The Moorman case relied upon by the Deans was later quashed and remanded by the Florida Supreme Court in Department of Community Affairs v. Moorman. 664 So. 2d 930 (Fla. 1995). In that case, the Supreme Court determined that landowners do not have an untrammeled right to use their property regardless of the legitimate environmental interests of the state, and the state has a right to use its police power to establish land-use regulations addressing environmental concerns. Id. at 933.

The Court went on to say that the state is given a wide range in exercising its lawful powers to regulate land use for environmental reasons, and any such land-use regulations thus are valid if supported by a rational basis consistent with overall policies of the state. Id. at 933. While the right of due process contained in Art. I, §9, Fla. Const., guarantees the right to enjoy property and, within limits, that right can include decisions regarding the improvement of property such as the type and height of fencing, nevertheless, this personal right does not necessarily supervene the rational concerns of public environmental policy and must give way. The Court explained that due process, in other words, seeks to find a balance between public and private interests, not to make the landowner lord over the state, nor the state lord over the landowner. Id. at 933.

The County, through the Escambia County Land Development Code, has established
such a public environmental policy under its constitutional police powers, which does not impinge the property rights of the Deans specifically here as it pertains to fencing. It created a unified code addressing the rational concerns for the development and use of property that has taken into account the Deans' right to improve their property by fencing; however, such fencing must meet the standards of the Escambia County Land Development Code.

Therefore, for the reasons stated above, the enforcement of land development regulations as it relates to the height of the Deans' front fence is not an arbitrary and capricious unconstitutional restriction of their private property rights through an intrusion by the County.

CONCLUSION

WHEREFORE, for the reasons stated above and on the strength of the authorities cited herein, the Appellee, Escambia County respectfully requests that this Court affirm the decision of the Special Master of the Office of Escambia County Code Enforcement and award Appellee, Escambia County attorney's fees and costs incurred in this appeal.
David G. Tucker
County Attorney
Florida Bar No. : 0701327
Michael C. Godwin
Assistant County Attorney
Florida Bar No.: 0504254
14 West Government Street, Room 411 Pensacola, Florida 32501
(850) 595-4970