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IN THE ESCAMBIA COUNTY CIRCUIT COURT
| ESCAMBIA COUNTY, FLORIDA | ) |
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CASE NO. 00-2027-CA-01A |
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| WARD DEAN AND KUMJA DEAN | ) |
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DEFENDANTS-APPELLANTS’ CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Florida Rules of Appellate Procedure, Defendants-Appellants Ward and Kumja Dean submit this Certificate of Interested Persons/Entities:
Kumja Dean, Defendant-Appellant
Ward Dean, Defendant-Appellant
James M. Messer, Chief Litigation Attorney
G. Thomas Smith, Special Master
STATEMENT OF THE CASE
This case was initiated by a Notice of Violation dated June 6, 2000 and filed by James Martin, Code Enforcement Officer, charging the Appellants Ward Dean and Kumja Dean (hereinafter “the Deans”) had violated a land development code. Specifically, the notice alleged that the Deans violated Land Development Code § 2.02.00 and 7.04.00. The notice also contained language at the bottom of the page that said, “Permit Required for Fences and Maximum Height for Fence in Front Yard is 4’ (Open).
On July 12, 2000 the Deans received from James H. Martin and Charles E. Walker of the Code Enforcement office, a letter, which alleged that the Deans had violated “State Statute(s)/Escambia County Ordinance(s) No. 96-3.” The letter also stated that the Appellants committed a “Land Development Code (L.D.C.) Violation: A. Remove 6’ fence from front yard; B. Abate.”
The Appellant, Ward Dean, in response to the letter of July 12, 2000 wrote a letter dated July 13, 2000 stating that he believed there was a conflict between the State statutes and County ordinance governing fences. (See attached hereto as Exhibit “A”).
A “Petition for Hearing before the Office of Code Enforcement Special Master County of Escambia” was sent to the Deans on or about the 28th day of July 2000. This petition alleged the Deans violated “Escambia County Ordinance 96-3.” (See attached hereto as Exhibit “B”).
On or about July 31, 2000, G. Thomas Smith (hereinafter “Smith”) sent a “Notice of Code Enforcement Special Master Hearing Subpoena to Alleged Violator to Appear at the Said Hearing.” (Exhibit “C”).
On or about August 8, 2000, Ward Dean in a letter (Exhibit “D”) responded to the Subpoena of Special Master G. Thomas Smith requesting the reason why Smith was not following procedures to “initiate a Special Master Hearing . . . specified in . . . Section 5.1 of County Ordinance of 97-60.” Dean also inquired of Smith, as to why Dean had not received a list of three Special Masters to choose from, as required by county ordinance 97-60 § 6.2 so that he might object to any Special Masters on the list. On or about August 11, 2000 Dean, in a letter to Code Enforcement Officer Walker, stated that 15 (b) of S. 70.51 required that “the Special Master must provide notice of the place, date, and time of the hearing to all parties . . . at least 40 days (emphasis added in original letter) prior to the hearing.” The subpoena received from Smith only provided fifteen days notice - not 40 days. (Exhibit “E”).
The hearing was conducted as scheduled on or about August 15, 2000 before Special Master G. Thomas Smith. As a result of the hearing, an order (R6-8) was issued on the 3rd day of October 2000 finding in favor of the Appellees and against the Deans. An Amended Order (R2-4) was issued on or about October 16, 2000 finding that the Deans had violated “Section 7.04.00, Escambia County Land Development Code, Ordinance 96-3, as well as the failure to obtain a permit to construct the fence.” The amended order also changed in pertinent part of paragraph five of the original order to read, “Under authority of § 162.09 (1), F. S. (1995) and Sec. 30.34 (d) of the Code of Ordinances” instead of “[u]nder authority of § 162.09 (1), F. S. (1995) and Sec. 108.5-8 (e) of the Code of Ordinances.”
The change made to the Amended Order in paragraph
five regarding Sec. 108.5-8 (e) of the Code of Ordinances as authority
for actions to be taken by the County was due to the fact that Sec.
108.5-8 (e) does not exist. An explanation for the discrepancies in
the original order and the amended order dated October 16, 2000 was
that the Special Master’s use of Sec. 108.5-8 (e) in the original
order was a “typographical error.” (R5).
A notice of appeal was filed timely on October 25, 2000. On March 2,
2001, the Clerk’s office issued an Index to Record on Appeal.
STATEMENT REGARDING ORAL ARGUMENT
Appellants request oral argument.
STANDARD(S) OF REVIEW
The standard of review applicable to circuit court review of a decision
of an administrative agency is: (1) whether procedural due process was
accorded; (2) whether the essential requirements of law were observed;
and (3) whether the administrative findings and judgment are supported
by competent substantial evidence. See Haines City Community Development
v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).
STATEMENT OF THE ISSUES
I. The charges brought against the appellants were so vague that their
right to due process was violated.
II. The special master did not have lawful authority to conduct a hearing
in the case.
III. There is a conflict between the state statute and the local ordinance,
which nullifies the local ordinance.
IV. The County ordinance and acts of the appellees violated the private
property rights of the Deans and their right to be free from government
intrusion.
SUMMARY OF ARGUMENT
The statutes and ordinances and their application in this case were
so vague that the Deans did not know what charges they were facing nor
how to defend against said charges. Therefore, their Right to Due Process
was violated and these charges must be dismissed.
There is no evidence that the Special Master that heard this case had
any lawful authority to conduct a hearing. That being the case, any
judgments against the Deans are void.
The local ordinance of Escambia County, which this case was based upon,
is in conflict with a state statute. Such conflicts should be resolved
before any charges are brought, and the current charges against the
Deans should be vacated.
The right of the Deans to be free from government intrusion was violated
when the Appellees violated the private property rights.
ARGUMENT
I. THE CHARGES BROUGHT AGAINST THE APPELLANTS WERE SO VAGUE THAT THEIR
RIGHT TO DUE PROCESS WAS VIOLATED.
If legislation, in the form of a statute or ordinance, is vague, open to interpretation which could lead to prosecution for “innocent” conduct; if it is legislation not easily interpreted by reasonable persons and leaves unbridled discretion to police and judicial officers, then it is violative of constitutional standards. Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).
That the ordinances and legislation that the Deans
were prosecuted under were vague can easily be seen in the record and
filings within this appeal. Four letters from different county employees
supplied four different answers to the same question concerning the
ordinance that initiated the administrative hearing on August 15, 2001.
(R13).
The special master, G. Thomas Smith, in a span of seconds cited at least
three different statutes and ordinances during the hearing. (R14). Afterwards
Smith, in his initial order dated October 3, 2000, cited an ordinance
under which he claimed his authority was derived (§ 108.5-8 (e)
of the Code of Ordinances, the Board of County Commissioners) that did
not even exist.
“Words and meanings beyond the literal language may not be entertained nor may vagueness become a reason for broadening a penal statute.” See Perkins v. State, 576 So.2d 1310, 1312 (Fla. 1991). “A penal statute must be written in language sufficiently definite, when measured by common understanding and practice, to apprise ordinary persons of common intelligence of what conduct will render them liable to be prosecuted for its violation.” Perkins, 576 So. 2d at 1312. (quoting Gluesenkamp v. State, 391 So. 2d 192, 198 (Fla. 1980)).
When people of ordinary intelligence must necessarily guess at its meaning and differ as to its application, the statute or ordinance violates the due process clause of the 14th Amendment to the United States Constitution and Article I, Section 9, of the Florida Constitution (1968). Connally v. General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926); State ex rel. Lee v. Buchanan, 191 So.2d 33 (Fla. 1966).
Furthermore Special Master Smith did not provide timely notice of the hearing as was required under 15 (b) of S. 70.51. The protection afforded by the constitutional guarantee of due process of law extends, of course, into every type of legal proceeding. In observing due process of law, the opportunity to be heard must be full and fair, not merely colorable or illusive. Ryan’s Furniture Exchange, Inc. v. McNair, 120 Fla. 109, 162 So. 483 (1935). “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” Baldwin v. Hale, 1 Wall. 223, 233. It is equally fundamental that the right to notice and an opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
For the foregoing reasons, the ruling in favor of Escambia County must be reversed and the charges against Deans must be dismissed.
II. THE SPECIAL MASTER DID NOT HAVE LAWFUL AUTHORITY TO CONDUCT A HEARING IN THE CASE BELOW.
The Special Master that conducted the hearing concerning the property of Ward and Kumja Dean had no lawful authority to do so in two respects. First, there was not a valid contract between Escambia County and G. Thomas Smith pursuant to Ordinance No. 95-9 to act as a Special Master. Secondly, G. Thomas Smith has no oath of office on file pursuant to Title 46 § 876.05 of the Florida Statutes.
Since G. Thomas Smith entered the final judgment on October 16, 2000, the Deans have discovered that the contract between Escambia County and G. Thomas Smith, which originally employed G. Thomas Smith as a Special Master, expired on January 23, 1998. There has been much back and forth between the Deans and different county officials concerning the lack of a contract. As yet there has been no definitive answer supplied by the legal staff or other employees of Escambia County, which explain the manner and means that Smith conducts the business of Escambia County as a Code Enforcement Special Master. A judge who exceeds his office or jurisdiction is not to be obeyed. Jenkins’ Eight Centuries of Reports, English Exchequer, p. 139. A judgment given by one who is not the proper judge is of no force and should not harm any one. 10 Sir Edward Coke’s English King’s Bench Reports, 70.
Title 46 § 876.05 of the Florida Statutes governs the subscribing and filing of public employees oaths and is quite plain:
(1) All persons who now or hereafter are employed by or who now or hereafter are on the payroll of the state, or any of its departments and agencies, subdivisions, counties, cities, school boards and districts of the free public school system of the state or counties, or institutions of higher learning, and all candidates for public office, are required to take an oath before any person duly authorized to take acknowledgments of instruments for public record in the state in the following form:
I, _____, a citizen of the State of Florida and of the United States of America, and being employed by or an officer of _____ and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida.
(2) Said oath shall be filed with the records of the governing official or employing governmental agency prior to the approval of any voucher for the payment of salary, expenses, or other compensation.
Special Master Smith acknowledged that he had an oath of office on file in the administrative hearing. (R14). Inquiries made to county employees by the Deans requesting a copy of Smith’s employee oath have proved fruitless. (Dean letter, December 26, 2000, see attached hereto as Exhibit “F”). These inquiries have been answered by deception and misstatements of facts by employees of Escambia County. (Janet Lander letter, December 28, 2000, see attached hereto as Exhibit “G”). The assumption must be made that Smith’s oath of office, like his contract, does not exist.
Section 2, Article XVI, of the Constitution provides,
so far as it is material here, that “Each and every officer of
this State . . . shall before entering upon the discharge of his official
duties take the following oath of office . . . .” There can be
no doubt that because of this provision, the taking of the official
oath . . . was an indispensable ingredient of the installation in office
which the Constitution required . . . Tappy v. State, 1955.Fl. 233.
The Court of Appeals in Texas felt bound to observe that in a similar
situation, involving an “alternative” municipal Judge who
had never taken the oaths of office, that: “without the taking
of the oath prescribed by the Constitution of this State, one cannot
become either a de jure or de facto Judge, and his acts as such are
void.” Prieto Bail Bonds v. State, 994 S.W.2d 316 (1999).
Due to foregoing, the Special Master had no authority and his acts as such were void; therefore the judgment against the Deans is likewise void.
III. THERE IS A CONFLICT BETWEEN A STATE STATUTE AND THE LOCAL ORDINANCE, WHICH NULLIFIES THE LOCAL ORDINANCE
Assuming, for the sake of argument, that the ordinances, statutes and actions of the Appellees, which allowed the administrative hearing to proceed were not vague. Section 7.04.00, Escambia County Land Development Code (Ordinance 96-3) is in conflict with Florida Statute 588.01, Requirement of General Fences.
In the hearing held on August 15, 2000, Officer Martin stated, “If you go back to Statute 588.01, which is requirements of general fence, it does state that. However, 588 regards (sic) agricultural, horticulture and animal industry.” (emphasis added.)(R22). However, the Florida Court of Appeals’ view of Florida Statute 588.01 is in opposition to Officer Martin’s contention, and in agreement with the assertions of the Deans.
The Court agreed with the essence of the holding in Davidson v. Howard, 438 So.2d 899 (Fla. 4th DCA 1983) that sections 588.01 through 588.11, pertaining to “legal fence” and “legally enclosed” land requirements, have nothing to do with the remaining sections of chapter 588, known as the Warren Act, adopted by the legislature in 1949 as chapter 25236, Laws of Florida (1949). Sections 588.01 through 588.11 were enacted to protect landowners against trespassers. The Warren Act was enacted to impose a duty on owners of livestock to keep their livestock off public roads. Zuppardo v. O’Hare, 487 So. 2d 39 (1986). See Hanson v. Scharber, 749 So.2d 563 (2000).
“The plain meaning of the statutory language is the first consideration.” St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla. 1982). This maxim applies even “where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act . . . .” Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918), quoted in St. Petersburg Bank & Trust Co. v. Hamm (supra) at 1073. Vegas, v. Globe Security and Cigna, 627 So. 2d 76 (1993). A unanimous Florida Supreme Court in Palm Beach County Canvassing Board v. Harris, 25 Fla. L. Weekly S1062 (Fla. Nov. 21, 2000), applied traditional rules of statutory construction to resolve several conflicts and ambiguities in the Florida Election Code. Gore v. Harris, No. SC00-2431 (Fla. 2000) (Shaw, J., concurring).
The general rule is that where the legislature has not defined words or phrases used in a statute, they must be “construed in accordance with [their] common and ordinary meaning.” Donato v. American Tel. & Tel. Co., 25 Fla. L. Weekly S44 (Fla. 2000). “[T]he plain and ordinary meaning of [a] word can be ascertained by reference to a dictionary.” Green v. State, 604 So. 2d 471 (Fla. 1992).
The word “general” is defined as: involving, applicable to, or affecting the whole; 2: involving, relating to, or applicable to every member of a class, kind, or group; 3: not confined by specialization or careful limitation. Merriam – Webster Collegiate Dictionary. ©1997, 1996 Zane Publishing, Inc.
The Courts, the Florida legislature and a college Dictionary have made it plain. Florida Statute 588.01 is the proper statute governing this case. Therefore, the Deans were not in violation of erecting an improper fence and the judgment against the Deans must be vacated.
IV. THE COUNTY ORDINANCE AND ACTS OF THE APPELLEES VIOLATED THE PRIVATE
PROPERTY RIGHTS OF THE DEANS AND THEIR RIGHT TO BE FREE FROM GOVERNMENT
INTRUSION.
“Property rights are woven into the fabric of Florida history.” Shriners Hospitals for Crippled Children v. Zrillic, 563 So.2d 64, 67 (Fla. 1990). So long as the public welfare is protected, every person in Florida enjoys the right to possess property free from unreasonable government interference. Id.
The right of an individual to own and enjoy property is a founding principal upon which our republic was formed. It is the duty of government to protect private property. The Florida Supreme Court understood the doctrine of Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60, to be applicable. “When it is clear that a statute transgresses the authority vested in the legislature by the constitution, it is the duty of the courts to declare the act unconstitutional because they cannot shrink from it without violating their oaths of office. This duty of the courts to maintain the Constitution as the fundamental law of the state is imperative and unceasing” Miami Beach v. Lachman et al., 1953.Fl. 443.
In the Appellate decision on fences in this state, the 3rd DCA, in Moorman v. Department of Community Affairs, held that property owners have a constitutional right to fence their property unless there is a statute narrowly tailored to achieve the state‘s objective of protecting an endangered species—namely, the Key Deer.
The Moorman Court declared that “the exercise of the state’s police power must relate to the health, safety and welfare of the public and may not be arbitrarily and capriciously applied.” Graham v. Estuary Properties, Inc., f399 So 2d 1374, 1377 (Fla.) cert. Denied, 454 U.S. 1083, 102 S. Ct. 640, 70 L.Ed.2d 618 (1981).
The Moorman Court also declared, “When a particular attempted exercise of the police power by a state, or under its authority, passes the bounds of reason and assumes the character of a merely arbitrary fiat, it will be stricken down and declared void.” Carroll v. State, 361 So.2d 144, 146 (Fla.1978).
The Moorman Court asserted that statutes must be narrowly tailored to achieve the state’s objective of protecting the Key Deer [an endangered species] through the least restrictive alternative. See in re Forfeiture of 1969 Piper Navajo, 592 So.2d at 235.
Ordinance LDC 7.04.00, which was used against Appellants because the Home Owners Association’s Covenant of Deeds and Restrictions which compelled certain esthetic standards was known to be without force or effect, is not designed to protect an endangered species, but is arbitrary and capricious and therefore an unconstitutional restriction of property rights.
CONCLUSION
There are four reasons this Order must be reversed and dismissed:
(1) Unconstitutional vagueness of the ordinances and
statutes and the application thereof in this case, thereby denying Appellants
of Due Process;
(2) Lack of lawful authority of the special master
(3) Conflict between an ordinance and a prevailing state statute;
(4) Unconstitutionality of Ordinance 7.04.00, which is arbitrary and
capricious and is not narrowly tailored to achieve the state’s
objective in protecting the rights of an endangered species.
We therefore respectfully request that this Court reverse and dismiss the Order entered against the Appellants.
Respectfully submitted,
Date: April , 2001
________________________
Ward Dean
________________________
Kumja C. Dean
CERTIFICATE OF SERVICE
I hereby certify that I have on the day of April, 2001, placed a true and exact copy of the:
OPENING BRIEF FOR THE APPELLANTS
in the U. S. Mail, first class postage, prepaid, addressed to:
JAMES M. MESSER
Chief Litigation Attorney
Escambia County Attorney
14 W. Government Street,
Pensacola, FL 32501
___________________________
Ward Dean
