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IN THE COUNTY COURT
IN AND FOR ESCAMBIA COUNTY, FLORIDA
| Ward Dean, M.D. and Kum Ja C. Dean | ) |
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Case No: 2003-cc-1618 IV |
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| Chief, | ) |
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| Environmental Enforcement Division, | ) |
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| Escambia County |
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JURISDICTION
Plaintiff, Dr. Ward Dean, (hereinafter Dr. Dean) is a resident within the jurisdiction of this Court. Defendant, Escambia County, is a political entity within the jurisdiction of this Court. This Court has jurisdiction pursuant to Florida Statute 34.01(1)(b).
PETITION FOR DECLARATORY RELIEF
1. This is an action for declaratory judgment pursuant to Florida Statutes §86.011.
2. Plaintiffs, Ward Dean, M.D. and Kumja Dean, are homeowners in Escambia County, Florida.
3. Defendant, Escambia County, under claim and color of governmental authority, administers the zoning codes and their enforcement in the unincorporated areas of Escambia County, Florida.
4. Plaintiffs sought to protect their home, property and family (two young children) through construction of a fence reasonably calculated to deter a burglar or vandal.
5. Plaintiffs constructed a six foot tall wrought iron style fence around their property.
6. Defendants have alleged that their regulation, Section 7.04.00, Escambia County Land Development Code, Ordinance 96-3, only permits Plaintiffs to erect a decorative fence no taller than four feet in height.
7. Defendant Escambia County has imposed a lien upon Plaintiff's property and a daily recurring fine on Plaintiffs, until Plaintiffs remove their fence.
COUNT I
Paragraphs 1 through 7 are incorporated herein by reference.
8. Plaintiffs built their fence according to the Florida Statute governing protecting property from trespass. Florida Statute 588.01(in pertinent part) states:
“Requirements of general fence.--All fences or enclosures of land shall be substantially constructed, whether with rails, logs, post and railing, iron, steel, or other material, and not less than 5 feet high; . . . . ”
9. Defendants have alleged that their regulation, Section 7.04.00, Escambia County Land Development Code, Ordinance 96-3, overrules the state statute and only permits Plaintiffs to erect a decorative fence no taller than four feet in height.
10. Plaintiffs contend the ordinance is unlawful and unconstitutional in that it conflicts with state statute, attempts to regulate an area previously regulated by the state.
11. Plaintiffs need their rights declared as to whether the Escambia County ordinance conflicts with, is repugnant to, and is overruled by, Florida statute.
COUNT II
Paragraphs 1 through 7 are incorporated as though fully set forth herein.
12. Concerning a citizen’s basic rights, Article I, Section 2 of the Florida Constitution (in pertinent part) states:
“All natural persons . . . have unalienable rights,
among which are the right to enjoy and defend life and liberty . . .
and to acquire, possess and protect property; . . . .”
(Italic emphasis added)
13. The construction by Plaintiffs of a six foot tall, wrought iron style fence is authorized by, and consonant with, their unalienable right to protect property, as acknowledged in the Florida Constitution.
14. Section 7.04.00, Escambia County Land Development Code, Ordinance 96-3 denies Plaintiffs the right to exercise their unalienable right to defend the lives of their family and protect their property under the laws and Florida Constitution, and thus is repugnant to that right and the Florida Constitution.
15. Plaintiffs need their rights declared as to whether they have an unalienable right to construct and maintain their fence to protect their family and property under the Florida Constitution.
COUNT III
Paragraphs 1 through 7 are incorporated as though fully set forth herein.
16. Defendant subpoenaed the Plaintiffs to a hearing before G. Thomas Smith (“Smith”), who defendant alleged was a Special Master.
17. Defendant alleged Smith was employed by Escambia County in the position of Special Master to preside over zoning hearings.
18. Defendant alleged Smith acted as a Special Master for Escambia County.
19. Defendant alleged Smith was exercising the authority of Escambia County.
20. Smith, at all times mentioned herein, had no oath of office on file in accordance with Florida Constitution, Article II, Section 5(b).
21. Smith, at all times mentioned herein, had no oath of office on file pursuant to Title 46 § 876.05 of the Florida Statutes.
22. Smith, at all times herein mentioned, had no legal contract with Escambia County to provide such services at the time of the hearing in question.
23. Plaintiffs need their rights declared as to whether Smith had authority to preside over a hearing with regard to the fence Plaintiffs built, without having an oath on file as required by law, nor having a valid contract authorizing him to act as a Code Enforcement Special Master.
24. Pursuant to a ruling by Smith, Defendant Escambia County has imposed a lien upon Plaintiff's property, costs and a daily recurring fine on Plaintiffs that continues so long as Plaintiffs continue to allow their fence to stand.
25. Plaintiffs and Defendant have a controversy as to whether Plaintiffs have immunity from the application of the ordinance. Plaintiff believes the ordinance is unconstitutional, or unconstitutional as applied, as being in vio1ation of his rights under the Constitution and laws of the State of Florida as cited above.
26. Defendant believes it may, and continues to, enforce Ordinance 96-3.
27 Thus there is a controversy that needs to be settled
as to:
1) Escambia County’s attempt to limit a fence built by Plaintiffs
to less than that required by state law;
(2) The unalienable right, recognized by the Florida Constitution, that
Plaintiffs have to construct a fence tall enough, in compliance with
Florida Statute 588.01, to protect their family and property; and
(3) Escambia County’s right to enforce the rulings of G. Thomas
Smith (who, as a matter of law, was not qualified to preside over the
hearing).
WHEREFORE, Plaintiffs requests judgment declaring:
The Escambia County ordinance conflicts with the Florida
Constitution,
The Escambia County ordinance conflicts with the laws of Florida,
The hearing by Smith, and any consequences thereof, to be null and void,
and
The fence constructed by Plaintiffs is lawful.
Respectfully submitted,
_____________________________
Ward Dean, M.D. Kumja C. Dean
