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Hearing on July 21, 2004
IN THE CIRCUIT COURT
IN AND FOR ESCAMBIA COUNTY, FLORIDA
THE BOARD OF COMMISSIONERS
OF ESCAMBIA COUNTY, FLORIDA,
Plaintiffs,
vs. CASE NO.: 00-2027-CA-01A
ADMINISTRATIVE CASE NO:
1999-12-0196
WARD DEAN and KUMJA C. DEAN,
Defendants.
The above-entitled cause came on for hearing
before the Honorable Nickolas P. Geeker, at the M.C.
Blanchard Building, 190 Governmental Center, on Tuesday, the
21st day of July, 2004, commencing at 1:30 p.m., before
Linda V. Crowe, Court Reporter and Notary Public.
APPEARANCES
FOR THE PLAINTIFF: CHARLES PEPPLER, ESQUIRE
Chief Litigation Attorney
Escambia County Attorney's Office
14 West Government Street, Room 411
Pensacola, FL 32501
FOR THE DEFENDANT: WARD DEAN, M.D.
KUMJA C. DEAN
page 2
1 P R O C E E D I N G S
2 THE COURT: We're here on a petition that's
3 been filed post appeal seeking relief from a
4 judgment, so, Dr. Dean, I'll let you proceed.
5 DR. DEAN: Yes, sir, as you said, we're here to
6 obtain relief from a judgment, which I believe is a
7 void judgment. The reason it is void is that
8 Special Master Smith, who acted in the case, did not
9 have an oath of office on file as required by the
10 Florida Supreme Court in accordance with the
11 Constitution of Florida.
12 THE COURT: This was raised both below in
13 proceedings, was it not, when you appealed the
14 adverse decision of the Code Enforcement Board?
15 That was a similar issue?
16 DR. DEAN: Sir, that was one of a number of
17 issues.
18 THE COURT: Right. And this Court denied
19 relief and then you took an appeal to the 1st DCA.
20 They considered it and denied your relief; is that
21 correct?
22 DR. DEAN: That's correct, yes.
23 THE COURT: All right.
24 DR. DEAN: The issue here, however, is whether
25 this Court had jurisdiction to rule on the issue in
page 3
1 the first place. That was because this Court has
2 jurisdiction to rule on final orders by enforcement
3 boards. In this case, I hold that there was no
4 final order, because Special Master Smith had not
5 qualified for his office prior to assuming the
6 office. He had not taken his oath of office and was
7 acting under an expired contract.
8 Now, in order to have real authority in
9 Florida, as opposed to apparent authority, the
10 Florida Supreme Court--in two different, really
11 landmark decisions, one in 1970, that was the
12 Treasure versus the State Beverage Department, and
13 the second was Holloway versus State. That's a 1977
14 decision. I have copies of both of those cases
15 here, Your Honor.
16 THE COURT: Thank you.
17 DR. DEAN: And in both of these cases the
18 Supreme Court ruled that without the oath of office,
19 any action taken by the de facto officer was
20 null and void. Now, Your Honor, here is a sample of
21 a valid oath of office. In fact, it's your oath of
22 office. This is in accordance with both of these
23 Supreme Court cases and with the Constitution of
24 Florida, on file with the Secretary of State as
25 required by law. Now, when I tried to obtain
page 4
1 Special Master Smith's oath of office, I asked
2 specifically during the hearing -- and here's a
3 transcript of the hearing, Your Honor, where I
4 specifically asked Special Master Smith whether he
5 did, in fact, have an oath of office on file and he
6 answered, "Yes, I do."
7 Now, when I went to the Clerk of the Court to
8 obtain a copy of his oath, I received an E-mail
9 from Patricia Cotton of the Clerk of the Court
10 stating that Special Master Smith had not taken an
11 oath of office and, also, that his contract with the
12 County had expired. It was a two-year contract. It
13 had expired a year and a half prior to the hearing,
14 and had not been renewed.
15 Mr. Peppler, I'll get you a copy of that
16 E-mail.
17 MR. PEPPLER: That's all right. I have it.
18 DR. DEAN: I did obtain a copy of the contract
19 that states specifically the requirements that it
20 was limited to two years and that it needed to be
21 replaced by a document of equal or greater legal
22 standing. There has been no subsequent document
23 to replace that contract.
24 Therefore, I believe that Special Master Smith
25 was acting completely without a shred of authority
page 5
1 to act in this case. Since there was
2 no valid lawful order, it is a void judgment
3 and, therefore, this Court had no jurisdiction.
4 I request respectfully that this case -- that the
5 decision in the case be vacated and that it be sent
6 back to a Special Master who has lawful authority to
7 rule in this case.
8 THE COURT: All right. Mr. Peppler.
9 MR. PEPPLER: Yes, Judge, just for the record,
10 Charles Peppler. I'm chief litigation attorney for
11 the Escambia County Attorney's Office.
12 I also have some case law. I just want to make
13 the same point that you made in the form of a
14 question that this issue has been decided at three
15 levels adversely to Dr. Dean. Special Master Smith
16 rejected his argument that he was without
17 jurisdiction or without authority to rule on the
18 code enforcement violation. Your Honor made the
19 same ruling when you denied the petition for writ of
20 certiorari, and the First District Court of Appeal
21 made the same decision when it denied Dr. Dean's
22 appeal from the denial of writ of certiorari, so the
23 motion for relief from judgment is just basically a
24 rehash of those three arguments that he's made at
25 three different levels and is really just disguised
page 6
1 as a motion for rehearing. I have two decisions,
2 one from the Florida Supreme Court, and that's
3 Curbelo versus Ullman, which I'll provide a copy to
4 Your Honor and to Dr. Dean, in that the motion
5 for -- a motion for relief from judgment under Rule
6 1.540(B) is not intended as a substitute for a
7 motion for a rehearing or an appeal. It's merely to
8 raise those grounds set forth in that rule.
9 The other decision that I would like to cite
10 for Your Honor is Metropolitan Dade County versus
11 Certain Lands Upon Which Assessments Are Delinquent.
12 Again, this stands for the same proposition. I'll
13 provide a copy to Dr. Dean with pertinent portions
14 of opinion highlighted in that the trial judge
15 cannot, because he believes that there's been a
16 mistake of law, sua sponte or on its own grant
17 relief from a judgment that has been properly
18 entered and the time for a motion for rehearing or
19 appeal has expired.
20 Although Dr. Dean sincerely disagrees with the
21 decisions of Special Master Smith, with this Court
22 and with the First District Court of Appeal, the
23 fact that he believes that all three of those forums
24 made mistakes regarding his belief that Special
25 Master Smith didn't have proper authority to make
page 7
1 his ruling, does not give him the grounds to bring
2 this motion under our rules and case law.
3 Finally, Judge, I want to cite to you the case
4 of Verdi -- that's V-E-R-D-I -- versus Metropolitan
5 Dade County. That's a Third District Court of
6 Appeal case -- and I'll give a copy to Dr. Dean with
7 the appropriate highlighting -- and this case stands
8 for the proposition that a county under our Florida
9 Constitution has the right to set up a code
10 enforcement board or proceeding as long as it is
11 quasi-judicial in nature. And there the Court held
12 that because Dade County had decided to use hearing
13 officers to decide code enforcement violations, that
14 that was not an unconstitutional procedure nor did
15 it violate the separation of powers that are set
16 forth in our Florida Constitution and there was no
17 requirement under Dade County's scheme of things
18 that the hearing officer take any type of oath, and
19 the hearing officer could hear evidence, make
20 rulings and decide whether civil penalties in the
21 form of fines and costs could be imposed, and the
22 Court said that was perfectly legal and
23 constitutional under our Florida Constitution for a
24 county to set up a code enforcement scheme such as
25 that.
page 8
1 Even if Your Honor were to get beyond the fact
2 that this motion is improper and illegal, if Your
3 Honor were to look at the way that we've set up our
4 code enforcement proceedings, the fact that Mr.
5 Smith may not have a written contract or he may not
6 have taken an oath of office does not take away from
7 the fact that our procedure would have passed
8 constitutional muster that our code enforcement
9 proceeding set up a hearing officer system and
10 because it's quasi-judicial in nature, there's no
11 need for Special Master Smith to take any type of
12 oath of office.
13 THE COURT: All right. Dr. Dean, your
14 response.
15 DR. DEAN: Yes, sir. I respectfully disagree,
16 of course. I don't have a problem with the
17 establishment of a Special Master quasi-judicial
18 system as long as the law is followed, but I think
19 the law is pretty clear here as exemplified by the
20 Treasure and the Holloway cases. The Holloway case
21 was one in which a police officer arrested an
22 alleged rapist/kidnapper outside his police
23 jurisdiction. However, he also happened to be a
24 county deputy sheriff, but he had never taken the
25 oath of office of a deputy sheriff, and the Supreme
page 9
1 Court saw fit to reverse the charges against the
2 alleged rapist/kidnapper because the Supreme Court
3 felt that it was that important -- that that public
4 officer's oath of office was that important.
5 Now, in this case, Mr. Smith is clearly a public
6 officer -- and I think the Constitution and the
7 Treasure and the Holloway cases are clear on this
8 point, that public officers must take an oath of
9 office, that without that oath of office every
10 action they take is null and void.
11 THE COURT: The problem here, Dr. Ward -- I
12 mean, Dr. Dean, as I mentioned to you before, is
13 this issue was brought before me when you first
14 filed the application for certiorari review and then
15 on pages eight and nine when you presented it to the
16 1st DCA, one of your issues for review was that the
17 Special Master did not have lawful authority to
18 conduct a hearing in the case below and your
19 argument was twofold. First, that there was not a
20 valid contract between Escambia County and Mr. Smith
21 and, secondly, that Mr. Smith had no oath of office
22 on file. So it was again reviewed by another
23 judicial tier, and that argument was found not to be
24 persuasive and not to have merit.
25 So you come back again for the Court to revisit
page 10
1 issues or an issue that's already been twice heard
2 and there is no jurisdictional basis. There's got
3 to be some finality to these proceedings and you're
4 procedurally barred from relitigating the same issue
5 in this Court again that has previously been
6 considered by both myself and the appellate court.
7 I note that in the 1st DCA that once the
8 appeal -- a decision was rendered, you sought a
9 rehearing there and, again, they denied your
10 request.
11 So I must say to you, I understand your
12 disagreement with this Court's ruling and that of
13 the appellate court, but you just can't keep coming
14 back every so often in hopes, I guess, that the
15 Court for some reason will change its mind. The
16 Court feels that under the law and cases you cited
17 that there are some distinctions that make those
18 cases you cited different than what is applicable
19 here. And I'm not going to reach the merits of the
20 case that Mr. Peppler cited, because I feel
21 procedurally you're not entitled to have this Court
22 consider the matter further. And I understand your
23 dissatisfaction with my ruling, that of the Special
24 Master and that of the 1st DCA, but all I can advise
25 you is I'm going to deny your request for a
page 11
1 rehearing, advise also that you will have 30 days in
2 which to appeal this Court's failure to rehear or
3 grant rehearing on the matter, and then you can take
4 it back up to the 1st DCA. But as I said, you will
5 need to do so in a timely fashion, file your notice
6 of appeal within 30 days.
7 MR. PEPPLER: Judge, this is on a motion for
8 relief from judgment; you're denying that?
9 THE COURT: Yes, the motion for relief from
10 judgment, because, as I've recounted, essentially,
11 this is just an attempt to rehear matters that have
12 already been considered by this Court and there's no
13 legal bases or basis that exist for this Court to
14 grant relief from judgment.
15 You will prepare the order and in the order
16 recite that Dr. Dean was advised of his right to
17 appeal this Court's adverse ruling and let him have
18 a copy to look at before I sign it.
19 MR. PEPPLER: All right.
20 THE COURT: Okay.
21 MR. PEPPLER: Thank you, Judge.
22 THE COURT: Thank y'all.
23 DR. DEAN: Your Honor, if I may, just one final
24 comment. In all the decisions that have been
25 rendered in this case, and you've gone through all
page 12
1 these various decisions, each one has been one or
2 two words. I've raised some very significant basic
3 fundamental issues, backed these up with solid court
4 cases, yet not one of my issues has ever been
5 addressed in any of the responses that I've received
6 from any of the courts, from Special Master Smith,
7 from this Court and from the Court of Appeals, and I
8 think considering the damages that I've incurred in
9 this that I at least deserve a substantive response
10 that explains why I'm wrong.
11 THE COURT: Well, I tried to in a very terse
12 way to explain to you that I considered your cases
13 and those raised in opposition to that, in reading
14 them, just find that they are inapposite and are not
15 controlling. I guess you can make the same request
16 to the 1st DCA when, you know, you make application
17 or petition them for further review.
18 All right.
19 MR. PEPPLER: Thank you.
20 (The hearing concluded at 1:45 p.m.)
21
22
23
24
25
13
1 CERTIFICATE OF REPORTER
2
3 STATE OF FLORIDA
4 COUNTY OF ESCAMBIA
5
6 I, LINDA V. CROWE, Court Reporter and Notary
7 Public at Large in and for the State of Florida, hereby
8 certify that the foregoing Proceedings, Pages
9 2 through 11 both inclusive, comprise a full, true, and
10 correct transcript of the proceeding; that said proceeding
11 was taken by me stenographically, and transcribed by me as
12 it now appears; that I am not a relative or employee or
13 attorney or counsel of the parties, or relative or employee
14 of such attorney or counsel, nor am I interested in this
15 proceeding or its outcome.
16 IN WITNESS WHEREOF, I have hereunto set my hand
17 and affixed my official seal this 27th day of July, 2004.
18
19
20
LINDA V. CROWE, COURT REPORTER
21 Notary Public - State of Florida
My Commission No.: CC994993
22 My Commission Expires: 02-05-05
23
24
25
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