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ESCAMBIA COUNTY CIRCUIT COURT
PENSACOLA, FLORIDA

THE BOARD OF COMMISSIONERS OF ESCAMBIA COUNTY, FLORIDA,	)
	)	CASE NO. : 00-2027-CA-01A
Plaintiff-Appellee	)
	)	ADMINISTRATIVE CASE NO.:
v.	)	1999-12-0196
	)
WARD DEAN AND KUMJA C. DEAN	)
	)
Defendants-Appellants	)
	)

DEFENDANT-APPELLANTS MOTION FOR RELIEF FROM
VOID JUDGMENT

COMES NOW Ward Dean and Kumja Dean (the Deans) to move this Honorable Court for relief from a void judgment of this Court issued on June 7, 2002, pursuant to Florida Rule of Civil Procedure 1.150(b)(4). As the basis for this motion the Deans state as follows:

THE ISSUE

The Deans had constructed a fence for protection of their home and family on their property. They were cited by a Code Enforcement Officer. A hearing was held before Special Master G. Thomas Smith, who subsequently found the Deans in violation of Sections 2.02.00 and 7.04.00 of the Escambia County Land Development Code. The Special Master ordered a fine imposed and the removal of the Dean’s fence. This order by the Special Master was appealed to this Court and was upheld. It is significant that this Court stated in its order “The authority cited by Appellant is neither controlling nor persuasive.”
The issue before this Court is whether the Special Master, G. Thomas Smith (hereinafter “Smith”), could rightfully exercise the powers of the office of Special Master without having taken the Oath required under Article II, Section 5(b).

Special Master Smith had not met all the requirements precedent to the exercise of the authority of the office of Special Master, thus his exercise of that authority in the case at bar was not only void, but was a violation of FS 839.18 (Penalty for Officer Assuming to Act Before Qualification).
The ruling by this Honorable Court is therefore void in that Smith had no authority to act as a Special Master, and thus no authority to issue a final ruling, thus depriving this Court of jurisdiction.

JURISDICTION

Pursuant to Florida Statute 26.012(1) this Court has jurisdiction over appeals “from final administrative orders of local government code enforcement boards.” This Court lacked jurisdiction over the instant case due to the fact that there was no final ruling from a bona fide Special Master as will be demonstrated infra.

THE LAW

The Florida Constitution of 1968 at Article II, Section 5(b), is as follows:
(b) Each state and county officer, before entering upon the duties of the office, shall give bond as required by law, and shall swear or affirm: "I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the state; and that I will well and faithfully perform the duties of (title of office) on which I am about to enter. So help me God.", and thereafter shall devote personal attention to the duties of the office, and continue in office until his successor qualifies. (Emphasis added.)

ARGUMENT

In the case of Holloway v. Sheats, 83 So. 508, 78 Fla. 583 (Fla. 1919) the court was faced with determining whether the authority and duties of a Rural School Inspector were those of an office holder (thus requiring the Constitutionally mandated oath), or merely employees. The court stated:

The term "office" implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office, while an "employment" does not comprehend a delegation of any part of the sovereign authority. The term "office" embraces the idea of tenure, duration and duties in exercising some portion of the sovereign power, conferred or defined by law and not by contract. An employment does not authorize the exercise in one's own right of any sovereign power or any prescribed independent authority of a governmental nature; and this constitutes perhaps the most decisive difference between an employment and an office, and between an employee and an officer. See State ex rel. Clyatt v. Hocker, 39 Fla. 477, 22 South. Rep. 721, 63 Am. St. Rep. 174; Montgomery v. State, 107 Ala. 372, 18 South. Rep. 157, 159; State ex rel. Barnhill v. Thompson, 122 N.C. 493, 29 S.E. Rep. 720; McCormick v. Pratt, 8 Utah 294, 30 Pac. Rep. 1091, 17 L.R.A. 243 and notes; 22 R.C.L. p. 380; Attorney General v. Tillinghast, 203 Mass. 539, 89 N.E. Rep. 1058, 17 Ann. Cas 449; Groves v. Barden, 169 N.C. 8, 84 S.E. Rep. 1042, Ann. Cas. 1917 D 316 notes; 22 R.C.L. 374, 381.

Some officers are merely clerical or ministerial; but they are useful in enforcing the powers conferred on other officers or tribunals, and they are usually designated as offices by the law and have features of tenure and duration and of duties prescribed by law, which differentiate an office from a mere employment. (Emphasis added.)

When examined in light of the criteria in Holloway, it can be determined that Smith is an office holder.

Escambia County created the office of Special Master at Section 30-31 of the County’s Land Development Code:

Sec. 30-31. Office of code enforcement special master. (In pertinent part)

In order to promote, protect and improve the health, safety and welfare of the citizens of the county, the board of county commissioners hereby creates the office of code enforcement special master … (Emphasis added)

Smith occupies the Office of Special Master, so defined by the county commissioners upon the creation of said office. Smith exercises the authority of the sovereign, and his duties are defined by law (Escambia County Land Development Code Sec. 30-32 continued): who shall have the authority to hold hearings and impose administrative fines and other noncriminal penalties and otherwise provide an equitable, expeditious, effective, and cost-effective method of enforcing the codes and ordinances in effect in the county where code violations exists. The authority to establish code enforcement through the office of special master has been authorized by F.S. § 162.03, specifically, and F.S. ch. 162, pt. I, generally. Code 1985, § 1-8.5-6) (Emphasis added)

Smith’s “’office’ embraces the idea of tenure, duration and duties in exercising some portion of the sovereign power, conferred or defined by law and not by contract.” Holloway, supra. Smith has no contract under which his duties and authority are defined --his duties are defined by Escambia County Code and Florida Statute.

Smith is not an employee of the county:
Sec. 30-32. Authority and qualifications (in pertinent part)

(b) ….. Special Masters shall be compensated for their services but shall not otherwise be employees of the county.

Smith is exercising some portion of the sovereign power, conferred or defined by law and not by contract.

Sec. 30-32. Authority and qualifications.

(a) The board of county commissioners shall designate one or more special masters who shall have the authority to hold hearings and assess fines against violators of county codes and ordinances. A designee of the county’s neighborhood improvement division shall serve as ex officio clerk and records custodian to all special masters. Each special master shall have the authority to:

(1) Subpoena alleged violators and witnesses to hearings through service by the sheriff of the county;

(2) Subpoena evidence to hearings:

(3) Take testimony under oath or affirmation;

(4) Issue orders having the force of law to command whatever steps necessary to bring a violation into compliance; and

(5) Adopt rules for conduct at hearings,

However, no special master shall have the power to initiate enforcement proceedings. (Emphasis added)

The primary authority for Smith’s exercise of power is derived from Florida Statute 162.03. Applicability.--

(1) Each county or municipality may, at its option, create or abolish by ordinance local government code enforcement boards as provided herein.

(2) A charter county, a noncharter county, or a municipality may, by ordinance, adopt an alternate code enforcement system which gives code enforcement boards or special masters designated by the local governing body, or both, the authority to hold hearings and assess fines against violators of the respective county or municipal codes and ordinances. A special master shall have the same status as an enforcement board under this chapter. References in this chapter to an enforcement board, except in s. 162.05, shall include a special master if the context permits. (Emphasis added.)

It is clear that Special Master Smith is an office holder (County Officer) for purposes of the law, the same as any other appointed official. Further, he wields the authority of the sovereign, in the case at bar, Escambia County.
Special Master Smith, as an office holder and officer of Escambia County, is required to take the Oath prescribed by Article II, Section 5(b) of the Constitution of the State of Florida prior to any exercise of the authority of his office.

In the case of Blackburn v. Brorein, 70 So. 2d 293 (Fla. 1954) suit was to obtain a judicial determination as to the status of deputy sheriffs and particularly whether or not they were employees or officers, and if employees, whether they were employees of the sheriff, or employees of the county. The court stated:

The fallacy of the theory advanced by the appellees is that there can be no officer unless he is elected by the people or appointed by the Governor, as provided for by Section 27 of Article III of the State Constitution. The election by the people or the appointment by the Governor is not the true test in determining whether or not an office exists and the individual filling the position is an officer or an employee.

In the case of State ex rel. Clyatt v. Hocker, 39 Fla. 477, 22 So. 721, 723, this Court cited many cases and then summarized the definitions and essential elements of the term office" as follows:

"The term "office" implies a delegation of a portion of the sovereign power to, and possession of it by, the person filling the office; a public office being an agency for the state, and the person whose duty it is to perform the agency being a public officer. The term embraces the idea of tenure, duration, emolument, and duties, and has respect to a permanent public trust to be exercised in behalf of government, and not a merely transient, occasional, or incidental employment.'"

To recap: Smith occupies the permanent office of Special Master. Special Masters have the authority to set hearings, issue subpoenas, take testimony under oath or affirmation, assess fines, and issue orders having the force of law to command whatever steps necessary to bring a violation into compliance. Should Smith die, or resign, the office would continue under a new appointee.

In the case of Treasure v. State Beverage Department Florida, 238 So. 2d 580 (Fla 1970) The Supreme Court of Florida determined whether a public official could exercise the authority of his office prior to having sworn the oath of office, and the oath required by the Constitution of the State of Florida of 1885 in Section 2. The oath was as follows:

Section 2. Each and every officer of this State, including the members of the Legislature, shall before entering upon the discharge of his official duties take the following oath of office: I do solemnly swear [or affirm] that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the State, and that I will well and faithfully perform the duties of _____________ on which I am now about to enter. So help me God. (Emphasis added, not in original.)

The oath is distinguishable from the current oath in the Constitution of 1968 at Article II, Section 5(b), only in that the current oath, as prescribed, includes county officers also, as follows:

(b) Each state and county officer, before entering upon the duties of the office, shall give bond as required by law, and shall swear or affirm: "I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the state; and that I will well and faithfully perform the duties of (title of office) on which I am about to enter. So help me God.", and thereafter shall devote personal attention to the duties of the office, and continue in office until his successor qualifies

It is a ruling that is both on point, and controlling. The court, in restating the contention of Treasure, stated:

Treasure, Inc.'s position is that a state officer appointed to exercise sovereign state powers on a temporary basis pursuant to Florida Statutes Section 120.09(2), F.S.A. must have been formally commissioned and have taken an oath of office as required by Article IV, Section 14, and Article XVI, Section 2, of the 1885 Florida Constitution. We agree.

Further, as the court was ruling on a case arising from the Constitution of 1885, and the 1968 revised Constitution was now in effect, it noted at footnote 6:
*fn6 The 1968 Revision's equivalent requirement that public officers take an oath of office is found in Article II, Section 5(b), which reads as follows:

"Each state and county officer, before entering upon the duties of the office, shall give bond as required by law, and shall swear or affirm: 'I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the state; and that I will well and faithfully perform the duties of (title of office) on which I am now about to enter. So help me God.' "and thereafter shall devote personal attention to the duties of the office, and continue in office until his successor qualifies." (Emphasis added, not in original.)

The State authorized the creation of the position of Special Master, and Escambia County exercised its option to do so through its creation of the office of Special Master. Recalling the words of the court in Treasure, it is clear that G. Thomas Smith was a county officer appointed to exercise sovereign county powers, thus subject to the taking of the oath prior to the exercise of the authority of his office over the Deans.

In the particular matter for which the Substitute is appointed to temporarily serve he necessarily exercises all powers and authority of the office that would ordinarily be exercised by the disqualified official. It is inconceivable that such an office holder should fill the office and exercise the sovereign powers of the [County] without having had such authority conferred upon him in the same manner as the permanent office holder.

In the case of Burnett v. Greene, 144 So. 205, 105 Fla. 35, (Fla. 1931) the court stated “Even in such cases jurisdiction must appear by the record and everything will be presumed to be without the jurisdiction which does not distinctly appear to be within it.”

CONCLUSION

The Deans timely questioned Special Master Smith’s taking of the oath. The record in the case at bar is devoid of any evidence of Smith’s having taken the oath prior to the exercise of the authority of his office over the Deans. Therefore, Smith’s exercise of the authority of the office of Special Master was void, as was his “final ruling.” Thus depriving this Court of jurisdiction.

WHEREFORE, appellants move this Honorable Court to vacate its finding as a void judgment and remand the case at bar to the county for hearing before a Special Master who has met all the conditions precedent to the exercise of his/her authority.

Janet Lander
Escambia County Attorney
14 W. Government Street,
Pensacola, FL 32501