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IN THE FIRST DISTRICT COURT OF APPEAL
_____________________________________________________________
CASE NO. 1D02-3095
CIRCUIT COURT Case No. 00-2027-CA-01A
ADMINISTRATIVE CASE NO.: 1999-12-0196
_____________________________________________________________
THE BOARD OF COMMISSIONERS
OF ESCAMBIA COUNTY, FLORIDA,
Plaintiff-Appellee
v.
WARD DEAN, M.D., AND KUMJA C. DEAN
Defendants-Petitioners
_____________________________________________________________
ON APPEAL FOR WRIT OF CERTIORARI
FROM THE CIRCUIT COURT OF ESCAMBIA COUNTY
OFFICE OF CODE ENFORCEMENT SPECIAL MASTER IN AND FOR THE COUNTY OF ESCAMBIA,
STATE OF FLORIDA
G. THOMAS SMITH: SPECIAL MASTER
_____________________________________________________________
PETITION FOR REHEARING
_____________________________________________________________
Ward Dean, M.D.
Kumja C. Dean
ARGUMENT
This Court should grant rehearing under the doctrine of “capable
of repetition, yet evading review” as stated in Times-Union v.
State, 747 So.2d 1030 (1st DCA 1999). In the case at bar the order of
the Special Master hearing Petitioner’s case contained NO findings
of fact, or conclusions of law addressing the issues raised by the Petitioner.
The reviewing court issued a per curiam opinion which affirms the Order
of the Special Master. This Court did likewise. This raises the question
as to how the Special Master, the reviewing court, or this Court determined
that the findings of fact (nonexistent) or conclusions of law (unstated)
could have been properly arrived at since there is no memorandum from
which to make such a review.
The Circuit Court was presented with issues upon which the Special Master was incapable of ruling in that they addressed the jurisdiction and qualifications of the Special Master himself and were not before him. The constitutionality of a statute is also a judicial, not administrative matter. This leads to the inescapable conclusion that the issues raised by the Petitioner were never reviewed, much less addressed.
Those issues were:
1. The Special Master had no lawful authority to perform any function in this case. First, he failed to fulfill the requirements of law by taking the Oath required by the Constitution of the State of Florida, and law of the State of Florida prior to executing his duties of wielding the power and authority of a governmental body of the State of Florida. Furthermore, the Special Master's contract had expired a year and a half prior to the Hearing and had not been renewed. Thus, he lacked jurisdiction to render an order of any kind--short of recusal--in the case at bar.
2. The Petitioners were deprived of the right to due process of law by the failure of Escambia County to grant Petitioner a meaningful hearing by a lawfully appointed and empowered official. This issue was not addressed by the Circuit Court, this Court, nor the Special Master. Therefore, it cannot be presumed to have been ruled upon by a per curiam opinion of the Circuit Court or this Court affirming the Order of the Special Master.
3. Neither the Special Master nor the Circuit Court ruled upon the issue of the constitutionality of the Escambia County fence ordinance which conflicted with the governing state statute.
4. Both the Special Master and the Circuit Court failed to apply the correct standard of law, the compelling state interest test, to the Petitioners’ claim of protection under Article I, Section 23, Right to Privacy of the Florida Constitution, as did this Court in affirming the Special Master’s Order.
5. Both the Special Master and the Circuit Court failed to apply the correct standard of law, the compelling state interest test, to the Petitioner’s claim of protection under Article I, Section 2, Basic Rights (to protect and enjoy property) of the Florida Constitution, as did this Court in affirming the Special Master’s Order.
6. Both the Special Master and the Circuit Court failed to apply the correct standard of law, the compelling state interest test, to the Petitioner’s constitutional claim of Equal Protection Under the Law in that commercial property owners are allowed a higher fence to protect their ordinary property--which has not nearly the value (dollar or otherwise) of a family’s lives and safety.
7. Both the Special Master and the Circuit Court failed to address the inapplicability of Escambia County’s ordinance governing fences to the Petitioners' fence. Petitioners' fence was not of a type enumerated in the ordinance. The ordinance is unambiguous in its language, and does not include the type of fence erected by the Petitioners.
CONCLUSION
In each of the above cited questions is an issue of law that goes unaddressed by the ruling of the Special Master, the District Court and this Court. Per curiam affirmations of the Order of the Special Master is indicative of an abject failure by the courts to review the issues presented, particularly in light of the fact that this Petition for Certiorari was unopposed, thus leaving no alternative argument for this Court to consider. Failure to address and rule upon each of these substantive issues is a most egregious dereliction of duty, and deprivation of the Petitioners’ right to redress and due process under our system of law. Each of these issues is capable of repetition and evasion of review as long as the courts choose to affirm orders that fail to address the matters of substantive law presented to them. The Petitioners’ issues are not frivolous, nor are they raised to waste the valuable time of this honorable Court. They are based upon the most sacred of principles of this state and nation: proper jurisdiction and constitutional protections.
The confirmation of the Order of the Special Master, itself lacking in jurisdiction or any justification, either factually, or legally, is no less than government by fiat. Petitioner’s arguments and claims of protection have been swept aside under the rule of “Because we said so.” This is a sad period in the history of the State of Florida when the rule of law means nothing. Perhaps it is indicative of the power of big government and the powerlessness of the citizen in this day and age.
It is the Prayer of Petitioners that with this petition for rehearing this Court will recognize the failures of the system to date and grant Certiorari.
Respectfully submitted,
Date: December __, 2002
________________________
Ward Dean, M.D.
________________________
Kumja C. Dean
Certificate of Service
I certify that a on this _____ day of ___________, 2002, copy of this Petition for Rehearing has been sent by U.S. Mail or hand delivered to:
Michael C. Godwin, Assistant County Attorney, 14 West Government Street, Pensacola, Florida 32501
G. Thomas Smith, Office of Code Enforcement Special Master, 1190 West Leonard Street, Suite 5, Pensacola, Florida 32501
Judge Nickolas Geeker, Judge of the Circuit Court, 190 Governmental Center, Pensacola, Florida 32501
Ward Dean, M.D.
Pro Se
I certify that font requirements of FRCP Rule 9.210(a) have been complied
with in the foregoing Petition.
Ward Dean, M.D.
Appellant, Pro Se
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