"Terrorism in Scenic Hills"

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"We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of human history, the stage of rule by brute force." -- [Ayn Rand, The Nature of Government]

For more information about the latest in Scenic
Hills, go to http://ScenicHills.freewebpage.org/

County Code Enforcers, Backed by Sheriff’s Deputies, Wantonly Destroy Private Property

On April Fool’s Day, 2003, at 08:30, I was aroused from my work by the barking of our dogs. I went out to find three sheriff’s deputies, two animal control officers with prods, a truckload of inmates from the county jail, and a code enforcement officer. The code enforcement officer announced he was there to tear down the six foot wrought iron fence in our front yard. After obtaining the officers’ names and badge numbers, I put them on notice that what they were about to do was illegal, that they were trespassing on my property, and they would be held liable. Unfazed, they proceeded to fire up the blowtorches, and cut down the fence.

But let’s go back to the beginning. In December, 1999, we installed a six foot tall decorative wrought iron fence in our front yard.

Although we had received many compliments on the fence from our neighbors, on June 6, 2000, we received a Notice of Violation from the Escambia County Code Enforcement Office. (We found out later, through the Florida Open Records
Law, that this whole episode was initiated by a complaint from one of our
neighbors, Mr. Robert Gaines).

Our fence was allegedly in violation of a county ordinance that limited fences to a maximum height of four feet (Land Development Code [LDC] Section 7.04.00) and for which we supposedly needed a permit (LDC section 2.02.00). Note that the county ordinance only regulates hedges, wooden, and open weave (i.e., chain link) fences -- not wrought iron fences.

On July 31, 2000, we received a Subpoena to appear at a Code Enforcement Special Master Hearing (a “Special Master” is a quasi-judicial official).

On August 15, 2000, at the Hearing, I asked the Special Master, Mr. G. Thomas Smith a number of questions about his job and his authority to perform his duties. He claimed he had an oath of office (as required by the Florida Constitution) and was under contract to the county. I pointed out that there was a conflict between Florida Statute 588.01 (which requires that fences be a minimum of five feet high!) and the county ordinance which they claimed I had violated. I also cited a Florida appellate decision in which a similar county ordinance was ruled to be unconstitutional because it violated the fence owner’s constitutionally protected rights of privacy and protection of property.

Nevertheless, Mr. Smith issued an Order on the 3rd of October, 2000, finding in favor of Escambia County, imposing a fine and a lien on the property.

We filed a Notice of Appeal on October 25th. However, the County Clerk refused to properly prepare a record for appeal, as she is required by law to do. The clerk said she didn’t have to, because I was proceeding pro se, without an attorney. Without the record being prepared, the case would go nowhere.

On December 19, 2000, in response to a Public Records Act inquiry, I received an email from the County Clerk’s office, confirming that Mr. Smith had no oath of office on file, as required by the Florida Constitution, and his contract to act as a Special Master had expired one and a half years ago, and had not been renewed!

On March 21st, 2001, I sued the clerk and everyone else involved, (a target-rich environment) to motivate them to prepare the record in accordance with the law and Rules of the Court.

Judge Kim Skievaski dismissed my lawsuit, on 22 March, 2001, pending resolution of my appeal. The Clerk rapidly prepared the record. Nevertheless, even though he dismissed the case, it is clear that in the transcript of the pre-trial Hearing, Judge Skievaski conceded that there appeared to have been some things that were not properly done on the part of the county.

With the Record prepared, I filed an Appeal Brief on April 5th, 2001.

Michael Godwin, Assistant County Attorney, filed a lengthy but unsubstantive Answer Brief on April 24th, 2001, in which he attempted to cloud the issues by focusing on largely irrelevant aspects of the case, misconstrued the clear procedural, due process and Constitutional issues involved, and supported his legal fictions by largely irrelevant case citations.

We responded in a Reply Brief on May 15th, 2001, that refocused the issues.

Interestingly, about this time, I noticed on the Code Enforcement Bulletin Board, another fence case was brewing. An elderly black gentleman named Benjamin Davis, who was a diabetes-related amputee, who was still recovering from a stroke (speech impediment), had built a six-foot chain link fence in his front yard, off of Lillian Highway. He constructed the fence to protect himself from his neighbors’ dogs, who would attack him—and he was unable to get away.

I met Mr. Davis, explained the law to him, and he appeared at his Special Master Hearing. At the Hearing, Mr. Davis challenged the constitutionality of the county fence ordinance, on the basis that it was in conflict with Florida state law. The Special Master continued the Hearing, and implied that she needed to obtain a decision from the County Attorney.

On 17 June, 2001, Mr. Davis’ Hearing was set to continue. At the last minute, the county changed the location from the county commissioners chambers, to a small empty office on the 2nd floor of the county tax collector’s office. All other events scheduled for that day were canceled.

I appeared with Mr. Davis, and was prepared to testify on his behalf. However, before the proceeding had even begun, the case was dismissed. The grounds—the special master blamed the Code Enforcement Officer for not having obtained the determination by the County Attorney regarding the conflict of interest between the county ordinance and the state statute. Although I don’t recall her directing him to do so in the first transcript.

So, Mr. Davis could have his fence.

Our Appeal sat in the Circuit Court for nearly a year without action. Finally, as the County Clerk was about to rule in our favor by default, due to failure to proceed on the part of the county, Circuit Judge Nicholas Geeker issued a Per Curiam decision, upholding the “Special Master”— without ever addressing even one of what I believe to be my very profound legal and constitutional issues.

Judge Kim Skievaski dismissed my lawsuit, pending resolution of my appeal--as the Clerk had by now properly prepared the record. Nevertheless, in the transcript of the pre-trial Hearing, Judge Skievaski conceded that there appeared to have been some things that were not properly done on the part of the county.

Undaunted, and still believing (naively, perhaps) in the honesty of the Court system, we filed a Motion for Rehearing and oral argument. But this, too, was cursorily denied without comment.

I then prepared a Petition for Certiorari, to be filed with the District Court of Appeals in Talahassee. However, after experiencing the way the courts treat pro se litigants, I considered having an attorney file the Petition. I asked former Congressman and personal friend Joe Scarborough if he would be willing to file the Petition.

Former Congressman Joe Scarborough

Joe told me I would normally not be able to afford him—but because of the profound constitutional and due process issues involved, he graciously and generously agreed to file the petition (although he said I would have to pay his gas money to Talahassee if we obtained a hearing). Unfortunately, upon reading the transcript of my pre-trial hearing before Judge Skievaski, he learned that James Messer, formerly the litigating attorney for the county, was now a partner in his law firm, and he was forced to decline for ethical reasons.

As time was running out, I filed the Petition pro se, resulting in another Per Curiam decision by the Appellate judges.

Finally, we filed a Petition for Rehearing to the Court of Appeals, which was also denied.

In March, 2003, we received a Notice from the county, giving us 17 days to bring the fence into “compliance” with the county ordinance. During this time, I was preparing a Complaint for Declaratory Relief, to request a judge to rule on the very specific legal and constitutional issues, that had been completely ignored by the courts up to this time.

Unfortunately, due to other priorities, I had not filed this Complaint at the time the “authorities” showed up and illegally — under “color of law”— destroyed our fence. To the right are Code Enforcement Officer James Martin and Deputy Steve McCann supervising the Destruction of the fence!

On the afternoon that the fence was demolished, I filed a Complaint for Declaratory Relief, and on April 28th, the county answered.

On the 4th of July, 2003, Pensacola's crusading up-scale weekly newspaper, the Independent Florida Sun, featured an expose of the county's abuse of power in a powerful story, "Blowtorching Property Rights."

The Court having taken no further action on the “Dec Action,” I decided to simplify things. On the 12th of April, 2004, I filed a Motion for Relief from Void Judgment. This motion focused on the single issue of the Special Master’s complete lack of authority to do anything—i.e., he did not have an oath of office as required by Article II, Section 5 of the Florida Constitution, and his contract to work for the county had expired a year and a half prior to the original hearing.

A Hearing was held on July 21st, in which neither Judge Geeker nor Richard Peppler (attorney for the county) disputed these facts (i.e., that the Special Master had not a shred of authority to do what he did). The judge merely ruled that the case had already been decided. Motion Denied. Period.

It is clear that it is futile to try to obtain relief in the corrupt courts of Escambia County. Consequently, I decided to seek justice in the federal courts.

On January, 31st, 2005, I filed a Title 42, Section 1983 Complaint for Damages in the U.S. District Court in Pensacola. Defendants, in addition to the Board of County Commissioners, included thirteen others who participated directly or were in some way complicit in the actions described above.

For those who want to follow this case and see what "justice" in America is like, here is the court docket, with some of the most significant briefs. To make a long story short, the case was dismissed by the federal court, and attorney's fees were awarded [against me] to the county and other plaintiffs.

For what good it will do, I will be appealing the award of attorney's fees.

 

For more information about the latest in Scenic
Hills, go to http://ScenicHills.freewebpage.org/

 

More Published Works by Ward Dean, MD