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IN THE ESCAMBIA COUNTY 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 AND KUMJA C. DEAN
Defendants-Appellants
_________________________________________________
ON APPEAL FROM THE OFFICE OF CODE ENFORCEMENT
SPECIAL MASTER IN AND FOR THE COUNTY OF ESCAMBIA, STATE OF FLORIDA
G. THOMAS SMITH
SPECIAL MASTER
_____________________________________________________________
REPLY BRIEF
FOR THE APPELLANTS
_____________________________________________________________
Ward Dean
Kumja C. Dean
TABLE OF CONTENTS
Table of Contents . . . . . . . . . i
Table of Citations . . . . . . . . . ii-iii
Argument . . . . . . . . . 1
I. The charges brought against the appellants and procedures being followed were so vague that their right to due process was violated . . 1
II. There is a conflict between the state statutes and the local ordinance . 4
III. The special master did not have lawful authority to conduct a hearing in this case . . . . . . . 5
IV. The acts of the Appellees violated the Deans’ Constitutionally guaranteed private property rights and their right to be free from government intrusion 9
Conclusion . . . . . . . . . . 11
Certificate of Service . . . . . . . . . 12
TABLE OF CITATIONS
CASES
Brown v. State, 629 So.2d 841 (Fla. 1994) . . . . . . . 2
Davidson v. Howard, 438 So.2d 899 (Fla 4th DCA 1983 . . . . . 4
Department of Community Affairs v. Moorman, 664
So.2d 930 (Fla. 1995) . . 9, 10
Grayned v. City of Rockford,
408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) . . . . 3
Florida Birth-Related Neurological Injury Compensation
Ass’n v.
Florida Div. of Admin. Hearings, 686 So. 2d 1349 (Fla. 1997) . . . 4
Hanson v. Scharber, 749 So. 2d. 563 (2000) . . . . . . . 4, 5
Kolender v. Lawson,
461 U.S. 352, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) . . . . 3
McRae v. Robbins, 9 So. 2d 284, 286 (1942) . . . . . . . 4
Miele v. Prudential Bache Securities, 656 So.
2d 470 (Fla. 1995) . . . . 4
Roy v. Tomlinson, 19 Fla. Law W. D 1599 (1994) . . . . . . 8
Sawyer v. State, 113 So. 736 . . . . . . . . . 7
Smith v. Goguen,
415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974) . . . . 3
Starr Tyme, Inc. v. Cohen, 659 So. 2d 1064 (Fla. 1995) . . . . . 4
Southeastern Fisheries v.Department of Natural
Resources,
453 So.2d 1351 (1984) . . . . . . . . 2, 3
State v. Hocker, 22 So. 721, 723 (1897) . . . . . . . 9
State v. Wershow, 343 So.2d 605 . . . . . . . . 2
State v. Wiseheart, 28 So.2d 589, 594 (Fla. 1946) . . . . . . 7
U.S. v. Maurice, 2 Brock. 96 . . . . . . . . . 8-9
Welch v. United States, 90 S. Ct. 1792 (1970) . . . . . . 5
Wyche v. State, 619 So. 2d 231 (1993) . . . . . . . 3
Zuppardo v. O’Hare, 487 So. 2d 39 (1986) . . . . . . . 4, 5
STATUTES
§70.51, Florida Statutes . . . . . . . . . 2, 3
§70.51(15)(b) . . . . . . . . . . . 2
Chapter 162, Florida Statutes . . . . . . . . 1, 8
§§ 588.01-588.11, Florida Statutes . . . . . . . . 4, 5
§876.05, Florida Statutes . . . . . . . . 8
§876.05(2), F.S. . . . . . . . . . . 8
ORDINANCE
Chapter 30, Escambia County Code of Ordinances
. . . . . . 1
§30-32, Escambia County Code of Ordinances . . . . . 6
§97-60, Escambia County Code of Ordinances . . . . 1, 2, 3, 4, 9
FLORIDA CONSTITUTION
Art. I, § 9, Fla. Const . . . . . . . . . . 2
OTHER AUTHORITIES
Carroll: The Annotated Alice: Alice’s
Adventures In Wonderland & Through The
LookingGlass (Martin Gardner 1960) . . . . . . 5
.
ARGUMENT
I. The charges brought against the appellants were so vague that their right to due process was violated.
The Appellees in their brief misstated and misconstrued the argument that the Deans presented in their opening brief. The Appellees, without citing any portion of the Dean’s brief, state “the Deans generally and without specificity assert that certain portions of Chapter 30 . . . are allegedly vague and a proper notice of hearing was not afforded to them thereby violating their rights . . .” Appellees’ brief, pp. 4, 7.
The Deans made no such statement nor did they argue that any portion of the above referenced ordinance, [Chapter 30] was vague. The Deans’ argument was that despite numerous inquiries to the Code Enforcement Office, the Acting County Administrator, and the Board of County Commissioners, it was not clear under what statute or ordinance the hearing was proceeding. Without this knowledge, the Deans were unable to adequately prepare a defense. Indeed, during the Hearing itself, in response to questions regarding the governing statutes and ordinances, Special Master Smith cited a plethora of statutes and ordinances—including one which did not exist, and one which had absolutely nothing to do with the issues at hand. Furthermore, the confusion continued in Special Master Smith’s Order of 3 October, 2000, which referenced a non-existent Section of the Code of Ordinances (108.5-8 (e). This was later explained by Assistant County Attorney Michael Godwin as a “typographical error” that should have read “Sec. 30-34 (d) of the Code of Ordinances.”
Moreover, from the County’s
answer brief and the exhibits thereto--especially exhibit 12--it appears
that the county attorney still does not know exactly under what statute
or ordinance the Code Enforcement Special Master operates. Exhibit 12
is an Escambia County, Florida Purchase Order, date-stamped December
13, 1999. This exhibit includes the following statement, purportedly
establishing the authority for the Code Enforcement Special Master:
Professional services for code enforcement special master, Chapter 162,
Florida Statutes, requires a special master or hearing board, and county
ordinance 97-60 also states there must be a special master in place.
This statement is repeated on Escambia County Purchase Orders dated 12/10/99, 10/02/00 and 2/06/01. (See attached hereto as Exhibits A-1 to A-3.) All of these purchase orders were submitted and approved by county employees. The vendor was Smith, Sauer and Demara. Additionally, another document in the Appellees’ Exhibit 12, entitled “Purchase Requisition” (dated 10/23/00) under the name of County of Escambia Board of Commissioners, contains the same statement that appears on the purchase orders. The vendor on this purchase requisition was also Smith, Sauer and Demara. See attached hereto as Exhibit B.
Ordinance 97-60, referenced in the purchase orders and requisitions, § 1.1 establishes Escambia County procedures for the initiation, conduct and conclusion of a Special Master proceeding under section 70.51, Florida Statutes, the “Florida Land Use and Environmental Dispute Resolution Act.” See Appellee’s Exhibit # 16, p. 1. This is in opposition to the appellee’s contentions made in their brief, in which they state, “Section 70.51(15)(b) . . . is not relevant to this proceeding . . .” Appellees’ brief, p. 9.
From the beginning, the Deans argued that they did not receive due process because they were unsure as to exactly under what statute they were prosecuted. In addition to the numerous code sections and ordinances mentioned before and during the hearing, the Appellees’ own attorney introduces additional ordinances in his response brief that supposedly have some bearing on this case after the Deans submitted their appeal.
In sum, the Deans’ Due Process challenge to the proceedings in question result from the County’s inability to specifically state the legitimate source of authority for the Code Enforcement Special Master, and for the proceedings that followed. The County and the SM are attempting to proceed under Section 30 of the Land Development Code (aka Ordinance 95-9), under an expired contract authorized by 95-9. But the County is now claiming on the one hand that the Authority for the SM and the proceedings is Ordinance 97-60, and on the other, agreeing with the Deans that 97-60 clearly does not apply to them. The County cannot have it both ways.
“Although legislative enactments are presumed constitutional, when there is a doubt about a statute in a vagueness challenge, such doubt is to be resolved in favor of the citizen and against the state.” Brown v. State, 629 So.2d 841 (Fla. 1994). The principles of the vagueness doctrine address compliance with the concept of due process. Southeastern Fisheries v. Department of Natural Resources, 453 So.2d 1351, 1353 (1984); see also State v. Wershow, 343 So.2d 605, 608 (Fla. 1977) (noting that vague statutes violate article I, section 9 of the Florida Constitution). A statute or ordinance is void for vagueness when, because of its imprecision, it fails to give adequate notice of what conduct is prohibited.
Thus, it invites arbitrary and discriminatory
enforcement. Art. I, § 9, Fla. Const.; Southeastern Fisheries.
As the United States Supreme Court has noted:
Vague laws offend several important values. First, because we assume
that man is free to steer between lawful and unlawful conduct, we insist
that laws give the person of ordinary intelligence a reasonable opportunity
to know what is prohibited, so that he may act accordingly. Vague laws
may trap the innocent by not providing fair warning. Second, if arbitrary
and discriminatory enforcement is to be prevented, laws must provide
explicit standards for those who apply them. A vague law impermissibly
delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers
of arbitrary and discriminatory application . . . Uncertain meanings
inevitably lead citizens to ‘“steer far wider of the unlawful
zone’ . . . than if the boundaries of the forbidden areas were
clearly marked.” Grayned v. City of Rockford, 408 U.S. 104, 108-09,
92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (citations omitted).
Wyche v. State, 619 So. 2d 231 (1993).
As in the case here, “The more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kolender v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974)). The responses, from the different employees of Escambia County, supplied the Deans with a conundrum of statutes against which the appellants had to prepare a defense. Such actions do not meet the requirement of due process.
Furthermore, since Ordinance 97-60 establishes Escambia County procedures under section 70.51 Florida Statutes, “there is a statutory forty (40) day notice period before the hearing.” Appellee brief, p. 9. The Deans did not receive a forty (40) day notice before the hearing below.
“When facts are to be considered and determined in administration of statutes, there must be provisions prescribed for due notice to interested parties as to time and place of hearings with appropriate opportunities to be heard in orderly procedure sufficient to afford due process and equal protection of the laws in any official action taken under the delegated authority. . .” McRae v. Robbins, 9 So. 2d 284, 286 (1942). The requirements, found in the Escambia Ordinance 97-60, were not met in this instant case.
II. There is a conflict between the state statutes and the local ordinance, which makes the local ordinance null and void.
The Appellees again misstate the Dean’s argument vis-à-vis the conflict between Florida Statutes §§ 588.01-588.11 and the local ordinances. The Deans did not rely solely on Davidson v. Howard, 438 So.2d 899 (Fla 4th DCA 1983). The appellants also relied on Zuppardo v. O’Hare, 487 So. 2d 39 (1986), which agreed with the Davidson court’s reasoning concerning fences. Furthermore, Hanson v. Scharber, 749 So. 2d. 563 (2000), on which the Deans also based their argument, stated, “Sections 588.01 and 588.011 define the requirements of ‘general’ and ‘legal’ fences.” Id.
The County does not appear to understand the clear language of Davidson v Howard. “The sections of Chapter 588 having to do with a ‘legal fence’ and ‘legally enclosed’ land have nothing to do with the Warren Act [The Warren Act—the latter half of chapter 588--imposes a duty on the owners of livestock to fence their property]. Rather, they were enacted to help protect landowners against human trespassers.” In this instant case, the Deans’ fence has nothing to do with livestock control (the latter portion of the statute) but with protection against human trespassers.
Where the language of the Code is clear and amenable to a reasonable and logical interpretation, courts are without power to diverge from the intent of the Legislature as expressed in the plain language of the Code. See Starr Tyme, Inc. v. Cohen, 659 So. 2d 1064 (Fla. 1995). [L]egislative intent is the polestar by which courts must be guided. See Florida Birth-Related Neurological Injury Compensation Ass’n v. Florida Div. of Admin. Hearings, 686 So. 2d 1349, 1354 (Fla. 1997). Legislative intent is determined from the plain language of a statute. See Miele v. Prudential Bache Securities, 656 So. 2d 470, 471 (Fla. 1995).
The Court in Zuppardo and Hanson recognized the plain language and intent of the legislature in enacting Sections 588.01 and 588.011, which define the requirements of “general” and “legal” fences. These Courts also recognized, which the Appellees are apparently unable to do, that these sections had nothing to do with livestock. This Court, based on the rulings by the Courts and the intent of the legislature, should rule in the Dean’s favor.
III. The special master did not have lawful authority to conduct a hearing in this case.
The description of the Appellee’s argument supporting the special master’s authority can be summarized in an earlier satire of the English legal system:
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
The Annotated Alice: Alice’s Adventures In Wonderland & Through The Looking Glass by Lewis Carroll 269 (Martin Gardner 1960).
Alice-in-Wonderland was a world in which words had no meaning. Welch v. United States, 90 S. Ct. 1792, 1803 (1970). The Appellees’ attorney in his brief turns the meaning of rudimentary contract law on its head, and inside out.
The agreement (hereinafter the “contract” or “agreement”) between the County and Special Master Smith was entered into for a period of two years beginning on the 23rd day of January 1996. See Appellees’ Exhibit 5. The Appellees’ attorney states in his brief that a contract was entered into with “G. Thomas Smith, Esquire, to serve as a County Code Enforcement Office Special Master ‘for a period not to exceed two (2) years’ unless terminated earlier, pursuant to Section 30-32, Escambia County Code of Ordinances. (Appellees’ brief, p. 6).
According to paragraph 6.1 of the agreement, the contract “may be terminated by either party with or without cause or upon sixty days written notice by the terminating party to the other party of such termination in which event the SPECIAL MASTER shall be paid compensation for services performed to termination date.” (Emphasis in original.) (Appellees’ exhibit 5, Para. 6.1). There is no mention of Escambia County Code of Ordinances § 30-32 in the original agreement.
Also, according to the Appellees’
attorney, “after that contract expired in 1998, [Smith] was thereafter
paid for his hearing services by direct payment voucher or at the term
of the Dean hearing by purchase order contract.” Appellee brief,
p. 10. However the Appellees fail to take into account the requirements
of the agreement at Article 5, “Changes in scope of work”
§ 5.1, which reads:
COUNTY or SPECIAL MASTER may request changes that would increase, decrease,
or otherwise modify the scope of the services to be provided under this
Agreement. Such changes and method of compensation must be agreed upon
in writing in a document of equal dignity herewith prior to any deviation
from the terms of this Agreement, including the initiation of any extra
work. Such changes when properly executed shall become an Amendment
to this Agreement. (Emphasis in original) (Appellees’ exhibit
5, § 5.1).
Furthermore in the agreement under § 6.4
“Notices” the following language is found:
Whenever either party desires to give notice unto the other, it must
be given by written notice, sent by registered United States Mail, with
return receipt requested. (Appellees’ exhibit 5, § 6.4).
Each of the party’s last known
address was listed in the agreement. (Appellees’ exhibit 5, p.
6).
The agreement between the County and the Special Master (Appellees’
exhibit 5), was signed off by the Office of the County Attorney in which
the author of the appellee’s brief is employed. There were no
changes incorporated or attached to the Agreement (Appellees’
exhibit 5) as called for in Article 5 of the contract. The lack of such
a written “document of equal dignity” belies the Appellees’
assertion that Special Master Smith’s “de jure authority”
was in “no way disturbed.” Certainly, if such an important
change was executed in accord with the original agreement, the county
attorney would have included said change in the massive amounts of paper
that were attached as exhibits to his brief.
Later in the Appellees’ brief, their attorney seemingly makes an admission that if “Smith’s de jure status as a Special Master was in some fashion imperiled by the County not entering into a post 1998 formal contract, Smith remained a de facto Special Master with full authority.” This ignores the fact that the Deans objected to the Special Master’s authority early and often. Appellee’s exhibit 6b, a letter from Ward Dean to Charles E. Walker dated August 11, 2000 and copied to Special Master Smith, and exhibit 6c, a letter from Ward Dean to Thomas Forrest that questioned Special Master Smith’s authority to hear the case below. To contend that Smith’s appointment may be imperiled and then in the same breath that all his orders, decrees, and official acts are valid does not square with reason. If his appointment was void, it was null and without binding effect, and nothing binding could flow from it; neither could it be cured. State v. Wiseheart, 28 So.2d 589, 594 (Fla. 1946). This is especially so in light of the fact that the Deans questioned Smith’s authority to hear the case before the hearing occurred. It has been frequently held that it would be unreasonable to require those dealing with any officer to inquire into his title, hence, . . . official acts were as valid as if he had been an officer de jure and no question had been raised as to them. Sawyer v. State, 113 So. 736. However, as stated previously, the Deans did raise questions to Smith’s authority in letters before the hearing and during the hearing itself. Appellees’ exhibit 4, p. 6-8. Once a Judge’s authority to act on a pending pleading is challenged, the Judge no longer “peaceably” held de facto office. Roy v. Tomlinson, 19 Fla. Law W. D 1599 (1994). These facts distinguish this case from Stein v. Foster, where the challenge to the county judge’s authority was not made until after a final order had been entered. Roy, supra.
Now, turning to the question of the
oath of office. The Appellees agree with the Deans that Section 876.05,
Florida Statutes, requires that an oath “must be taken by an official
before embarking on his duties.” Appellees’ brief, p. 12.
Then, the Appellees split legal hairs and challenge credulity by declaring
that “Smith, as an independent contractual quasi-judicial hearing
officer, is not a pubic officer” and therefore is not required
to have an oath. Appellees’ brief, p. 12. The Appellees’
argument fails to take into account Section 2 of 876.05, Florida Statutes,
which states:
(2) Said oath shall be filed with the records of the governing official
or employing governmental agency prior to the approval of any voucher
for the payment of salary, expenses, or other compensation. Id.
In response to a question from the Deans about whether he had an oath on file, Special Master Smith answered in the affirmative. It was only after the Deans found that he in fact did not have an oath of office on file, that the Appellees raised this legal smoke screen that the Special Master was neither an employee nor a public officer.
Chief Justice Marshall, in the case of U.S. v. Maurice, 2 Brock. 96, Fed. Cas. No. 15,747, defined an “office” and an “officer” as follows:
“An office is defined to be ‘a public charge or employment,’ and he who performs the duties of the office is an officer. Although an office is ‘an employment,’ it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act or perform a service, without becoming an officer. But if a duty be a continuing one, which is defined by the government, and not by contract, which individual is appointed by government to perform, who enters on the duties appertaining to his station, without any contract defining them, if those duties continue, though the person be changed, it seems difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.” Id.
“The term [office] embraces the idea of tenure, duration, emolument, and duties, and has respect to a permanent public trust to be expected to be exercised in behalf of government, and not to a merely transient, occasional, or incidental employment.” State v. Hocker, 22 So. 721, 723 (1897). It was said that “there is a manifest difference between an office and an employment under the government. [The Court] apprehend[ed] that the term ‘office’ implies a delegation of a portion of the sovereign power to, and possession of it by, the person filling the office; and the exercise of such power, within legal limits, constitutes the correct discharge of the duties of such office.” Hocke, supra at 722. The varying duties of special masters are defined by Florida Statute 162 and by Escambia County ordinance 97-60. The Special Master’s duties are continuing ones. The Appellees argument is disingenuous and was only raised after the discovery that an oath of office was not on file as required.
Therefore, the Special Master had no authority, either de jure or de facto, and as such his ruling against the Deans is void ab initio.
IV. The acts of the appellees violated the Deans’ Constitutionally guaranteed private property rights and their right to be free from government intrusion.
The appellees have misconstrued the
Deans’ argument as well as misstated the law as to their property
rights being violated. These rights were clearly affirmed in Moorman
v Department of Community Affairs (626 So. 2d 1108 (Fla. 3rd DCA 1993).
The Moorman case involved the erection of fencing in portions of Big
Pine Key, where the Moorman’s owned property. Although the Moorman
case was overturned, it was overturned on the basis of a compelling
state interest to protect the Key Deer, an endangered species. There
is no such compelling state interest in the Deans’ case. Department
of Community Affairs v. Moorman, 664 So.2d 930 (Fla. 1995). Therefore,
the constitutional issues involved remain unchallenged and valid.
CONCLUSION
For the foregoing reasons, the Deans’
due process rights were violated, there is a conflict between the state
statutes and the county ordinances, the special master did not have
lawful authority and the appellants’ right to privacy were violated,
the decision must be vacated and all fines and fees against the Deans’
property be removed.
Respectfully submitted,
Date: May , 2001
________________________
CERTIFICATE OF SERVICE
I hereby certify that I have on the 14th day of May, 2001, placed a true and exact copy of the:
REPLY BRIEF FOR THE APPELLANTS
in the U. S. Mail, first class postage, prepaid, addressed to:
MICHAEL GODWIN
Assistant County Attorney
Escambia County Attorney
14 W. Government Street,
Pensacola, FL 32501
___________________________
Ward Dean
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