IN AND FOR ESCAMBIA COUNTY, FLORIDA
NEIGHBORHOOD & ENVIRONMENTAL SERVICES DEPARTMENT

Code Enforcement Special Master Hearing

EXCERPTS OF PROCEEDINGS
CASE NO. : 2000-10-317

DATE: April 17, 2001

TIME: 1 :30 to 3:15

PLACE: Board of County Commission Chambers
223 Palafox Place, Third Floor
Pensacola, Florida 32501

APPEARANCES

SPECIAL MASTER:

PAMELA MCOWEN PAYNE, MSW, J.D.
Post Office Box 144
Pensacola, Florida 32591-0144

NEIGHBORHOOD & ENVIRONMENTAL SERVICES DEPARTMENT:

MELISSA REBER, CLERK
EVERETT PARKER, CODE ENFORCEMENT OFFICER
1190 East Leonard Street
Pensacola, Florida 32501

ALLEGED VIOLATOR:

TIMOTHY and FLORA JEAN DAVIS
23 Pen Haven Drive
Pensacola, Florida 32506

GENERAL PUBLIC

LINDA V. CROWE, COURT REPORTER
P.O. BOX 10207
Pensacola, Florida 32524-0207
(850) 476-2826

* * *
EXCERPTS OF PROCEEDINGS

SPECIAL MASTER: Good afternoon. This is a Code Enforcement Special Hearing. The Neighborhood and Environmental Services Department is in charge of this and we're going over several properties that are allegedly in violation of the Code and ordinances.

Today all of you as property owners and tenants should have received notification.
Everybody gets to get sworn in before they speak and I lead the pack, I'll get sworn in. What I swear to is a little different than yours.

(The following oath was administered to the SPECIAL MASTER: I do solemnly swear or affirm that I will support the Constitution of the United States and the Constitution of the State of Florida and that I will faithfully discharge the duties of the office of Code Enforcement Special Master according to the best of my ability.)

[Note the big deal they made about the Oath of Office. This was done for my benefit, after they saw me sitting in the room next to the "Defendant." Note also, that this is not exactly the oath required by either the Constitution or Florida law]

SPECIAL MASTER: The first property is 23 Pen Haven Avenue, Timothy and Flora Davis. Would you care to come forward? Please, sit at the chairs here and the court reporter will swear you in at the same time she swears in the officer. (Witnesses sworn. )

SPECIAL MASTER: The county goes first and I would ask that all of you identify yourselves by name and your address before you begin to make your comments.

OFFICER PARKER: Officer Everett Parker, Code Enforcement officer. The complaint that I received at 23 Pen Haven was about an unpermitted fence. I met with Mr. and Mrs. Davis, which I gave them a violation notice issued under Land Development Code 7.04.1. on February 28, a letter of violation was sent out. The violation still remained. March 8th, a letter was posted and pictures were taken of the violations at hand. On March 22, we requested a letter for a Special Master Hearing, which we are here today. This morning I went out and took pictures. The violation is still in place.

SPECIAL MASTER: Would you like to describe to me what is in error with the fence?

OFFICER PARKER: Well, the fence is above the four foot limit that is given for chain link fences in the front yard. I spoke with Mr. Davis and it is supposed to be a permitted fence and all permitted fences are four feet or below and it is above the four foot limit. I asked him was there a contractor that did it and he didn't have a permit for it or anything like that. That's why it's in violation.

SPECIAL MASTER: Thank you. Which one of you or are both of you going to speak and which would like to go first?

MR. DAVIS: I'm Timothy Davis.

SPECIAL MASTER: All right. Tell me about the fence.

MR. DAVIS: First of all, I would like to know if are you an employee of the county?

SPECIAL MASTER: No.

MR. DAVIS: You're not?

SPECIAL MASTER: No, sir.

MR. DAVIS: What is your status?

SPECIAL MASTER: I'm a contractor. I'm contracted at present as Special Master.

MR. DAVIS: When were you contracted by the county?

SPECIAL MASTER: When was I contracted by the county for Code Enforcement? I guess it was about the same time as for Rezoning, so that would have been in November.

MR. DAVIS: November?

SPECIAL MASTER: Yes, sir.

MR. DAVIS: November what?

SPECIAL MASTER: I couldn't tell you the date, I'm sorry, of last year [2000].

MR. DAVIS: When did you take your oath of office?

SPECIAL MASTER: I have taken an oath today. I don't know that I have taken one prior to that. I
think there's an oath in writing.

MR. DAVIS: So you don't have an oath?

SPECIAL MASTER: I believe there is an oath in writing. When you sign you indicate what you will do as a Special Master.

MR. DAVIS: So you're a Special Master as of when?

SPECIAL MASTER: Could we go forward with the matter at hand? If you have objections to me, those can be brought up in another forum.

[She’s wrong. The governing ordinance says that appeals can only be based on the record of the hearing.]

MR. DAVIS: The reason I'm asking you this here is because I came down here and they [the county clerk’s office] told me that they didn't have any paperwork on you as being a Special Master.

SPECIAL MASTER: Well, that's the place to bring those inquires, not here. We can proceed and, if you have objections to my findings or my standing, you can bring them in another forum.

MR. DAVIS: Well, the reason I'm asking is because it's very confusing. According to the Constitution of the United States, Section 588.01 [Here is where he confused a state statute with the U.S. Constitution]-- [Reading] “The requirements of the general fence. All fences or enclosures of land shall be substantially constructed, whether with rails, logs, post and railing, iron, steel or other materials, and not less than five feet.” And mine is six foot.

Also, the subpoena that I have is dated April the 2nd. They told me you were sworn in an oath of office as a Special Master April the 5th!

SPECIAL MASTER: So your point is?

MR. DAVIS: The point is, this paper was –the subpoena was sent out April the 2nd. You signed it.

SPECIAL MASTER: Uh-huh.

MR. DAVIS: And you weren't even a Special Master at that time.

SPECIAL MASTER: Let us proceed at this time with the matter at hand. As I said, you have a place that you can go forward. You can contact the county attorney's office. And you have a right to appeal this decision on any grounds. Any of those that you would like to bring up on appeal you may do so. [That’s the third (fourth/fifth?) time she lied about this.] Today let us address the fence and the matter at hand, please.

MR. DAVIS: What ordinance gives you the authority to be a Special Master? [This is another major point of contention. The county has two ordinances which conflict. They use whichever is convenient at the time. But neither is valid]

SPECIAL MASTER: I'm not going to answer any more of those questions. We're going to proceed with the matter at hand, the ordinance and the code violation. If you don't care to do that, that's fine, I will proceed under the authority that I understand I have [we’ve already provided evidence that she had no authority] as if you were not here.

MR. DAVIS: I'm here.

SPECIAL MASTER: Well, then, speak to the matter at hand.

MR. DAVIS: I would like to know, does the Constitution overrule state [statutes] and county [ordinances].

SPECIAL MASTER: I would like to talk about the fence. If you do not care to talk about the fence –

MR. DAVIS: That's what I'm talking about.

SPECIAL MASTER: --which is the matter at hand. There is a code violation. As I understand, Everett (Officer Parker) has talked to you about that and you are looking into correcting that. Is that accurate?

MR. DAVIS: He said he observed this on November 2000. My leg was amputated September 27, 1998. My fence was put up three months later and he passed by there all that time and he just decided to come. He said he came because of the neighborhood watch.

SPECIAL MASTER: Mr. Parker, would you like to respond?

OFFICER PARKER: There was a complaint filed, several complaints on the fence issue that we have in the neighborhood and that was the only reason that -- you know, we are complaint generated. We don't go out and say, Okay, we're going to pick this one. We're complaint generated. When I get a complaint, I have to investigate.

MR. DAVIS: Well, I put the fence up because I was attacked several times by dogs. A four foot
fence, they jump right over it, because they jumped over in the back yard, and I put the six foot fence up because the Constitution said that I could put it up. She swore you in under the Constitution, and this ought to apply to the Constitution.

SPECIAL MASTER: Okay, would you share with me what you're referring to --could your relative -- I'm sorry, what is your name?

MRS. DAVIS: Yes, I'm Flora Davis.

SPECIAL MASTER: Would you mind bringing the constitutional reference that he's referring to to me. (Witness complies.)

SPECIAL MASTER: Okay. So you're referring to a Florida Statute. Let me read this. We're looking at the Florida Statute 588.01, Requirements of General Fence. “All fences or enclosures of land shall be substantially constructed, whether with rails, logs, post and railing, iron, steel or other materials, and not less than five feet high; to the extent of two feet from the ground there shall not be a space between the material used in the construction of any fence greater than four inches; provided, that when any fence or enclosure shall be made with a trench or a ditch, the same shall be four feet wide; and in that case the fence shall be five feet high from the bottom of the ditch to the top of the fence.” That's what you're referring to, this Florida Statute?

MR. DAVIS: Yes.

SPECIAL MASTER: And Mr. Parker, would you like to address that? Have you seen this?

OFFICER PARKER: No. (Conferring at the bench.)

UNIDENTIFIED SPEAKER: I'm sorry, we didn't -- do you think that last conversation --could we get that last conversation for the record? [That's my law-school graduate buddy, Rick Wallstead]

SPECIAL MASTER: What last conversation? Oh, between me and Mr. Parker?

UNIDENTIFIED SPEAKER: Yes.

SPECIAL MASTER: I asked him if he were aware of this and he said: No. How does it fit into the scheme of things? And I said: I don't know. I think it sounds like a good idea to do a continuance and get a legal opinion from the county attorney. Because the question is, can the county pass codes that are different than what the Florida Statute has provided? Now, we have a Florida Statute that says one thing. We probably also have a Florida Statute that says that any governmental entity, including the county, can vary that according to the health, safety and well-being of the residents of that county. So I don't doubt that what the county has done is within its power .

UNIDENTIFIED SPEAKER: I believe you've got the Moorman case which gives the guidelines for those health and safety and welfare rules that have to be in accordance with due process--they can't be arbitrary. I believe he has that case as well.

SPECIAL MASTER: And you, sir, I really would like to have you sworn in if you're going to be--

UNIDENTIFIED SPEAKER: That's fine. I just wanted that last conversation on the record.

SPECIAL MASTER: Okay. Would you identify yourself for the court reporter, please.

MR. WALLSTEAD:: My name is Rick Wallstead.

SPECIAL MASTER: W-A-L-S-T-E-A-D?

MR. WALLSTEAD:: Two Ls.

SPECIAL MASTER: So what we're going to do at this time is continue so that we can have a legal opinion from the county with regard to the ordinance and its consistency with the Florida Statute. Do you understand what my ruling is, Mr. Davis?

MR. DAVIS: Can you repeat that again?

SPECIAL MASTER: Basically what we're going to do is refer this to the legal office to make sure
that your concerns with regard to the Florida Statute are addressed and so we will be able to address
specifically the concerns that you have raised. That will be June 17, 2001.

MS. REBER: I'll mail you a copy of the continuance in the mail.

SPECIAL MASTER: You will be notified by mail with regard to that, okay?

MR. DAVIS: So you're telling me the county can override the Constitution of the United States?

SPECIAL MASTER: What you are referring to here is the Florida Constitution. This is what you have--the Florida Constitution, not the United States Constitution. What you have and what I read from is a statute of the State of Florida. And what you have to understand is that in the same way that the federal government delegates authority to the states so that they can regulate and they can make laws within that state, and that's why we have differences between states and the laws, you know, one state you can do something and in another state you can't –

MR. DAVIS: --that she swore you in under oath of the Constitution of the United States.

MS. REBER: The Constitution of the United States and the Constitution of the State of Florida.

MR. DAVIS: Isn't that the same thing?

SPECIAL MASTER: They are two different constitutions, the United States has one, Florida has
one. And, yes, I just swore to uphold the Constitution.

MR. DAVIS: And we have it in the State of Florida.

SPECIAL MASTER: Yes, sir, and the State of Florida can delegate some of its authority. Even as the federal government allows states to make rules and regulations and laws, the State of Florida can enable counties and other governmental entities to do that as well. Now the question that you have raised here today is the state has said something, the county has said something that seems in variance to it. Can they do that? Well, I don't know with what has been presented to me today because I do not have the enabling statute which enables the county from the state to enact codes and ordinances. So what we're going to do is continue. Things remain as they are. You don't have to mess with your fence until we can get an understanding of that --I can get an understanding of that. Okay? And the next time that I will be here as a Special Master is June 7th, so that's when it will be continued to. As Melissa indicated, you will also get a notice as you did with regard to this one. Okay, Mr. Davis? Mrs. Davis? All right. Thank you. I'll see you June 7th. Do you care to have this back? (Hands document to witnesses.)

(Hearing continued to June 7, 2001.)
* * *

More Published Works by Ward Dean, MD