OFFICE OF CODE ENFORCEMENT SPECIAL MASTER
IN AND FOR THE COUNTY OF ESCAMBIA
STATE OF FLORIDA

ESCAMBIA COUNTY, FLORIDA

Petitioner,

v. CASE NO.: 1999-12-0196

WARD DEAN and KUMJA C. DEAN

Respondents.
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Proceedings held before SPECIAL MASTER G. THOMAS SMITH,

on the 15th day of August, 2000, at the Board of County

Commissioners Meeting Room, 223 Palafox Place, Pensacola,

Florida, from 2:00 p.m. to 2:30 p.m., before Linda V.

Crowe, Court Reporter and Notary Public.


APPEARANCES

FOR ESCAMBIA COUNTY: JAMES MARTIN
Code Enforcement Officer
Neighborhood & Environmental
Services Department
1190 West Leonard Street
Pensacola, FL 32501

FOR RESPONDENTS: PRO SE

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


1 P R O C E E D I N G S

2 SPECIAL MASTER: The next case is Case Number 1999-12-0196. It's a matter of Escambia County versus Dean and Kumja Ward, involving property at XXXXXXXX, Pensacola, Florida.

6 MR. MARTIN: Your Honor, if I may, that's Ward and Kumja Dean. Dean is the last name.

8 MS. REBER: I took it off the tax rolls and sometimes it is hard to tell.

10 SPECIAL MASTER: Are the Wards here?

11 DR. DEAN: The Deans are here.

12 SPECIAL MASTER: The Deans are here. Please come forward, Mr. Dean and Mrs. Dean. It's nice to see you. Would you please raise your right hand.

15 (Witnesses sworn.)

16 SPECIAL MASTER: Okay, Officer Martin, can you tell me what we have here?

18 MR. MARTIN: Yes, Your Honor. This regards a piece of property, or excuse me, a lot within Scenic Hills Country Club. The zoning on this property is R-1. It's approximately one-quarter of an acre in size. The violation is of a County Land Development Code regarding fences in which there is a six-foot metal fence in the front yard and there has been no permits pulled for this.

25 SPECIAL MASTER: Do you know when the fence was constructed?

2 OFFICER MARTIN: On or about December of 1999.

3 SPECIAL MASTER: How do you know that?

4 OFFICER MARTIN: That was when the initial complaint came in.

6 SPECIAL MASTER: Were you the investigating officer?

8 OFFICER MARTIN: Yes, Your Honor.

9 SPECIAL MASTER: And you went out at that time. Could you tell or ascertain to confirm that it was a new fence?

12 OFFICER MARTIN: At that time I don't think that I had actually gone out for the violation. I initially observed it on the 6th day of June of this year, but you could determine it was a new fence.

16 SPECIAL MASTER: Did you interview any witnesses?

18 OFFICER MARTIN: No, Your Honor.

19 SPECIAL MASTER: So that's a single violation?

20 OFFICER MARTIN: Yes, Your Honor.

21 SPECIAL MASTER: This is cited under 96-3, which is the Land Development Code. Do you have a particular section?

24 OFFICER MARTIN: Yes, Your Honor. It's going to be 7.04.00. I have a copy for you and a copy for the respondents.

2 SPECIAL MASTER: What type of fence? You didn't say what this was.

4 OFFICER MARTIN: It's a metal fence. I do have photos.

6 SPECIAL MASTER: You say metal, a solid metal fence?

8 OFFICER MARTIN: No, Your Honor. It's an open --

10 SPECIAL MASTER: Open weave, like a chain link?

12 OFFICER MARTIN: It's like what would be considered an iron fence.

14 MRS. DEAN: Your Honor, I do have pictures if you would like to see them.

16 OFFICER MARTIN: I have them.

17 SPECIAL MASTER: Do have any evidence?

18 OFFICER MARTIN: Yes, Your Honor.

19 SPECIAL MASTER: Please show it to Mr. and Mrs. Ward.

21 DR. DEAN: Dean.

22 SPECIAL MASTER: Dean. Sorry about that, Mr. Dean.

25 SPECIAL MASTER: Was there a fence there before?

2 OFFICER MARTIN: I do not have knowledge.

3 DR. DEAN: No.

4 SPECIAL MASTER: It's a new fence. Mr. Dean, what's your position with regard to this fence?

6 DR. DEAN: Well, first I've got some questions for both you and Mr. Martin. I'm kind of confused about the whole process here. Initially, for the record, I'd like to point out that the county can't seem to get my name straight, which should be fairly easy to do. I'm wondering what else has not been done procedurally, or according to the law. And the first question I have is: Are you an employee of the county?

15 SPECIAL MASTER: No, I'm not.

16 DR. DEAN: Do you have an oath of office on file with regard to your job?

18 SPECIAL MASTER: Yes, I do.

19 DR. DEAN: So you are a constitutional --

20 SPECIAL MASTER: No, I'm not an Article IV Judge.

22 DR. DEAN: But you do adhere to the Constitution of Florida and the United States?

24 SPECIAL MASTER: Certainly.

25 DR. DEAN: So in that regard, then, you do have a fiduciary obligation to me as well as to Mr. Martin?

2 SPECIAL MASTER: Certainly.

3 DR. DEAN: Good. Now -- I have a question about -- because this is kind of --

5 SPECIAL MASTER: It's not fiduciary. I have an obligation to evaluate the facts and make decisions, to be fair, listen to both sides.

8 DR. DEAN: In accordance with the Constitution of Florida?

10 SPECIAL MASTER: Sure, but it's not a fiduciary duty. It's not a trustee.

12 DR. DEAN: Okay. What is the process about how you were chosen for this job? And my reason for asking this will become clear.

15 SPECIAL MASTER: I was employed by the county, or I was contracted by the county four years ago to undertake the responsibility to be a Special Master. I'm a practicing attorney with a law firm.

19 SPECIAL MASTER: So being a Special Master is not your only job?

21 SPECIAL MASTER: No. I'm a practicing attorney.

23 DR. DEAN: So when you are not a Special Master, you are an attorney?

25 SPECIAL MASTER: That is correct.

1 DR. DEAN: Now, what law authorizes you to do what you are doing in here today?

3 SPECIAL MASTER: The Florida Statutes.

4 DR. DEAN: Which particular statute? I mean, I've got the statutes, and it’s eight volumes.

6 SPECIAL MASTER: You know, I'm not the one on trial here.

8 DR. DEAN: Well, that's true, but --

10 SPECIAL MASTER: If you have these questions, you can approach them in the proper manner. I'm not here to answer these questions.

13 DR. DEAN: Well, I have approached them, Your Honor. I have asked the County Administrator. I have asked the Deputy County Administrator for Public Works and Land Control Development; I have asked the County Attorney. And in all of these, I have not gotten a straight answer. Now, this is a free country, and we do not have to do what we're told to do by people who don't have the authority to do them. So the first thing I have to do here, is to establish whether you have the authority here, and under what law we are operating? That's my only question.

24 SPECIAL MASTER: Well, I don't have to sit here and answer questions to establish my authority. I do have the authority to do this. If you hire an attorney, he can investigate that for you and advise you.

3 DR. DEAN: I mean the man in the muni--

4 SPECIAL MASTER: You need to look in Chapter 160 of the Florida Statutes.

6 DR. DEAN: Chapter 160?

7 SPECIAL MASTER: That's correct.

8 DR. DEAN: When I received your subpoena, I called the code enforcement office and asked them under what law we were operating, and what law covered the Special Master? I received back a fax from the code enforcement office that sent me to County Ordinance 97-60 as the authorizing documents for the Special Master's office, and for your jurisdiction in this case. And that also referred to State Statute 70.51, Land Use Environmental Dispute Resolution.

17 SPECIAL MASTER: I'd take a look at Chapter 162 of the Florida Statutes. Also, Escambia County Ordinance 95-9, which sets up the procedure--gives us the authority to do what we do.

21 DR. DEAN: So then, apparently, the enforcement office sent me an incorrect ordinance?

23 SPECIAL MASTER: I don't have any idea what was sent you.

25 DR. DEAN: Well, I've got it right here. It's got their fax number, return number, right at the top.

2 SPECIAL MASTER: Was this the procedure set up by 95-9?

4 DR. DEAN: Now how should we, as citizens, who are trying to follow the law, know which law we are required to follow, and who has jurisdiction to enforce these laws when the county Code Enforcement Agency apparently doesn't even know, or at least gives out incorrect information, such as sending me Ordinance 97-60?

10 SPECIAL MASTER: You can hire an attorney.

11 DR. DEAN: Well, I think you know, as an attorney, that it's a fundamental principle of law that a law that is unintelligible or not understandable by the common man is null and void and has no force and effect. These laws are apparently clear, but I think we need to know what laws we are required to follow. If our only recourse as citizens was to hire an attorney for every decision that we made, we would be in a pretty terrible state in this country. The law of the land is the Constitution, and that's something that every school boy should be able to read and understand.

23 SPECIAL MASTER: The ordinances are on the Internet.

25 DR. DEAN: Well, that was where I found them. But the problem is -- Ordinance 97-60 states very clearly what the role of the Special Master is. It tells how he is selected. It identifies his subpoena powers, identifies his qualifications, and describes the conduct of the hearing. So this looked to me--as a reasonable person--sent to me by the code enforcement office--to be the ordinance under which we were going to be operating today. And, I think this is something….

In your subpoena and in Officer Martin's request for a Special Master hearing, there was no law cited. I wanted to know what law am I being required to comply with here? I was absolutely confused, so I called the office and that was the best answer I could get. In subsequent discussions with Mr. Welstead, the Deputy County Administrator, with Mr. Walker, the Chief Code Enforcement Officer, and with my County Commissioner, Wilson Robertson -- none of them were able to provide me with any more information other than what I had received from the Code Enforcement office.

20 SPECIAL MASTER: Did you talk to the County Attorney?

22 DR. DEAN: I did talk to the County Attorney, the day before yesterday. He said that -- first, he told Mr. Walker that it was Chapter 162, which, of course, had one little brief mention, and then he mentioned Chapter 30 of the County Codes. So now I have this wide diversity of opinions. I assumed that the people in the Code Enforcement office know what law they are enforcing, and what law we are allegedly required to follow.

5 SPECIAL MASTER: I assume they do.

6 DR. DEAN: Well, I made that same assumption as well. That's why I proceeded under Ordinance 97-60, which is the ordinance that they sent me. That also covered State Statute 70.51. Now, I would like to go through these laws, because this is what really caused me some confusion. The two people who can initiate a Special Master proceeding under Ordinance 97-60 is a property owner, by filing a request for relief, and the Special Master, when there are more than one government agencies involved in the enforcement. However, in either case--whether it's initiated by the property owner or whether it's initiated by the Special Master, a Request for Relief must be filed with the County Administrator within 30 days of the enforcement action. Now, following that, the property owner must then be notified and provided a Request for Relief form which has instructions for objecting to the Special Master. Also, this particular ordinance requires that there be three Special Masters from which to choose, which the property owner can then object. Even if he objects to all of them, then there are procedures for empanelling other prospective Special Masters.

Second, in that statute, it itemized the subpoena powers of the Special Master, which were restricted to non-party witnesses.

6 SPECIAL MASTER: What are you on?

7 DR. DEAN: It's Ordinance 97-60, Your Honor. In fact, I've got a copy of it here which I can give you, which has got the --

10 SPECIAL MASTER: I'd take a look at 95-7 --

11 DR. DEAN: I'm going to have to look at that because this is the first I’d heard of it--

13 SPECIAL MASTER: -- 97-9. That's the one that gives us full power to subpoena.

15 DR. DEAN: Okay. This is the first time I've heard of that. If that's the answer to the question, I wish the Code Enforcement folks would have sent me that statute, instead of 97-60-- which is the one they did send me when I specifically asked the question. So, the point is, there's a great deal of confusion here, by me--and I would think other citizens--who are trying to find out what specific laws we're trying to operate under procedurally, and the ones that we are required to follow. Clearly, what we are doing here is in gross violation of State Statute 70.51 and County Ordinance 97-60.

3 I'd like to continue. I do have a few questions for Officer Martin as well. Now, you said that the law that I am specifically alleged to have violated is Land Development Code Section 7.04.00?

8 OFFICER MARTIN: Yes, sir.

9 DR. DEAN: And I assume that you have some kind of training for your job?

11 OFFICER MARTIN: I have been certified by the Florida Association of Code Enforcement Level One.

13 DR. DEAN: How about the other people in the office? Are they trained, too?

15 OFFICER MARTIN: I'm not aware of each individual officer's training.

17 DR. DEAN: How about the people that work in the office? For example, the people that I asked what law are we operating under--presumably the person that sent me ordinance 97-60? And, again, I'll ask you the same question--what law we’re operating under? If these ordinances are not – the ordinance and the State Statute--are not correct, how are we, as citizens, to know what laws we have to follow?

25 OFFICER MARTIN: Mr. Dean, I'm going to have to object. I'm not responsible for the office and how the office staff is trained.

3 SPECIAL MASTER: I'll sustain that objection. It's beyond the scope of what you should be inquiring.

5 DR. DEAN: Well, I'm not so sure it is “beyond the scope.” Again, as I said--this is a free country. We are under no obligation to do what government agents tell us to do. In fact, there's a Supreme Court decision on this. It's the Federal Crop Insurance case, where the Supreme Court tells the citizens that every time they believe what a government agent tells them, they are taking the risk that that agent may be acting beyond his scope of authority and may, in fact, not even know what his scope of authority is. And that's my concern here. We see this all the time, where police and other government officers tell citizens what they must or must not do, yet when we investigate, we find that they really have no authority to tell us to do that.

20 That's the point--your office deals with the code all the time. This is, of course, my first encounter with it. So I would presume that the folks in your office would know what they were doing and would be sending out correct material. But let's continue, Your Honor.

1 SPECIAL MASTER: I'm ready. Do you have any further evidence or testimony?

3 OFFICER MARTIN: Just the 7.04.00 as far as the regulations regarding fence heights. I would bring to your notice --

6 SPECIAL MASTER: Did you measure the height of the fence?

8 OFFICER MARTIN: I did not actually measure it with a rule measure, but upon standing by it, I knew it was approximately six feet high.

11 DR. DEAN: I do have some further questions, some further testimony.

13 SPECIAL MASTER: The officer is testifying.

14 DR. DEAN: Okay.

15 SPECIAL MASTER: There's no question the fence exceeds three feet in height?

17 OFFICER MARTIN: Your Honor, I call to you -- I do not know if you have a copy of this. It was a letter from Mr. Dean on the 11th of this month regarding these violations, or this violation. The final, or next to the last paragraph was in regard to a letter that was written or faxed to the code enforcement regarding -- on the 13th of July, regarding Florida Statute 588.01, in which he quotes--and if I may read directly from this: “ Requirements of general fence requires that, quote, all fences shall be -- and it's paraphrasing in the quote -- not less than five feet high.” And he states that his -- that “my fence is approximately six feet high, one foot higher than the minimum required by State Statute.” If you go back to Statute 588.01, which is requirements of general fence, it does state that. However, 588 regards agricultural, horticulture and animal industry. This is within an R-1 District, more specifically Scenic Hills Country Club, by which I know there's not the keeping of livestock or that type of animals in that area.

12 SPECIAL MASTER: Anything further?

13 OFFICER MARTIN: No, Your Honor.

14 SPECIAL MASTER: Mr. Dean.

15 DR. DEAN: Yes, I do have a little more. Thank you, Mr. Martin for bringing that up. The title of the chapter is Legal Fences -- Chapter 588 of the Florida Statutes, Legal Fences -- Legal Fences and Livestock at Large. We've got two subjects here: One, is legal fences; and second, is livestock at large. Now, the Land Development Code, which I'm alleged to have violated, on page 3-11 -- I'm not sure what section this is -- defines a fence as “a structure functioning as a boundary or barrier, usually made of posts, boards or wire.” That is the definition of a fence. And it doesn't differ markedly from the definition of a fence that's in Black's Law Dictionary. Now, in Chapter 588 -- 588.01, the first paragraph starts right out-- tells the requirements of a “General Fence.” Although Mr. Martin alleged that I “paraphrased it” --I left out some irrelevant material here. But I'll read it without paraphrasing. It says: “All fences.” Now, this doesn't say livestock fences. It says: “All fences for enclosures of land shall be substantially constructed, whether with rails, logs, posts and railings, iron, steel or other material and not less than five feet high.” And as he correctly pointed out, my fence is over five feet high--which is approximately one foot beyond the state-required minimum.

16 Now, I believe, again, that it is a fundamental principle of law, that when there is a conflict between a state statute or a county ordinance, that the State Statute will clearly prevail. Now, he tried to imply that we were talking about livestock fences, here. But we don't start talking about livestock until -- I don't have the whole statute here -- but it's over on the second page where we start talking livestock. The whole first page is -- is “Requirements of General Fence.” 588.011 is “Legal Fence Requirements.” There's a “Prohibition against Stakes.” There's a “Right to Land Not in Issue; Legally Enclosed Land; Posted Notices; Owner to Maintain Fences and Notices.”

3 We're not talking about livestock, here, in the beginning of this chapter. We're talking about legal fences, and as I pointed out, the Land Development Code--which is the subject of the alleged violation here--defines a fence as “a structure functioning as a boundary or barrier, usually made of posts, boards or wire.” In this case, my fence is made of iron and steel. So clearly, I believe that the county ordinance in this case is overridden by State Statute 588.01, and that the county ordinance is, therefore, null and void.

13 SPECIAL MASTER: Okay. Anything further?

14 DR. DEAN: Yes, there is.

15 SPECIAL MASTER: You're challenging the validity of the ordinance --

17 DR. DEAN: First, I'm challenging the --

18 SPECIAL MASTER: -- the application of it.

19 DR. DEAN: -- the fact that it is in conflict with the State Statute, which clearly overrides the county ordinance. Second, is the case of Charles Moorman and Kathleen Moorman v. The Department of Community Affairs; and Monroe County. This a 1993 Florida appellate court decision which –

1 SPECIAL MASTER: Do you have a cite?

2 DR. DEAN: I have a copy of the case right here, Your Honor. And I'd like to talk you through a few things. But before I do, I point out the Constitution of the State of Florida, and some key provisions in it which, as you have already said, you have taken an oath to uphold. Section 2, under Basic Rights, refers to “all natural persons” and their having the “unalienable right to acquire, possess and protect property.” Now, I believe that one of the functions of a fence is to protect property, and I believe that clearly, a six-foot fence is much better capable of protecting property than a four-foot fence. Section 9, under Due Process, states that “no person shall be deprived of life, liberty or property without due process.” And I really have a question about the due process in this case, when there is such a tremendous amount of confusion between me, the Code Enforcement office, and yourself as to what laws we are operating under here?

23 And finally, the Right to Privacy, Section 23 of the Florida State Constitution, says that “every natural person has the right to be left alone and free from government intrusion into his private life.”

2 Now, this case-- Moorman v. Department of Community Affairs, in Monroe County--was where the Moormans had put a fence on their property in direct violation of the County Land Development Regulation, which, I believe, is the equivalent of the Escambia County Land Development Code. They [Moormans] believed that they had the constitutional right to put the fence on their property.

9 The state claimed that the fence was potentially harming the Key deer, which were in the area, and that -- but that really became an insignificant issue, because the Court determined that “the People had a constitutionally-protected private property interest of the landowner and that the exercise of the state's police power must relate to the health, safety and welfare of the public and may not be arbitrarily and capriciously applied.” That's in Section 30, of this case.

18 They also said that “a merely arbitrary fiat will be stricken down and declared void.” That's Section 32.

21 We go over to Section 36, where it says that one of the goals -- it says “the fence ban does not recognize the individual's right to protect, enjoy and to use one's property. Therefore, the fence regulation clashes with Florida's Constitution.” As I've already pointed out, I believe the county ordinance does, as well.

2 “Accordingly, Section 9.53309(E) of the Monroe County Land Development Regulation is facially unconstitutional.” And it says “this is particularly so, because property rights are protected by numerous provisions in the Florida Constitution.”

7 Section 39 of this decision said that “the right to acquire, possess and protect property” – of course, are protected under Article I, Section 2, which I already read to you. It said that Article I, Section 23 provides that “every natural person has the right to be left alone and free from governmental intrusion into his private life.”

14 And Article I, Section 9 provides that “no person shall be deprived of life, liberty or property without due process of law.”

17 In Section 40, they said “so long as the public welfare is protected, every person in Florida enjoys the right to possess property free from unreasonable government interference.”

21 Finally, they reversed the order of the lower court. This is an appellate court, remember, and they said that Section 9.5309(E) of the Monroe County Land Development Regulation is unconstitutional. And I believe that the same section--7.04.00 of the Florida Land Development Code--would likewise not stand up to a legal challenge. I think we can avoid that right here, Your Honor, by ruling in my favor.

4 SPECIAL MASTER: Do you want to respond?

5 OFFICER MARTIN: Your Honor, within the Land Development Code 2.05.02, which deals with variances, they give potentially Mr. Dean the ability to petition the Board of Adjustment. This property is on a curve and may be something that might be special circumstance by which the Board of Adjustment could grant. But there is a procedure thereby to vary from that. And if I may, Your Honor, I have some information on the property that shows the lay of the land as to where it's at. A couple pages back it shows the property map...

15 DR. DEAN: Your Honor, with regard to applying for a variance, I see no reason to apply for a variance to a law which is countermanded by a State Statute and which also is unconstitutional on its face.

19 SPECIAL MASTER: When you constructed this improvement to your property, be it a fence or whatever it is, did you get a permit to do so?

22 DR. DEAN: We did not.

23 SPECIAL MASTER: Were you aware that you were supposed to get a permit?

25 DR. DEAN: I was not and neither was the company that put it in for us. I assumed that being professionals in this area, they would have known.

3 OFFICER MARTIN: Your Honor, a question for the respondent. What was the name of the fence company which installed this fence?

6 DR. DEAN: Well, I don't really think that's any of the Court’s business. I don't mean to be impertinent, but --

9 SPECIAL MASTER: I think that's a relevant question. I would ask you to answer it.

11 DR. DEAN: It was Metal Craft. [I probably was not required to give the name, since he never established, in my mind, that he had any authority to require me to do anything—and besides, he only “asked” me to answer].

12 SPECIAL MASTER: Anything further?

13 OFFICER MARTIN: No, Your Honor.

14 SPECIAL MASTER: Dr. Ward?

15 DR. DEAN: Dean.

16 SPECIAL MASTER: Dean.

17 DR. DEAN: I have nothing further.

18 SPECIAL MASTER: I want to look at the case. I'll take this under advisement and I'll make a decision this week on it and I'll get it to the county. They will send you a copy of it. If you would like, I notice you've got your E-mail address here on your letterhead, that I will be glad to E-mail a copy of it also.

24 DR. DEAN: Thank you very much.

25 (Hearing concluded at 2:35 p.m.)

The Special Master finally got around to ruling against me on 3 October.

I later found out that he did not have an oath of office on file with the county clerk, and his contract as a special master had expired a year and a half prior to the hearing!

I appealed his adverse ruling, and sued the county (a target rich environment). The lawsuit was thrown out pending resolution of my appeal. My appeal has been gathering dust ever since.

More Published Works by Ward Dean, MD