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Item P15BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: June 1$ 200$ Marathon Bulk Item: Yes X No Division: County Attorney Department: County Attome Staff Contact Person: Cynthia Hall x 3174 AGENDA ITEM WORDING: Approval to file appeal in the Code Enforcement case of Monroe County v. RobertJ. Moraitis, CE 070303$3. ITEM BACKGROUND: In May 200$ the Special Magistrate ruled in this case that the current owner could not be held liable for construction done without a permit by a prior owner in contravention of Section 9.5-111(1) of the Monroe County Code. The County Attorney's Office believes that the ruling is contrary to the language of Chapter 162, Florida Statutes, which states that violations "run with the land" but gives current owners recourse against prior owners, and that the ruling gives immunity to current owners and makes it impossible for Code Enforcement to hold current owners liable for correcting violations. The County Attorney's Office therefore recommends filing an appeal, to ask the Circuit Court to decide the issue. The appeal will be handled in-house. PREVIOUS RELEVANT BOCC ACTION: None. CONTRACT/AGREEMENT CHANGES: Not applicable. STAFF RECOMMENDATIONS: Approval. TOTAL COST: $300 BUDGETED: Yes xx No COST TO COUNTY: S300 SOURCE OF FUNDS: Ad valorem REVENUE PRODUCING: Yes — No X AMOUNT PER MONTH Year APPROVED BY: County Atty X OMB/Purchasing _ Risk Management DOCUMENTATION: Included — To Follow Not Required DISPOSITION: AGENDA ITEM # BEFORE -THE CODE ENFORCEMENT SPECIAL MAGISTRATE LARRY J. SARTIN MONROE COUNTY, FLORIDA MONROE COUNTY, FLORIDA, Petitioner, Vs. CASE NO. CE07030383 ROBERT J. MORAITIS, Respondent. ORDER DENYING RESPONDENT'S MOTION TO STRIKE AND DISMISSING ALLEGED VIOLATION OF MONROE COUNTY CODE SECTION 9.5-111(l) During the April 24, 2008, code enforcement hearing, counsel for Respondent Robert J. Moraitis suggested that Mr. Moraitis should not be found to have violated Monroe County Code Section 9.5-111(1), because work performed on his property without permit had been performed before he acquired the property. The undersigned suggested that this argument was persuasive, but reserved ruling on the issue. On or about May 3, 2008, Monroe County filed Monroe County,s Position with Respect to the Section 9.5-I11(1) and Code violations "Running with the Land" (hereinafter referred to as the "County Brief'). Respondent was informed through the Liaison to the Special Magistrate that he could respond to the County Brief on or before May 1.4, 2008. On or about May 9, 2008, Respondent filed Respondent's Motion to Strike Petitioner's Position with Respect to the Section 9.5-1 11(1) and Code Violations "Running with the Land" dated May 3, 2008. In this Motion Respondent requests that the County Brief be struck for several reasons. First, Respondent points out that the County Brief was neither requested nor specifically authorized. While true, Respondent, given the fact that no action was taken on the County Brief until after he had an opportunity to respond to it, fails to suggest even the slightest prejudice to him. Nor has Respondent pointed out anything which prohibits the filing of any pleading a party believes is necessary to support their position. As long as due process is afforded to the opposing party, which it has been in this matter, there is no reason to strike any pleading, including the County Brief. Secondly, Respondent argues that the County Brief is an ex pane communication. It is not. An ex parte communication consists of a communication with the forum out of the presence of other parties or by a written pleading to the forum winch is not provided to other parties. No such communication took place here. Counsel for Monroe County certified that a copy of the County Brief had been provided to Respondent by facsimile. Respondent was free to respond to the County Brief as he saw fit. Therefore, having been fully informed of the County Brief, no ex parte communication took place. Thirdly, Respondent has suggested that "to allow factual material to be offered and factual arguments to be made after the hearing is at odds with every principle of judicial fairness."What Respondent means by "additional evidence" being presented in the County Brief is not clear. All that appears to be presented not presented at the code enforcement hearing, is case law which Monroe County believes is relevant. Such law and argument concerning application of the law to this case simply does not constitute evidence. To the extent that "facts" have also been suggested, Respondent was free to question their accuracy. Finally, the suggestion that somehow the filing of argument of law is "unethical as an ex parte communication" is unsupported by any view of the County Brief and an unwarranted 2 accusation by counsel for Respondent. Accusing any attorney of "unethical" conduct is not an accusation to be made lightly. Turning to the issue of whether the alleged violation of Monroe County Code Section 9.5-111(1) should be dismissed, it is concluded that the case law cited in the County Brief supports the initial reaction of the undersigned to the charge under the circumstances of this case. The decisions cited by Monroe County are Monroe Count v. Whispering Pines Ass'n, 697 So. 2d 973 (Fla. 3d DCA 1997), and Sarasota County v National City Bank of Cleveland, 902 So, 2d 233 (Fla, 2d DCA 2005). Relying upon the fact that Section 162.09(3), Florida Statutes, provides that, when an order of a code enforcement board imposing fines is recorded, the fines not only constitute a lien on any other real or personal property owned by the violator, but also constitute a lien "against the land on which the violations exists," the court in Whispering Pines states: Thus, clearly code violations "run with land" and subsequent purchasers can be held responsible for bringing their property up to code. See city of Gainesville Code Enforcement W' v. Lewis, 536 So. 2d 1148 (Fla. 1st DCA 1988). By necessity and logic, there is nothing unconstitutional in holding that as the party who has the power to bring the land into code compliance, the current owner should be charged with that responsibility.... WhisperingPnes, 697 So. 2d at 875. While the foregoing language seems to support Monroe County's position, the facts in Whispering Pines are distinguishable from the facts in this case. While the Whispering Pines case involved a property owner who had acquired property upon which a prior owner had placed mobile homes without permit, the actual charge at issue in the case was having too many mobile homes on a lot in violation of the land -use designation for the lot. That violation, like an "unsafe" or lack of occupancy certificate violation, is a continuing violation which should be considered to run with the land. Therefore, the violation, although having begun prior to the present owner's acquisition of the property, continued to run with the land. As the decision in National City Sank makes clear, however, not all violations should be considered to run with the land. The court in the National City Bank case had before it a case in which construction had been undertaken without permit between 1980 and 1990, before the current owners of the property took possession. It is not clear from the case exactly what the alleged violation was. Nor does the court's ultimate decision does turn on that issue. The court does, however, make it clear that not all violations should be considered to be of a continuing nature: Likewise, we are not called upon to resolve any issue arising out of the continuing nature of these types Of violations. Many building and safety code violations are continuing conditions. We would not expect a county to bring an enforcement proceeding against a property owner concerning a defective staircase that the owner had properly repaired years ago. Instead, the county might be expected to bring an enforcement action for a defective staircase that currently was defective and had been defective for many years. From a health and safety standpoint, local governments normally bring enforcement proceedings to cause landowners to correct existing conditions before they result in harm. In this administrative proceeding, for example, Sarasota County maintains that the Trust's house has habitable areas that are only 5 1/2 feet above sea level and that the house contains electrical outlets and air conditioning work that does not comply with code. It further maintains that the house is missing a load -bearing post in the old garage area. These violations are past actions undertaken. by a prior owner that may have occurred even prior to the adoption of the relevant ordinance, yet the dangerous conditions still exist today and still pose a threat to human safety. Thus, the difficult legal issue that remains unresolved by this opinion is when, and under what circumstances, may a local government seek administrative enforcement for code violations of long-standing duration. National City Bank, 902 So. 2d at 235. Based upon the foregoing, the court, while recognWng that some violations may run with the land, also indicates that some violations may not. Rather than emphasizing the failure of the prior owner to obtain a permit for the unpermitted work at Issue in the case, the court only references, as continuing violations, the actions of the prior owner which caused the property to be considered unsafe. Recognizing that a local government may require that violations of some duration be corrected in order to eliminate dangerous conditions, the court leaves open and suggests that there may be circumstances where such enforcement is not proper. The Respondent in this case recognizes that the unpermitted work performed on his property, even though not performed by hire, must be brought into compliance with the Monroe County Code, apparently conceding the fact that his property will be considered "unsafe" until he does so. Respondent has not, however, been charged with violating Section 6-4 of the Monroe County Code. Unlike a Section 6-4 violation, which looks at the current condition of property, the violation Respondent has been charged with, Section 9.5-111(1), turns on conduct of the owner of the property: A building permit is required prior to the following: (1) Any work specified in chapter 6.0; (2) Any change in the intensity, density, or use of land authorized as a permitted as of right use under this chapter; (3) Any change in the use of land or structure from a permitted as -of -right use within a land use district to another listed permitted as -of -right use; (4) Any development authorized by conditional use approval. By the specific language of Section 9.5-111(1), the event which gives rise to a violation has nothing to do with the resulting condition of the property; the event giving rise to a violation is limited to the failure of the individual who performs the work to take the appropriate precedent action of obtaining a permit. Based upon the.evidence presented in this ease, the work which had been performed on the subject property without benefit of permit was performed by the owner of the property from which Mr. Moraitis acquired the property. Therefore, while the prior owner apparently violated Monroe County Code Section 9.5-111(1) by failing to obtain a permit for the work it had performed on the property, Mr. Moraitis did not. This conclusion is supported by the Florida Attorney General Advisory Legal Opinion cited by Respondent in support of his argument. Accordingly, based upon the foregoing, it is 1. Respondent's Motion to Strike Petitioner's Position with Respect to the Section 9.5- 111(1) and Code Violations "Running with the Land" Dated May 3, 2008, is DENIED; and 2. The allegation that Respondent violated Section 9.5-111(1) of the Monroe County Code, is DISMISSED. DONE AND ORDERED this f 7'r1 day of May, 2008, at the Division of Administrative Hearings, Tallahassee, Florida. Larry J. Code Enforcement Special Magistrate COPIES FURNISHED: Cynthia L. Hall Assistant County Attorney Monroe County Box 1026 Key West, Florida 33041-1026 Kevin Hoyes, Esquire Kevin Hoyes, Attorney P.A. 402 Appleroutb Lane Key West, Florida 33040-5535 Karen L. Bass Code Enforcement Liaison Monroe County Code Enforcement Monroe County Governmental Regional Center 2798 Overseas Highway Marathon, Florida 33040