Item U1
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BOARD OF COUNTY COMMISSIONERS
C ounty of M onroe
Mayor David Rice, District 4
Mayor Pro Tem Craig Cates, District 1
The Florida Keys
Michelle Coldiron, District 2
Vacant, District 3
Holly Merrill Raschein, District 5
County Commission Meeting
May 18, 2022
Agenda Item Number: U.1
Agenda Item Summary #10607
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Derek Howard (305) 292-3470
No
AGENDA ITEM WORDING: Approval of a Stipulated Settlement Agreement in Ricky Hill and
Jayne Hill v. Monroe County (Circuit Court Case No. 20-AP-004-P; CE17110054) requiring (a)
restoration of land clearing violations, (b) payment of reduced fines, and (c) dismissal of appeal by
the Hills.
ITEM BACKGROUND: Legal staff has negotiated a proposed settlement agreement in a land
clearing case arising from a code compliance case. This agreement was negotiated after the
agenda deadline but should be considered at the May meeting to bring this matter to a conclusion
before scheduled hearings in June.
The proposed agreement (a) discharges fines associated with the first compliance date of
obtaining a restoration permit, (b) extends the second compliance date related to complying with
that continue to accrue (from $100 to $50), (d) requires payment of code proceeding costs; and
(e) requires the dismissal of the appeal by the Hills.
On September 22, 2020, the Hills filed their appeal of the Final Order that was entered by the
Code Compliance Special Magistrate on August 27, 2020, in Case No. CE17110054. The Final
Order found the Hills in violation of Land Development Code (LDC) Section 118-11(a)(b) and
Monroe County Code (MCC) 6-100 for unpermitted land clearing. The Final Order required the
Hills to apply for and receive a restoration permit on or before November 25, 2020, or daily fines
in the amount of $50.00 per count ($100 total) will begin to accrue. The Final Order also
required the Hills to comply with the restoration permit conditions on or before February 23,
2021, or daily fines in the amount of $50.00 per count ($100 total) will begin to accrue. The
Hills obtained a restoration permit on November 4, 2021, asserting that the delay in obtaining a
restoration permit was the result of good faith negotiations and professional differences between
PREVIOUS RELEVANT BOCC ACTION: N/A
CONTRACT/AGREEMENT CHANGES:
N/A
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STAFF RECOMMENDATION: Approve Stipulated Settlement Agreement.
DOCUMENTATION:
Hill Settlment Stipulation Final
2022-01-26 Appellants' Initial Brief
2022-03-28 Answer Brief of Monroe County
Final Order recorded
FINANCIAL IMPACT:
Effective Date: Upon execution by both parties
Total Dollar Value of Contract:
Total Cost to County: None
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: N/A If yes, amount:
Grant:
County Match:
Insurance Required: N/A
Additional Details:
N/A
REVIEWED BY:
Bob Shillinger Completed 05/10/2022 10:30 AM
Derek Howard Completed 05/10/2022 10:35 AM
Purchasing Completed 05/10/2022 10:35 AM
Budget and Finance Completed 05/10/2022 11:51 AM
Brian Bradley Completed 05/10/2022 1:16 PM
Lindsey Ballard Completed 05/10/2022 1:31 PM
Board of County Commissioners Pending 05/18/2022 9:00 AM
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th
IN THE CIRCUIT COURT OF THE 16 JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY
Appellate Division
RICKY HILL and JAYNE HILL,
Appellants, Hon. Timothy J. Koenig
v. Case No.: 20-AP-004-P
L.T. CASE NO.: CE17110054
MONROE COUNTY, FLORIDA,
Appellee.
/
STIPULATED SETTLEMENT AGREEMENT
Appellants RICKY HILL and JAYNE HILL, and Appellee MONROE COUNTY, hereby
agree as follows:
1. On September 22, 2020, Appellants filed their appeal of the Final Order that was
entered by the Code Compliance Special Magistrate on August 27, 2020, in Case No.
CE17110054. The Final Order found Appellants in violation of Land Development Code (LDC)
Section 118-11(a)(b) and Monroe County Code (MCC) 6-100 for unpermitted land clearing. The
Final Order required Appellants to apply for and receive a restoration permit on or before
November 25, 2020, or daily fines in the amount of $50.00 per count ($100 total) will begin to
accrue. The Final Order also required Appellants to comply with the restoration permit
conditions on or before February 23, 2021, or daily fines in the amount of $50.00 per count
($100 total) will begin to accrue.
2. Appellants obtained a restoration permit on November 4, 2021. Appellants assert
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that the delay in obtaining a restoration permit was the result of good faith negotiations and
as to the nature
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of the habitat, soil conditions, type of trees, and so forth. In any event, the daily fines in the total
amount of $100.00 therefore accrued from November 25, 2020, to November 4, 2021. Monroe
County agrees to discharge the total amount of these fines.
3. On February 23, 2021daily fines in the
total amount of $100 also started to accrue and continue to accrue. Monroe County also agrees
to (a) extend the second compliance deadline to February 4, 2022; (b) reduce the total daily fine
total (for both charges) to $50; and (c) discharge only the total amount of fines that accrued
between February 23, 2021, and February 4, 2022.
4. Based on the fine reduction that the County is agreeing to, as of April 29, 2022,
approximately $4,150 in fines (at $50 per day) have accrued since February 4, 2022, and those
fines continue to accrue.
5. As of May 2, 2022, Appellants represent that they have removed the exotics and
expect to plant the required number of trees sometime in May 2022.
6. The parties acknowledge that land clearing cases are deemed compliant after the
initial inspection of planting. Assuming the initial inspection of planting is favorable, the code
case would close and there would not be any further fines but the permit stays open for the three
year inspection for 80% survival rate.
7. In addition to the fines set forth herein, Appellants agree to pay lower proceeding
costs in the amount of $557.20.
8. The fine reduction that the County is agreeing to in this Settlement Agreement is
substantial, and there shall be no further fine reductions.
9. The obligations and benefits of this Settlement Agreement are transferable by the
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Appellants to any new owner of the subject property.
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10. The Parties understand that the Settlement Agreement is subject to the approval of
the Monroe County Board of Commissioners, which will be sought. The Parties further agree
that they will seek a stay of the above-referenced appeal while such approval is sought. In the
event that this Settlement Agreement is approved by the Monroe County Board of
Commissioners, Appellants will dismiss the above-referenced appeal with prejudice, with each
party bearing their own fees and costs.
11. This Settlement Agreement may be executed in any number of counterparts, all
together will constitute the fully executed Settlement Agreement. Signatures to this Settlement
Agreement may be exchanged by mail, facsimile or electronically (i.e. via DocuSign or scanned
PDF transmitted by email).
By:______________________________ Date:__________________
Ricky Hill
By:______________________________ Date:___________________
Jayne Hill
By:______________________________ Date:___________________
Andrew Tobin, Esq.
Attorney for Appellants
By:______________________________ Date:___________________
Derek Howard, Esq.
Attorney for Monroe County
By:______________________________ Date:____________________
David Rice
Mayor, Monroe County, FL
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Filing # 142716875 E-Filed 01/26/2022 03:57:58 PM
IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT IN
AND FOR MONROE COUNTY, FLORIDA
Appellate Division
CASE NO. 20-AP-004-P
(L.T. CE17110054)
RICKY HILL and JAYNE HILL,
Appellants,
vs.
MONROE COUNTY, FLORIDA
Appellee.
APPELLANTSÔ INITIAL BRIEF
Andrew M. Tobin, P.A.
By: Andrew M. Tobin, Esq.
Florida Bar No. 184825
P.O. Box 620
Tavernier, Florida 33070
Counsel for:
Ricky Hill and Jayne Hill
Dated: January 26, 2022
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TABLE OF CONTENTS
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TABLE OF CASES
Arkin Constr. Co. v. Simpkins, 99 So. 2d 557 (Fla. 1957) ............... 11
Austin v. United States, 509 U.S. 602, 609 (1993) ......................... 19
Busbee v. State, Div. of Ret.,
685 So.2d 914 (Fla. 1st DCA 1996) ...................................... 19
Central Florida Investors v. Orange County,
th
790 So. 3d 593 (Fla. 5 DCA 2001) ....................................... 9
Chaudhry v. Adventist Health Sys. Sunbelt,
th
305 So. 3d 809 (Fla. 5 DCA 2020) ...................................... 11
Chavez v. McDonald's Rest. of Fla., Inc.,
108 So. 3d 1124 (Fla. 5th DCA 2013) ................................... 11
City of Tampa v. Brown,
711 So.2d 1188 (Fla. 2d DCA 1998) .................................... 16
Department of Banking & Financial Division of Security
& Investor Protection v. Osborne Stern & Co.,
670 So. 2d 932 (Fla. 1996) .................................................... 9
Dep't of Law Enforcement v. Real Property,
588 So. 2d 957 (Fla. 1991) ................................................... 16
Frost Used Appliances v. Reiser,
152 So. 2d 721 (Fla. 1963) ................................................... 11
Holiday Isle Resort and Marina v. Monroe County,
582 So. 2d 721 (Fla. 3rd DCA 1991) ..................................... 12
Holmberg v. Department of Natural Resources,
503 So. 2d 944 (Fla. 1st DCA 1987) ..................................... 10
Hotel & Restaurant Com. v. Sunny Seas, Inc.,
104 So. 2d 570 (Fla. 1958) ................................................... 10
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In re Alkires Estate, 198 So. 475 (Fla. 1940) ................................. 18
3
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Key Haven Associated Enterprises, Inc. v. Board of Trustees of
Internal Improvement Trust Fund,
427 So.2d 153 (Fla. 1982) .................................................... 11
Michael D. Jones, P.A. v. Seminole County,
670 So.2d 95 (Fla. 5th DCA 1996), ....................................... 16
Neely v. Neely, 691 So.2d 39 (Fla. 1st DCA 1997) .......................... 9
North Bay Village v. Blackwell,
88 So.2d 524 (Fla. 1956) ...................................................... 18
Northstar Inves. & Dev., Inc. v. Pobaco, Inc.,
691 So.2d 565 (Fla. 5th DCA 1997 ....................................... 17
Perry v. State, 513 So.2d 254 (Fla. 2nd DCA 1987) ....................... 18
th
Rimes v. Rimes, 921 So. 2d 655 (Fla. 5 DCA 2005) ................. 9, 10
Ross Dress for Less Va., Inc. v. Castro,
134 So.3d 511 (Fla. 3d DCA 2014) ....................................... 17
S. Fla. Water Mgmt. Dist. v. RLI Live Oak,
LLC, 139 So. 3d 869 (Fla. 2014); .......................................... 10
Smith v. State, 954 So.2d 1191 (Fla. 3d DCA 2007) ....................... 18
State ex rel. Dept. of General Services v. Willis,
344 So.2d 580 (Fla. 1st DCA 1977) ...................................... 11
State v. Jones,
180 So. 3d 1085 (Fla. 4th DCA 2015) ................................... 19
State v. Leyva,
65 So. 3d 1137 (Fla. 3d DCA 2011) ...................................... 18
Wilson v. Wilson,
827 So.2d 401 (Fla. 2d DCA 2002) ........................................ 9
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I. PREFACE
Appellants Ricky Hill and Jayne Hill will be referred to as Ñthe
AppellantsÒ or Ñthe Hills.Ò Monroe County will be referred to as Ñthe
County.Ò The following abbreviations will be used:
App:___= Appendix to Initial Brief;
Tr: ___ = Code Compliance Hearing Transcript
MC Ex. ___ = Monroe CountyÔs Hearing Exhibits
Hill Ex. _____ = AppellantsÔ Hearing Exhibits
MCC = Monroe County Code
II. STATEMENT OF THE CASE
A. The Notice of Violation
The Notice of Violation alleged the following two violations:
(1) 118-11(a)(b) ENVIRONMENTAL RESTORATION
Environmental Restoration Permit and Final
Inspection by the County Biologist.
This Permit will be required to remain open for a
period of three years to ensure the survival of 80%
of the plants/trees planted.
Corrective Action Required: Contact the Monroe
County Biologist for requirements to bring this
property into compliance.
(2) 6-100 - PERMITS REQUIRED
After The Fact Land Clearing/Restoration Permits,
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Approvals and Final Inspections are Required for
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the Land Cleared Without Benefit of Permit as per
the Sr. Biologist Memo dated 1/12/20.
Corrective Action Required: After the fact permit
for restoration will be required in accordance with
section 118-11(a)(b)
App. A. Notice of Violation.
B. The Final Order
The Final Order found ÑRespondents is/are in violation of the
Monroe County Code(s) as fully set forth in the Notice of
Violation/HearingÒ and ordered Respondents to Ñcomply with the
Code(s) referred to in the Notice of Violation/Hearing on or before
*11/25/2020 and *02/23/2021.Ò The Magistrate also ordered:
*(11/25/2020) Restoration permit must be issued
on or before the compliance date of 11/25/2020 or
daily fines in the amount of $50.00 per count per
day for all charges as cited above will begin to
accrue.
*(02/23/2021) Restoration permit conditions must
be met on or before the compliance date of
02/23/2021 or daily fines in the amount of $50.00
per count per day for all charges as cited above will
begin to accrue.
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*Per conditions of the required permit, at least 80
percent of the trees replaced shall be viable at the
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end of a three-year period from the date of the final
inspection of the restoration work. Dead or dying
trees may be replaced subject to prior approval by
the county biologist during the three year period in
order to ensure the 80 percent minimum is met at
the end of three years. The restoration work shall be
inspected by the County Biologist on an annual
basis (or every 6 months} during the three-year
period and shall require a final inspection at the
end of the three year period. The biologist may
direct that dead or dying trees be replaced as
deemed necessary to ensure the 80 percent
standard will be met at the end of three years. Any
violation will follow the land and any new
purchaser(s) will be responsible for the violations as
cited on the subject property. This case will be
monitored for a period of 3 years. Failure to meet
any of the conditions of the permit as outlined will
result in daily fines in the amount of $50.00 per
count per day for all charges as cited above and will
begin to accrue upon the date of non-compliance.
The Final Order concludes with the following caveat:
It is the Respondent(s) responsibility to request a
reinspection to determine whether the property is
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compliant by calling Code Compliance at 305
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453·8806 for the Upper Keys; (305) 289-2810 for
the Middle Keys; (305) 295-4343 for the Lower Keys
App. B. Final Order
C. The Applicable Codes
Sec. 118-11, entitled: Ñ Environmental Restoration Standards Ò
states:
(a) In the event any land clearing is occurring on a
site and such clearing is outside the scope of any
permit issued or for which no permit was issued,
the Building Official or other authorized County
official shall issue a stop work order. If any land
clearing has occurred for which no permit has been
issued or which is beyond the scope of an issued
permit, such activity shall be subject to code
enforcement proceedings under Chapter 8.
Except for issuance of an approved after-the-fact
permit for restoration, the stop work order shall
remain in effect and no application for a building
permit shall be processed or issued for the site until
the violation for unlawful land clearing is corrected
pursuant to subsection (b) of this Section.
(b) A land clearing violation is corrected if all of the
following conditions are met in accordance with a
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restoration site plan approved by the County
Biologist:
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(1) The site shall be restored to its pre-violation
grade. (2) All native trees, shrubs, and groundcovers
on the unlawfully cleared site shall be replaced with
native plant species as appropriate to the site
unlawfully cleared. The trees shall be of a size and
maturity commensurate to the unlawful clearing as
determined by the County Biologist. The native
species mix shall consist of the approximate
percentages of the predominant tree, shrub and
groundcover species on the site unlawfully cleared
prior to the violation, but if any endangered or
threatened tree, shrub or groundcover species were
unlawfully cleared, then those species shall be
replaced with plants of a size and maturity
commensurate to and related to the unlawful
clearing as determined by the County Biologist
regardless of predominance; (3) All replanted trees,
shrubs, and groundcovers shall be located on site
within the same areas that were unlawfully cleared;
(4)A monetary guarantee for the restoration work, as
stipulated in subsection (e) of this Section, shall be
provided in the form of a surety bond, cash, or other
financial guarantee in a form acceptable to the
Planning Director and the County Attorney; (5) The
restoration work to correct the land clearing
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violation in accordance with subsections (b)(1)Ð(3)
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of this Section shall be required to receive final
inspection approval by the County Biologist.
Section 6-100, entitled: Permits Required, states:
(a) Applicability. A permit shall be required for all
work shown in the following table, except where
specifically exempted this section: Site preparation
including clearing . . . removal of trees.
III. JURISDICTION AND STANDARD OF REVIEW
A. Appellate Jurisdiction
Pursuant to §162.11, Fla. Stat., the Circuit Court has
appellate jurisdiction - not common law certiorari jurisdiction - to
review code enforcement final orders. The primary difference is the
appellant does not have to establish that the error resulted in a
Ñmiscarriage of justice.Ò Central Florida Investors v. Orange County,
th
790 So. 3d 593 (Fla. 5 DCA 2001).
B. De Novo Standard Of Review
Applies to Issues of Law
The Circuit Court sitting in its appellate capacity reviews
questions of law de novo, including whether the County applied the
correct evidentiary standard. See, e.g., Wilson v. Wilson, 827 So.2d
401, 402 (Fla. 2d DCA 2002); Rimes v. Rimes, 921 So. 2d 655, 657
th
(Fla. 5 DCA 2005); Neely v. Neely, 691 So.2d 39, 40 (Fla. 1st DCA
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1997).
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C. Clear and Convincing Standard of Proof
The clear and convincing evidence standard of proof applies to
a penal code enforcement proceeding where the punishment is the
imposition of fines, liens, and the foreclosure of property.
In Department of Banking & Financial, Division of Security &
Investor Protection v. Osborne Stern & Co., 670 So. 2d 932 (Fla.
1996), the Supreme Court held:
Because the imposition of administrative fines
under section 517.221(3), like license revocation
proceedings, are penal in nature and implicate
significant property rights, the extension of the clear
and convincing evidence standard to justify the
imposition of such a fine is warranted.
Clear and convincing evidence is defined as evidence that
"produces in the mind of the trier of fact a firm belief or conviction,
without hesitancy, as to the truth of the allegations sought to be
established." See, S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, 139
So. 3d 869, 872 (Fla. 2014); See also, Holmberg v. Department of
Natural Resources, 503 So. 2d 944 (Fla. 1st DCA 1987) (rejecting
DNRÔs argument that statute should be liberally construed because
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it serve the public purpose of preserving FloridaÔs beaches); and
Hotel & Restaurant Com. v. Sunny Seas, Inc., 104 So. 2d 570 (Fla.
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1958) (clear and convincing evidence to suspend hotel license for
gambling).
D. Failure to Apply the Correct Legal Standard
The failure to apply the correct legal standard is grounds to
reverse the Final Order. See, e.g., Wilson v. Wilson, 827 So.2d 401,
402 (Fla. 2d DCA 2002); Rimes v. Rimes, 921 So. 2d 655, 657 (Fla.
th
5 DCA 2005); Neely v. Neely, 691 So.2d 39, 40 (Fla. 1st DCA
1997).
F. Conclusions Must Be Supported by Facts
It has long been the law in Florida that expert opinion
testimony not supported by the facts has no evidentiary
value. Friendly Frost Used Appliances v. Reiser , 152 So. 2d 721,
723 (Fla. 1963). "It is equally well settled that the basis for a
conclusion cannot be deduced or inferred from the conclusion itself.
The opinion of the expert cannot constitute proof of the existence of
the facts necessary to the support of the opinion." Arkin Constr. Co.
v. Simpkins , 99 So. 2d 557, 561 (Fla. 1957). See also; Chavez v.
McDonald's Rest. of Fla., Inc. , 108 So. 3d 1124, 1126 (Fla. 5th DCA
2013); Chaudhry v. Adventist Health Sys. Sunbelt, 305 So. 3d 809
th
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(Fla. 5 DCA 2020).
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IV. CONSTITUTIONAL ISSUES MAY
BE RAISED IN A CODE APPEAL
Pursuant to Art. V of the Florida Constitution, the Circuit
Court has original jurisdiction to adjudicate constitutional issues
when reviewing administrative decisions. See, Key Haven
Associated Enterprises, Inc. v. Board of Trustees of Internal Im-
provement Trust Fund, 427 So.2d 153, 157 (Fla. 1982) (circuit
courts have the power, in all circumstances to consider
constitutional issues). In State ex rel. Dept. of General Services v.
Willis, 344 So.2d 580 (Fla. 1st DCA 1977), the First District Court
explained,
The Constitution does not, by so limiting the circuit
court's 'direct review' powers to those prescribed by
general law, necessarily restrict what may be
termed 'collateral review' in circuit courts by virtue
of their constitutional powers to issue injunctions
and writs of mandamus, quo warranto, certiorari,
prohibition . . . and all writs necessary or proper to
the complete exercise of their jurisdiction. Supra at
1042.
The very issue was resolved in Holiday Isle Resort and Marina
v. Monroe County, 582 So. 2d 721 (Fla. 3rd DCA 1991), where the
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District Court held that a facial and as applied constitutional
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challenge were "properly cognizable on \[a code enforcement\] appeal
to the circuit court."
V. THE FACTS
A. The August 27, 2020 Hearing
Counsel proffered that Appellants employed a landscape
company to clean up and clear Hurricane damaged trees, and the
company exceeded the scope of the work. Appellants also proffered
they employed Robert Smith to prepare a restoration plan and he
was working with the County biologist to resolve the extent of the
clearing, the type of habitat; etc. The Magistrate accepted the
proffer and entered the subject Final Order.
B. Post Hearing Facts
The restoration permit was issued on November 4, 2021,
almost a year after the Final OrderÔs deadline of November 25,
2020. The amount of the fine as of November 4, 2021, is
$34,500.00 and continues to run/accrue because the permit
conditions were not achieved by Feb. 23, 2021.
1
In Monroe County v. Sheckler Case No. CE18090032, the County
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ran the fine for 247 days and imposed a $123,500.00 fine even
though Sheckler obtained the building permit 3 days after the
compliance date.
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The delay was the result of disagreements between the
CountyÔs biologist and the AppellantsÔ biologist (the former Senior
Biologist for Monroe County) regarding: when the clearing occurred;
what was cleared by Hurricane Irma and was exempt from
permitting pursuant to Resolution 220-2017 that suspended the
permit requirement in §6-100 for major pruning and removal of
native vegetation before and after Hurricane Irma; whether the
habitat is hammock, wetland; disturbed, etc; what species of trees
are appropriate for each habitat and likely to survive for three
years, etc. There were additional delays in order to schedule site
visits; and because the County required Appellants to submit sealed
surveys of the proposed area to be restored which required the
biologist to measure/stake the area before the surveyor could
measure the property.
The ÑdisagreementsÒ should have been the subject of a Massey
hearing whereby the Magistrate had jurisdiction to resolve the
scope and conditions of restoration; extend the compliance dates;
and/or determined the amount of the fine, if any.
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VI. ARGUMENT
A. The Magistrate Does Not Have Jurisdiction
to Order Restoration
Section 118-11(a) does not prohibit land clearing or tree
removal, nor does it require the property owner to restore the
property to its pre-clearing condition. Rather, §118-11(a) authorizes
the Building Official to issue a stop work order, and provides the
stop work order shall remain in effect until the violation for
unlawful land clearing is corrected pursuant to subsection (b) of
this section.Ò
The phrase Ñsuch activity shall be subject to code enforcement
proceedings under Chapter 8 (which governs Code Enforcement
proceedings) does not create a statutory prohibition for clearing
(either malum prohibitum or malum in se offense) or mandate
restoration.
In Commonwealth v. Corbett, 307 Mass. 7, 8 (Mass. 1940) the
Court repeated the oft-quoted mantra of American jurisprudence.
The American system of law a citizen is not to be punished
criminally unless his deed falls plainly within the words of
the statutory prohibition, construed naturally. His deed is
not to be declared a crime upon ambiguous words or by a
strained construction.
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Section 118(a) clearly and plainly authorizes the building
official to place a stop work order until the site is restored. The
16
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statutory prohibition for Ñland clearing or tree removalÒ is found in
£6-100 (a) that prohibits ÑworkÒ without a permit. That is the
subject of Count 2 in the Notice of Violation.
B. Massey v. Charlotte County
Section 162.09 (1), Fla. Stat. requires the special magistrate to
conduct a separate hearing to determine the appropriate fine using
the guidelines in §162.09 (2) (b).
(1) An enforcement board \[or special magistrate\]
upon notification by the code inspector that an
order of the enforcement board has not been
complied with by the set time or upon finding
that a repeat violation has been committed, may
order the violator to pay a fine in an amount
specified in this section for each day the
violation continues past the date set by the
enforcement board for compliance.
. . .
(2)(b) In determining the amount of the fine, if any,
the enforcement board shall consider the following
factors: 1. The gravity of the violation; 2. Any
actions taken by the violator to correct the violation;
and 3. Any previous violations committed by the
violator.
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17
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In Massey v. Charlotte County, 842 So. 2d 142 (Fla. 2d DCA
2003) the Fourth District held that accepting an affidavit of non-
compliance without notice to the violator and the opportunity to
challenge the affidavit and the amount of the fine violates due
process and 162.09.
The opinion cites City of Tampa v. Brown, 711 So.2d 1188 (Fla.
2d DCA 1998) and Michael D. Jones, P.A. v. Seminole County, 670
So.2d 95, 96 (Fla. 5th DCA 1996), and Dep't of Law Enforcement v.
Real Prop., 588 So. 2d 957 (Fla. 1991), and explains the reason the
inspectorÔs affidavit was insufficient.
However, there remains a serious risk of an
erroneous deprivation because the amount of fines
imposed and the propriety of the lien depended
upon factual findings that the Masseys were never
given an opportunity to protest. These findings
involved moderately complex issues, including
whether the alleged violation continued, how long it
continued, and whether there was any reason to
reduce the per diem fine imposed in light of
attempts by the Masseys to comply. To remedy the
risk of improper seizure, there must be some type of
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procedure to allow the property owner to address
these new findings.
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In this case, the Magistrate failed to comply with 162.09, and
instead set the daily fines at $50 per day/per count. In essence the
Magistrate did a Ñhand-offÒ and gave the County biologist unfettered
discretion to determine the restoration conditions and compliance
with all of the conditions over a three year period to decide when
the $100 per day fine starts and when it ends.
Simply said, the Final Order is legally insufficient as it fails to
comply with §162.09 and violates due process by failing to provide a
procedure to allow the Appellants to appear before a judicial officer
to explain why they could not comply with the deadlines in the
Final Order. Massey v. Charlotte County, 842 So. 2d 142 (Fla. 2d
DCA 2003).
C. The Final Order Fails to Set Forth Clear and Definite
Standards and Unlawfully Delegates Judicial Authority
to the County Biologist
The Final Order violates due process by failing to include
"clear and definite standards.Ò
It is a well established principle of law that judicial orders
must be clear and definite to be enforceable. See, Northstar Inves. &
Dev., Inc. v. Pobaco, Inc., 691 So.2d 565, 566 (Fla. 5th DCA 1997)
Buubdinfou;!3133.12.37!Bqqfmmbout(!Jojujbm!Csjfg!!)Bqqspwbm!pg!Tfuumfnfou!Bhsffnfou!jo!Ijmm!w/!Npospf!Dpvouz-!Gmpsjeb*
holding ÑA party may not be held in contempt of court for violation
19
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of an order ... which is not clear and definite so as to make the
party aware of its command and direction.Ò See also Ross Dress for
Less Va., Inc. v. Castro, 134 So.3d 511, 523 (Fla. 3d DCA 2014);
Smith v. State, 954 So.2d 1191, 1194 (Fla. 3d DCA 2007) ("When a
finding of contempt is based upon a violation of a court order, that
order must be one which clearly and definitely makes the person
aware of its command").
The Final Order also violates the non-delegation doctrine
which forbids delegating judicial powers to the executive. See State
v. Leyva, 65 So. 3d 1137, 1139 (Fla. 3d DCA 2011) where the Court
held ÑSeparation of powers principles prohibit a court from
delegating or assigning the judicial power to a coordinate branch of
the government in this state.Ò); Perry v. State, 513 So.2d 254,
255 (Fla. 2nd DCA 1987) (finding a trial court should not delegate
its responsibility of determining restitution and requiring its
payment to a nonjudicial officer); In re Alkires Estate, 144 Fla. 606,
623, 198 So. 475, 482 (Fla. 1940) ("judicial power . . . \[is\] not
delegable and cannot be abdicated in whole or in part by the
courts."). See also North Bay Village v. Blackwell, 88 So.2d 524 (Fla.
Buubdinfou;!3133.12.37!Bqqfmmbout(!Jojujbm!Csjfg!!)Bqqspwbm!pg!Tfuumfnfou!Bhsffnfou!jo!Ijmm!w/!Npospf!Dpvouz-!Gmpsjeb*
1956) (zoning ordinance must prescribe definite standards for the
20
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guidance and control of the building inspector, the zoning officials
and indeed the municipal counsel).
In this case the Final Order is not clear nor is it definite.
Rather, it delegates unfettered discretion to the County biologist to
i) dictate the terms of the restoration permit; ii) determine whether
the restoration conditions have been complied with for three years
after the planting; and iii) decide when the $100 per day fine starts
or stops, without providing the Appellants with judicial oversight or
a procedure to challenge the CountyÔs biologistÔs dictates.
D. A $100 Per Day Forever Fine is Unconstitutionally Excessive
Unquestionably, a fine that increases $100 per day for each
and every day until a ÑviolatorÒ achieves compliance as dictated by
the County biologist violates due process and runs afoul of the
Excessive Fines clause of the U.S. and Florida Constitutions. See,
State v. Jones, 180 So. 3d 1085, 1088 (Fla. 4th DCA 2015); Austin
v. United States, 509 U.S. 602, 609Ï10, (1993); see also Busbee v.
State, Div. of Ret., 685 So.2d 914, 917 (Fla. 1st DCA 1996).
VII. CONCLUSION
Based on the foregoing arguments and authorities, Appellants
RICKY HILL and JAYNE HILL respectfully asks the Court to quash
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and set aside the Lien/Final Order.
21
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Respectfully Submitted By:
ANDREW M. TOBIN, P.A.
s/Andrew M. Tobin, Esq.
Florida Bar No. 184825
Counsel for Appellants
P.O. Box 620
Tavernier, Florida
(305) 852-3388
primary: tobinlaw@terranova.net
secondary: tobinlaw2@gmail.com
CERTIFICATE OF SERVICE
th
day of January 2022, the
I HEREBY CERTIFY that on this 26
foregoing document was filed with the Clerk of Court using the E-
Filing Portal and all counsel of record were selected for service.
s/ Andrew M. Tobin, Esq.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY the foregoing brief complies with the font
requirements and word limitations in the Rules of Appellate
Procedure.
s/ Andrew M. Tobin, Esq.
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22
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Filing # 146558958 E-Filed 03/28/2022 04:10:25 PM
IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR MONROE COUNTY
APPELLATE DIVISION
RICKY HILL and JANYNE HILL, Case No. 20-AP-004-P
L.T. Case No. CE17110054
Appellant,
Hon. Timothy J. Koenig
v.
MONROE COUNTY, FLORIDA,
Appellee.
______________________________________/
ANSWER BRIEF OF MONROE COUNTY
Derek V. Howard, Esq.
Assistant County Attorney
Fla. Bar No. 0667641
th
1111 12 Street, Suite 408
Key West, FL 33040
(305) 292-3470
howard-derek@monroecounty-fl.gov
th
Respectfully submitted this 28 day of March 2022.
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TABLE OF CONTENTS
I. TABLE OF AUTHORITIES ................................................................iii
II. PRELIMINARY STATEMENT ............................................................ 1
III. SUMMARY OF THE ARGUMENT ..................................................... 1
IV. STANDARD OF REVIEW .................................................................. 5
A. The Applicable Evidentiary Standards ........................................... 6
B. Constitutional Issues ..................................................................... 7
C. A Presumption of Correctness Applies .......................................... 8
V. STATEMENT OF THE CASE AND FACTS ....................................... 8
A. Statement of the Case ................................................................... 8
B. Statement of the Facts .................................................................. 9
VI. ARGUMENT .................................................................................... 14
A.
Assertions iare Outside the Record......... 14
B. for
Appeal ......................................................................................... 17
C. The Special Magistrate Has Jurisdiction to Order Restoration ..... 18
D. The Final Order Does Not Violate § 162.09(1), Fla. Stat., or
Massey v. Charlotte County ........................................................ 21
E. The Final Order is Clear and Definite and Does Not
Unlawfully Delegate Judicial Authority to the County Biologist .... 25
1. The Final Order is clear and definite ....................................... 25
2. The Final Order does not violate the non-delegation
............................................................................... 27
F. The Fines are Not Unconstitutionally Excessive .......................... 27
VII. CONCLUSION ................................................................................. 30
VIII. CERTIFICATE OF SERVICE ........................................................... 31
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IX. CERTIFICATE OF COMPLIANCE ................................................... 31
źź
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I. TABLE OF AUTHORITIES
3B TV, Inc. v. State Office of the Atty. Gen.,
st
794 So. 2d 744 (Fla. 1 DCA 2001) ................................................. 30
Adventist Health System/Sunbelt, Inc. v. Florida Birth-Related
Neurological Injury,
865 So. 2d 561 (Fla. 5th DCA 2004) .................................................. 6
Central Florida Investors v. Orange County,
th
295 So.3d 292 (Fla. 5 DCA 2019) ................................................ 5, 6
Charlotte 650, LLC v. Phillip Rucks Citrus Nursery, Inc.,
nd
320 So.3d 863 (Fla. 2 DCA 2021) ................................................... 6
City of Jacksonville Beach v. Car Spa, Inc.,
st
772 So. 2d 630 (Fla. 1 DCA 2000) ................................................... 7
DeGroot v. Sheffield,
95 So. 2d 912 (Fla. 1957) .................................................................. 6
Dusseau v. Metropolitan Dade County Board of County
Commissioners,
794 So. 2d 1270 (Fla. 2001) .............................................................. 5
th
954 So.2d 77 (Fla. 5 DCA 2007) .................................................... 17
Heart of Live Oak Inc. v. State,
st
196 So.3d 1290 (Fla. 1 DCA 2016) ...................................... 2, 17, 18
Kantor v. School Bd. of Monroe County,
rd
648 So.2d 1266 (Fla. 3 DCA 1995) ................................................ 17
KRZ v. Monroe County,
th
Case No. 20-AP-41-K (Fla. 16 Jud. Cir. Jan. 25, 2022)
(Koenig, J.) ...................................................................... 2, 16, 19, 27
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Mank v. Hendrickson,
195 So. 2d 574 (Fla. 4th DCA 1967) .................................................. 8
Manning v. Tunnell,
st
943 So.2d 1018 (Fla. 1 DCA 2006) ................................................ 17
Massey v. Charlotte County,
nd
842 So.2d 142 (Fla. 2 DCA 2003) ...... 1, 3, 13, 14, 17, 21, 22, 23, 24
Monroe County v. Carter,
rd
41 So.3d 954 (Fla. 3 DCA 2010) .................................................. 6, 7
National Advertising Co. v. Broward County,
th
491 So.2d 1262 (Fla. 4 DCA 1986) ................................................ 15
Northstar Inves. & Dev., Inc. v. Pobaco,
th
691 So.2d 565 (Fla. 5 DCA 1997) .................................................. 26
Compensation,
st
907 So. 2d 1220 (Fla. 1 DCA 2005) ............................................... 30
Ross Dress for Less Va, Inc. v. Castro,
rd
134 So.3d 511 (Fla. 3 DCA 2014) .................................................. 26
Schmida v. City of Key West,
2018-CA-45-K (Fla. 16th Cir. 2018) ................................................... 8
Smith v. State,
rd
954 So.2d 1191 (Fla. 3 DCA 2007) ................................................ 26
U.S. v. Bajakajian,
524 U.S. 321(1998) ......................................................................... 29
U.S. v. 817 Northeast 29th Drive, Wilton Manors, Fla.,
th
175 3d 1304 (11 Cir. 1999) ............................................................ 30
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źǝ
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II. PRELIMINARY STATEMENT
Throughout this brief, Appellants Ricky Hill and Jayne Hill will be
s Appellee Monroe County will be referred to
Documents in Appellants Appendix, which included only the Notice of
Violation and Final Order, will be referred to as \[Appellant App. #; P\], where
# denotes the document number, and P denotes the page number of that
document. The transcript of the August 27, 2020, Code Compliance hearing
will be referred to as \[Tr.; P\], where P denotes the transcript page number.
III. SUMMARY OF THE ARGUMENT
This code compliance appeal involves land clearing without a permit
where Appellants stated they wanted to
because they were not contesting the clearing violation and represented that
they were already in the process of applying for a restoration permit, which
the Final Order requires. Appellants now appeal the Final Order of the
Special Magistrate based on the following arguments that were never raised
in the code compliance below Massey
determine compliance and fine amount; (b) the Special Magistrate does not
have jurisdiction to order restoration; (c) the Special Magistrate is unlawfully
Buubdinfou;!3133.14.39!Botxfs!Csjfg!pg!Npospf!Dpvouz!!)Bqqspwbm!pg!Tfuumfnfou!Bhsffnfou!jo!Ijmm!w/!Npospf!Dpvouz-!Gmpsjeb*
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well-established that for an issue to be preserved for appeal, it must be
raised in the administrative proceeding of the alleged error. \[A\] party cannot
argue on appeal matters which were not properly excepted to or challenged
Heart of Live Oak Inc. v. State, 196 So.3d
st
1290-91 (Fla. 1
record and must be disregarded by this Court.
Appellants now erroneously argue that the Special Magistrate does not
have jurisdiction to order restoration. The authority of the Special Magistrate
to order restoration is rooted in LDC Section 118-11(a) and was previously
recognized by this Court in KRZ v. Monroe County.
Appellants are correct that LDC Section 118-
-100 that makes it
unlawful to clear land without a permit, and Appellants do not dispute that
they cleared without a permit. That is the first violation. Appellants are
incorrect, however, in arguing that LDC Section 118-11 does not mandate
restoration. Under that section, a land clearing violation is not corrected
unless and until there is restoration. If a person has intentionally or
mistakenly cleared their property without a permit in violation of MCC Section
Buubdinfou;!3133.14.39!Botxfs!Csjfg!pg!Npospf!Dpvouz!!)Bqqspwbm!pg!Tfuumfnfou!Bhsffnfou!jo!Ijmm!w/!Npospf!Dpvouz-!Gmpsjeb*
Ћ
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6-100, LDC Sections 118-11(b) and (c) provide the process and standards
for that person to voluntarily (or involuntarily if compelled by a code
compliance order authorized by LDC Section 119-11(a)) correct the violation
-the-
Appellants could have voluntarily sought approval of a restoration plan by
the County Biologist when they allegedly discovered that the clearing by their
They failed to do that, apparently deciding to take a gamble on whether the
clearing would be identified by the County. Their failure to voluntarily correct
the land clearing violation by pursuing an after-the-fact permit for restoration
is a separate violation as found by the Special Magistrate.
The Final Order does not violate § 162.09(1), Fla. Stat. or Massey v.
Charlotte County in imposing a fine without a second hearing. Section
162.09(1), Fla. Stat., expressly states that a second hearing to determine
fines is not required where, as here, a finding of violation has already been
made. Appellants complain that they were denied a procedure to allow them
to explain why they could not comply with the compliance deadlines in the
Final Order. At the hearing,
of time to comply with the requirement to obtain a restoration permit was
granted and Appellants acknowledged the proper procedure to further
Buubdinfou;!3133.14.39!Botxfs!Csjfg!pg!Npospf!Dpvouz!!)Bqqspwbm!pg!Tfuumfnfou!Bhsffnfou!jo!Ijmm!w/!Npospf!Dpvouz-!Gmpsjeb*
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extend the compliance deadlines and defer the accumulation of fines by
saying they would file a motion for extension of time if one was needed.
The Final Order is clear and definite and does not unlawfully delegate
judicial authority to the County Biologist. Appellants comprehended the
command of the Final Order because they did in fact later apply for and
receive a restoration permit. The development and issuance of such permits
is an executive function, not a judicial one, and Section 118-11 provides clear
and definite standards for the permits. The County Biologist does not have
because the
decision of the County Biologist could have been appealed pursuant to LDC
Section 102-185.
Finally, the $50 daily fine that the Final Order imposed for each
violation if compliance is not achieved by the deadlines set forth in the order
are not unconstitutionally excessive. They are substantially less than the
daily fine amounts authorized by § 162.09(2), Fla. Stat. ($250) and § 8-31,
MCC ($1,000).
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IV. STANDARD OF REVIEW
This is an appeal as of right of a final order of the Code Compliance
Special Magistrate to the circuit court pursuant to Florida Statute § 162.11
, which states as follows:
An aggrieved party, including the local governing body, may appeal a
final administrative order of an enforcement board to the circuit court.
Such an appeal shall not be a hearing de novo but shall be limited to
appellate review of the record created before the enforcement board.
An appeal shall be filed within 30 days of the execution of the order to
be appealed.
(Emphasis supplied.); see also Fla. R. App. P. 9.030(c)(1)(C).
th
Central Florida Investors v. Orange County, 295 So.3d 292 (Fla. 5
DCA 2019) held that appeals pursuant to Section 162.11, Fla. Stat., are
plenary, and not limited to certiorari review. However, the three-pronged
first-Id.
(citing Fla. Power & Light Co. v. City of Dania, 761 So.2d 1080, 1092 (Fla.
2000)). The three-prong certiorari standard of review involves determining
(1) whether due process was accorded; (2) whether the correct law was
applied; and (3) and whether the
sub Dusseau v. Metropolitan Dade County Board of
County Commissioners, 794 So. 2d 1270, 1274 (Fla. 2001).
review considers whether the correct law was applied; review by appeal goes
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Central
Florida Investors, 295 So.3d at 295.
A. The Applicable Evidentiary Standards
Appellants did not contest the violations at the hearing, so there are no
evidentiary issues on appeal. That said, t
applies in code compliance appeals. See
rd
Monroe County v. Carter, 41 So.3d 954 (Fla. 3 DCA 2010) (stating in the
findings were based on
Charlotte 650, LLC v. Phillip Rucks Citrus Nursery, Inc., 320 So.3d 863 (Fla.
nd
2
presumed correct and will not be disturbed unless they are unsupported by
been construed to mean evidence that is sufficiently relevant and material
that a reasonable mind would accept it as adequate to support the conclusion
reached. See DeGroot v. Sheffield, 95 So. 2d 912 (Fla. 1957); see also
Adventist Health System/Sunbelt, Inc. v. Florida Birth-Related Neurological
th
Injury, 865 So. 2d 561, 573 (Fla. 5 t
standard of review and equates to legally sufficient evidence, which in
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essence means evidence that is sufficiently relevant and material that a
reasonable mind would accept it as adequate to support the conclusion
.
This court must review the entire record to determine whether the
evidence. In doing so, this court must not reweigh the evidence, or substitute
its judgment for that of the Special Magistrate. See City of Jacksonville
st
Beach v. Car Spa, Inc., 772 So. 2d 630, 632 (Fla. 1 DCA 2000)
conclude that the circuit court applied the wrong law to the extent that it failed
decision was supported by competent substantial evidence and, instead,
reweighed the evidence, substituting its judgment regarding relative weight
Monroe County v. Carter, 41 So.3d
rd
954, 957 (Fla. 3 The circuit court departed from the essential
requirements of law by reweighing the evidence and substituting its judgment
B. Constitutional Issues
Monroe County does not dispute that this court has jurisdiction to
consider and resolve constitutional issues as part of a code enforcement
appeal, and that such issues are reviewed de novo. However, the review of
Buubdinfou;!3133.14.39!Botxfs!Csjfg!pg!Npospf!Dpvouz!!)Bqqspwbm!pg!Tfuumfnfou!Bhsffnfou!jo!Ijmm!w/!Npospf!Dpvouz-!Gmpsjeb*
А
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such issues is limited to the record Appellants created below pursuant to §
162.11, Fla. Stat.; Appellants are not permitted to develop a factual record in
this appellate proceeding with new evidence, or raise issues that were not
raised in the code compliance proceeding below.
C. A Presumption of Correctness Applies
, and the burden is on
Schmida v. City of Key West, Case No. 2018-
th
CA-45-K (Fla. 16 Jud. Cir. App. Div. Aug. 29, 2018) (Koenig, J.), at 2.;
th
see also Mank v. Hendrickson, 195 So. 2d 574, 576 (Fla. 4 DCA 1967)
appealed, and where the appellate court is in doubt as to its propriety or
.
V. STATEMENT OF THE CASE AND FACTS
A. Statement of the Case
This is an appeal of a Final Order entered by Monroe County Code
Special Magistrate John G. Van Laningham in Code Enforcement Case No.
17110054 (Subject Property R.E. No. 00544980-000000). The order found
Section 6-100 and LDC Section 118-11(a)(b). The order required Appellants
to apply for and receive a restoration permit on or before November 25, 2020,
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and imposed a $50 daily fine for noncompliance. The order also required
Appellants to meet the restoration permit requirements on or before February
23, 2021, and imposed a $50 daily for noncompliance. Appellants appealed
the Final Order, as provided by Florida Statute § 162.11.
B. Statement of the Facts
1. The Subject Lot is located at 1001 Valencia Road, Key Largo,
FL 33037 with RE No. 00544980-000000. \[\].
2. An investigation of the Subject Lot was initiated on November 8,
2017, and identified land clearing violations. \[Id.\]
3. On June 19, 2020, Code Compliance issued a Notice of
Violation/Notice of Hearing /NOHs for the
clearing of the Subject Lot. \[Id.; 3\] The NOV/NOH was sent via certified mail
through the U.S. Postal Service to Appellants at 310 Sound Dr., Key Largo,
FL 33037. \[Id.\]
4. The NOV/NOH alleged violations of LDC Section 118-11(a)(b)
and MCC Section 6-100. \[Id.\] For each violation, the NOV provided the
corrective action required. \[Id.\]
5. LDC Section 118-11(a)(b) provides that land clearing without a
permit must be corrected/restored as follows:
(a) In the event any land clearing is occurring on a site and
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such clearing is outside the scope of any permit issued or for
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which no permit was issued, the Building Official or other
authorized County official shall issue a stop work order. If any
land clearing has occurred for which no permit has been issued
or which is beyond the scope of an issued permit, such activity
shall be subject to code enforcement proceedings under Chapter
8.
(b) A land clearing violation is corrected if all of the following
conditions are met in accordance with a restoration site plan
approved by the County Biologist:
(1) The site shall be restored to its pre-violation grade.
(2) All native trees, shrubs, and groundcovers on the
unlawfully cleared site shall be replaced with native plant
species as appropriate to the site unlawfully cleared. The
trees shall be of a size and maturity commensurate to the
unlawful clearing as determined by the County Biologist.
The native species mix shall consist of the approximate
percentages of the predominant tree, shrub and
groundcover species on the site unlawfully cleared prior to
the violation, but if any endangered or threatened tree,
shrub or groundcover species were unlawfully cleared,
then those species shall be replaced with plants of a size
and maturity commensurate to and related to the unlawful
clearing as determined by the County Biologist regardless
of predominance.
(3) All replanted trees, shrubs, and groundcovers shall be
located on site within the same areas that were unlawfully
cleared.
(4) A monetary guarantee for the restoration work, as
stipulated in subsection (e) of this Section, shall be
provided in the form of a surety bond, cash, or other
financial guarantee in a form acceptable to the Planning
Director and the County Attorney.
(5) The restoration work to correct the land clearing violation
in accordance with subsections (b)(1)-(3) of this Section
shall be required to receive final inspection approval by the
County Biologist.
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6. MCC Section 6-100 requires permits for certain types of work,
including:
a.
excavation, and blasting: however, no permit for site
preparation may be issued except in conjunction with the
establishment of a use or structure allowed in the land use
b.
c.
is not required if a property owner obtains documentation
from an arborist certified by the International Society of
Arboriculture or a Florida licensed landscape architect that
7. The NOV/NOH provided notice that a public hearing before the
Special Magistrate would be held on July 30, 2020. The Code
Inspector has reason to believe violation(s) or the condition causing
violation(s) presents a serious threat to the public health, safety, and welfare
or is irreparable or irreversible in nature, therefore no compliance date has
been provided. This case may be presented to the Special Magistrate even
\[Id.; 2\]
August 27, 2020, Code Compliance Hearing
8. The Code Compliance hearing was held on August 27, 2020.
\[Tr. 1-8\] Appellants attended the hearing and were represented by Andrew
Tobin, Esq.
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9. Appellants did not contest the alleged violations at the hearing.
\[Tr. 3\].
we do admit to hiring the landscape people to clean up some of the hurricane
my client envisioned. So I believe that they are responsible, but perhaps
not
3\]
10. , noting
that Appellants had already hired a biologist to prepare a restoration plan.
\[Tr. 3\] He elaborated further:
xtended period
facing is that the habitat is, it may not be hammock.
And, in fact, I believe that Tim Douma and Guintas
erent restoration plan,
5,000-square foot lot. And once we get a handle on
restoration plan.
\[Tr. 3-4\]
11. Appellants requested a ninety (90) day extension of time to apply
for a restoration permit. \[Tr. 4\] The County did not object, stating:
compliance date. Because this is a land clearing,
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there would be those two compliance dates. So the
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th
first date would be November 25
to have the permit issued. And then we could do
another 90 days out from that for the all conditions
being met. So that would be 180 days out, which will
rd
be February 23, 2021.
\[Tr. 5\]
12. When asked how the extension and process of the two
compliance dates sounded, Mr. Tobin responded as follows:
understanding that that should be sufficient.
\[Tr. 5\]
13. At the hearing, the Special Magistrate announced the fine that
he was imposing:
technically $50 a piece, that would be $100 per day
total in the event compliance is not achieved by the
deadlines s
costs at some point in an amount to be determined.
\[Tr. 6-7\]
14. At no time during the hearing did Mr. Tobin assert that (a) a
Massey hearin or fine amount; (b)
that the Special Magistrate did not have jurisdiction to order restoration; (c)
that the Special Magistrate was unlawfully delegating
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or (d) that the fine imposed
-7\]
15. Consistent with his rulings announced at the hearing, the Special
Magistrate entered his Final Order on August 27, 2020.
VI. ARGUMENT
A.
are Outside the Record
At pages 14-
fac
the subject of a Massey hearing whereby the Magistrate had jurisdiction to
resolve the scope and conditions of restoration; extend the compliance
As
a preliminary matter, the County notes that this argument contradicts
risdiction to
Additionally, Appellants represented to
the Magistrate that if the ninety (90) days that they requested to achieve
compliance with the requirement to obtain a restoration permit ended up not
being suf
motion for an extension of time was filed.
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must be disregarded by this Court. Section 162.11, Fla. Stat., expressly
Matters arising after the Final Order, including the
alleged delays and disagreements with the restoration permit, are irrelevant
to this appellate proceeding.
record (because the only record created concluded with the issuance of the
Final Order) or other documentation. They therefore represent nothing more
than argument of counsel, which does not constitute evidence. See National
th
Advertising Co. v. Broward County, 491 So.2d 1262, 1263 (Fla. 4 DCA
This court has repeatedly admonished that argument of counsel
Finally, it is clear that the real bone of contention here is with the
restoration plan and permit. As discussed more fully below, the issuance of
such permits is an executive function, not a judicial one. Section 118-11(b)
expressly grants the County Biologist the authority to approve a restoration
plan required to correct a land clearing violation. Any grievances that
and permit is not redressable in this appellate proceeding. This was
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recognized by this Court in KRZ v. Monroe County, Case No. 20-AP-41-K.
In its January 25, 2022, appellate Opinion at page 13, this Court stated:
The Special Magistrate set a future compliance date
for obtaining the required permit and another date to
complete the actions required under the
environmental permit. (Tr. 81). Therefore, there is a
separate review process whereby the Appellant will
have the opportunity to contest the requirements of a
restoration plan that has yet to be developed at this
time. Additionally, if, after a restoration plan is
approved by the County Biologist, the Appellant
seeks to challenge the restoration plan, then they
pursuant to \[LDC\] § 102-185. Therefore, the
argument that KRZ does not believe they can comply
with a restoration plan where the evidence has not
demonstrated exactly what was cleared, and thus
what must be restored, is premature and later
redressable.
Significantly, the KRZ opinion found no procedural flaw with the Final Order
requiring the obtainment of a restoration permit by one date, and setting
another date to achieve compliance with the permit conditions. In this case,
if Appellants wished to contest the restoration permit conditions, then they
should have done so in a LDC Section 102-185 appeal. Furthermore, if
Appellants needed additional time to achieve compliance with the permit
conditions, then they should have filed a motion for extension of time to do
so, as they represented they would do in the hearing below.
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B. for Appeal
-established that for an issue to be preserved for appeal, it
must be raised in the administrative proceeding of the alleged error. \[A\] party
cannot argue on appeal matters which were not properly excepted to or
challenged in the administrative Heart of Live Oak Inc. v. State,
st
196 So.3d 1290-91 (Fla. 1 DCA 2016). See also Kantor v. School Bd. of
rd
Monroe County, 648 So.2d 1266, 1267 (Fla. 3
that appellant cannot argue on appeal matters which were not properly
excepted to or challenged before the \[agency\] and thus were not preserved
Henderson
th
v. Department of Health, Bd. of Nursing, 954 So.2d 77, 81 (Fla. 5 DCA
; Manning v.
st
Tunnell, 943 So.2d 1018 (Fla. 1 neral rule, an appellate
. In the
hearing below, the Special Magistrate announced all of the rulings that are
in the Final Order, including the requirement to obtain a restoration permit,
compliance dates, and fines. \[Tr. 5-7\] At no time during the hearing did
Appellants object to the rulings on any of the following grounds that are now
argued in this appeal: Massey
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compliance or fine amount; (b) the Special Magistrate does not have
jurisdiction to order restoration; (c) the Special Magistrate was unlawfully
biolo is -7\] In
-having
decided not to contest the alleged violations \[Tr. 3\], and noting that they had
already hired a biologist to develop a restoration plan \[Tr. 2-4\]. Instead of
objecting to the requirement to obtain a restoration permit, Appellants
requested a ninety (90) day extension of time to apply for the permit; the
extension request was granted. \[Tr. 4-5\] In failing to raise the
aforementioned matters at the hearing, Appellants are now precluded from
raising them in this appeal pursuant to Heart of Live Oak and other decisional
authority.
C. The Special Magistrate Has Jurisdiction to Order Restoration
Appellants erroneously and conclusory
not have juris\[Initial Br. at 16\] Appellants fail
any further elaboration of this argument. As explained above, the argument
was not asserted in code compliance proceeding below and therefore not
addressable on appeal. The authority of the Special Magistrate to order
restoration is rooted in LDC Section 118-11(a) that states in pertinent part:
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issued or
which is beyond the scope of an issued permit, such activity shall be subject
In KRZ, this Court
recognized the authority of the Special Magistrate to order restoration.
Opinion at 12 (noting \[p\]ursuant to \[LDC\] Section § 118-11, the Final Order
requires Appellant to apply for and obtain an after-the-fact permit for
1
clearing charge).
Appellants are correct that LDC Section 118-
That prohibition is created
by MCC Section 6-100. Appellants are incorrect, however, in arguing that
the section does not mandate restoration. \[Id.\] Under the section, a land
clearing violation is not corrected unless and until there is restoration.
Section 118-11(b) states that a land clearing violation is corrected by a
1
In KRZ, the NOV charged LDC Section 118-11(a),(b) as a violation, but the
to this charge
\[did\] require
Appellant to apply for a restoration plan based on the finding of violation for
Opinion at 2, 13. KRZ therefore did not argue that Section
118-11 does not mandate restoration and cannot be the basis of a separate
violation; the issue was never briefed. KRZ instead argued that the
requirement of restoration was error because the County did not establish,
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and the Special Magistrate did not find, precisely what was cleared that
needed to be restored.
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restoration plan approved by the County Biologist and provides specific
requirements for restoration. Section 118-
be restored to its pre-
clear or compulsory.
If a person has intentionally or mistakenly cleared their property without
a permit (in and of itself a violation of MCC 6-100), LDC Sections 118-11(b)
and (c) provide the process and standards for that person to voluntarily (or
involuntarily if compelled by a code compliance order authorized by LDC
Section 118-11(a)) correct the violation
after-the-In other words, not all after-the-fact
permits for restoration must be (or are) issued in connection with a code
2
compliance order or stop work order. Section 118-11 thus envisioned the
reality that not all land clearing violations are promptly (if ever) identified by
the County through its code compliance program or otherwise, and attempts
to provide in part a pathway for individuals in good faith to right their wrongs.
2
A stop work order was not issued in this case pursuant to Section 118-11(a)
because the land clearing had already occurred. LDC Section 118-11(a)
is occurring on a site and such
clearing is outside the scope of any permit issued or for which no permit was
issued, the Building Office or other authorized County official shall issue a
stop work order. If any land clearing has occurred for which no permit has
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been issued or which is beyond the scope of an issued permit, such activity
shall be subject to code enforcement proceedings under Chapter 8.
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The point is that Appellants could have voluntarily sought approval of a
restoration plan by the County Biologist when they allegedly discovered that
the clea
gamble on whether the clearing would be identified by the County. Their
failure to voluntarily correct the land clearing violation by pursuing an after-
the-fact permit for restoration is a separate violation as found by the Special
Magistrate.
D. The Final Order Does Not Violate § 162.09(1), Fla. Stat., or
Massey v. Charlotte County
Appellants erroneously argue
requires the special magistrate to conduct a separate hearing to determine
the appropriate fine using the guidelines in § 162.09(2)(b). \[Initial Br. at 17\]
As previously explained in section VI.B above, Appellants did not raise this
argument in the hearing below when the Special Magistrate announced the
fine he was imposing if compliance was not achieved. The argument was
therefore not preserved for appeal.
§ 162.09(1) argument fails on the merits. Having
already held an evidentiary hearing on August 27, 2020, the Final Order
found Appellants in violation of MC 6-100 LDC Section 118-11(a)(b), and
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ordered compliance. The Final Order only imposes fines if compliance is not
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achieved by the dates in the order. Section 162.09(1), Fla. Stat., does not
require the Special Magistrate to hold another hearing on or after the
compliance dates before imposing fines. Appellants included only a partial
excerpt of Section 162.09(1) in their initial brief, and misleadingly excluded
the portion that makes clear another hearing is not required. The section
states in pertinent part as follows, with the portion that Appellant excluded
underlined:
An enforcement board, upon notification by the code inspector
that an order of the enforcement board has not been complied
with by the set time or upon finding that a repeat violation has
been committed, may order the violator to pay a fine in an
amount specified in this section for each day the violation
continues past the date set by the enforcement board for
compliance . . .. If a finding of a violation or a repeat violation
has been made as provided in this part, a hearing shall not be
necessary for issuance of the order imposing the fine.
On its face, Section 162.09(1) states that where, as here, a finding of
imposition of a fine. See also -
second hearing, however, is not necessary for the imposi
Appellants present Massey v. Charlotte County, 842 So.2d 142 (Fla.
nd
2
without notice to the violator and the opportunity to challenge the affidavit
and the amount of the fine violate due process and 162.098\]
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The Second District found th
violated based on facts that are not present in this case. Appellant reliance
on Massey is misplaced for several reason.
First, the order at issue in Massey was not the July 11, 2000, order
finding the Masseys in violation of the building code and specifying the fine
amount that would be imposed if the Masseys did not correct the violation by
a certain date. The court found no due process violations up to and including
the July 11 ent Board provided notice and an
opportunity to be heard before issuing the preliminary order finding the
Masseys in violation of the building code, as required by the statute. Thus,
it is clear the Masseys received due process leading up to the entry of the
145. In this case, the Final Order is analogous to the July 11 order in
Massey. The order that the Masseys appealed and was at issue was the
Second, the Massey
mandate any specific procedure for the Code Enforcement Board to follow
cou
additional factual findings, due process requires some predeprivation or
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postdeprivation process for the property owner to test the validity of those
Id. The court found that the Masseys were not accorded due
process based on the facts unique to that case that are not present here.
2001\] meeting at which the propriety of the fines and lien were addressed or
Id. at 146. The
affidavit of noncompliance by the building inspector filed with the Code
Enforcement Board was also not served on the Masseys. Id. at 144. These
facts clearly establish a procedural due process violation.
Appellants also directly cite Massey
Final Order is legally insufficient as it fails to comply with §162.09 and
violates due process by failing to provide a procedure to allow the Appellants
to appear before a judicial officer to explain whey they could not comply with
Massey does not support
this proposition, which is probably why Appellants do not pinpoint cite the
decision, or provide any language in the decision that supports the
proposition. The proper procedure that Appellants could have followed to
extend the compliance deadlines and defer the accumulation of fines was
expressly recognized by Appellants in the hearing below. At the hearing,
Appellants requested a ninety (90) day extension of time to comply with the
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requirement to obtain a restoration permit, which was granted. \[Tr. 4-5\]. The
County stated at the hearing as follows:
Because this is a land clearing, there would be those
two compliance dates. So the first would be the
th
November 25
issued. And then we would do another 90 days out
from that for the all conditions being met. So that
rd
would be 180 days out, which will be February 23,
2021.
\[Tr. 5\] The Special Magistrate asked
\[Id.\] Mr. Tobin responded:
understanding that that should be sufficient.
\[Id.\] Appellants did not file a motion for extension of time as they represented
they would do. Appellants were therefore not denied due processthey
passed on it.
E. The Final Order is Clear and Definite and Does Not Unlawfully
Delegate Judicial Authority to the County Biologist
1. The Final Order is clear and definite.
\[Initial Br. at 19\]. Appellants then immediately launch into cases that
unexceptionally state
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it commands; the cases
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See Northstar Inves. & Dev., Inc. v. Pobaco, Inc., 691 So.2d 565, 566 (Fla.
th
5 DCA 1997); Ross Dress for Less Va., Inc. v. Castro, 134 So.3d 511, 523
rdrd
(Fla. 3 DCA 2014); Smith v. State, 954 So.2d 1191, 1194 (Fla. 3 DCA
2007). The Final Order clearly commands Appellants to (a) apply for and
issued on or before
the compliance date of 11/25/2020 or daily fines in the amount of $50.00 per
conditions must be met on or before the compliance date of 2/23/2021 or
daily fines in the amount of $50.00 per count per day for all charges as cited
Appellants obviously comprehended the Final
command because they represent t
permit are provided for in LDC Section 118-11, which is entitled
re-stated the
conditions provided in LDC Section 118-11(c)(2). Appellants fail any
explanation of how the process and standards provided for in Section 118-
11 are constitutionally or otherwise deficient.
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2. The Final Order does not violate the non-delegation doctrine or
The Final Order does not violate the non-delegation doctrine by
conditions. This is another argument that was not raised in the code
compliance proceeding and preserved for appellate review. The cases that
Appellants directly cite for their argument \[Initial Br. at 20-21\] are
unexceptional and inapplicable to the facts here. The development and
issuance of restoration permits is an executive function, not a judicial one.
Section 118-11(b) expressly grants the County Biologist the authority to
approve a restoration plan required to correct a land clearing violation. As
this Court already recognized in KRZ v. Monroe County, it is not within the
specific restoration plan; the details of a restoration plan are resolved through
the permitting
the terms of the restoration permit, as Appellants suggest it should have
\[Initial Br. at 21\], this would be a clear case of the judicial branch encroaching
on the executive branch.
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Section 118-11(b) and (c) prescribe definite standards for such permits.
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Moreover, the Final Order did not lea
As this Court
also correctly observed in KRZ v. Monroe County, if Appellants wished to
by appealing
§ 102-
F. The Fines are Not Unconstitutionally Excessive
The $50 daily fine that the Special Magistrate imposed for each
violation if compliance is not achieved is substantially less than the daily fine
3
amounts authorized by § 162.09(2)(a), Fla. Stat. ($250) and § 8-31, MCC
($1,000). Nonetheless, Appellants still \[u\]nquestionably, a fine
that increases $100 per day for each and every day
compliance as dictated by the County biologist violates due process and runs
afoul of the
\[Initial Br. at 21\] , which also
was not raised below and preserved for appellate review. The cases that
3
Section 62.09(2)(d), Fla. Stat., provides that a county having a population
greater than 50,000, such as Monroe County, may adopt an ordinance that
gives code enforcement boards or special magistrates authority to impose
fines greater than the default limits in 162.09(2)(a), up to $1,000 per day per
violation for a first violation. Monroe County adopted such an ordinance.
Section 8-31 of the Monroe County Code authorizes the Special Magistrate
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to impose a fine up to $1,000 per day per violation for a first violation.
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Appellants cite in support of their argument with no parenthetical
explanations merely stand for the unexceptional proposition that excessive
fines can be unconstitutional. None of them address the statutory fine
amounts set by § 162.09(2)(a), Fla. Stat. or § 8-31, MCC, or daily fines in
general.
of per diem fines to obtain correction of Code violations\[,\] because if the
owner fails to address the notice of violation, then the local government is
Code violations. It is where the owner is served but fails or refuses to comply
with the notice of violation that the local government may assess per diem
See Harry M. Hipler, Do Code Enforcement Violations Run with
the Land? Competing Interests of Local Governments and Private Parties
and Their Constitutional Considerations in Code Enforcement Proceedings,
43 Stetson L. Rev. 257 (Winter 2014).
authority to decide the amount of per diem fines that will be assessed if the
owner fails to comply with the finding of violations. The judiciary defers to
Id. See also U.S.
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ЋВ
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v. Bajakajian
3B
st
TV, Inc. v. State Office of the Atty. Gen., 794 So. 2d 744, 749 (Fla. 1 DCA
2001) (Where the legislature has expressly authorized the imposition of daily
penalties when a violation involves a continuing act under Florida law, such
penalty may be assessed on that basis); Riopelle v. Department of Financial
st
, 907 So. 2d 1220, 1223 (Fla. 1
the appropriat U.S. v. 817 Northeast 29th
th
Drive, Wilton Manors, Fla., 175 F. 3d 1304, 1309 (11
excessiveness is a highly subjective judgment, the courts should be hesitant
to substitute their opinion for that of
VII. CONCLUSION
For all of the foregoing reasons, the County respectfully requests that
this Court affirm the Final Order.
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th
Respectfully submitted this 28 day of March, 2022.
__/S/_Derek Howard______________
Derek V. Howard, Esq.
Fla. Bar No. 0667641
Assistant County Attorney
th
1111 12 Street, Suite 408
Key West, FL 33040
(305) 292-3470
howard-derek@monroecounty-fl.gov
VIII. CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has
been furnished via the Florida Courts E-Filing Portal and electronic mail to
ANDREW M. TOBIN, ESQ., attorney for Appellant, at
th
tobinlaw@terranova.net and tobinlaw2@gmail.com on this 28 day of
March, 2022.
___/S/_Derek Howard______________
Derek V. Howard, Esq.
Assistant County Attorney
IX. CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Answer Brief complies with the
applicable font and word count requirements set forth in Fla. R. App. P. 9.045
and 9.210. The word count of this brief is 6,918 and does not exceed 13,000
words or 50 pages and excludes words in a caption, cover page, table of
contents, table of citations, certificate of compliance, certificate of service, or
signature block. The word count includes all other words, including words
used in headings, footnotes, and quotations. The undersigned is relying on
the word count of the word-processing system used to prepare the
document.
__/S/_Derek Howard_______________
Derek V. Howard, Esq.
Assistant County Attorney
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