3rd DCA reverses Carter opinion

The attorney for Big Pine resident Sandra Carter has asked for a rehearing and plans to appeal the illegal downstairs case to the Florida Supreme Court.

Carter was cited by county code enforcement more than 30 years after the fact for what it called an illegal downstairs enclosure. The enclosure, according to court documents, was originally part of the house when it was built in 1975, and the county issued permits on the property several times over the last 27 years.

The county has also been collecting property tax dollars on the enclosure since 1983 as habitable living space.

The county’s special magistrate for code enforcement, who is paid from county coffers, ruled against Carter when she challenged the citation. She appealed to the local courts, which overturned the magistrate’s ruling twice.

The county appealed that loss to the Third District Court of Appeals.

The Third District Court of Appeals ruled in favor of Monroe County based primarily on a public health and safety argument, said Lee Rohe, Summerland Key attorney representing Carter.

The county hadn’t used that argument until the appeal, and based in on the claims of the Federal Emergency Management Agency that enclosures below base flood pose a significant risk to lives and property when used as living space.

FEMA has been urging the eradication of living space below base flood elevation for more than two decades, as well as urging the eradication of ground-level mobile homes in Monroe County.

Rohe had initially won his arguments in front of the local court based on the argument that the county had passed up on its ability to prosecute the enclosure for 27 years, the owner had purchased the property during a time when a court ruling didn’t allow for code actions more than four years old to go forward, and that the county had collected tax dollars on the enclosure as living space for 27 years.

The appeals court ruled that just because the county had issued permits on the property, each one requiring a final inspection, and that building inspectors had been on the property in unofficial capacities several times, it couldn’t be assumed that the county knew of the enclosure’s existence.

The court ruled that way also despite knowing that part of the code enforcement process when a citation is issued is to pull the property record card from the appraiser’s office and check for permits, how the land is taxed, and what improvements are there.

It has been Rohe’s intention that allowing the county to enforce anytime it wants to for a code violation, whenever the rules change for building construction or usage, creates a scenario where property owners have no reliance on material information to make decisions on their homes.

He has also argued that the burden of proof in the case has shifted from the prosecuting body, Monroe County, to the defendant in violation of certain rights.

“Unfortunately, the decision as it now stands will only encourage ‘unbridled discretion’ in the county’s enforcement of suspected code violations,” wrote Rohe. “Under the mantle of ‘police power’ and ‘public safety,’ the county’s repudiation of its prior conduct and the amount of time that has elapsed in citing alleged code violations will become irrelevant.”

Rohe told the court that there were also questions of regional, possibly statewide importance since much of Florida is coastal community and subject to FEMA regulations on below base-flood elevation building.

He asks the court to ask the higher court if the county is allowed to disavow knowledge it has gained at a later date to facilitate code enforcement, and whether the county’s policy of total property inspection upon permit issue can actually mean that it has knowledge of what’s on the property.

The county has continued to prosecute the case partly because it feels FEMA would question its dedication to illegal enclosure enforcement and suspend the county from the National Flood Insurance Program, and partly because legal advisors have said the case could set a precedent that would hamper enforcement of future enclosure prosecutions.

Rohe said a decision by the Supreme Court would definitely be a precedent-setter, but he minimizes the risks to the county.

He said that unless a case mirrored the facts of the carter case very closely, each case would have to be acted on as a separate issue.

Attorneys expect the decision from Third DCA to come by the end of August, possibly early September.

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One Response to “3rd DCA reverses Carter opinion”

Comments

1. Anne Sep 02 2010 / 7am

   “The county has continued to prosecute the case partly because it feels FEMA would question its dedication to illegal enclosure enforcement and suspend the county from the National Flood Insurance Program…” Nice excuse, but then why did the BOCC, summarily dismissed lower-enclosure violations against Kathy & Frank Gifford in Ocean Reef?