IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

MARK R. REINHARDT

APPELLANT,Case No: 14-000009-APUCN522014AP000009XXXXCI

v.

CITY OF DUNEDIN CODE ENFORCEMENT BOARD

APPELLEE______________________________________________/

__________________________________________________________________

ON APPEAL FROM THE CITY OF DUNEDIN CODE ENFORCEMENT BOARD

CASE NO. DCEB-13-773__________________________________________________________________

APPELLANT'S INITIAL BRIEF__________________________________________________________________

Mark R. ReinhardtAppellant, pro se12 Wilson St.Amissville, VA 20106540-937-7977

TABLE OF CONTENTS

______________________________________________________________ Page

TABLE OF CONTENTS ..........................................................................................2

TABLE OF AUTHORITIES …................................................................................3

STATEMENT OF THE CASE AND FACTS ...........................................................5

STANDARD OF REVIEW …...............................................................................12

SUMMARY OF ARGUMENT ….........................................................................13

ARGUMENT ….....................................................................................................14

CONCLUSION ….................................................................................................27

CERTIFICATE OF FONT COMPLIANCE …......................................................30

CERTIFICATE OF SERVICE …...........................................................................30

APPENDIX

A. Notice of Violation ….......................................................................A-1

B. Pinellas County Property Appraiser’s Tax Parcel Listing.................A-5

C. Diagram of Subject Property ….......................................................A-7

D. Photos of Subject Property................................................................A-8

E. Notice of Evidenciary Hearing..........................................................A-9

F. Response to Petition for Hearing ...................................................A-11

G. Final Order Under Appeal...............................................................A-14

H. Attorney General Advisory Opinion AGO 2002-27.......................A-16

I. Attorney General Advisory Opinion AGO 84-32...........................A-21

G. Dunedin Code Enforcement Board Rules of Procedure.................A-25

14-000009-AP Page 2

TABLE OF AUTHORITIES

______________________________________________________________ Page

CASES

Blackburn and Danish v. Code Enforcement Board of the City of St. PetersburgNo. 10-000007AP-88A (Fla. 6th Cir. App. Ct. October 12, 2010).......7

Sarasota County v. Bow Point on Gulf Condo. Developers, LLC, 974 So.2d 431, 433 n.3 (Fla. 2d DCA 2007)........................................7

Lee County v. Sunbelt Equities, II, Ltd. P'ship619 So 2d 996, 1003 (Fla. 2d DCA 1993)............................................7

Mapp v. Ohio367 U.S. 643,rehearing denied,368 U.S. 871 (1961)..........................18

See v. City of Seattle387 U.S. 541 (1967)......................................................................21, 22

United States v. Sokolow450 F.2d 324 (5th Cir. 1971)...............................................................21

Benton v. State329 So.2d 385 (1 D.C.A. Fla., 1976)...................................................21

Parsons v. State334 So.2d 308 (1 D.C.A. Fla., 1976)...................................................21

Colonnade Catering Corp. v. United States397 U.S. 72 (1970)..............................................................................21

Michigan v. Tyler436 U.S. 499 (1978)............................................................................22

Jones v. City of Longwood, Florida404 So.2d 1083 (5 D.C.A. Fla., 1981)................................................22

14-000009-AP Page 3

STATUTES

§ 162.06, Fla. Stat. (2013).....................................................................13, 23, 24, 28

§ 162.12, Fla. Stat. (2013).......................................................................13-14, 23-28

§ 933.21, Fla. Stat. (2013).......................................................................................15

§ 933.26, Fla. Stat. (2013).......................................................................................16

United States Constitution, Amendment IV.............................................................18

United States Constitution, Amendment XIV.........................................................18

Florida State Constitution, Article I Section 12.......................................................18

OPINIONS

Florida Attorney General Advisory Opinion AGO 2002-27 (2002)........................20

Florida Attorney General Advisory Opinion AGO 84-32 (1984)......................20, 21

RULES

Dunedin Code Enforcement Board Rules Of Procedure Rule 4, Section 1a....................................................................14, 26-28

Dunedin Code Enforcement Board Rules Of Procedure Rule 5, Section 2.....................................................................14, 26, 27

14-000009-AP Page 4

STATEMENT OF THE CASE AND FACTS

Comes now the Appellant, Mark R. Reinhardt, filing pro se, who submits this

Appellant's Initial Brief. This is an appeal of a Final Order by the Dunedin Code

Enforcement Board in case number DCEB 13-773. The Final Order is dated

December 13, 2013. Appellant will show in this brief that Appellee has deprived

Appellant of rights to due process by conducting an extra-judicial search of

Appellant's property and failing to provide sufficient notice prior to a compliance

hearing.

Appellant owns a single family home at 1453 San Mateo Dr. in the City of

Dunedin (hereinafter “the subject property”). On September 11, 2013, The

Dunedin Code Enforcement Board (hereinafter “DCEB”) sent a Notice of

Violation regarding the subject property (Appendix A). The Notice of Violation

indicates that “an inspection of [the subject property] on September 3, 2013

revealed a violation of the City Code of Ordinances”. Appellant had no prior

knowledge of, or give consent to, any such type of inspection, and there were no

witnesses while it was performed. The alleged violation consisted of work done to

an enclosed porch which the Appellee claims was done without a permit.

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The enclosed porch is in the rear of the house which faces the backyard. Appellant

purchased the house in 2007 and has performed no work on the room since the

purchase and has no knowledge of the permit history of the property. The room in

question is shown as an enclosed porch on the Pinellas County Property

Appraiser’s diagram of the subject property's layout which is used for tax

assessment purposes (Appendix B, Page 2, circled in red).

In order to gather the information needed to allege the violation, the code inspector

conducted a warrantless search of the subject property by entering the backyard

without Appellee's consent and making forcible entry past at least two locked

barricades. The backyard is enclosed by a six-foot privacy fence and a locked gate.

The room in question has a separate external entrance which is the only way into

the room. The only way to reach the external entrance is either through the house,

by walking out the back door, or by going around the house and entering the

backyard through a locked gate. All doors to the house were locked. The room

itself has a locked door with a lockbox on it.

The specific nature of the information in the Notice of Violation is such that there

is no way possible to obtain the information about the interior details of the room

under allegation other than standing inside the actual room. The room is not

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visible from the street and the only window was covered with a privacy curtain.

Thus, the Notice of Violation is itself substantial evidence that a warrantless search

was performed as the room was locked with curtains drawn, is in the backyard, is

enclosed by a six-foot tall privacy fence, and is not visible or accessible from the

street or anywhere in the front of the house. The backyard is bordered on all three

sides by the backyards of the neighboring parcels and has no visibility to any

street. A diagram of the subject property layout with its orientation to the street

and the room in question is shown in Appendix C.

Appellant resides in Virginia and has contractors perform maintenance and

management as needed for the subject property. It had been previously rented but

the prior tenants left the interior in need of repair and the property was vacant at

the time of the inspection. On or around August 30, 2013, during the week prior to

the code inspector's warrantless visit to the subject property, Appellant had a

landscaping contractor perform routine maintenance which included trimming

branches, mowing the lawn, and performing a security check on the property. The

landscaper had informed Appellant via phone that the work had been done and all

doors and gates were locked. A photo sent to Appellant by the landscaper during

that visit is included in Appendix D as the top photo. This photo is taken from the

backyard and shows the rear entrance to the house as well as the door to the room

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with the alleged violations. The door in the photo is closed and secured.

On September 4, 2013, Appellant asked a relative who lives and Clearwater and

helps manage the subject property stop by to check on the work performed by the

landscaper. During that visit it was discovered that the door to the room in

question was wide open. This is shown in the bottom photo of Appendix D.

Appellant has no direct knowledge of exactly how the code inspector entered the

property, but this is what Appellant does know:

1) the door was verified as closed and locked on August 30, 2013 by landscaper

2) the code inspector sent a notice of violation naming an inspection on

September 3, 2103 and specifying the room in question.

3) on September 4, 2013 the room was found with the door wide open.

Appellant has strong reason to believe the code inspector forcibly entered the

room to gather the information because there was no other way to determine the

details cited without being inside the room after having crossed through multiple

locked barricades. Also, the code inspector should have never been the backyard

to begin with as he was not granted consent of access and did not possess a

warrant.

14-000009-AP Page 8

Prior to the Appellee opening the current case that is under appeal, Appellee had

previously opened two separate cases against Appellant, case #'s DCEB 13-615

and DCEB 13-616. In DCEB 13-615, Appellee alleged code violations and

ultimately filed an Affidavit of Compliance, so no orders were issued and the case

was withdrawn. The case of DCEB 13-616 is one that is also under appeal whose

case is pending before this Court in case # 13-00073-AP. In DCEB 13-616, the

initial evidenciary hearing was scheduled for September 3, 2013, which is the same

day in the instant case that the code inspector cites that “an inspection...revealed a

violation” in the Notice of Violation dated September 11, 2013. The inspector

went to the subject property on the day of a hearing and proceeded to enter secure

areas that were not at all related to the DCEB 13-616 case and without any consent

given by Appellant. The alleged violations in the case of DCEB 13-616 presented

no reason whatsoever why the code inspector could justify entering the private

backyard of the subject property, for the allegations consisted of debris in the form

of personal property in the carport left by the former tenants, overgrown

vegetation, a driveway maintenance issue, torn screens, and broken window

glazing. The landscaper and a relative of Appellant both verified that there were

actually no screens on the house at all and no glazing issues, and the screens and

glazing were subsequently dropped from DCEB 13-616 without prompting by

Appellant. There existed no reasons that could present the code inspector with

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such probable cause to make forced-entry, and even if there were, an inspection

warrant would be required and non was sought or obtained.

There was no consent expressed and there was no consent implied on any occasion

for such an invasive inspection to occur. There were no other parties present other

than the code inspector during the said inspection. The code inspector made no

attempt to contact Appellant regarding the desire to conduct such an invasive

inspection. The record of the instant case supports this.

On October 31, 2013, Appellant received a Notice of Evidenciary Hearing via

certified mail for a hearing to be held on November 5, 2013 [Appendix E]. With

only 5 days to respond, Appellant was not able to make travel arrangements to

appear personally but instead composed a response that was sent via fax to the

clerk of the code enforcement board prior to the hearing [Appendix F]. In the

response, Appellant denied the allegations and informed the code enforcement

board that the information upon which the allegations were based was obtained by

a warrantless search, and that searches of properties by code enforcement officers

required a warrant in Florida; as such the information obtained could not be

considered by the board.

14-000009-AP Page 10

Nothing further was heard until December 30, 2013, when Appellant received a

certified mail letter with the final order that is under this appeal [Appendix G].

The order indicates that the Appellee had held a second hearing in the absence of

Appellant which found Appellant to be in violation of the code ordinances and

levied a fine of $200 per day until the violations were corrected. Appellant did not

receive notice that there would be a compliance hearing. In the order, Appellee

asserts that testimony was heard and because of which findings of non-compliance

were made:

“[Appellee] has heard testimony concerning the compliance by the

Respondents with the Order of the Board previously issued on November 15,

2013 and based on the evidence presented to the Dunedin Code Enforcement

Board enters the following FINDINGS OF FACT, CONCLUSIONS OF

LAW, AND ORDER.”

Appellant received neither any indication that a non-final order had been issued on

November 15 nor any type of notice that there would be any subsequent hearings.

A hearing was held in the absence of Appellant without providing notice and

without providing to Appellant any affidavits of compliance or non-compliance,

subsequently the final order placing a lien against Appellant's real property was

issued on December 13, 2013.

14-000009-AP Page 11

STANDARD OF REVIEW

From the Opinion written in Blackburn and Danish v. Code Enforcement Board of

the City of St. Petersburg , No. 10-000007AP-88A (Fla. 6th Cir. App. Ct. October

12, 2010):

Under section 162.11, Florida Statutes, an appeal of a code enforcement

board's order to the circuit court “shall not be a hearing de novo but shall be

limited to appellate review of the record created before the enforcement

board.” Sarasota County v. Bow Point on Gulf Condo.Developers, LLC, 974

So.2d 431, 433 n.3 (Fla. 2d DCA 2007). When the circuit court in its

appellate capacity reviews local governmental administrative action, “three

questions are asked: whether due process was afforded, whether the

administrative body applied the correct law, and whether its findings are

supported by competent substantial evidence.” Lee County v. Sunbelt

Equities, II, Ltd. P'ship, 619 So 2d 996, 1003 (Fla. 2d DCA 1993).

14-000009-AP Page 12

SUMMARY OF ARGUMENT

The Appellee departed from due process in two distinct manners. The first is by

conducting a search of Appellant's property without consent or a warrant. The

second is by holding a compliance hearing necessary to issue the final order

without providing notice as specified by F.S. §162.12.

Appellant never gave consent for the code inspector to search the property. The

code inspector did not procure an inspection warrant pursuant to F.S. §933.20 –

933.30. There were no other parties present at the subject property when the code

inspector conducted his search. Forcible entry was required to enter the backyard

and also to enter the room under allegation. None of these actions were authorized

by consent or granted by authority.

The notice of a hearing is a required notice per F.S. §162.06, and the means of

provision of required notices are governed by F.S. §162.12. The DCEB Rules of

Procedure Rule 4, Section 1-a. require proper notice to be issued before a hearing

may be held. “Proper” notice is only that which is defined as “sufficient” in F.S.

§162.12.

14-000009-AP Page 13

The Appellee did not provide notice prior to the compliance hearing that preceded

the final order as directed in F.S. §162.12, and subsequently held the hearing

despite the requirements of proper notice in the DCEB Rules of Procedure, Rule 4,

Section 1a. The code inspector did not send an affidavit of compliance or non-

compliance via certified mail prior to the compliance hearing as specified in Rule

5, Section 2 of the DCEB Rules of Procedure. During both hearings Appellee

heard and considered testimony that was gathered extra-judicially. The second

hearing should not have been held, the information gathered should not have been

considered, and the Order under appeal should not have been issued.

Appellant seeks relief by this Court in the form of reversing the Order under this

appeal and to release any and all liens on the subject property as a result of said

Order.

ARGUMENT

Due Process Not Afforded

The nature of this appeal applies directly to whether due process was afforded to

Appellant in the instant case. The Appellee departed from due process by its

conduct of a warrantless inspection, its consideration of information that is

14-000009-AP Page 14

inadmissible, and its failure to provide notice of a compliance hearing, as will all

be shown below.

Property Searches Require Warrants

Under Florida State Law, a code inspector may not conduct an inspection of a

property without consent of the owner or possession of a warrant issued by a judge.

The requirements and procedure for obtaining a warrant are clearly dictated by

F.S. §933.20 – 933.30:

933.21 Requirements for issuance of inspection warrant.—  An inspection

warrant shall be issued only upon cause, supported by affidavit, particularly

describing the place, dwelling, structure, or premises to be inspected and the

purpose for which the inspection is to be made. In addition, the affidavit

shall contain a statement that consent to inspect has been sought and refused

or a statement setting forth facts or circumstances reasonably justifying the

failure to seek such consent. Owner-occupied family residences are exempt

from the provisions of this act.

The code inspector did not seek consent and also did not obtain either an

inspection warrant or a search warrant prior to the inspection performed on

September 3, 2013. There is no affidavit or warrant in the record to any effect of

14-000009-AP Page 15

F.S. §933.21.

None of the violations alleged in 13-616 presented public health or safety concerns

that would justify forcibly-entering the subject property without consent, and if

there were, a warrant would still be required though a warrant was not sought. The

existence of a previously-opened case also does not convey any authority to the

code inspector to return to the subject property and make forcible entry without

prior notice and without the owner or any witnesses present.

Warranted Property Inspections Require an Owner or Occupant Present

F.S. §933.26 governs the methods by which a code inspector may conduct an

inspection of a property, when in possession of a warrant and in the absence of the

owner or occupant:

933.26 Conduct of inspection; notice.—An inspection pursuant to a  

warrant shall not be made between 6 p.m. of any day and 8 a.m. of the

succeeding day; on Saturday, Sunday, or any legal holiday; or in the absence

of an owner or occupant over the age of 18 years of the particular place,

dwelling, structure, or premises unless specifically authorized by the judge

upon a showing that such authority is reasonably necessary to effectuate the

purpose of the rule being enforced. An inspection pursuant to a warrant shall

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not be made by means of forcible entry, except that the judge may expressly

authorize a forcible entry when facts are shown which are sufficient to create

a reasonable suspicion of a violation of a state or local law or rule relating to

municipal or county building, fire, safety, environmental, animal control,

land use, plumbing, electrical, health, minimum housing, or zoning standards

which, if such violation existed, would be an immediate threat to health or

safety or when facts are shown establishing that reasonable attempts to serve

a previous warrant have been unsuccessful. When prior consent has been

sought and refused, notice that a warrant has been issued shall be given at

least 24 hours before the warrant is executed. Immediate execution of a

warrant shall be prohibited except when necessary to prevent loss of life or

property.

The code inspector did not comply with statute prior to the warrantless inspection

of the subject property. Consent was not sought, a warrant was not issued, a

warrant was not sought, notice of the inspection was not given, and an owner or

occupant was not present during the inspection.

Constitutional Rights to be Free of Unreasonable Search and Seizure

The United States Constitution and The Florida State Constitution both firmly hold

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that a fundamental right of citizens is the protection from unreasonable searches

and seizures.

The Fourth Amendment to the United States Constitution states:

“The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and

no warrants shall issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.”

The Fourth Amendment to the United States Constitution, made applicable to the

states through the due process clause of the Fourteenth Amendment (Mapp v. Ohio,

367 U.S. 643,rehearing denied,368 U.S. 871 (1961), guarantees to all persons the

right to be secure from unreasonable governmental intrusion. Further, the Florida

Constitution provides protection from unreasonable searches and seizures in

Article I, section 12:

"The right of the people to be secure in their persons, houses, papers and

effects against unreasonable searches and seizures, and against the

unreasonable interception of private communications by any means, shall

14-000009-AP Page 18

not be violated. No warrant shall be issued except upon probable cause,

supported by affidavit, particularly describing the place or places to be

searched, the person or persons, thing or things to be seized, the

communication to be intercepted, and the nature of evidence to be obtained.

This right shall be construed in conformity with the 4th Amendment to the

United States Constitution, as interpreted by the United States Supreme

Court. Articles or information obtained in violation of this right shall not be

admissible in evidence if such articles or information would be inadmissible

under decisions of the United States Supreme Court construing the 4th

Amendment to the United States Constitution."

A code inspector entering a private single-family home and forcibly entering

private areas of the premises with no notice, no consent, no warrant, no witnesses,

and no supporting affidavits is a very clear example of an unreasonable search and

subsequent attempt at seizure of the subject property by means of a lien. This is an

egregious violation of fundamental rights guaranteed to all citizens and protected

by the Constitution of the United States and the Florida State Constitution.

The Search was Unreasonable - Attorneys General Agree

While common sense would dictate that a code enforcement officer forcibly

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entering a premises with no notice, no consent, no warrant, no witnesses, and no

affidavits is highly unreasonable, this assertion is supported by multiple Advisory

Opinions by Florida Attorneys General spanning multiple decades. Included in the

Appendix are Advisory Opinions AGO 2002-27 [Appendix H] and AGO 84-32

[Appendix I]. Both Attorney General Opinions cite, essentially verbatim, the same

case laws and constitutional clauses and reach the same conclusion that a code

inspector is without authority to conduct a warrantless search of a private dwelling.

In AGO 2002-27, Attorney General Robert A. Butterworth concludes:

“Administrative searches or inspections conducted outside the judicial

process without consent and without prior approval (as evidenced by an

administrative search warrant) are not reasonable, unless it can be shown

that the administrative search or inspection falls within one of the well-

established exceptions to this rule.[7] The protection from unreasonable

searches provided by section 12, Article I, Florida Constitution, and the

Fourth Amendment to the U.S. Constitution, are extended to both business or

commercial premises and to private residences.

…

“In sum, it is my opinion that a municipal code inspector is without authority

to enter onto any private, commercial, or residential property to assure

14-000009-AP Page 20

compliance with or to enforce the various technical codes of the county or to

conduct any administrative inspections or searches without the consent of

the owner or the operator or occupant of such premises, or without a duly

issued search or administrative inspection warrant. The procurement and

issuance of administrative inspection warrants is governed by the provisions

of sections 933.20-933.30, Florida Statutes. However, owner-occupied

family residences are exempt from the provisions of sections 933.20-933.30,

and a search warrant or prior consent and approval of the owner is required

for a search of these premises.”

In similar fashion, Attorney General Jim Smith concludes in AGO 84-27:

“Administrative searches or inspections such as those under consideration in

the instant inquiry, which are conducted outside the judicial process without

consent and without prior approval (as evidenced by an administrative

search warrant) are not reasonable, unless a showing can be made that the

administrative search or inspection falls within one of the well-established

exceptions to this rule. See, e.g., See v. City of Seattle, 387 U.S. 541 (1967);

United States v. Sokolow, 450 F.2d 324 (5th Cir. 1971); Benton v. State, 329

So.2d 385 (1 D.C.A. Fla., 1976); Parsons v. State, 334 So.2d 308 (1 D.C.A.

Fla., 1976); and AGO 82-7. Cf. Colonnade Catering Corp. v. United States,

14-000009-AP Page 21

397 U.S. 72 (1970), and Michigan v. Tyler, 436 U.S. 499 (1978).

…

“Both business or commercial premises and private residences are afforded

protection from unreasonable searches by s. 12, Art. I, State Const., and the

Fourth Amendment to the U.S. Constitution. See v. City of Seattle, supra, in

which the U.S. Supreme Court held that administrative inspections of

commercial structures as well as private residences are forbidden by the

Fourth Amendment when conducted without a warrant; and Jones v. City of

Longwood, Florida, 404 So.2d 1083 (5 D.C.A. Fla., 1981), in which the

court, in a wrongful death action, stated that an ordinance requiring the

building inspector and fire chief to periodically inspect all buildings and

structures within the city was qualified by the Fourth Amendment and could

not authorize inspection of private property without a warrant.

…

“Therefore, it is my opinion that a municipal code inspector is without

authority to enter onto any private, commercial or residential property to

assure compliance with or to enforce the various technical codes of the

municipality or to conduct any administrative inspections or searches

without the consent of the owner or the operator or occupant of such

premises or without a duly issued search or administrative inspection

14-000009-AP Page 22

warrant. The procurement and issuance of administrative inspection warrants

is governed by the provisions of ss. 933.20-933.30, F.S. However, owner-

occupied family residences are exempt from the provisions of ss. 933.20-

933.30, F.S., and as to those residences a search warrant or the prior consent

and approval of the owner is required.”

As is plainly evident in the instant case, the warrantless entry by the code inspector

constituted an unreasonable search, and per Article I, Section 12 of the Florida

State Constitution no evidence gathered by such a search may be considered.

Therefore the Board should not have accepted the evidence in either of the

hearings it held and the subsequent Final Order should not have been issued.

Notice of Hearing Required Under Statute

FS §162.06 governs the enforcement procedures by code enforcement boards and

FS §162.12 governs provisions of notice to alleged violators.

FS §162.06 reads, in pertinent part: “The code enforcement board, through its

clerical staff, shall schedule a hearing, and written notice of such hearing shall be

hand delivered or mailed as provided in s . 162.12 to said violator. ”

14-000009-AP Page 23

Thus, as a notice of a hearing, the notices that the DCEB sent to Appellant for the

hearings that were scheduled on November 5, 2013 and the apparent second

compliance hearing per F.S. §162.06 must be “hand delivered or mailed as

provided in 162.12”.

Notice of Hearing Must Be Mailed via Certified Mail

FS §162.12(1) begins with “All notices required by this part must be provided to

the alleged violator by:” and follows in paragraph (a):

“Certified mail, return receipt requested, to the address listed in the tax

collector’s office for tax notices or to the address listed in the county

property appraiser’s database. The local government may also provide an

additional notice to any other address it may find for the property owner.

For property owned by a corporation, notices may be provided by certified

mail to the registered agent of the corporation. If any notice sent by certified

mail is not signed as received within 30 days after the postmarked date of

mailing, notice may be provided by posting as described in subparagraphs

(2)(b)1. and 2.;”

The notice for the compliance hearing held prior to the issuance of the final order

under appeal was a required notice under F.S. §162.06. The notice must be sent

14-000009-AP Page 24

according to F.S. §162.12(1)(a). Appellant did not receive any notice of a

compliance hearing. Appellee has not entered a signed certified mail return receipt

into the record and a period of 30 days for notice to be sufficient could not have

elapsed in the time frame between the November 15, 2013 non-final order and the

final order of December 13, 2013, so it is impossible to consider the notice

“sufficient” under F.S. §162.12. Appellant does not know when this compliance

hearing was held, but it can only have been between the issuance of the non-final

order of November 15 and the final order of December 13. Thus, by not

possessing a signed certified mail return receipt and not waiting for the lapse of 30

days as required by F.S. §162.12(1)(a), there is no way that sufficient notice under

F.S. §162.12 could have been given. This is another instance where the

Appellee has departed from due process.

Requirements of Notice Not Met

FS §162.12 reads [emphasis added]: “Evidence that an attempt has been made to

hand deliver or mail notice as provided in subsection (1) , together with proof of

publication or posting as provided in subsection (2), shall be sufficient to show

that the notice requirements of this part have been met, without regard to whether

or not the alleged violator actually received such notice.”

14-000009-AP Page 25

In the instant case, Appellant did not receive notice as provided in F.S. §162.12(1)

(a), and therefore the notice was not sufficient as described by statute.

Hearing Not Conforming to DCEB Rules of Procedure

The Rules of Procedure for the City of Dunedin Code Enforcement Board, Rule 4,

Section 1, states:

“The following procedures will be observed in hearings before the Board:

a. If it is established that proper notice of a hearing has been provided

to the Respondent, a hearing may proceed in the absence of the

Respondent.”

Additionally, the code inspector did not send an affidavit of compliance or non-

compliance via certified mail prior to the compliance hearing as specified in Rule

5, Section 2 of the DCEB Rules of Procedure, which states:

“The Code Enforcement Officer shall then issue an affidavit of compliance

or non-compliance which shall be filed with the Board. A copy of said

affidavit shall be sent to the violator by certified mail, return receipt

requested. ”

As has been shown above, proper notice of the hearing was not provided,

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prerequisites to that hearing were not performed, and yet a hearing was held in the

absence of Appellant where inadmissible testimony was heard which led to a final

order depriving the Appellant of real property. For the mere reasons of improper

notice this hearing should not have been held per Rule 4, Section 1 of the DCEB

Rules of Procedure [Appendix J]. The Appellee again departed from due

process by conducting a compliance hearing in the absence of Appellant when

the notice of the hearing and prerequisites to the hearing were not provided as

per F.S. §162.12(1) and DCEB Rule 4, Section 1a and DCEB Rule 5, Section 2.

CONCLUSION

The Appellee departed from due process first by conducting an extra-judicial

search of the subject property, then by failing to provide proper notice that is

sufficient under statute for a compliance hearing, and also by considering

information at two separate hearings that was obtained without consent or a

warrant. The Board should not have considered the information presented in the

first evidenciary hearing as it was not legally obtained. The second hearing

happened without sufficient notice and should have never happened. The final

order should have never been issued.

14-000009-AP Page 27

In order to conduct a hearing, notice of the hearing must be sent in accordance with

statute, specifically the requirements under F.S. §162.06 and F.S. §162.12. Further,

the Rules of Procedure of the DCEB allow a hearing to proceed in the absence of a

respondent only if proper notice has been provided to the alleged violator. The

Rules of Procedure also require an affidavit of compliance or non-compliance to be

sent to the respondent via certified mail prior to the issuance of the final order

which was not performed. Notice was not sufficient, prerequisites were not

performed, the testimony was inadmissible, and the hearings should not have been

held.

As has been shown in the Argument above, the DCEB departed from due process

by:

1) conducting an extra-judicial search without consent of Appellant or

possession of an inspection warrant or search warrant

2) failing to provide notice conforming to F.S. §162.12 for a Compliance

Hearing

3) conducting a Compliance Hearing without determining that proper notice

was provided per Rule 4, Section 1-a of the DCEB Rules of Procedure

4) considering information at an Evidenciary Hearing and a Compliance

Hearing that was not obtained legally through consent or judicial process

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Since due process has not been met, the hearings should not have been held, and

the Order issued by the DCEB that is under appeal should not have been issued.

Therefore, as relief, Appellant seeks to have the Court reverse the Order

under appeal and to direct the City of Dunedin to release any and all

subsequent liens as a result of said Order.

I hereby swear and affirm that the foregoing is true to the best of my knowledge

and belief.

This Appellant's Initial Brief isRespectfully submitted by,

______________________Mark R. ReinhardtAppellant, pro se

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CERTIFICATE OF SERVICE

I hereby certify that on March 18, 2014 a copy of the foregoing has been furnished

by United States Mail to Appellee's counsel at Trask, Metz & Daigneault, LLP,

attn: Jay Daigneault, 1001 S. Fort Harrison Ave. Ste. 201, Clearwater, Florida

33756.

______________________Mark R. ReinhardtAppellant

CERTIFICATE OF FONT COMPLIANCE

I hereby certify that the font used in this brief is 14-point Times New Roman and

that the brief complies with font requirements of Rule 9.210(a)(2).

______________________Mark R. ReinhardtAppellant

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Applicable Statutes

FS 162.06 governs the enforcement procedures by code enforcement boards and FS 162.12 governs provisions of notice to alleged violators.

FS 162.06 reads, in pertinent part: “The code enforcement board, through its clerical staff, shall schedule a hearing, and written notice of such hearing shall be hand delivered or mailed as provided in s. 162.12 to said violator.”

FS 162.12 (1)

Evidence that an attempt has been made to hand deliver or mail notice as provided in subsection (1), together with proof of publication or posting as provided in subsection (2), shall be sufficient to show that the notice requirements of this part have been met, without regard to whether or not the alleged violator actually received such notice.

The period between the date of mailing and the hearing date was 14 days for the Evidenciary Hearing, and 12 days for the Compliance Hearing. The US Post Office will hold certified mail for 15 days before returning it to the sender. FS 162.12(1)(a) requires a 30-day return period for notices of hearings. Appellant received the certified letters for each hearing after the hearing date, but still within the 15 days it was held by the Post Office. The hearings were held before the required Notice was received, even though the Notice was still received within the return time period required under 162.12(1)(a). This is where the Appellee has departed from due process.

The notices for the hearing were required notices under 162.06. The notices must be sent according to 162.12(1)(a). By having fewer than 30 days between the date of mailing and the hearing, the notices did not conform with statute. As the notices were not properly conforming, the hearings should not have been held per Rule XXX of the DCEB Rules of Procedure.

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All notices required by this part / notice of hearing is a notice under this part. 162.06

In the Rules of Procedure for the DCEB, Paragraph XXX states:

Therefore appellant seeks to have the Court vacate the order under appeal and to release any and all subsequent liens as a result of said order.

As such the Appellee cannot invoke jurisdiction over the Appellant because the requirements under the law that give it that jurisdiction have not been met.

The short interval between the dates shows that the board had no intention of providing a 30-day mail acceptance period. The law prescribes an adequate timeframe for a respondent to make an assessment of the alleged violations and formulate a response and/or actions in regard to the allegations. In fact, any response was precluded by the DCEB's actions in that the hearing was held before the expiration of the US Post Office return delivery period for certified mail.

The notion that a 12-day span between the date of notice and the hearing date is not sufficient is further reinforced by [Statute]:

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(2) In addition to providing notice as set forth in subsection (1), at the  option of the code enforcement board or the local government, notice may be served by publication or posting, as follows:

(a)1. Such notice shall be published once during each week for 4  consecutive weeks

In the above statute, the timeframe of publication of notice is “4 consecutive weeks”, which matches the 30-day timeframe prescribed by XXXXX. There is nothing in the statute to suggest that it was the intention of Legislature to allow a municipality to put a certified letter in the mail without any regard to a reasonable response time and have that provide legal jurisdiction to levy fines upon and seize a citizen's property.

Evid. Hearingnotice time span

Compliance Hearingnotice time span

notices are required under statute, subject to service rules

board rules say hearing a hearing may proceed if there's “proper notice”

hearing should not have happened

departed from due process

order/liens should be reversed

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(1) A table of contents listing the issues presented for review, with references to pages.

(2) A table of citations with cases listed alphabetically, statutes and other authorities, and the pages of the brief on which each citation appears. See rule 9.800 for a uniform citation system.

(3) A statement of the case and of the facts, which shall include the nature of the case, the course of the proceedings, and the disposition in the lower tribunal. References to the appropriate volume and pages of the record or transcript shall be made.

(4) A summary of argument, suitably paragraphed, condensing succinctly, accurately, and clearly the argument actually made in the body of the brief. It should not be a mere repetition of the headings under which the argument is arranged. It should seldom exceed 2 and never 5 pages.

(5) Argument with regard to each issue including the applicable appellate standard of review.

(6) A conclusion, of not more than 1 page, setting forth the precise relief sought

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