17 Fla. L. Weekly Supp. 516a
Online Reference: FLWSUPP 1707URBA
Municipal corporation — Code enforcement — Building code — Keeping vacant unsecured structure — Due process — Notice — Where city sent notices of code enforcement proceedings to property owner at correct address by certified mail and posted notice on property, due process was satisfied irrespective of property owner’s actual receipt of notices — Appeals — Mitigation of fine — Appeal of mitigation order does not confer jurisdiction to review underlying enforcement order and initial fine — No merit to argument that fine is excessive and unfair where fine lies within range of fines prescribed by legislature — There was no denial of due process at mitigation hearing where special master gave property owner notice and full hearing — In mitigation proceeding, special master was not required to consider three factors code enforcement board is required to consider in levying fine — Further, property owner waived issue of special master’s failure to consider three factors by failing to raise specific objection during mitigation hearing
URBANISTICA, LLC., a Florida Limited Liability Comapny, Appellant, v.THE CITY OF MIAMI, FLORIDA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-384 AP. L.T. Case No. 2008005773. March 12, 2010. On appeal from a decision of the City of Miami Code Enforcement Board. Counsel: Barry T. Shevlin, Shevlin & Atkins, Attorneys at Law, for Appellant. Julie O. Bru, City Attorney, Barnaby L. Min, Assistant City Attorney, and John A. Greco, Assistant City Attorney, for Appellee.
(Before: ANTONIO MARIN, MARISA TINKLER MENDEZ, and JOHN W THORNTON, JJ.)
(THORNTON, J.) Mr. John Freydell, President and registered agent for Urbanistica, purchased the property located at 4797 NW 2nd Avenue, on June 19, 2007. Urbanistica fenced in the property and boarded the vacant structure with wood and concrete blocks to ensure no one entered the premises. Mr. Freydell stated he seldom visited the property.
In March 2008 a homeless person broke through the fencing and displaced some of the wood and concrete which barred entrance to the structure. Later in March, the City’s inspector visited the property. The inspector found that the removed wood and concrete had left one window exposed on the structure, in violation of the South Florida Building Code, which forbids keeping a vacant unsecured structure.
The City posted a Notice of Violation, dated March 25, 2008 on the property. The City also sent the Notice via certified mail to both Urbanistica and its registered agent at 4130 NW 45th Court. United States Postal records establish that the Notice was delivered to Urbanistica and the registered agent on April 1, 2008. Neither Freydell nor Urbanistica signed certified mail indicating the Notice was received and opened.
Subsequently, the City sent the Notice of Violation Summons to Appear, dated April 21, 2008, via certified mail to Urbanistica and its registered agent, as well as posted a copy on the property. United States Postal records confirm that the Summons was delivered to Urbanistica on April 29, 2008. The records further indicate that the registered agent failed or refused to claim the Notice of Violation of Summons to Appear, and it was returned to the Postal Service on May 15, 2008.
The Summons notified Urbanistica that a hearing on the violations of the South Florida Building Code would be held on June 11, 2008. Urbanistica claims it never received this Summons and failed to appear at the hearing. The Code Enforcement Board met, found Urbanistica guilty of the violation, required compliance within 24 hours, and imposed a fine of $250 a day for each day of noncompliance thereafter.
On June 12, 2008, the Code Enforcement Board entered its Final Administrative Enforcement Notice finding Urbanistica guilty and imposed the $250 per diem fine. The order was recorded with the Miami-Dade County Clerk of Court on August 13, 2008. Urbanistica did not appeal from this order, now claiming it never received notice.
A lien notice was issued on March 27, 2009, indicating that per diem fines had accrued to $72,000. Urbanistica admits it did receive this notice and subsequently acted to remedy the violation by April 24, 2009.
Urbanistica requested a mitigation hearing seeking a reduction in accrued fines. The hearing was held before the Special Master on June 22, 2009 by which time fines stemming from the violation had increased to $79,000. At the hearing the registered agent testified on behalf of Urbanistica. The Special Master considered the evidence and found that Urbanistica had received notice of the violation. However, the Special Master held that the Code Enforcement Board should have granted Urbanistica 60 days to comply, as opposed to 24 hours, and therefore mitigated the fine form $79,000 to $50,000. Urbanistica subsequently appealed the Mitigation Order to this Court.
Review of an action taken by an administrative or zoning authority is governed by a three part standard of review. The Court must determine whether the agency afforded due process, whether the decision is supported by competent substantial evidence, and whether the decision complies with the essential requirements of law. See Haines CityDev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Applying the correct law is synonymous with observing the essential requirements of law. Id.
Urbanistica claims it did not receive any of the numerous notices regarding the property code violation until April 2, 2009. Consequently, when the City found the property owner guilty of the violation and assessed a $250 per diem fine, Urbanistica did not attend to defend the claims against it. Accordingly, Urbanistica argues it was denied due process, as there was no notice or opportunity to be heard.
City of Miami Code section 2-819(a) provides: “[a]ll notices required by this article shall be in writing and furnished by certified mail, return receipt requested . . . [i]f the violator is a corporation, the notice can be delivered to the registered agent.” Further, City of Miami Code section 2-819(c) states: “[e]vidence that an attempt has been made to hand deliver or mail notice as provided in subsection (a), together with proof of publication or posting as provided in paragraphs (2) and (3) of subsection (b) hereof, shall be sufficient to show that the notice requirements of this article have been met, without regard to whether or not the alleged violator actually received notice.” This language mirrors that of section 162.11, Florida Statutes.
The City satisfied the requirements of City of Miami Code section 2-819 by sending certified mail to Urbanistica and its registered agent at the listed address, while simultaneously posting notice on the property. United States Postal Service records establish that the notices were actually delivered to Urbanistica and the registered agent. Urbanistica complains it received insufficient notice as it never signed for the certified mail.
‘In any proceeding which is to be accorded finality, due process requires notice ‘reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ Dawson v. Saada, 608 So. 2d 806, 808 (Fla.1992) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). In another property code violation case, the Second District Court of Appeal held “[t]he question here is not whether the owners actually received notice, which is not demanded by 162.12, nor always required by law . . . but whether the notice provided by the City satisfied the statutory requirements.” Little v. D’aloia, 759 So. 2d 17, 18 (Fla. 2d DCA 2000). The court continued by saying “[h]ad the City mailed the second notice, the notice of hearing, to the correct address, as it did the first notice, it would have fully complied with the statutory procedures.” Id. at 20. Accordingly, case law has established that certified mail sent to the correct address, along with the posting of notice on the property, fully satisfies the statute, regardless of whether the property owner actually received notice. See Dawson, 608 So. 2d at 808; Little, 759 So. 2d at 18.
Urbanistica also seeks to challenge the validity of the fine levied by the City, and mitigated by the Special Master. Section 162.011, Florida Statutes, provides that appeals from final administrative orders of an enforcement board to the circuit court “shall be filed within 30 days of the execution of the order.” This language is mirrored by that of City of Miami Code 2-818. Failure to file a notice of appeal within such time constitutes an “irremediable jurisdictional defect.” Miami Dade County v. Peart, 843 So. 2d 363, 364 (Fla. 3d DCA 2003).
Since 30 days had lapsed since the execution of the order, Urbanistica now attempts to challenge the fine by appealing the mitigation order. It is important to note, however, that appeal of a mitigation order does not confer jurisdiction to review the underlying enforcement order. See City of Miami v. Cortes, 995 So. 2d 604, 606 (Fla. 3d DCA 2008). Thus, Urbanistica waived this argument, as the initial fine was determined by the final administrative order. The mitigation order merely reduced the already established fine.
Urbanistica argued at the Mitigation Hearing that the $79,000.00 fine given by the City was unjust and unreasonable. Urbanistica contends that the Special Master’s imposition of a $50,000.00 fine is unfair, unreasonable, and extremely excessive. Further, Urbanistica contends that the fine is an example of the City using a Code Enforcement violation as a penalty which violates its due process rights.
Section 162.09(1), Florida Statutes, states:
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.
Section 162.09(2) (a), Florida Statutes, provides that “[a] fine imposed pursuant to this section shall not exceed $250 per day for a first violation. . . .” Accordingly, the statute, on its face, authorizes fines of up to $250 per day for a first violation, the rate at which Urbanistica’s fine accrued.
In Moustakis v. City of Ft. Lauderdale, 2008 WL 2222101, at *1 (S.D. Fla. May 27, 2008), the court held there is a “strong presumption that the amount of a fine is not unconstitutionally excessive if it lies within the range of fines prescribed by the legislature.” The court in Moustakis upheld a code enforcement fine which exceeded $700,000.00 on a property valued at close to $200,000.00. Id. at 2. In allowing the fine to stand, the court stated:
In light of the Plaintiff’s own lengthy period of neglect, the Court will not disregard the judgment of Florida’s legislature in devising fines for property code violations and declining to cap the amount. There is no basis to find that the legislature’s imposition of a per diem fine for failure to correct a problem under the relevant provisions of the Florida Statutes is inappropriate . . . it would be contrary to public policy to allow plaintiffs to evade responsibility simply by neglecting to (or deciding not to) pay fines for so long a period of time that the cumulative amount owed becomes large enough for such plaintiffs to argue unconstitutionally excessive punishment.
Id. at 2.
Accordingly, Urbanistica’s argument, that the $50,000.00 fine is excessive and unfair, is without merit. See id. The Florida Legislature is responsible for determining the appropriate punishment for an offense. Id. In turn, courts have long deferred to the legislature’s judgment in such matters. Id.
Additionally, Urbanistica argues that it was denied due process at the mitigation hearing. Specifically, Urbanistica contends the Special Master failed to examine the available evidence. Urbanistica claims the Special Master did not take into account the simplicity of the problem, or the speed with which the problem was remedied, along with Urbanistica’s previous history of compliance. Nor, claims Urbanistica, did the Special Master consider the Post Office polices and procedures regarding how certified mail is sent and confirmed delivered.
Procedural due process requires both fair notice and a real opportunity to be heard “at a meaningful time and in a meaningful manner.” Key Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., Enforcement v. Real Prop., 795 So. 2d 940, 948 (Fla. 2001). However, the specific parameters of the notice and opportunity to be heard “. . . are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding.” Id.
City of Miami Code section 2-817(d) provides:
An enforcement board or special master may reduce a fine once a violator has complied with the order, and for good cause shown. The board or special master however, hereby authorizes the city to mitigate fines with violators, provided that the total amount of the daily fine imposed by the enforcement board or special master may only be reduced to the percentage stated in the schedule below.
Additionally, the Code provides the Special Master with discretion to mitigate a fine below the table-fixed amounts, but provides no additional guidance. See City of Miami Code section 2-817(d).
City of Miami Code section 2-817(d) makes mitigation wholly permissive at the discretion of the Special Master. Urbanistica requested and received a mitigation hearing, which took place before the Special Master on June 22, 2009. At the hearing, Urbanistica’s registered agent was given the opportunity to speak before the Special Master and present his case for the fine to be reduced. The Special Master made a detailed inquiry of the registered agent, to be certain he understood the case history.
Additionally, the Special Master examined the City’s conduct during the hearing on the violation of the South Florida Building Code. Ultimately, the Special Master mitigated the fine to $50,000.00, reasoning that Urbanistica should have been given 60 days to bring the property into compliance, rather than 24 hours.
Accordingly, Urbanistica was given notice and a full hearing with an opportunity to be heard before the Special Master, which satisfied the fundamental tenets of due process. See Massey v. Charlotte County, 842 So. 2d 142, 146 (Fla. 2d DCA 2003). The Second District Court noted:
[w]e have found no case law addressing whether the procedures required by chapter 162 comport with principles of due process, and we are not required to determine in this case whether the statute is facially unconstitutional. However, in this context we have previously noted, ‘It is necessary to fill the procedural gaps in [chapter 162] by the common sense application of basic principles of due process.’ Citing City of Tampa v. Brown, 711 So. 2d 1188 (Fla. 2d DCA 1998).
Urbanistica also argues that the Special Master was required to consider the three factors of section 162.09(2)(b), Florida Statutes at the mitigation hearing. Pursuant to section 162.09(2)(b), Florida Statutes:
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.
This provision is adopted nearly verbatim in City of Miami Code section 2-817(c):
In determining the amount of the fine, if any, the board or special master shall consider the following factors:
1. The gravity of the violation.
2. Any actions taken by the violator to correct the violation.
3. Any previous violations committed by the violator.
Therefore, the City is required to use the three-prong formula, in arriving upon the initial per diem fine amount, for a property code violation. See City of Miami Code section 2-817(c).
Urbanistica urges that the Special Master was also required to use the same criteria at the mitigation hearing. We disagree. Neither section 162.09(b), Florida Statutes, nor City of Miami Code section 2-817, supports such an interpretation. City of Miami Code section 2-817(d) provides:
[a]n enforcement board or special master may reduce a fine once a violator has complied with the order, and for good cause shown. The board or special master however, hereby authorizes the city to mitigate fines with violators, provided that the total amount of the daily fine imposed by the enforcement board or special master may only be reduced to the percentage stated in the schedule below.
The table provided in City of Miami Code section 2-817(d) states that fines that have been outstanding for in excess of 271 days are not to be reduced below 100%. Because Urbanistica’s fine accrued for more than 271 days, the Special Master was not required to reduce the figure.
However, City of Miami Code section 2-817(d) further provides that “[a]ny reduction below the percentages set above must be brought before the board or special master for its approval.” Accordingly, the Code seemingly does provide the Special Master discretion to mitigate a fine below the table-fixed amounts. This provision, however, contains no reference or requirement that the Special Master rely on the three factors of City of Miami Code section 2-817(c).
In Massey v. Charlotte County, 842 So. 2d 142, 144 (Fla. 2d DCA 2003) (also involving a property code violation) the Second District Court held that, at the original hearing, the Board was required to apply the three factors of section 162.09(2)(b), Florida Statutes. “The Code Enforcement Board did not consider the factors required by section 162.09(2)(b), Florida Statutes, in determining the amount of the fine imposed, and indeed there is no evidence presented to the Board regarding those factors.” Id. at156. Notably, the Court focused on the three factor test with regard to setting the original rate, rather than mitigating an already existing fine amount. See id.
Similarly, in Rutledge v. County of Hillsborough, 2005 WL 2416976 at *1 (Fla. 13th Cir. Ct. Sept. 2, 2005) the court found that a code enforcement board was obligated to consider the three factors in arriving upon a fine amount. The court was particularly struck by the fact that enforcement board did not seek to follow the statutory guidelines:
Thereafter, on August 2, 2004, again without notice to or knowledge of the Rutledges, without any consideration of the 162.09(2)(b) factors, and without receiving or considering any evidence other than the two July 2004 affidavits of its inspector, the CEB imposed a $13,300.00 fine on the Rutledges and a lien on their property.
Id.
Without inviting the appellants to participate, and provide supporting evidence, the enforcement board made no attempt to afford the appellants due process: “[f]inally it does not dispute that the CEB did not consider the factors set forth in section 162.09(2)(b), Florida Statutes, before setting the amount of the fine.” Id. at*4. However, while the court was concerned the enforcement board’s actions amounted to a denial of due process, it did not provide that the three-factor test was to be used in later proceedings to reduce the fine. See id.
Accordingly, Section 162.09, Florida Statutes, and City of Miami Code Section 2-817(c) provide that an enforcement board is required to consider the three articulated factors when determining the initial rate of a fine. As well, City of Miami Code section 2-817(d) provides that a fine may be reduced in a mitigation hearing. However, there is no codified requirement that the three factors be applied when mitigating the fine. See § 162.09, Fla. Stat.; City of Miami Code § 2-817.
Case law suggests that courts expect enforcement boards to adhere to the statutory requirements of Section 162.09, Florida Statutes, when levying a fine. See Massey, 842 So. 2d at 145; Rutledge, 2005 WL 2416976 at *4 (Fla. 13th Cir. Ct. Sept. 2, 2005). There are no cases supporting the notion that mitigation proceedings are subject to the same three-factor test requirements. Nor would it make sense for cases to so hold as it would encourage property owners to ignore violations for a longer period of time, only to come to the Code Enforcement Board at a subsequent mitigation hearing and receive a new hearing on an issue which had previously been decided. The Code and Statute clearly encourage an early resolution.
Finally, Urbanistica first raises this issue on appeal. Case law requires a contemporaneous objection to preserve error for appellate review. See Castor v. State, 365 So. 2d 701 (Fla. 1978); City of Miami v. Cortes, 995 So. 2d 604 (Fla. 3d DCA 2008). If Urbanistica was dissatisfied with the extent to which the Special Master considered the factors of § 162.09, Florida Statutes, it waived the argument by not specifically objecting during the Mitigation Hearing. See Castor, 365 So. 2d at 701.
It is therefore ORDERED that the decision of the Special Master’s Mitigation Order, for the Code Enforcement Board for the City of Miami, is hereby AFFIRMED. (MARIN and TINKLER MENDEZ, JJ.), concur.
