Professional Documents
Culture Documents
Petition For Writ of Certiorari - REPLY - DCEB 13-616
Petition For Writ of Certiorari - REPLY - DCEB 13-616
OF FLORIDA
SECOND DISTRICT
MARK R. REINHARDT
PETITIONER,
CASE No: 2DCA# 2D14-2634
L.T. No: 13-000073AP-88B
v.
CITY OF DUNEDIN CODE ENFORCEMENT BOARD
RESPONDENT
______________________________________________/
__________________________________________________________________
REPLY BRIEF
PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT
COURT FOR THE SIXTH JUDICIAL CIRCUIT FOR
PINELLAS COUNTY; SITTING IN ITS APPELLATE
CAPACITY.
__________________________________________________________________
Mark R. Reinhardt
Petitioner, pro se
12 Wilson St.
Amissville, VA 20106
540-937-7977
TABLE OF CONTENTS
______________________________________________________________ Page
TABLE OF CONTENTS ..........................................................................................2
TABLE OF AUTHORITIES ................................................................................3
ARGUMENT .......................................................................................................4
I. The Circuit Court applied the incorrect law................................................4
A. The incorrect law.............................................................................4
B. The correct law................................................................................5
II. The Circuit Court Considered Facts Outside of the Record......................6
III. Errors in Analysis.....................................................................................8
IV. Conduct of hearings................................................................................10
V. Massey v. Charlotte County.....................................................................11
CONCLUSION .................................................................................................12
CERTIFICATE OF FONT COMPLIANCE ......................................................14
CERTIFICATE OF SERVICE ...........................................................................14
APPENDIX (included with original Petition)
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
REPLY BRIEF - Petition for Writ of Certiorari in re: 13-000073-AP Fla. 6th Cir. App. Ct.
2DCA# 2D14-2634
Page 2
TABLE OF AUTHORITIES
______________________________________________________________ Page
CASES
Manning v. Tunnell
943 So. 2D 1018 (Fla. 1st DCA (2006)................................................7
Massey v. Charlotte County
842 So. 2d 142 (Fla. Dist. Ct. App. 2003)..........................................11
State Dep't. Of Highway Safety and Motor Vehicles v. Edenfield
58 So. 3D 904, 906 (Fla. 1st DCA 2011)..............................................7
STATUTES
162.06, Fla. Stat. (2013)...................................................................................9, 10
162.07, Fla. Stat. (2013)...............................................................................5, 6, 12
162.09, Fla. Stat. (2013)...............................................................................4, 9, 12
162.12, Fla. Stat. (2013).................................................................................10, 11
REPLY BRIEF - Petition for Writ of Certiorari in re: 13-000073-AP Fla. 6th Cir. App. Ct.
2DCA# 2D14-2634
Page 3
Comes now the Petitioner, Mark R. Reinhardt, who files this Reply Brief in a
Petition for a Writ of Certiorari to review an order of the Sixth Circuit Court acting
in its appellate capacity. Petitioner seeks relief in the form of quashing the Circuit
Court's order.
ARGUMENT
I. The Circuit Court applied the incorrect law
A. The incorrect law
Respondent seeks clarification as to how the wrong law was applied by the Circuit
Court. In rendering its decision, the Circuit Court applied F.S. 162.09 which
states if a finding of a violation has been made as provided in this part...a hearing
shall not be necessary prior to the issuance of the order [App. K]. This is the
incorrect law to apply when examining whether or not procedural due process was
followed, because due process had long since been abandoned prior to the issuance
of the order. Due process was abandoned when the compliance hearing was held,
where the finding was made, because legally-sufficient notice was not given.
The order had not yet been issued prior to the abandonment of due process. Thus,
applying F.S. 162.09 in that an order may be issued without a hearing is the
incorrect law when prerequisite actions (namely, a finding of a violation via a
hearing) did not meet procedural due process. The issuance of a final order
REPLY BRIEF - Petition for Writ of Certiorari in re: 13-000073-AP Fla. 6th Cir. App. Ct.
2DCA# 2D14-2634
Page 4
As the record shows, this Petitioner was denied the right to appear before the board
to provide testimony at the October 1, 2013 hearing. As any reasonable person
would agree, fundamental due process that shall govern the proceedings most
certainly requires an opportunity to receive fair notice and be heard when it is
specifically stipulated under F.S. 162.12.
REPLY BRIEF - Petition for Writ of Certiorari in re: 13-000073-AP Fla. 6th Cir. App. Ct.
2DCA# 2D14-2634
Page 5
The record shows and Respondent does not deny that a hearing was held and that
this Petitioner did not receive notice [App. F, Resp. at 16]. F.S. 162.07 is the
correct law to apply because due process is a sequence of events that must meet
legal standards in order to be legitimate. A board cannot issue orders at its own
will without following procedures stipulated under the law, it may only issue
orders if a finding of a violation has been made as provided in this part
(referencing Part I of Chapter 162). To get to the ultimate outcome of a final
order, due process must be followed in each and every action conducted by the
authority seeking jurisdiction. Each successive action can only occur if it is a
result of prior actions that meet procedural due process. The Circuit Court erred by
skipping past the prior violations of due process and upholding an action that was
dependent on due process having occurred, when it in fact did not occur as the
record shows. A finding must be made as provided which is accomplished
through hearings and taking testimony, and those are governed by F.S. 162.07.
2DCA# 2D14-2634
Page 6
the fact that the Court considered facts outside of the record in the rendering of its
decision [Pet. at 15]. The fact still remains that the Circuit Court did indeed say in
the opening paragraph of its opinion:
Appellant seeks review of this order, contending that his Fourth Amendment
rights were violated because of an illegal search of his property. [App. K at 1]
The Circuit Court even directs the reader to Manning v. Tunnell 943 So. 2D 1018
(Fla. 1st DCA (2006) as a citation of case law[Id.]
REPLY BRIEF - Petition for Writ of Certiorari in re: 13-000073-AP Fla. 6th Cir. App. Ct.
2DCA# 2D14-2634
Page 7
Procedural due process cannot be upheld when facts outside of the record are cited
and used by a Court to render an opinion which quotes case law regarding those
facts, and cannot be upheld when those facts used by a Court to determine its
jurisdictional limitations. For these reasons alone the Court's order should be
overturned.
This is in error because the law does not provide for a hearing to be held without
REPLY BRIEF - Petition for Writ of Certiorari in re: 13-000073-AP Fla. 6th Cir. App. Ct.
2DCA# 2D14-2634
Page 8
notice being given. If a hearing is held, notice must be given and adhere to statute
in its form. Hearings are necessary precursors to orders and are where testimony is
taken. Notices for hearings are indeed required by F.S. 162.06. Just as has been
repeated throughout these briefs by the Respondent and the Circuit Court, the
Board must still afford alleged violators procedural due process [App I at 11, App.
K at 3, Resp. at 13], procedural due process requires both fair notice and an
opportunity to be heard at a meaningful time and a meaningful manner [App I at
11, App. K at 3, Resp. at 14], and it is difficult to imagine what further steps the
Board could have been expected to take in its effort to provide Appellant with
notice [App. K at 4], one may easily imagine that all of these requirements of
due process would be satisfied if this Petitioner had actually received the notice.
The error of analysis is that, in its Opinion, the Circuit Court relies upon F.S.
162.09: if a finding of a violation...has been made as provided in this part [App.
K at 2]. The key verb here is finding because the hearing that was held was part
of the finding process. If a hearing had not been held, nothing would have been
found, and no orders could be issued because there were yet no findings. The
code inspector conducting inspections and providing affidavits are part of the
finding process. The board holding hearings to receive these affidavits and
REPLY BRIEF - Petition for Writ of Certiorari in re: 13-000073-AP Fla. 6th Cir. App. Ct.
2DCA# 2D14-2634
Page 9
examine testimony are part of the finding process. These findings must be
made as provided in this part and a substantial portion of Part I of Chapter 162 is
devoted to the conduct of hearings and the provision of notice. The findings in
the instant case were not made as provided in Part I of Chapter 162.
REPLY BRIEF - Petition for Writ of Certiorari in re: 13-000073-AP Fla. 6th Cir. App. Ct.
2DCA# 2D14-2634
Page
10
2DCA# 2D14-2634
Page
11
Respondent and the Circuit Court quote Massey v. Charlotte County 842 So. 2d
142 (Fla. Dist. Ct. App. 2003) where the decision regarding essentially the exact
same circumstances was overturned by this very District Court, yet neither makes a
distinction as to how the instant case is different. The Respondent emphasizes that
the Massey case clearly establishesthat basic principles of due process apply if
a hearing is to be held. [Resp. at 18]. The instant case is exactly the same in the
regard that the Masseys were not provided notice of a compliance hearing and had
no meaningful opportunity to be heard. The record shows that this is precisely
what happened in the instant case. How can case law be maintained if the Order
under this Petition is allowed to stand? It cannot, because case law would then
have two directly conflicting elements: 1) The decision in Massey that a
compliance hearing requires notice, and 2) the decision under this Petition that a
compliance hearing does not require notice. This contradiction cannot exist in case
law as its powers would be diluted and therefore, for this reason alone, the order
must be reversed.
CONCLUSION
The Circuit Court applied the incorrect law. It should have applied F.S. 162.07
and not F.S. 162.09 because the hearing that preceded the order under appeal was
REPLY BRIEF - Petition for Writ of Certiorari in re: 13-000073-AP Fla. 6th Cir. App. Ct.
2DCA# 2D14-2634
Page
12
REPLY BRIEF - Petition for Writ of Certiorari in re: 13-000073-AP Fla. 6th Cir. App. Ct.
2DCA# 2D14-2634
Page
13
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been furnished by United States
Mail to Respondent at the Clerk of the Code Enforcement Board, City of Dunedin,
Florida at PO Box 1348, Dunedin, Florida, 34697-1348.
______________________
Mark R. Reinhardt
Petitioner
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. Reinhardt
REPLY BRIEF - Petition for Writ of Certiorari in re: 13-000073-AP Fla. 6th Cir. App. Ct.
2DCA# 2D14-2634
Page
14