11-002448 Lake County vs. Donald P. And Christine H. Watson Status: Closed DOAH Final Order on Friday, July 13, 2012.

Summary: Lake County proved that the Respondents failed to comply with an order requiring them to remove fill dirt or obtain a proper permit. A fine of $30,000 is imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE COUNTY , )

)

Petitioner , )

)

vs. ) Case No. 11 - 2448

)

DONALD P. AND CHRISTINE H. )

WATSON , )

)

Respondents . )

)

FINAL ORDER

This cause came before the Division of Administrative

Hearings and Administrative Law Judge Bram D. E. Canter on the

appeal of the Order of Fine issued on May 10, 2010. The final

hearing was held on September 16, 2011, in Tavares, Florida, and

on December 29, 2011, and April 1 9, 2012, by video tele conference

at sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Henry W. Jewett II, Esquire

Jeremy T. Palma, Esquire

Joshua T. Frick, Esquire

R issman, Barrett, Hurt, Donahue

and McLain, P.A.

Post Office Box 4940

201 East Pine Street, 15th Floor

Orlando, Florida 32802 - 4940

For Respondents: Dennis Wells, Esquire

Webb, Wells & Williams, P.A.

260 Wekiva Springs Road, Suite 1070

Longwood, Florida 32779

STATEMENT OF THE ISSUE

Whether the Order of Fine was p roperly imposed.

PRELIMINARY STATEMENT

On May 12, 2008, a Lake County Code Enforcement Special

Master issued an Order of Enforcement, determining that the

Watsons had violat ed Lake County Land Development Regulations

Section 14.00.02 by engaging in unauthorized development activity

when they placed a large pile of fill dirt on their property

without a permit. The Order of Enforcement provided that the

Watsons shall:

Have fou rteen (14) days to comply by

obtaining the proper permit, or removing the

fill from the property and pay the associated

fine in the amount of $500.00, and if

respondent fails to comply, than an

additional fine of $50.00 per day to begin on

the fifteenth (1 5th) day.

The Watsons filed an appeal of the Order of Enforcement in

the circuit court for Lake County, which ultimately affirmed the

ruling of the Special Master.

Lake County Code Enforcement staff later determined that the

Watsons had not complied with the Order of Enforcement. The

matter was referred to the Special Master who issued an Order of

Fine on May 10, 2010, which ordered the Watsons to pay a fine of

$35,250.

The Watsons filed an appeal of the Order of Fine. An appeal

of an order of fine is us ually heard by a Lake County Code

Enforcement Special Master. However, the parties were unable to

agree on the selection of a Special Master to hear the appeal.

Therefore, Lake County entered into a contract with the Division

of Administrative Hearings ( DOAH) to have an Administrative Law

Judge act as Special Master for the appeal.

The hearing on the appeal was completed over the course of

three days. At the September 16, 2011 hearing, Lake County

presented the testimony of Donald Watson, Jessica Jorge a nd

Melanie Marsh. Lake County Exhibits 6, 7, and 11 were admitted

into evidence. The Watsons presented the testimony of Alison

Strange and Special Master Charles Johnson. The Watsons'

Exhibits 1 c , 1d, 1 e , 1 f , 1 g , and 4 were admitted into evidence.

The hearing was continued to December 29, 2011, when the Watsons

presented the testimony of Donald Watson. The hearing was

continued again to April 19, 2012, when the Watsons presented the

testimony of Darren Lacoste, Melanie Marsh, Carmen Carroll, Jim

Stiven der, Ross Pluta, and Donald Watson. Lake County Exhibit 14

was admitted into evidence. The Watsons' Exhibits 5, 6, 8, and 9

were admitted into evidence.

The transcript of the hearing was filed on May 14, 2012. At

the request of the parties, they were gi ven 45 days from that

date to file their proposed orders. The parties submitted

proposed orders that were duly considered.

FINDINGS OF FACT

1. The Watsons admit that they placed a large amount of

fill dirt on their property. The property upon which the fill

was placed is a vacant lot (Lot 13) that is contiguous to the

property upon which the Watsons reside. The Watsons also admit

that they did not obtain a permit from Lake County that

authorized them to place the fill dirt on Lot 13.

2. Lake County Co de Enforcement Special Master Charles

Johnson issued an Order of Enforcement on September 14, 2007,

which required the Watsons to remove the fill dirt or to obtain a

Ðproper permitÑ within 14 days. The Watsons appealed the Order

of Enforcement to the circ uit court, which remanded the case to

the Special Master to allow the parties an opportunity to file

written memorand a in support of their position s . Following the

remanded an identical Order of Enforcement was issued by the

Special Master on May 10, 2008 .

3. The Watsons did not want to remove the fill dirt.

Therefore, after the 2007 Order of Enforcement was issued, Mr.

Watson contacted Lake County staff to obtain a permit.

4. Mr. Watson said he spoke to Jennifer Meyers, the

development processing coord inator in the Public Works Department

to obtain a permit for lot grading , but she told him that

department only issued development orders for subdivisions.

5. Mr. Watson spoke to Carmen Carroll in the Building

Services Division about obtaining a building permit for lot

grading. She told him the County did not issue building permits

for lot grading. Ms. Carroll stated at the hearing that her

division had never issued a building permit for lot grading,

alone. Lot grading is often involved in a building pe rmit, but

only as a part of a proposal to construct a building.

6. Mr. Watson said he arranged in September 2007 to meet on

site with an engineer from the Public Works Department, but the

engineer cancelled the meeting without an explanation.

7. Mr. Wats on claims that Lake County thwarted his efforts

to obtain the proper permit for the fill dirt through the failure

of its employees to tell him what permit to get. Lake County

bears some responsibility for the confusion that existed about

the "proper permi t" that was needed. However, the Watsons'

efforts to obtain a permit fell short of reasonable.

8. Mr. Watson says he told the Lake County employees he

needed a permit to satisfy the Order of Enforcement, but his

testimony on this point was vague. It was not made clear that

all of these County employees under stood the circumstances of the

O rder of Enforcement and the daily fine the Watsons were facing .

9 . There is no evidence that Mr. Watson, when confronted

with the responses from Ms. Meyers and Ms. Car roll, requested to

speak to their supervisors or asked them to contact the County

Attorney's office so that the issue could be resolved.

10 . There is no evidence that the Watsons sought

information about the proper permit from the code enforcement

staff o f the County.

11. There is no evidence that Mr. Watson contacted the Lake

County Attorney's office until many months later.

12. Mr. Watson said that after the 2008 Order of

Enforcement was issued, he saw no purpose in speaking again with

Lake County staf f about obtaining a permit because he thought it

would be a waste of time. That was not reasonable behavior. It

was not reasonable for the Watsons to let daily fine s accumulate

for months because they were frustrated by the statements made by

s ome County employees.

13. Furthermore, the Watsons ' attorney, Allison Strange ,

immediately began settlement negotiations with the County's legal

staff in which the parties contemplated L ake County's issuance of

a permit in a couple of weeks.

14. T he Watsons put an end to those discussions when they

refused to provide engineering support for their lot grading

proposal. The County was concerned about a steep slope on the

northwest part of Lot 13 and fill dirt in the drainage easement.

The Watsons proposed to instal l a retaining wall called a ÐSierra

Slope System.Ñ Mr. Watson claimed that the proposal was

ÐrejectedÑ by the County, but the County simply told the Watsons

that the proposal would have to be submitted by a licensed

engineer in order to be evaluated. Tha t was a reasonable

request, but Mr. Watson did not want to spend the money for an

engineer .

15. The Watsons never applied for a permit for the fill

dirt before the Order of Fine was issued.

16. Taking all of the relevant evidence into account, it is

foun d that the Watsons were not prevented by Lake County from

obtaining a permit for the fill dirt .

17. A claim not raised by the Watsons until the hearing in

this appeal is that they do not owe any fines because Lake County

abated the daily fines during sett lement negotiations in May 2008

and the abatement was never lifted. On May 22, 2008, Ms. Strange

sent a letter to Assistant County Attorney LeChea Parsons

indicating their agreement about abating the fines:

I appreciate your agreement to abate the

issuanc e of any fines against Mr. and Mrs.

Watson until Lake County has had adequate

time to perform its inspections and issue the

development order or permit, as ordered by

the Special Master. Per our discussion this

morning, it seems that Tuesday, June 10, 200 8

would provide sufficient time and that no

f ine would accrue prior to then.

18. The parties agree that one purpose of the May 2008

letter was to try to resolve the matter before the Watsons'

deadline for filing an appeal of the Order of Enforcem ent. A

Lake County employee made an inspection of Lot 13 and the County

told the Watsons, through their attorney, Ms. Strange, of the

County's concerns about the existing grading . The Watsons

responded with their proposal for the Sierra Slope System.

However, w hen the Watsons refused to submit their proposal

through an engineer the negotiations broke down and the Watsons

filed the appeal.

19. The County contends that it only agreed to abate the

fines until June 10, 2008 .

2 0 . The fact that the Watsons did not raise the issue of

the abatement until the hearing in this case suggests that at the

time of the settlement negotiations in 2008, the Watsons did not

think the fines had been abated beyond June 10, 2008 .

2 1 . Taking all the relevant record evidence into a ccount,

the most reasonable meaning to ascribe to the parties'

representations and actions is that the abatement of fines was to

last until June 10, 2008, because that was considered sufficient

time to get a permit and was the last day to settle the disput e

before an appeal was filed. When the Watsons refused to submit

engineering plans and filed the appeal, the negotiations were

terminated and so was the abatement of fines.

2 2 . The County claims that because the Watsons never came

into compliance with th e Order of Enforcement, the offer of the

abatement of fines had no effect. However, just because the

negotiations were unsuccessful does not void the period of

abatement. The fines were abated from May 27, 2008 (the deadline

for compliance set out in the Order of Enforcement) through

June 10, 2008, a period of 15 days.

2 3 . It does not appear from the record that the Watsons had

further contact with Lake County officials about obtaining a

permit until October 2009. During this period, the parties were

in litigation over the Order of Enforcement.

2 4 . In an email dated October 15, 2009, Mr. Watson asked

Ms. Marsh to tell him what Ðproper permitÑ he needed. Ms. Marsh

replied that the proper permit would be a building permit. Even

after being so informed, Mr. Watson still did not apply for a

building permit.

2 5 . On September 14, 2009, the Watsons' property was

inspected by Lake County Code Enforcement Inspector Jessica Jorge

who observed that the fill had not been removed. An Affidavit of

Non - Compliance w as prepared, but it does not appear from the

record that it was referred to the Special Master.

2 6 . On April 22, 2010 , Ms. Jorge inspected the property

again and she observed that the fill had still not been removed.

Ms. Jorge checked the records of the County and determined that

no permit had been issued for the fill. Ms. Jorge executed an

Affidavit of Non - Compliance, which was prese nted to Special

Master Johnson.

2 7 . On May 12, 2010, Special Master Johnson, without a

hearing, entered the Order of Fine . He ordered the Watsons to

pay a fine for non - compliance during the period from May 27, 2008

( the deadline for compliance) through April 22, 2010 (the date of

inspection), which is 695 days, at the rate of $50.00 per day ,

plus the $500 fine assessed in t he Order of Enforcement. The

total fine imposed was $35,250.

28 . Lake County Code of Ordinances Section 8 - 10(a)(2) sets

out factors the Special Master is to consider in determining the

amount of the daily fine:

In determining the amount of the fine, if

a ny, the special master shall consider the

following factors:

a. The gravity of the violation;

b. Any actions taken by the violator to

correct the violation;

c. Any previous violations committed by the

violator.

29 . Special Master Johnson could not remember whether he

applied these factors before issuing the Order of Fine. The

factors will be considered now.

3 0 . The gravity of the violation is not great. There was

no evidence presented of actual harm done to neighboring

properties and no evidence that there were complaints from

neighbors. The potential for erosion and drainage issues

existed, but the County did not show that actual problems

occurred or that the potential for harm was significant.

3 1 . The actions taken by the Watsons to correct th e

noncompliance have been discussed above. The Watsons made

efforts to comply, but stopped short of reasonable efforts

because they did not submit any kind of permit application and

were not willing to employ an engineer to produce a grading plan.

3 2 . Th e Watsons claim they could have complied with the

Order of Enforcement by getting approval for a l ot g rading plan

under an new ordinance , but Lake County prevented them from doing

so. In September 2008, the Lake County Code was amended to add

procedures f or approv ing lot gr ading plans. The Watsons were not

aware of the new ordinance when it was adopted. The County did

not inform them that about the new ordinance. Ms. Marsh said she

did not inform Mr. Watson because she was un aware of the new

ordinance. The record does not show when the Watsons learned

about the new ordinance, but it was after the Order of Fine was

issued.

3 3 . When the Watsons learned about the new ordinance, they

submitted a Lot Grading Plan in October 2011. The plan was

prepared by a licensed engineer. The Watsons' Lot Grading Plan

was approved by the County on January 10, 2012. On that date,

the Watsons finally came into compliance with the Order of

Enforcement.

3 4 . Although the County's failure to inform the Watsons is

relevant t o the mitigation of fines, it does not excuse the

Watsons' failure to apply for a permit for the fill dirt. If

they had applied for a permit, the new ordinance would likely

have been used by the County.

3 5 . The Watsons also claim the y were misled by the County

to believe that they did not need to obtain a permit for the fill

until they were ready to build a house on the property . However,

that representation was part of a settlement proposal which would

have required the Watsons to terminate their lawsui ts. The

Watsons did not terminate their lawsuits, so it is unreasonable

for the Watsons to rely on the CountyÓs representation .

36 . It appears that the Watsons, convinced that the Order

of Enforcement was wrong, were not willing to expend the money

neces sary to get a permit. In addition, obtaining a permit would

have undermined the ir argument in the ongoing litigation o ver the

Order of Enforce ment that no permit was needed.

37 . There was no evidence presented regarding previous code

violations by the Wa tsons.

38 . Section 8 - 10(a)(2) allows for as daily fine u p to

$1,000.00 per day. Special Master Johnson set the daily fine at

the very low end of this range. Taking the factors into account,

$50.00 a day is a reasonable daily fine amount. 1/

CONCLUSIONS OF LAW

39 . The jurisdiction of DOAH to hear this appeal of the

Order of Fine exists under a contract between DOAH and Lake

County.

4 0 . The Ordinance governing this appeal is Section 8 - 10,

entitled "Order of Fine," which states:

(a) The special master, u pon notification by

the code enforcement manager or designee that

an order of enforcement has not been complied

with by the time set out in the order, or

upon finding that a repeat violation has been

committed, may enter an order of fine

ordering the viola tor to pay a fine in an

amount specified in this section for each day

the violation continues past the date set by

the special master in the order of

enforcement for compliance, or, in the case

of a repeat violation, for each day the

repeat violation conti nues past the date of

notice to the violator of the repeat

violation which has been provided by the code

enforcement manager or designee. If a

finding of a violation or a repeat violation

has been made by the special master pursuant

to this chapter, a hea ring shall not be

necessary for issuance of the order of fine.

(1) A fine imposed pursuant to this section

shall not exceed one thousand dollars

($1,000.00) per day for a first violation,

and shall not exceed five thousand dollars

($5,000.00) per day for a repeat violation.

However, if the special master finds the

violation to be irreparable or irreversible

in nature, the special master may impose a

fine not to exceed fifteen thousand dollars

($15,000.00) per violation.

(2) In determining the amount of the fine,

if any, the special master shall consider the

following factors:

a. The gravity of the violation;

b. Any actions taken by the violator to

correct the violation;

c. Any previous violations committed by the

violator.

(b) The violator shall have the right to

request a hearing in front of the special

master to challenge the order of fine,

provided such hearing is requested within

twenty (20) days of the date of issuance of

the order of fine. If the hearing is timely

requested, it shall be sch eduled as soon as

practicable in front of the special master.

The hearing shall be limited to consideration

of only those new findings necessary to

imposing the order of fine, and shall in no

event be a complete re - hearing of the case.

If the violator fail s to make a timely

request for hearing on the order of fine, the

order shall be recorded in the public records

of Lake County, Florida. Requesting a

hearing on the order of fine shall not toll

the time for appeal to the Circuit Court

sitting in Lake Count y, Florida.

4 1 . Although th is proceeding is referred to as an appeal,

it cannot be an appellate - type proceeding because Section 8 - 10(b)

requires the Special Master to make Ðnew findings .Ñ Furthermore,

there was no hearing before the Order of Fine was i ssued , so

there is no record to review . An assessment of penalties for a

code violation without a hearing is a denial of due process of

law. Massey v. Charlotte C n ty . , 842 So. 2d 142 , 174 (Fla. 2nd

DCA 2003). Therefore , the term ÐappealÑ in this context has to

mean a de novo review.

4 2 . The issues necessary to imposing the Order of Fine are

(1) whether the Watsons came into compliance with the Order of

Enforcement, (2) whether the Watsons attempted to come into

compliance, but were prevented by Lake Cou nty, and (3) what is

the appropriate fine, if any, that should be imposed.

4 3 . Not subject to review in this proceeding is the

determination made in the Order of Enforcement that the Watsons

are liable for violati ng Lake County Land Development Regulation s

Section 14.00.02, or the issue of whether the Special Master

acted correctly in ordering the Watsons to obtain a Ðproper

permit.Ñ

4 4 . The burden of proof is on Lake County to show the

Watsons failed to comply with the Order of Enforcement and should

pay a fine because that is the affirmative issue being asserted

in this case. See Young v. DepÓt of Cmty. Affairs 625 So. 2d

831, 833 (Fla. 1993) (The general rule is that the burden of

proof is on the party asserting the affirmative of an issue in

the admin istrative tribunal.) The Watsons bear the burden of

proof to show that their noncompliance was due to the actions of

Lake County.

4 5 . The Order of Fine was correct in determining that the

Watsons had failed to comply with the Order of Enforcement. The

f ill dirt had not been removed and a permit for the fill dirt had

not been obtained.

46 . The Watsons claim that Lake County deprived them of

procedural due process by entering the Order of Fine without

considering the three factors enumerated in Section 8 - 10(a)(2).

However, this appeal afforded the Watsons a de novo hearing to

present evidence addressing the factors listed in Section

8 - 10(a)(2) and the factors have been considered by the

undersigned. Therefore, the Watsons have been afforded due

process.

47 . The Watsons claim that the Special Master erred in

impos ing the $500 non - daily fine because he had made no

determination that the violation was Ðirreparable or irreversible

in nature,Ñ as required by Section 8 - 10(a)(1). Th at claim is

well - founded.

48 . The fines were also computed improperly in the Order of

Fine because the total fines failed to account for the 15 days

when Lake County had agreed to abate the fines .

49. Correction of these two errors would reduce the fine by

$1,250.

5 0 . The fines sh ould be further reduced to account for Lake

CountyÓs failure to provide clearer direction to the Watsons

about how to get a permit for the fill dirt. The reduction for

this factor shall be $4,000.

5 1 . Applying the foregoing reductions resul ts in total

fi nes of $30,000.

DISPOSITION

Based on the foregoing findings of fact and conclusions of

law, it is

ORDERED that the Watsons shall pay to Lake County within 60

days a fine in the amount of $30,000 .

DONE AND ORDERED this 13th day of July , 2012 , in

Tallahassee , Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of July , 2012.

ENDNOTE

1/ T he County agreed not to seek additional fines for the almost

two years that have passed since the Order of Fine was issued.

COPIES FURNISHED:

Dennis Wells, Esquire

Webb, Wells & Williams, P.A.

260 Wekiva Springs Road, Suite 1070

Longwood, Florida 32779 - 6300

Jeremy T. Palma, Esquire

Rissman, Barrett, Hurt,

Donahue and McLain, PA

201 East Pine Street, Suite 1400

Post Off ice Box 4940

Orlando, Florida 32801

[e-mail]

Ron Collodi

Enforcement Services Director

Lake County

Post Office Box 7800

Tavares, Florida 32778 - 7800