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IN THE DISTRICT COURT OF APPEAL

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.

Notice of Evidenciary Hearing


US Post Office Delivery Record 1
Response to Notice of Hearing
Non-final Order of Compliance
Notice of Compliance Hearing
US Post Office Delivery Record 2
Final Order of Compliance
Appellant's Initial Brief
Appellee's Answer Brief
Appellant's Reply Brief
Order and Opinion of Sixth Circuit Court
Dunedin Code Enforcement Board Rules of Procedure

REPLY BRIEF - Petition for Writ of Certiorari in re: 13-000073-AP Fla. 6th Cir. App. Ct.

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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

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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
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depriving a citizen of real property must be constructed on a foundation of due


process. The justification of an order seizing property can neither depend upon
previous rights violations nor ignore them.

B. The correct law


The correct law to apply is the statute that stipulates the conduct of hearings, which
establishes the requirements of notice and also the parameters of procedural due
process, because without which no subsequent orders are possible. That law is F.S.
162.07 and is what was not complied with by respondent in its conduct of the
October 1, 2013 hearing. F.S. 162.07 states, in pertinent part, The enforcement
board shall take testimony from the code inspector and alleged violator. Formal
rules of evidence shall not apply, but fundamental due process shall be observed
and shall govern the proceedings.

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.

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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.

II. The Circuit Court Considered Facts Outside of the Record


In arguing that this Petitioner did not present an argument that the Circuit Court
violated procedural due process [Resp. at 4], the Respondent omits any response to
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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.]

THIS APPELLANT MADE NO SUCH ASSERTION regarding an illegal search in


any arguments before that Court in that case [App. H & J], yet the Court cited case
law regarding the false fact in its Opinion. Respondent has not denied this, yet
poignantly ignores it in the claim that procedural due process was afforded in the
Appeal before the Circuit Court. Where did this extra-record information come
from? How did it get into the opinion? What other extra-record information was
considered in rendering the opinion? Clearly the actions of the Court were
inappropriately driven by this consideration of extra-record information. Just as
Respondent quotes State Dep't. Of Highway Safety and Motor Vehicles v. Edenfield
58 So. 3D 904, 906 (Fla. 1st DCA 2011), the district court should grant
second-tier certiorari 'only when there has been a violation of a clearly established

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principle of law resulting in a miscarriage of justice' [Resp. at 8], that exact


situation is present in the instant case, because the principle that a Court may only
consider facts in the record of the case at hand is most certainly a clearly
established principle of law. For the Court to then direct its actions and curtail its
scope of review based upon a completely flawed premise is a miscarriage of
justice.

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.

III. Errors in Analysis


The Circuit Court erred in the following statement in its Opinion:
because a hearing was not required under the Act, no notice was required
under the Act [App. K at 2, 3]

This is in error because the law does not provide for a hearing to be held without

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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

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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.

IV. Conduct of hearings


Another application of the incorrect law by the Circuit Court in its opinion is the
disregard for F.S. 162.06, Conduct of Hearings. This entire section does not give
any leeway to a Board to conduct a hearing other than what is specified. If a
hearing is held, then F.S. 162.06 applies and fundamental rules of due process
shall be observed and shall govern the proceedings. This means giving required
notice as provided in F.S. 162.06 and F.S. 162.12.

It is never acceptable to violate fundamental rules of procedural due process, and


the Respondent simultaneously admits that Petitioner did not receive the notice,
[Resp. at 16] and paradoxically also defends it as a justifiable act and calls it fair
notice. [Resp. at 15]. It is not justifiable by any means and any orders emitting
from such actions cannot stand.

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Respondent's sole argument of a hearing was not required is a complete


disregard for finding...as provided in this part. The Circuit Court's opinion that a
hearing was not required is to focus on a very narrow procedure (the issuance of an
order) which is dependent upon a law that was not followed (the taking of
testimony at a hearing). A hearing was held, hearings must comport to statute, and
fundamental rules of due process must be observed which starts with adequate
notice to the alleged violator. It can be no other way. A municipality cannot
violate a citizen's rights on multiple occasions and then use those actions as the
foundation and justification of an order depriving the citizen of real property.
Merely saying in effect we didn't need to observe due process is not a valid
argument. Saying Appellant was provided a [meaningful] opportunity to be
heard. There was a span of 12 days between when notice was sent via certified
mail...and when the hearing was held [App. K at 4] is an incomplete statement
because it ignores the requirements that notice either 1) be received and
acknowledged as received, or 2) the elapse of 30 days from the date of mailing per
F.S. 162.12. This statement also ignores the record, which proves that notice was
received after the October 1, 2013 hearing was held [App. F].

V. Massey v. Charlotte County


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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
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an act of finding as provided in Part I of Chapter 162 and required that


fundamental rules of due process be applied. These rules were in fact not applied
as shown in the record. These exact circumstances have already been addressed in
the opinion of this very Court in the decision of Massey. The Circuit Court also
directly violated fundamental due process in the rendering of its decision by
considering facts outside of the case under appeal and quoting case law based upon
those facts. This Petition meets the scope of second-tier certiorari review and the
order appealed must therefore necessarily be overturned to comply with case law.
Petitioner seeks this relief from the Court.
This Reply Brief is
Respectfully submitted by,
______________________
Mark R. Reinhardt
Petitioner, pro se

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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

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