IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

MARK R. REINHARDT
APPELLANT,
Case No: 13-000073-AP
UCN522013AP000073XXXXCI
v.
CITY OF DUNEDIN CODE ENFORCEMENT BOARD
APPELLEE
______________________________________________/

__________________________________________________________________
ON APPEAL FROM
THE CITY OF DUNEDIN CODE ENFORCEMENT BOARD
CASE NO. DCEB-13-616
__________________________________________________________________
APPELLANT'S REPLY BRIEF
__________________________________________________________________
Mark R. Reinhardt
Appellant, pro se
12 Wilson St.
Amissville, VA 20106
540-937-7977

TABLE OF CONTENTS
______________________________________________________________ Page
TABLE OF CONTENTS ..........................................................................................2
TABLE OF AUTHORITIES ................................................................................3
STATEMENT OF THE CASE AND FACTS ...........................................................4
SUMMARY OF ARGUMENT ...........................................................................4
ARGUMENT .......................................................................................................5
CONCLUSION .................................................................................................15
CERTIFICATE OF FONT COMPLIANCE ......................................................16
CERTIFICATE OF SERVICE ...........................................................................16

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TABLE OF AUTHORITIES
______________________________________________________________ Page
CASES
Massey v. Charlotte County ,842 So. 2d 142 (Fla. Dist. Ct. App. 2003)...................6
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)..6, 13
Henzel v. Noel, 598 So. 2d 220, 221 (Fla. 5th DCA 1992)......................................10
Napoleon B. Broward Drainage Dist. v. Certain Lands Upon Which Taxes Due
33 So. 2d 716, 718 (Fla. 1948)............................................................10
Bedford Computer Corp. v. Graphic Press, Inc.
484 So. 2d 1225, 1227 (Fla. 1986)......................................................10
S.H. v. Dep't of Children & Families
837 So. 2d 1117, 1118 (Fla. 4th DCA 2003).......................................11
Panter v. Werbel-Rosh Sec., Inc.
406 So. 2d 1267, 1268 (Fla. 4th DCA 1981).......................................11
Carter v. Lil Joe Records, 829 So. 2d 953 (Fla. 4th DCA 2002).............................11
Baraban v. Sussman
439 So. 2d 1046, 1047 (Fla. 4th DCA 1983).......................................11
Electro Engg Prods. Co. v. Lewis
352 So. 2d 862 (Fla. 1977)..................................................................11
STATUTES
162.06, Fla. Stat. (2013).................................................................................4, 6, 7
162.09, Fla. Stat. (2013).........................................................................................5
162.11, Fla. Stat. (2013).......................................................................................15
162.12, Fla. Stat. (2013).......................................................4, 6, 7, 8, 9, 12, 13, 15
RULES
Dunedin Code Enforcement Board Rules Of Procedure
Rule 4, Section 1a, 1k...................................................................6, 7, 8
Rule 5, Section 2.................................................................................14
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STATEMENT OF THE CASE AND FACTS

Comes now the Appellant, Mark R. Reinhardt, filing pro se, who submits this
Appellant's Reply Brief. This is an appeal of a Final Order by the Dunedin Code
Enforcement Board in case number DCEB 13-616. The Final Order is dated
October 10, 2013. Appellant will show in this brief that Appellee's Answer Brief
confirms that Appellee departed from due process in conducting two hearings and
issuing a Final Order. As such the Order cannot stand and must be overturned by
this Court.
SUMMARY OF ARGUMENT
The Appellee asserts that notice is not required in order to hold a hearing, and is
also not required to issue an Order.[Ans. Brief p. 6,10] Appellee also asserts that
first-class mail is an acceptable substitute for notices required under F.S. 162.06,
and that any means of notice, while not enumerated by statute though chosen by
Appellee as a separate means of notice, do also indeed comport to the
requirements.[Ans. Brief p.13] Appellee further asserts that 14-day and 12-day
periods between the Notice of Hearing and the date of the hearing are reasonably
calculated[Ans. Brief p. 12-14] and sufficient to invoke the enumerated powers
granted by Chapter 162, Florida Statutes, but this necessarily ignores the specific
requirement of F.S. 162.12: If any notice sent by certified mail is not signed as

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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.; Appellee
asserts that all of the above actions do indeed comply with the fundamental
principles of due process. [Ans. Brief p. 11] Appellee then makes unsubstantiated
accusations against Appellant that are outside of the Appellee's knowledge yet
presented as fact.[Ans. Brief p. 13]
The above arguments as presented by Appellee are fallacious, and this will be
demonstrated in the following Argument. It will be clear through this Reply Brief
that Appellee's argument confirms that due process was abandoned and the
subsequent Final Order must be reversed.
ARGUMENT
1) Hearings Require Notice
In its Answer Brief, Appellee asserts that notice is not required in order to hold a
hearing [Ans. Brief p. 6], and notice is also not required to issue an Order.[Ans.
Brief p.10] In support thereof, Appellee cites F.S. 162.09: If a finding of a
violation...has been made as provided in this part, a hearing shall not be necessary
for issuance of the order imposing the fine. The pertinent part that is ignored by
Appellee is finding of a violation...as provided in this part, referencing all of Part
I of Chapter 162, Florida Statutes, which governs the means of determining if a
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violation (or non-violation) has occurred. These means are substantially comprised
of a hearing, and in order to have a hearing, proper notice must be given to the
alleged violator per F.S. 162.12. The DCEB Rules of Procedure, Section 1-a.
state: 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. Proper
notice can only be that which is sufficient under F.S. 162.12.
Appellee also separately references an opinion in Massey v. Charlotte County, 842
So. 2d 142 (Fla. Dist. Ct. App. 2003) by the Florida Second District Court of
Appeals where notice was not provided for a compliance hearing. The 2nd DCA
overturned the ruling because they found that notice was indeed required.
Appellee's claim that notice is not necessary for a compliance hearing directly
conflicts with the decision already rendered by the 2nd DCA, who found that
notice is required for a hearing. A hearing is a hearing, whether or not the word
compliance precedes the word hearing, and this is supported by the opinions in
Massey and also 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).
Appellee is claiming a special kind of hearing under its purview which is not
supported by statute or case law. Appellee has no such power to make such
distinctions. Per F.S. 162.06(2):

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Should the violation continue beyond the time specified for correction, the
code inspector shall notify an enforcement board and request a hearing. 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. [emphasis added]
The word shall is a duty-bound directive. Thus, notice of a hearing is required
under F.S. 162.06(2), and that notice must conform to F.S. 162.12(1)(a).

2) Notice is only that which is enumerated in F.S. 162.12

Appellee asserts that Appellant's receipt of a first-class mailing of a copy of a
notice three days prior to a hearing is absolutely tantamount and equivalent to what
is actually required by statute: Appellee's possession of a signed return receipt of a
certified mailing within a 30-day period. Nowhere in all of Chapter 162 is the term
first-class mail even used. The only directives for mailings all specify that they
be sent via certified mail. Even Appellee's own Rules of Procedure, Rule 4 Section
1-k specify that the Order itself be sent via certified mail.
It is clear from F.S. 162.12 that the intention of the Legislature was to require a
certified mailing, whose return receipt was either signed as received, or not
received by the end of 30 days, before notice shall be sufficient. Additionally, in
order to conduct a hearing in the absence of respondent [Rule 4, Section 1a, DCEB
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Rules of Procedure], it must be determined that proper notice has been met. If the
hearing is conducted in the absence of respondent, a period of 30 days would have
had to expire or alternatively the signed certified mail return receipt would have
been received prior to the hearing. Neither of those occurred prior to either
hearing, and anything else that does not meet statutory requirements is not
sufficient notice.

3) Reasonably calculated is not how return period is specified in F.S.

162.12
It is not up to the Appellee to decide what is a reasonably calculated return
period for service of notice, as that is specifically enumerated by F.S. 162.12: 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.; As is plainly evident, no calculations by Appellee
are necessary because the Legislature has already directed the Appellee as to the
allowable return period for notices sent via certified mail: 30 days. By sending a
certified mailing and allowing only 14 days (September 3, 2013 hearing) or 12
days (October 1, 2013 hearing) notice, Appellee demonstrates that it had no
intention whatsoever of even allowing the possibility of the statutory 30-day return
period and yet still held multiple hearings in the absence of Appellant and in
violation of its own rules [Rule 4, Section 1-a., DCEB Rules of Procedure].
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Reasonably calculated is irrelevant to the Statute.

To make the argument that notice complied with statute, the 30-day return period
has been discarded by Appellee, who makes no mention of this return period in the
entire argument. Inherent in Appellee's assertion is that it can specify any return
period that it deems to be reasonably calculated. Following that argument
reductio ad absurdum, Appellee could possibly declare any time period to be
reasonably calculated and proceed in respondent's absence according to that sole
belief. In the instant case, 14 days for one hearing and 12 days for another are
claimed to be reasonably calculated time periods to hold a hearing in the absence
of Appellant while not being in possession of proof of delivery of notice. Why not
six days? Why not one day prior, or even three days after the fact? That is indeed
what happened in the case of the both hearings where notice was received after the
date of the hearing this is deemed reasonably calculated by Appellee. It is
quite unreasonable in reality, as Appellee is claiming powers it does not have: the
power to determine the return period of service. It is specified by statute, and there
is no discretion afforded to a municipality in F.S. 162.12.
4) Knowledge is not Notice
It is well established in Florida that mere knowledge of a proceeding does not
alleviate the burden of notice on those attempting to invoke legal jurisdiction.

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Appellee claims that because Appellant received a copy of a notice of the

September 3, 2013 hearing via first-class mail and nothing else prior to the hearing,
subsequently notice has been properly given, is sufficient under statute and
conforms to the Rules of Procedure of code enforcement hearings. Appellee
further claims the same in the case of the October 1, 2013 hearing where no
mailings were received prior to the hearing. The method of notice is not sufficient
and the hearings should not have been held in the absence of Appellant without
first being in possession of a signed certified mail return receipt. Quoting the
opinion rendered in Henzel v. Noel, 598 So. 2d 220, 221 (Fla. 5th DCA 1992):
A number of Florida cases specifically hold that actual knowledge of a suit
will not cure insufficient service of process. See, e.g., Napoleon B. Broward
Drainage Dist. v. Certain Lands Upon Which Taxes Due, 33 So. 2d 716, 718
(Fla. 1948). The determination of whether service of process is sufficient is
limited to "whether the requisites of the controlling statute have been
complied with and such compliance appears of record." Id. Although
Napoleon was decided before the enactment of section 48.031(6),
subsequent cases have upheld the same rule in various circumstances. See,
e.g., Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225, 1227
(Fla. 1986) (holding that actual knowledge of suit by nonresident corporate
defendant does not render constructive service of process valid); S.H. v.
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Dep't of Children & Families, 837 So. 2d 1117, 1118 (Fla. 4th DCA 2003)
(holding that actual knowledge of dependency proceeding does not waive
requirement of proper service under section 39.502(5)); Panter v. WerbelRosh Sec., Inc., 406 So. 2d 1267, 1268 (Fla. 4th DCA 1981) (concluding that
'actual knowledge of . . . attempted service cannot be used to justify the
appellee's failure to strictly observe and substantially comply with service
requirements').
Additionally: The burden of proving the validity of the service of process is on
the Plaintiff. Carter v. Lil Joe Records, 829 So. 2d 953 (Fla. 4th DCA 2002).
[S]trict compliance with service of process procedures is required. Baraban v.
Sussman, 439 So. 2d 1046, 1047 (Fla. 4th DCA 1983) (citing - Electro Engg
Prods. Co. v. Lewis, 352 So. 2d 862 (Fla. 1977)).
By abandoning the requirement of possessing a signed certified mail return receipt
or the lapse of 30 days in favor of a non-stipulated first-class mailing, Appellee has
opened the door to virtually any method of notice and could deem them proper.
Following Appellee's argument reductio ad absurdum, this would allow such
esoteric means of notice as carrier pigeons, messages in bottles, postings of notices
in random chat rooms on the internet, or whatever means the Appellee might
imagine. In reality Appellee does not have this power. Appellee may only act in
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accordance with statute, and that has not been done prior to either hearing.
Appellee may wish for a first-class mailing to have the same legal authority as the
statutory certified mail, but this is simply not the case.
5) Fundamental principles of due process are that which statute specifies
Due process is the procedure specified by statute, and is not any other procedure
that is otherwise chosen outside of statutory requirements. A code enforcement
board cannot violate statutory requirements, then violate its own rules of procedure
and simultaneously claim that fundamental principles of due process have been
afforded.
6) Erroneous statements by Appellee
Appellee asserts that due process does not anticipate that one may remain
willfully ignorant of a proceeding and then claim lack of notice [Ans. Brief p. 13].
Appellant denies the unsubstantiated and libelous assertion by Appellee that
Appellant was willfully ignorant on either occasion that Appellee sent its chosen
forms of notice. Appellant vows and avers that he did not receive any first-class
mailings about the October 1, 2013 hearing. Appellee has no knowledge by which
to make such accusations. Appellee's concerns about such a situation are alleviated
by the due process prescribed by statute. F.S. 162.12(1)(a) states, in pertinent
part, If any notice sent by certified mail is not signed as received within 30 days
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after the date of mailing, notice may be provided by posting as described in

subparagraphs (2)(b)1. and 2. To assure that due process was met, all Appellee
would need to do is to wait until the 30-day statutory time frame had passed.
Per the last clause of F.S. 162.12, 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. [emphasis added]
The Florida Legislature has addressed this issue directly when Chapter 162 was
largely amended in 1999, and made particular note in the 1999 Session Laws
[Quoting opinion in Blackburn]:
WHEREAS, creating a presumption of receipt of a notice sent by certified
mail, return receipt requested, when properly addressed to the owner, would
alleviate the current problem of violators evading or greatly delaying code
enforcement proceedings by refusing to sign for such notice, and
....
WHEREAS, it is the intent of the Legislature to cure the ambiguities and
loopholes in chapter 162, Florida Statutes, just described. . . .

Another erroneous statement made by Appellee is the assertion that Appellant does
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not contest the allegations made by the code inspector [Ans. Brief p. 6]. This
necessarily ignores the record, as once Appellant became aware of the September
3, 2013 proceeding, Appellant made a good faith effort to submit a response in
which Appellant denied all of the allegations presented to the code enforcement
board and pointed out the deficiencies of notice. [App. 4]. Appellant returned from
an out-of-town trip to discover the first-class mailing of the copy of the notice on
Saturday, August 31, 2013. This was the Saturday of the Labor Day weekend, and
no Postal mail service was available the two remaining days prior to the hearing
(Sunday and Monday/Labor Day). This is not a reasonable timeframe to compose
and deliver a response to allegations from which Appellant risks the deprivation of
real property. Appellee has argued that it is reasonably calculated to require a
respondent to also make travel arrangements AND compose a response in 72
hours. It is not. Appellant would like to point out for the record that what started
as six violations somehow became three between the two hearings, though no
affidavit of compliance was mailed to Appellant per the Rules of Procedure, Rule
5, Section 2, and the levied fines remained unchanged at the second hearing. This
is arguably capricious and illustrates further deficiencies of due process. The
deficiencies are sufficient to easily reverse the final order as the record shows that
Appellant was not given a meaningful opportunity to be heard at either hearing.

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A third erroneous statement by Appellee is that the order arising from the
September 3, 2013 hearing is not timely appealed [Ans. Brief p.10]. As a non-final
order, it is not able to be appealed under the jurisdiction of this Court per F.S.
162.11. However, the hearing was part of the due process that led to the final
order under appeal, and as such actions taken by Appellee in regard to that hearing
are indeed under the scope of review of this appeal.

CONCLUSION
To make its Argument, Appellee must ignore key elements of statute: the 30 day
return period required by F.S. 162.12 (and its legislative intent), the requirement
that notice be provided by certified mail, and that hearings require notice. By not
adhering to these requirements the record shows that Appellee departed from due
process in issuing a Final Order. 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.

Respectfully submitted by,

______________________
Mark R. Reinhardt
Appellant, pro se

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CERTIFICATE OF SERVICE
I hereby certify that on March 7, 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. Reinhardt
Appellant

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
Appellant

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