United States District Court, S.D. Florida
ROBERT S. LEVIN & JOYCE V. LEVIN, Plaintiffs,
PALM BEACH COUNTY, et al, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY
L. ROSENBERG UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Motion for
Summary Judgment [DE 63] and pro sePlaintiffs'
(Mr. Robert Levin and Mrs. Joyce Levin) Motion for Summary
Judgment [DE 59]. Both Motions have been fully briefed. For
the reasons set forth below, Defendants' Motion is
granted and Plaintiffs' Motion is denied.
a case about service. One of the Plaintiffs, Ms. Joyce Levin,
is the owner of a home at 6940 Queenferry Circle, Boca Raton,
Florida. In 1998, Defendant Palm Beach County, through its
code enforcement office, contends that it mailed a notice of
code violation to Plaintiffs. Plaintiffs contend that they
never received that notice. As a result of Plaintiffs'
alleged failure to receive notice, Plaintiffs maintain that
subsequent code enforcement proceedings violated their
constitutional rights and caused them damages. Plaintiffs
seek a declaratory judgment, together with a count for
negligence, in connection with the same. Both parties have
filed motions for summary judgment. In considering these
motions, the operative question for the Court is not whether
Plaintiffs actually received service of code
enforcement violations, but instead whether Defendants'
efforts at service complied with Florida law.
Statute 162.12(1) governs this question. That statute reads:
All notices required by this part must be provided to the
alleged violator by ... . Certified mail, and at the option
of the local government return receipt requested, to the
address listed in the tax collector's office for tax
notices or to the address listed in the county property
appraiser's database. . . .
"The question ... is not whether the owners actually
received notice, which is not demanded by section 162.12, nor
always required by law, . . . but whether the notice provided
. . . satisfied the statutory requirements." Little
v. D'Aloia, 759 So.2d 17, 20 (Fla. Dist. Ct. App.
2000). Plaintiffs' constitutional rights are not
violated, even in the absence of actual notice, because due
process only requires notice that is "reasonably
calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford
them an opportunity to present their objections."
Id. (quotingMullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950)).
Court first notes Plaintiffs' arguments as to why
Defendants' notice was insufficient under § 162.12.
The Court then examines the record evidence pertaining to
Defendants' efforts at service.
Plaintiffs argue that none of the notices of violation mailed
to Plaintiffs included a United States Postal Service
certified mail article number on the notices. DE 60 at 6-7.
Defendants concede this is true. DE 84 at 7. Second,
Plaintiffs argue that the United States Postal Service return
receipts do not set forth the contents of what was mailed. DE
60 at 7. Defendants concede this is true. DE 84 at 7. Third,
Plaintiffs contend that they never received actual notice. DE
60 at 7-17. Defendants do not concede this point. DE 84 at 7.
Defendants' concessions are premised upon their accurate
contention that Plaintiffs' arguments do not correctly
apply the law. The question before the Court does not turn on
whether a particular notice contained a certified mail
article number on it or whether Plaintiffs received actual
notice. The question before the Court is whether Defendants
complied with the notice provisions of § 162.12, which
in return required Defendants to send notice by certified
mail to "the address listed in the tax collector's
office for tax notices or to the address listed in the county
property appraiser's database." Fla. Stat. §
162.12; see, e.g., Jacobson v. Attorney's Title Ins.
Fund, Inc., 685 So.2d 19, (Fla. Dist. Ct. App. 1996)
("Section 162.12(1) . . requires that the alleged
violator be sent notice by certified mail.").
Court now turns to Defendants' evidence of compliance
with § 162.12. Defendants' evidence may be divided
into the following categories: (1) evidence that a
notice was created, (2) evidence that a notice
was mailed by certified mail, (3) evidence that a notice was
delivered, and (4) evidence that Plaintiffs did receive and
read the contents of the notice.
that a Notice of Violation was Created
have a sworn declaration from the code enforcement officer
who prepared the notices of violation (together with related
documents) in this case, Ms. Deborah Wiggins. DE 63 at 5. Ms.
Wiggins attests that in August of 1998 she prepared a
violation work-sheet for Plaintiffs' property. DE 64-21
at 4. She further attests that, to determine where to send
the notice of violation, she looked up the address in the
"address listed in the tax collector's office,
" which § 162.12 requires, and that the address she
located was "Levin Robert S & Joyce V" at
"2901 Clint Moore Road #423, Boca Raton,
Florida." Id. Ms. Wiggins took all of the
data necessary for a formal notice of violation to be typed
and she placed that information "in the appropriate work
bin" for clerical staff to prepare the notice of
violation. Id. This was her normal practice. Mat
that a Notice of Violation was Mailed by Certified Mail
clerical employee that Defendants contend mailed
Plaintiffs' notice of violation, Ms. Joy Mitchell, is
deceased. Id. at 5. Because that employee is
deceased, Ms. Wiggins testified about the normal practice
once a notice of violation is placed into "the
appropriate work bin." Ms. Wiggins attests that the
clerical employee who prepares the notice of violation places
her initials on the notice of violation as part of her normal
practice. Id. In accordance with that practice, Ms.
Mitchell's initials do appear on the notice of violation,
indicating that she prepared it from the appropriate work
bin. Id. at 143. Also in accordance with
Defendants' standard practices, a receipt for certified
mail was attached to the notice of violation and placed into
the appropriate code enforcement case file. Id. at
5. Ms. Wiggins attests that the attachment of the receipt for
certified mail to the notice of violation is evidence that,
in accordance with normal practice, the notice of violation
was mailed by certified mail. See Id. The date on
the notice of violation is September 24,
that a Notice of ...