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Levin v. Palm Beach County

United States District Court, S.D. Florida

November 2, 2017

ROBERT S. LEVIN & JOYCE V. LEVIN, Plaintiffs,
v.
PALM BEACH COUNTY, et al, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

          ROBIN L. ROSENBERG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendants' Motion for Summary Judgment [DE 63] and pro se[1]Plaintiffs' (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.

         This is 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.

         Florida 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. . . .

         Furthermore, "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)).

         The 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.

         First, 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.").

         The 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[2] 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.

         Evidence that a Notice of Violation was Created

         Defendants 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."[3] 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 3-6.

         Evidence that a Notice of Violation was Mailed by Certified Mail

         The 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, 1998.

         Evidence that a Notice of ...


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