ED TAYLOR

Attorney Thomas Tierney, who represents John and Tracy Carroll in the City of Vero Beach’s Appeal of a Code Enforcement Board ruling in their favor, has filed a motion with the Circuit Court claiming that he needs additional time to respond to the initial brief filed by the city on December 4 of last year.  The city is represented by Coral Gables attorney Susan Trevarthen, who is associated with the firm Weiss, Serota, Helfman, Pastoriza, Cole and Boniske.

Tierney cites a variety of reasons for being unable to meet the December 30 deadline established within the Florida Rules of Appellate Procedure including disruptions caused by the traditional holiday season. The Motion For Extension of Time was filed on December 19.  Tierney also cites the filing of an amicus curiae (friend of the court) brief by attorney Lynne Larkin, on behalf of the Indian River Neighborhood Association (IRNA), as a reason for his requested delay to meet his deadline for response.

The city is appealling a decision by their own Code Enforcement Board which ruled in favor of the Carrolls last August on their citation for renting residential property within the city on a short term transient basis. Similar code enforcement issues with this couple date back to 2011.  John Carroll is a former member of the Code Enforcement Board and his wife, Tracy, was the city’s vice-mayor at the time of the August hearing.  She was defeated in her bid for re-election last November.

Tierney is also seeking that the appellate panel disregard the brief filed by IRNA saying that it was not presented in a timely fashion, was filed without leave of the court, that it is duplicative of the initial brief filed by the city and was only filed by the association to cause prejudice to his clients. Tierney claims that the appellate rules allow five days, after the filing of the initial brief, for such a brief to be filed.  The initial brief was filed on December 4 by the city. Ms. Larkin stated that the rule allows ten days and that her filing on December 16 was within that window allowed by the rule since December 14 fell on a Saturday and would not count as a court day for tolling purposes.

Both attorneys for the city and IRNA contend that the Code Enforcement Board exceeded their authority when dealing with their former colleague’s case by attempting to interpret the law in a quasi-judicial fashion rather than decide factually whether the violation occurred.  During the August 14 hearing, John Carroll told his past associates that the violation did in fact occur by stating, “I am the owner of 530 Camellia Lane, and I do admit to this alleged violation.”

The Carrolls contended that the law, as written, was vague, ambiguous and not enforceable.  During the August hearing, City Attorney Wayne Coment stated that “The board’s determination in a case like this where you have a contested citation is strictly limited”, and then read from the code book that the fact finding determination of the board for purposes of a contested code enforcement citation shall be limited as to whether or not the violation alleged did occur or exist, and, if so, whether the person or entity in the citation is responsible for the violation.

The city attorney added, “That is it.  That is all you are supposed to be looking at.”

The Carrolls contend the law is not enforcable.  The city contends the board overstepped its limited authority by, in effect, amending the city code without city council approval.

In his motion for more time to respond to the city’s initial brief, Tierney stated that the court’s response to the IRNA brief would need to be made before he could issue his reply.  He asked that the court give him until January 31, 2014 or until a ruling is made on the amicus curiae brief, whichever date is later.  He added that since he may have to respond to both the city’s and IRNA’s respective legal arguments, it would be more cost effective since he would have to deal with issues raised by both parties. Tierney stated previously that the Carrolls would be filing a lawsuit against the city to recover costs associated with the ongoing appeal.

Although the city’s appellate brief has been filed with the court and a case number has been assigned, a hearing date has not been set.  Since this hearing would constitute an appeal, the chief judge of the circuit will need to appoint three circuit judges to sit as an appellate panel for purposes of hearing argument on the case and issuing a ruling.  As of this date, the three judges have not been named.