Special Magistrate, Code Citation Hearing Process

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Magistrate Court convenes in the Town of Fort Myers Beach one Thursday each month. Rather than a traditional judge overseeing the legal proceedings, the Town Special Magistrate Myrnabelle Roche, runs the process, including hearing testimony, arbitrating between lawyers, and ultimately issuing rulings on Code Enforcement cases such as Beach Patrol, building permit issues, code compliance cases, weekly rental in monthly zoning disputes, sea turtle light violations and property liens, among other matters.

“This is a quasi-judicial procedure, just like in court, but less formal,” said Special Magistrate Roche in beginning the session on Thursday, June 20, in Council Chambers in Town Hall at 10:30 a.m. “Anyone testifying in today’s cases, please stand to take the Oath to tell the truth.” Over the next five hours, Roche presided over a docket of 38 cases, though she abated 11, meaning the Town and the person receiving the citation mutually settled their differences prior to the Special Magistrate session, with another 5 continued to a future date.

Of the remaining 22, eight chose to address the Special Magistrate. One case concerning a ‘Weekly Rental in a Monthly Zone’ violation, lasted two hours, with cross examination by Town Attorney John Herin, Jr., and defense attorney Beverly Grady; questions from Roche; statements by the Code Enforcement Officer, other Town Staff, and two adjacent neighbors; and Closing Arguments from Herin and Grady.

Another case over a parking lot use went roughly 45 minutes. Most of the rest lasted 5 to 10 minutes, with the last gentleman simply “admitting my guilt and throwing myself on the mercy of the court!” The most successful was undoubtedly the gentleman who had a potential $46,675 property lien reduced to $500, while the most unfortunate may perhaps be the one who asked Roche to grant his request to release him from the Special Magistrate process to go directly to the Circuit Court. “Too bad,” said Roche, “as I was going to be nice, but you went ahead and made that choice!”

No one attended to address the Special Magistrate in the other 14 cases that mostly ranged from automobile parking infractions to turtle lighting violations. Each lasted just a few minutes, with the Code Enforcement officer who issued the citation giving a brief explanation, Herin occasionally adding a comment, and Special Magistrate Roche issuing her ruling that was generally a $75 to $100 fine, $75 Administrative Fee, and ten days to pay the fine and correct the issue if the property owner had yet to do so.

A Long History

Fort Myers Beach Council member Rexann Hosafros, before permanently relocating to the island several years ago, not only practiced Ohio law for 26 years, but served for 19 as a Family Law Magistrate. “Voters did not elect us,” she recalled, “but the six Judges who they did elect appointed us, to keep the case load manageable.”

For Fort Myers Beach, it is Town Council that selects the Special Magistrate by majority vote. The previous Council unanimously appointed Roche, of MRN Law PA of Pompano Beach, over two other candidates on September 24, 2018, while the current Council on May 20, 2019, unanimously ratified Thomas W. Franchino to serve as Special Magistrate when Roche is unavailable, as occurred that month.

Hosafros noted that communities using a Special Magistrate have a long history, but the process originated in a much different format. “Many cities and towns used to use their Mayor for this function, calling that a ‘Mayor’s Court,’ but this is not in vogue anymore, as Mayors made too many legal mistakes that caused problems down the road, so they now hire an attorney with experience in the types of issues that a Special Magistrate  has jurisdiction over. You can still find some very small communities, however, usually in rural areas, that still have a ‘Mayor’s Court.’”

Hosafros emphasized that the Special Magistrate’s ruling need not be final. “If you are unhappy with their decision, you can absolutely appeal, usually to the appellate court in Downtown Fort Myers, though this process differs from state-to-state.”

She explained that the Special Magistrate process “is more relaxed and less strict than you might be familiar with in a more normal courtroom proceeding; you might even call it more friendly! The Code Enforcement Officer and Town Attorney present the case from the Town’s point of view, then it is your turn. You do not need a lawyer to tell your story to the Special Magistrate, who might even allow you to let witnesses partial to your case speak, and even audience members who have testimony they feel is relevant can participate, whereas in a more formal court procedure, you would need to subpoena those folks. The Town Attorney absolutely can cross-examine you and your witnesses, and it is common for the Special Magistrate to ask questions as well.”

There are, Hosafros believes, several benefits to citizens availing themselves of the Special Magistrate. “The proceedings are in a convenient location in your community, in Fort Myers Beach at Council Chambers in Town Hall, so you do not have to travel far. You can talk about your case in advance to the Town Attorney, and maybe even find a resolution conducive to you and the Town in advance of your hearing date, meaning you do not have to attend, and that is one of the things I mean about the Special Magistrate being a more friendly process than most courts.”

Hosafros felt that the Town currently “uses the Special Magistrate more today than perhaps in the past and that is a good thing! From the Town’s perspective, the more we use the Special Magistrate, the more we work the kinks out of our system, especially in how we manage the docket and communicate with citizens. To give you an example, one local business was to be on a recent Special Magistrate docket, but the Town informed them verbally 48 hours in advance they need not attend that day, but they did not know if they should believe that or not, so the Town Attorney is now working on a written process to inform people about where their case stands rather than verbally.”

Popular Alternative

Beverly Grady of Roetzel & Andress has been practicing Florida law for over 40 years, including many cases before the various Town Special Magistrates. “Fort Myers Beach is not an exception by using a Special Magistrate, as more Southwest Florida communities are moving in that direction, though a popular alternative are Hearing Examiners like those with Lee County.”

Special Magistrates are perfect forums to hear Code Enforcement citation cases within a community, Grady said, rather than taking them to County Court. “A format communities often used was a Code Enforcement Board of 7 professionals, but it was tough coming up with that many people, rather than just one Special Magistrate with the appropriate background. Special Magistrate cases involve anything that may be a violation of the Fort Myers Beach Land Development Code, especially pertaining to construction, building permits, beach patrol parking issues, turtle lighting violations and equivalent situations. Conversely, criminal cases never come before a Special Magistrate. If you disagree with the Special Magistrate’s decision, you can appeal within a 30-day time period to the Circuit Court.”

As to whether Grady recommends bringing an attorney to a Special Magistrate, “the answer is Yes and No! If you agree with the Town that you did not get the proper permit before the activity for which you received your citation and do not challenge the facts, request time to fix the situation, and are agreeing to the fine, you really do not need one. Some people, however, appear before the Special Magistrate over property liens that can amount to tens of thousands of dollars, and there I would certainly recommend an attorney.”

If you receive a Fort Myers Beach Code Enforcement citation, “you have no choice about being on the Special Magistrate docket,” Grady explained. “If, however, you do not disagree with the Town over a minor issue, like a parking violation or turtle lighting matter, you do not have to show up personally, as long as you pay the appropriate fine within the time frame designated by the Special Magistrate. If you want to defend yourself, however, this is the time, place and forum to do that, so take advantage of the process to remedy your situation, rather than going to Circuit Court, to present your case to the Special Magistrate who serves as a neutral participant to weigh the evidence and hopefully make a fair determination.”

Grady does not see any disadvantages to appearing before the Special Magistrate, “as once you receive a Code Enforcement citation, you are on their docket, and you can always appeal if you disagree with the decision, and it may help you to understand the process, along with your case’s strengths and weaknesses should you appeal.”

After initially agreeing to speak to us for this story, Special Magistrate Roche did not respond to multiple attempts to contact her to do so.

 

By Gary Mooney
gary@fortmyersbeach.news