Attorneys for Monroe County and a Big Pine Key homeowner argued the latest -- and possibly final -- chapter in a controversial downstairs-enclosure case Tuesday.
Chief Assistant Monroe County Attorney Bob Shillinger says the Third District Court of Appeal hearing is likely the county's last shot at overturning Circuit Court Judge David Audlin's rulings in favor of Sandra Carter.
"If we lose, our options are extremely limited. It's a very narrow window of review. This should be the last appellate review. If we win, it goes back to Judge Audlin with instructions," he said.
Carter attorney Lee Rohe says his argument pertained to "laches," a legal term associated with statute of limitations.
"It's a doctrine in law that deals with fairness. You cannot sleep on your rights for a long time and all of a sudden say I'm going to bring a prosecution against you for something that happened 20 or 30 years ago," he said.
Rohe said he's concerned about the implications a loss on appeal could mean for county residents. The county is policing illegal downstairs enclosures at the behest of the Federal Emergency Management Agency, which is concerned about cleanup costs in the wake of a serious hurricane.
"If they say public safety trumps laches, it's dangerous because they open a big door to all kinds of potential abuses government could commit in the name of public safety," he said.
Audlin ruled for a second time on Jan. 11 that Carter can keep her downstairs enclosure despite rules against them. That's because her enclosure was built years before laws were on the books regulating them, and the county knew it.
Carter was cited for six violations in 2006 after Code Enforcement officers inspected her property on another matter and noticed someone living underneath her stilted home. Carter claims the enclosure should be grandfathered in because the home was built during the mid-1970s.
A magistrate ruled against Carter in 2007 and she appealed to Circuit Court. Audlin ruled the violations be thrown out, claiming the county is unable to indicate the exact time and date the enclosure was built.
The county appealed and won, arguing Audlin "departed from the essential requirements of law because it improperly imposed a requirement to provide the inception date of the code violation on the notice of violation."
But Audlin ruled against the county again, leading to Tuesday's videoconference hearing with the Third District Court of Appeal. Shillinger said the county made a similar argument this time around.
Audlin is "supposed to look at the record from the Code Enforcement special master. What he did was reevaluate it and made a different conclusion. He engaged, in our judgment, an improper reweighing of the evidence," Shillinger said.
Both Shillinger and Rohe said a decision could take as little as a week or as long as six months."There's no procedural requirement to issue a ruling in any particular time period. It could come from this day forward," Shillinger said.