Judge David J. Audlin Rules for the People

It is refreshing to see that some Judges have not forgotten that they are there for the people and not the other way around. In a surprise ruling Judge David J. Audlin made a ruling that has the "Control Group" fuming when he favored the constitutional right of the people to "Life, liberty and the pursuit of happiness." this is the same group that is always complaining about how there is no affordable housing in Key West yet just thinking about renting the un used part of your home can get you a court date.

This is the story of a Judge that is not afraid to rule on the side of the people "We need more like him."

See story below....

Key West,Florida USA as published in the Key West Citizen

Monroe County must appeal an October circuit court decision in a case involving an illegal downstairs enclosure, or else it will be hobbled in its ability to enforce all code violations, according to the assistant county attorney.

Bob Shillinger on Wednesday is expected to ask the County Commission to appeal Judge David Audlin's decision, which overturned Code Enforcement action against Big Pine Key horneowner Sandra Carter. The county previously had found Carter in violation of a county law that prohibits living space below flood elevation in homes built in flood zones.

County law has prohibited habitable construction below flood elevation since 1975, but it stepped up enforcement of the ban in 2002 after the Federal Emergency Management Agency (FEMA) threatened to expel the county from the National Flood Insurance Program. The ban does not apply to unfinished storage space.

County officials fear Audlin's ruling, which requires that Code Enforcement officials specify when a code 'violationoccurred, will impair the ability to enforce all building codes.

"[Enforcement becomes] an impossible task in light of the fact that virtually all violations are not committed in the presence of a code inspector," Shillinger said.

"The court's ruling imposes an impossible burden on Code Enforcement. If the circuit court's decision is permitted to stand, it could severely limit the county's ability to use the current Code Enforcement system to resolve violations of the county code."

Under long-standing case law, administrative proceedings — such as Code Enforcement special magistrate hearings — are not as formal nor require the same level of procedural due process as civil or criminal proceedings, Shillinger added.

County Commissioner-elect Heather Carruthers agrees with Schillinger's assessment.

"You have to appeal it or basically there is no way to enforce the code," she said. "The ruling is dangerous from a public policy perspective. That is why the county has to appeal. ... I feel sympathy for people who went to The county and got permission to build [enclosures]. The people who knew the rules and violated them, that is a different story. I hope there is a way to help people keep permitted downstairs enclosures."

Carter's attorney, Lee Rohe, contends the ruling only "takes the burden off the owner and puts burden on the county." The case should have been dropped because it was so old, he said. In that case, witnesses to the violation moved away or died of old age, he said.

"Some of the homeowners are third, fourth or fifth owners of the home after the construction took place," Rohe said. "The present owner has no idea when the violation tookplace. He is forced to reconstruct what happened."

Commissioner George Neugent on Monday said he is trying to arrange a meeting with FEMA officials to discuss modifying the county's inspection program.

He said he would request that the county be required to inspect homes for illegal downstairs construction only when the home is sold or when the owner is renewing a flood insurance policy. Currently, the county may inspect the home for illegal downstairs enclosures whenever a propertyowner applies for a construction permit.

"In no way do 1 want to jeopardize the existing flood insurance program," Neugent said. "I know it's a sensitive issue."

The National Flood Insurance Program offers government-subsidized flood insurance to owners of properties in flood-prone areas, where private sector insurance is prohibitively expensive.

In December, a resolution addressing the issue of downstairs enclosures is expected to go before the County Commission. Citizens not Serfs, a citizens group seeking to change the FEMA-mandated regulations and the county inspection program, has been working with Neugent on the resolution, Citizens not Serfs Executive Director Shenna Collura said. Details of the resolution are still being decided, Collum said.

County Commissioner Mario Di Gennaro also has been supportive of the group and its members.The commission will meet Wednesday at the Key Largo Library. tohara@keysnews.com

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