COUNTY ATTORNEY'S REPORT March 17, 2011

Transcription

1 COUNTY ATTORNEY'S REPORT March 17, 2011 I. FOR ACTION 1. Cancellation of a Code Enforcement Order in Case # Recommendation: That the Board authorize canceling an order in code enforcement case number # The order is dated January 31, 2008, and was recorded on February 5, 2008, in Official Records Book 6283, at Pages , of the public records of Escambia County. Pursuant to a joint stipulation, the property owners, Robert G. and Margaret C. Marchelos, abated the violations and paid the amount of $2,600 to settle court costs and fines. In exchange, the County agreed to cancel any remaining liens resulting from this code enforcement order. 2. Robert Reierson's Workers' Compensation Settlement Recommendation: That the Board approve a washout workers compensation settlement to former employee Robert Reierson for the total sum of $223,677. The County will fund $82, of this settlement. An excess insurance carrier will fund the remainder of the settlement. In exchange for the settlement amount, Mr. Reierson will execute a general release of claims and waiver of future employment. II. FOR DISCUSSION 1. The Estate of Jake E. Lott, Deceased/ Case No CP 2103 Recommendation: That the Board determine whether to authorize the County Attorney's Office to appeal the Order of the Honorable Nickolas P. Geeker, issued in the Estate of Jake E. Lott, Deceased, on March 4, III. FOR INFORMATION 1. Department of Community Affairs v. Escambia County (DOAH Case No GM) Recommendation: That the Board accept the attached information concerning Department of Community Affairs v. Escambia County (DOAH Case No GM): The Department of Community Affairs (DCA) has notified the Division of Administrative Hearings of its intent to relinquish jurisdiction. As acknowledged in its letter dated February 7, 2011, the DCA published a cumulative notice of intent to find that the County's adoption of remedial amendments (by Ord. No ) were in compliance with Chapter 163. Now, the DCA has notified the Division of Administrative Hearings that no party has filed a challenge to the County's remedial amendments within the required 21-day challenge period. In essence, the DCA is notifying the Division of Administrative Hearings that further legal proceedings or hearings are not necessary because the County's Comprehensive Plan amendments and its optional Sector Plan were found to be in compliance with Chapter 163, Florida Statutes. Because there are no legal or factual issues remaining, the DCA has requested the Division of Administrative Hearings to close its file.

2 Action Item #: 1. County Attorney's Report Date: 03/17/2011 Issue: Cancellation of a Code Enforcement Order in Case # From: Ryan E. Ross, Assistant County Attorney Organization: County Attorney's Office CAO Approval: RECOMMENDATION: Recommendation: That the Board authorize canceling an order in code enforcement case number # The order is dated January 31, 2008, and was recorded on February 5, 2008, in Official Records Book 6283, at Pages , of the public records of Escambia County. Pursuant to a joint stipulation, the property owners, Robert G. and Margaret C. Marchelos, abated the violations and paid the amount of $2,600 to settle court costs and fines. In exchange, the County agreed to cancel any remaining liens resulting from this code enforcement order. BACKGROUND: In 2007, Escambia County Code Enforcement cited Robert and Margaret Marchelos for code violations at 620 South Navy Boulevard. After a hearing, the special magistrate entered an order finding violations. Code Enforcement recorded the order on February 5, 2008 in the official records of Escambia County. Marchelos appealed the order and the circuit court affirmed the order on August 13, Daily fines continued to accrue while the appeal was pending. The circuit court remanded the matter back to the special magistrate to determine how the violations could be abated. In lieu of a hearing, the parties agreed with abatement measures taken by Marchelos and stipulated to a settlement amount of $2,600 to resolve outstanding court costs and fines. In exchange, the County agreed to cancel any liens remaining from the February 5, 2008 code enforcement order. BUDGETARY IMPACT: LEGAL CONSIDERATIONS/SIGN-OFF: The agreement was reviewed by Assistant County Attorney Ryan E. Ross. PERSONNEL: POLICY/REQUIREMENT FOR BOARD ACTION: IMPLEMENTATION/COORDINATION:

3 County Attorney's Report Date: 03/17/2011 Issue: Robert Reierson's Workers' Compensation Settlement From: Ryan E. Ross, Assistant County Attorney Organization: County Attorney's Office CAO Approval: Action Item #: 2. RECOMMENDATION: Recommendation: That the Board approve a washout workers compensation settlement to former employee Robert Reierson for the total sum of $223,677. The County will fund $82, of this settlement. An excess insurance carrier will fund the remainder of the settlement. In exchange for the settlement amount, Mr. Reierson will execute a general release of claims and waiver of future employment. BACKGROUND: Mr. Reierson was working as a weigh station operator on April 17, 1995 when he injured his lower back. Since his injury, he has been treating with a pain management specialist.[1] Mr. Reierson is receiving social security disability benefits but has not yet filed a claim for permanent total disability benefits, even though he has not worked since There has been some discussion of filing for PTD, but the pending settlement has placed any further action on hold. There could be significant future exposure for PTD benefits if Mr. Reierson files a claim in the near future. Furthermore, the County is projected to expend $234,715 in future medical benefits. (The County has already expended $217, in medical benefits). The attorney for the County s third-party adjuster has negotiated this settlement to reduce the County s future exposure and recommends acceptance of the settlement. [1] Due to privacy concerns, a more detailed medical history is available from Assistant County Attorney Ryan Ross. BUDGETARY IMPACT: Reserves are coordinated through Risk Management and the County s third-party carrier, Preferred Governmental Claims Solutions. Monies are paid out of Fund 501, Account LEGAL CONSIDERATIONS/SIGN-OFF: This agreement was reviewed by Assistant County Attorney Ryan E. Ross. PERSONNEL: POLICY/REQUIREMENT FOR BOARD ACTION:

4 IMPLEMENTATION/COORDINATION:

5 Discussion Item #: 1. County Attorney's Report Date: 03/17/2011 Issue: The Estate of Jake E. Lott, Deceased/ Case No CP 2103 From: Stephen G. West, Assistant County Attorney Organization: County Attorney's Office CAO Approval: RECOMMENDATION: Recommendation: That the Board determine whether to authorize the County Attorney's Office to appeal the Order of the Honorable Nickolas P. Geeker, issued in the Estate of Jake E. Lott, Deceased, on March 4, BACKGROUND: Jake E. Lott, Sr., died on March 20, 2001 owning property in Escambia County located at 19 Carver Street. That property was subsequently sold at a tax deed sale on March 7, 2005, which generated surplus proceeds of $14, The attorney representing the purported heir of Jake E. Lott contacted the Clerk of Court shortly after the tax deed sale but failed to file any notarized claim or produce authorization from a local probate court confirming that his client was the true heir and entitled to the surplus proceeds. As a result, the Clerk disbursed the surplus proceeds to the County in January 2006 as required by Chaper 197, Florida Statutes, and two years after the disbursement all claims to the surplus proceeds were forever barred and the money because the property of the County. The heir finally obtained an order of the local probate court on December 1, 2010, that recognized his status, and he subsequently petitioned the Court to direct the Clerk and the County to recognize his claim to the surplus proceeds. On March 4, 2011 the Court issued an order directing the Clerk of the County to disburse the surplus proceeds to the heir, despite that he had failed to properly establish his entitlement to the surplus proceeds and that any such claim that he might have had is now barred. BUDGETARY IMPACT: LEGAL CONSIDERATIONS/SIGN-OFF: PERSONNEL: POLICY/REQUIREMENT FOR BOARD ACTION:

6 IMPLEMENTATION/COORDINATION: and Order Attachments

7 Brenda J. Spencer From: Stephen G. West Sent: Thursday, March 10, :48 PM To: Brenda J. Spencer Subject: FW: File: L IN RE: Estate of Jake Lott - Order issued 3/4/2011 Attachments: SECS_197472_AND_ pdf From: Lisa BernaufSMTP:LBERNAU@CLERK.CO.ESCAMBIA.FL.US1 Sent: Thursday, March 10, :47:20 PM To: Stephen G. West Cc: Cindy M. Rhodes; Brenda Robinson Subject: Re: File: L IN RE: Estate of Jake Lott - Order issued 3/4/2011 Auto forwarded by a Rule Steve, After discussion with Cindy Rhodes and Brenda Robinson on this matter, Mr. Magaha asked me to confirm with you that our main concerns include: 1. Absent a court order, our Office could not pay the claimant these funds. The ruling of the Court, however, creates the position for the Clerk that any letter received from any individual claiming to have an interest in the overbid proceeds from a tax deed sale will cause our Office to hold these funds perhaps ad infinitum. Such a requirement creates administrative challenges, reduces possible revenues collected by the County, and conflicts directly with Section and Section (2) of the Florida Statutes (attached). 2. Section and Section (2), Florida Statutes, outline a method by which the Clerk's responsibility to account for such funds ceases, the parties' entitlement to the funds would be definite, and the funds would be completely disbursed. We appreciate your time and efforts on behalf of our Office and the Citizens of Escambia County. Lisa Bernau Chief Deputy Ernie Lee Magaha Clerk of the Circuit Court & Comptroller Escambia County, Florida lbernau@escambiaclerk.com Original Message From: Stephen G. West To: Lisa Bemau Cc: Brenda Robinson ; Brenda J. Spencer Sent: Monday, March 07,2011 4:20 PM Subject: FW: File: L IN RE: Estate of Jake Lott - Order issued 3/4/2011 Lisa: Judge Geeker issued an unfavorable order in the Estate of Jake Lott (attached). We will be submitting a recommendation to the BCC to authorize an appeal, but wanted the Clerk's office to have the opportunity to comment because it affects how proceeds from tax deed sales are disbursed. I assume that you are familiar with the case, but please feel free to call me if you need the background. Steve

8 Statutes & Constitution :View Statutes : Online Sunshine Pagel ofl f -^Online The 2010 Florida Statutes(including Special Session A) Title XIV TAXATION AND FINANCE TAX COLLECTIONS, Chapter 197 SALES, AND LIENS View Entire Chapter Disposition of unclaimed redemption moneys.- (1) After money paid to the tax collector for the redemption of tax certificates has been held for 90 days, which money is payable to the holder of a redeemed tax certificate but for which no claim has been made, on the first day of the following quarter the tax collector shall remit such unclaimed moneys to the board of county commissioners, less the sum of $5 on each $100 or fraction thereof which shall be retained by the tax collector as service charges. (2) Two years after the date the unclaimed redemption moneys were remitted to the board of county commissioners, all claims to such moneys are forever barred, and such moneys become the property of the county. History.-s. t84, ch ; s. 5, ch Copyright The Florida Legislature Privacy Statement Contact Us 3/10/2011

9 Statutes & Constitution :View Statutes : Online Sunshine Page 1 of 1 Online The 2010 Florida Statutes(including Special Session A) Title XIV Chapter 197 View Entire Chapter TAXATION AND FINANCE TAX COLLECTIONS, SALES, AND LIENS Disbursement of proceeds of sale.- (1) If the property is purchased by any person other than the certificateholder, the clerk shall forthwith pay to the certificateholder all of the sums he or she has paid, including the amount required for the redemption of the certificate or certificates together with any and all subsequent unpaid taxes plus the costs and expenses of the application for deed, with interest on the total of such sums for the period running from the month after the date of application for the deed through the month of sale at the rate of 1.5 percent per month. The clerk shall distribute the amount required to redeem the certificate or certificates and the amount required for the redemption of other tax certificates on the same land with omitted taxes and with all costs, plus interest thereon at the rate of 1.5 percent per month for the period running from the month after the date of application for the deed through the month of sale, In the same manner as he or she distributes money received for the redemption of tax certificates owned by the county. (2) If the property is purchased for an amount in excess of the statutory bid of the certificateholder, the excess shall be paid over and disbursed by the clerk. If the property purchased is homestead property and the statutory bid includes an amount equal to at least one-half of the assessed value of the homestead, that amount shall be treated as excess and distributed In the same manner. The clerk shall distribute the excess to the governmental units for the payment of any lien of record held by a governmental unit against the property. In the event the excess is not sufficient to pay all of such liens in full, the excess shall then be paid to each governmental unit pro rata. If, after all liens of record of the governmental units upon the property are paid in full, there remains a balance of undistributed funds, the balance of the purchase price shall be retained by the clerk for the benefit of the persons described in s (1 )(a). except those persons described in s. 12L5Q2{4)(h), as their interests may appear. The clerk shall mall notices to such persons notifying them of the funds held for their benefit. Any service charges, at the same rate as prescribed in s. 2JL24(10), and costs of mailing notices shall be paid out of the excess balance held by the clerk. Excess proceeds shall be held and disbursed in the same manner as unclaimed redemption moneys in s In the event excess proceeds are not sufficient to cover the service charges and mailing costs, the clerk shall receive the total amount of excess proceeds as a service charge. Htstory.-s. 8, ch ,1935; CGL 1936 Supp. 999(143); s. 31, ch , 1941; ss. 1, 2, ch ; s. 1, ch ; ss. 22, 34, ch ; s. 4, ch ; s. 3, ch ; s. 6, ch ; s. 6, ch ; s. 196, ch ; s. 1030, ch ; s. 10, ch ; s. 2, ch ; s. 90, ch Note.-Fonnerss , , Copyright The Florida Legislature Privacy Statement Contact Us 3/10/2011

10 IN THE CIRCUIT COURT IN AND FOR ESCAMBIA COUNTY, FLORIDA PROBATE DIVISION IN RE: The Estate of CASE NO CP JAKEE. LOTT, DIVISION: "A" Deceased. ORDER THIS CAUSE is before the Court pursuant to notice upon motion of the personal representative seeking to re-open proceedings to enforce provisions of the order of summary administration entered on December An order to show cause was entered on January 21, 2011, directed to interested parties and a hearing thereon was held on February 14,2011, to consider objection to enforcement of the provisions of the aforementioned order of summary administration. This Court concludes that the response of the objecting party, an entity of Escambia County, Florida, exalts form over substance and is without merit. While the actions of petitioner arc not a model of exact compliance his actions were legally sufficient to meet and satisfy the requirements of law and to put respondent on notice of his claim. In light of the foregoing his claim is not time-barred. Accordingly, it is ORDERED that petition to re-open and to enforce is hereby granted and representatives of Escambia County, Florida, are directed to recognize said claim and to satisfy it.

11 DONE AND ORDERED at Pcnsacola, Escambia County, Florida, this day of March, NICHOLAS P. GEEKER CIRCUIT JUDGE Copies to: Larry C. Moorcr, Esq., 107 North Jackson Street, Mobile, AL Stephen G. West, Assistant County Attorney, 221 Palafox Place, Suite 430, Pcnsncola, FL 32502

12 Information Item #: 1. County Attorney's Report Date: 03/17/2011 Issue: Department of Community Affairs v. Escambia County (DOAH Case No GM) From: Charles V. Peppler, Deputy County Attorney Organization: County Attorney's Office FOR INFORMATION: Recommendation: That the Board accept the attached information concerning Department of Community Affairs v. Escambia County (DOAH Case No GM): The Department of Community Affairs (DCA) has notified the Division of Administrative Hearings of its intent to relinquish jurisdiction. As acknowledged in its letter dated February 7, 2011, the DCA published a cumulative notice of intent to find that the County's adoption of remedial amendments (by Ord. No ) were in compliance with Chapter 163. Now, the DCA has notified the Division of Administrative Hearings that no party has filed a challenge to the County's remedial amendments within the required 21-day challenge period. In essence, the DCA is notifying the Division of Administrative Hearings that further legal proceedings or hearings are not necessary because the County's Comprehensive Plan amendments and its optional Sector Plan were found to be in compliance with Chapter 163, Florida Statutes. Because there are no legal or factual issues remaining, the DCA has requested the Division of Administrative Hearings to close its file.