Monroe County wins downstairs enclosure lawsuit

May 25, 2011

The following article was published in the Key West Citizen on May 25, 2011:

County wins downstairs enclosure lawsuit

By Adam Linhardt

After 12 years of legal wrangling, an appellate court has ruled that Monroe County was right to prohibit a Sugarloaf Key woman’s downstairs enclosure, but at the same time erased tens of thousands of dollars in fines.

Michele Hardin vowed to continue the legal battle, despite the 3rd District Court of Appeal’s decision last week not to make her pay more than $85,000 in fines.

“I’m not giving up,” Hardin said Tuesday. “If I have to take this before the state Supreme Court, I will.”

That could cost her, said Chief Assistant County Attorney Bob Shillinger, who called the ruling a “procedural victory” for the county.

“If she is going to try to continue the appeal to the Florida Supreme Court, she has very narrow legal grounds to do so,” Shillinger said. “If she decides to do that, we may challenge the order to stay (remove) the fines. That’s the risk she runs.”

The court said Hardin shouldn’t have to pay all of the fines for every day she was in violation because of the “unique circumstances of this case, including the tortured history of this case, and the 10 years the appellate case unnecessarily lingered in the circuit court.”

A complex series of legal motions, appeals and hearings have transpired since the issue first came to a head in April 1999, mostly focused on whether Hardin filed for a rehearing on the original decision in the court-mandated 30 days.

In March 2010, circuit Judge David Audlin ruled that Hardin filed too late. The 3rd District Court of Appeal upheld his ruling.

Audlin’s ruling came more than 10 years after Hardin filed for a rehearing, five years after then-Judge Richard Payne issued an order stating Hardin’s appeal was filed in a timely manner, and almost three years after the county filed its answer brief.

The appeals ruling doesn’t set much of a precedent on the controversial issue of downstairs enclosures in the Florida Keys, “other than it tells people that they have to file their appeal of violation orders in a timely manner,” Shillinger said.

The Federal Emergency Management Agency told the county to enforce a prohibition on first-floor rooms as living spaces for safety reasons or risk having its property owners denied polices under the National Flood Insurance Program.

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