Verified Complaint for Declaratory and Injunctive Relief ...
Complaint for Declaratory and Injunctive Relief
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Transcript of Complaint for Declaratory and Injunctive Relief
1
I� THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT
I� A�D FOR WALTO� COU�TY, FLORIDA
CIVIL DIVISIO�
JOH� P. CARROLL,
Plaintiff, Case �o.: 12CA0211
v.
WALTO� COU�TY, FLORIDA, a political
subdivision of the State of Florida,
WALTO� COU�TY BOARD OF COU�TY
COMMISSIO�ERS, WALTO� COU�TY
CO�TRACTOR COMPETE�CY BOARD,
JOH� DALTO�, Board Chairman,
SUEDELLE WILKERSO�, Board Vice Chairman
ROBERT AGERTO�, GARY MITCHEM,
ROBERT A�DREWS, GARY BILLI�GSLEY,
MARIA WHITEHURST, JOH��Y SMITH,
RA�DALL YATES, WALTO� COU�TY
BUILDI�G DEPARTME�T, BILLY BEARDE�,
in his capacity as Building Official, LEE DEPAUW
Defendants.
____________________________________________/
VERIFIED PETITIO� FOR EXPEDITED DECLARATORY,
I�JU�CTIVE A�D OTHER RELIEF
Plaintiff John Carroll (Carroll) sues Defendants Walton County, Florida (Walton
County), Walton County Board of County Commissioners (Commissioners), Walton
County Contractor Competency Board (Contractor Board), Board Chairman John Dalton
(Dalton), Board Vice Chairman Suedelle Wilkerson (Wilkerson), Contractor Board
Members Robert Agerton (Agerton), Gary Mitchem (Mitchem), Robert Andrews
(Andrews), Gary Billingsley (Billingsley), Maria Whitehurst (Whitehurst), Johnny Smith
(Smith), Randall Yates (Yates), the Walton County Building Department (Building
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Department), Billy Bearden (Bearden) and Lee DePauw (DePauw) in their official
capacities with the Building Department and alleges:
Jurisdiction
1. This Declaratory Action and Petition for Injunction are brought pursuant
to Florida Statutes 86.011(2), 86.021, 86.051, 86.061, 86.071, 86.111; 42 U.S.C. § 1983
related to the unconstitutionality of a Walton County Ordinance; Violations of Article I,
Section 2 of the Florida Constitution against Carroll by the Building Department and
Contractor Board; Florida Statute 125.01(1) related to the enactment and enforcement of
a Walton County Ordinance which stands inconsistent with general or special law; and
Florida Statutes 455 and 489 related to the violation of fundamental due process against
Carroll by the Defendants, over which this Court has subject-matter jurisdiction.
2. Carroll is a Florida resident with his principal residence in Walton County,
Florida.
3. Walton County is a political subdivision of the State of Florida.
4. The Commissioners are elected officials serving the residents of Walton
County, FL.
5. The Contractor Board was appointed by the Commissioners pursuant to
Walton County Ordinance 2003-16 (Exhibit A).
6. Dalton is the unelected Chairman of the Contractor Board, appointed by
the Commissioners, and sits in judgment of Carroll in violation of conflict of interests to
Carroll, the State of Florida Construction Industry Licensing Board or both.
3
7. Wilkerson, Agerton, Mitchem, Andrews, Billingsley, Whitehurst, Johnny
Smith and Yates are unelected members of the Contractor Board, appointed by the
Commissioners.
8. The Building Department was created by Walton County Ordinance and
employs Bearden and DePauw.
9. Venue is proper in Walton County, pursuant to Florida Statute 47.011,
because the causes of action pled herein accrued in Walton County.
Summary of Claims
10. Carroll holds a valid Florida Building Contractor’s certificate of
registration and license number RB0066902.
11. In November 2007, Chambers Street Builders, Inc. entered into a binding
contract with Freddie and Susan Kaye (Exhibit B). Carroll is the President of Chambers
Street Builders, Inc. (Chambers Street).
12. On or about February 2008, the Kayes and Chambers Street’s contractual
relations began to deteriorate. The contractual frictions concerned a lack of finish
selections on the part of the Kayes, untimely payments to Chambers Street on the part of
the Kayes and concern by the Kayes over Chambers Street’s ability to complete the
contract within its contract period.
13. At some point during the contract period, the Kayes began negotiations
with CJB Construction Inc., an unlicensed contractor who was building (2) homes
nearby. Finish selections ceased on the part of the Kayes, Chambers Street brought the
construction as far along as it could without said selections, construction payments to
4
Chambers Street ceased and Chambers Street invoked Article 5, Paragraphs 9 and 10 of
its contract with the Kayes, which read:
9. In the event Owner shall fail to pay any periodic or installment payment
due hereunder, Contractor may cease work without breach pending
payment or resolution of any dispute.
10. All disputes hereunder shall be resolved by Mediation.
14. Unbeknownst to Carroll, aproximately 6 months into the 12 month
contract period, the Kayes retained CJB Construction, Inc.’s attorney Samuel Taylor,
Esq. On July 8, 2008, Sam Taylor sent Chambers Street a letter terminating the Kayes-
Chambers Street contract amid allegations of faulty craftsmanship and over payments to
Chambers Street. The Kayes refused to engage in the contractually required Mediation.
In September 2008 the Kayes filed a civil suit against Carroll and Chambers Street.
15. In late 2010, Susan Kaye made a Motion to remove herself from the
litigation. On September 22, 2011, 4 years after the contract was endorsed by the Kayes
and Chambers Street, the Kayes unilaterally filed a Voluntary Dismissal with Prejudice
of all claims against Carroll and Chambers Street (Exhibit C).
16. On May 6, 2011, the Kayes sold the home and property (Exhibit D).
17. On November 16, 2011, more than 4 years after the contract was signed,
Freddy filed a complaint with the State Department of Business and Professional
Regulation against Carroll (Exhibit E). Freddy filed Uniform Complaint Form DBPR
0070 and DBPR 4355. Freddy did not swear the complaint or sign the complaint as
required by the form and Florida Statute 455.225 which reads:
Disciplinary proceedings.—Disciplinary proceedings for each board shall
be within the jurisdiction of the department.
5
(1)(a)The department, for the boards under its jurisdiction, shall cause
to be investigated any complaint that is filed before it if the complaint is in
writing, signed by the complainant, and legally sufficient.
18. In December 2011, the State DBPR mailed a copy of the complaint to the
Building Department. The Building Department delivered a copy of the complaint to the
Contractor Board. The State took no further action against Carroll.
19. On February 6, 2012, Joy Holland, office manager of the Building
Department sent Carroll an email informing him that the Contractor Board had filed an
Administrative Complaint against him and that the hearing would be held the following
day, February 7, 2012 (Exhibit F).
20. On February 7, 2012 Carroll sent a reply email demanding a complete
copy of the investigative file (Exhibit G). Carroll arrived at the Building Department and
met Ms. Holland who handed Carroll what she claimed was a complete copy of the
investigative file. The packet included 3 documents:
1) A date stamped copy of Freddy Kaye’s unsigned, unsworn
complaint to DBPR.
2) The Notice of Hearing for later that day.
3) The 5 count Administrative Complaint.
21. Carroll asked for copies of findings of the probable cause panel or any
other documents relied upon by Bearden and the Building Department prior to their
drafting of the Administrative Complaint. Ms. Holland informed Carroll that they relied
exclusively on Freddy’s DBPR Uniform Complaint. She explained that there was also a
disc, but informed Carroll that it only included copies of the Kaye’s civil litigation file.
6
Carroll asked for a copy of the disc. Joy could not copy said disc, but did email Carroll
the contents of the disc by 2:38 PM, leaving Carroll 3 hours, 22 minutes to prepare for
the hearing (Exhibit H).
22. Immediately thereafter, Carroll sent out an email objecting to his
appearance at the hearing on grounds that Freddy’s complaint was not legally sufficient
and not signed (Exhibit I).
23. Carroll appeared for the hearing at 6 PM, but on such short notice, was
unable to obtain a court reporter. The Contractor Board recorded the proceedings on
audio tape. Carroll video recorded the proceedings.
24. The Building Department did not present the case, instead asked Freddy to
present the case. The Building Department made wild, unsupported accusations about
Carroll not calling for required inspections, but conveniently misplaced the entire
building department file on the Chambers Street – Kaye permit. Carroll objected on
procedural grounds based upon Ordinance 2003-16. Carroll produced copies of the
inspection reports along with the “blue stickers” signed by the Building Inspectors which
proved that Carroll called for and passed said inspections. Carroll also reminded the
tribunal that DePauw conducted secret inspections of the project in violation of Carroll’s
rights.
25. Freddy presented the case one Count at a time. At the conclusion of each
Count, Carroll moved for a dismissal for the failure to prove the essential elements of
each claim.
26. Freddy presented the Contractor Board with an unsworn letter from the
plumbing contractor who permitted the plumbing. Said letter stated that although he
7
obtained the Walton County plumbing permit, his company did not perform the work on
the job. Carroll objected as this was classic hearsay and informed the Contractor Board
that he would confront his accuser immediately. The Building Official informed the
attendees that the plumbing contractor had passed away so Carroll would not be able to
confront him about his allegations. Carroll again objected to the entrance of any of those
statements on hearsay grounds.
27. Freddy and the Building Department rested their case.
28. Carroll began his rebuttal but was not entitled to proceed because the
Contractor Board was concerned about the late hour. Carroll reminded the Contractor
Board that the Complainant had rested his case, that the record contained no substantial
credible evidence and that the Complainant had presented witnesses who were not named
in advance.
29. On the record, Carroll asked the full panel of the Contractor Board if they
had read the Kaye - Chambers Street contract. Each member stated that they had not.
Carroll reminded the members that it was their duty to determine if he had a contract with
the complainant, and whether or not he violated the contract to such a degree that it
would be a violation of the law.
30. On the record, Carroll asked the full panel of the Contractor Board if they
had read Florida Statute 489 or Walton County Ordinance 2003-16. Each member stated
that they had not. Carroll reminded the members that it was their duty to determine
whether or not he violated 489 or 2003-16 to such a degree that he should be disciplined.
31. On the record, Carroll asked the full panel of the Contractor Board if they
reviewed the findings of the probable cause panel. Each member stated that they had not.
8
Carroll asked the full panel if there was a probable cause panel. Each member responded
that they either didn’t know, or had never heard of a probable cause panel. The Building
Department and County Attorney stated that there is no probable cause panel.
32. On the record, Carroll asked the full panel of the Contractor Board
whether or not they knew the definition of fraud. Each member stated that they did not.
Carroll asked the Contractor Board’s attorney, Lynn Hoshihara, Esq. to provide the
definition to the Members, but Dalton told her not to. Carroll reminded the members that
it was their duty to determine whether or not Carroll had committed fraud in the practice
of contracting and whether or not said act constituted behavior worthy of discipline.
33. Carroll reminded the Contractor Board that the statute of limitations had
run on these claims, that he was working out of State and that adjournment with
continued prosecution was a great hardship. Over Carroll’s stern objection, the
Contractor Board stated that they wanted Carroll to return at a later date and answer
questions regarding the aiding and abetting of an unlicensed contractor. The foundation
for said complaint is premised upon the mid hearing disclosure of a deceased licensed
plumbing contractor stating in an unsworn letter to the unlicensed CJB Construction, Inc.
that although he lawfully obtained the plumbing permit, he claimed that he did not
perform the alleged faulty plumbing work. The Kayes have already permanently released
Carroll and Chambers Street from any and all liability related to this allegation (Exhibit
J).
34. The Contractor Board adjourned without closing the case. Carroll put the
Contractor Board on notice of the dates of his unavailability. The Board notified Carroll
that he was to return to answer additional claims despite Chambers Street’s
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groundbreaking on their construction project for the University of Virginia. The County,
Building Department and Contractor Board could clearly see the physical strain this
caused Carroll. 6 days later Carroll had a heart attack, lost consciousness, went into
cardiac arrest and had to be saved through electric shock defibrillation.
Count I – Declaratory Action
35. Carroll realleges and incorporates paragraphs 1 through 34 as if fully set
forth herein.
36. This is an action for declaratory relief over which this Court has
jurisdiction pursuant to Florida Statute 86.011.
37. There is a bona fide, actual, present and practical need for a declaration of
the parties’ statutory and constitutional rights under Walton County Ordinance 2003-16
(the Ordinance).
38. Carroll asserts that the Ordinance is constitutionally defective and the
building department and Contractor Board’s actions are illegal because it and they:
a. unlawfully delegates legislative authority to the Building
Department (unelected County Government employees) by conferring
upon them total discretion to charge contractors with violations of the
Ordinance and coerce them to defend against same without
constitutionally-sufficient, specific, mandatory, objective standards or
criteria for doing so in contravention of the Fifth Amendment of the U.S.
Constitution, as applied to the States through the Fourteenth Amendment
of the U.S. Constitution, and Article I, Section 9 of the Florida
Constitution.
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b. violates Article I, Section 2 of the Florida Constitution by
depriving Carroll of his basic inalienable rights (among which are the right
to enjoy and defend life and liberty, to pursue happiness and to be
rewarded for industry) while utilizing the hypocrisy and inequality of
permitting an unlicensed contractor, CJB Construction, Inc. to take
Carroll’s work and avoid charges under the same Ordinance.
c. violates Florida Statute 125.01(1) related to the enactment and
enforcement of a Walton County Ordinance which stands inconsistent
with Florida Statute 455.
d. violates 455.225 which holds that disciplinary proceedings for
each board shall be within the jurisdiction of the department.
e. violates 455.225 (1)(a) which holds that the department, for the
boards under its jurisdiction, shall cause to be investigated any complaint
that is filed before it if the complaint is in writing, signed by the
complainant, and legally sufficient. Freddy’s complaint was not signed or
legally sufficient.
f. violates 455.225 (1)(b) which holds that when an investigation of
any subject is undertaken, the department shall promptly furnish to the
subject or the subject’s attorney a copy of the complaint or document that
resulted in the initiation of the investigation. The subject may submit a
written response to the information contained in such complaint or
document within 20 days after service to the subject of the complaint or
document. The subject’s written response shall be considered by the
11
probable cause panel. Carroll was not notified of Freddy’s complaint, and
there was no investigation or opportunity for Carroll to submit a written
response. The Building Department covertly prepared the Administrative
Complaint and set it for final hearing prior to notifying Carroll.
g. violates 455.225 (2) and which holds that the department shall
allocate sufficient and adequately trained staff to expeditiously and
thoroughly determine legal sufficiency and investigate all legally
sufficient complaints. When its investigation is complete and legally
sufficient, the department shall prepare and submit to the probable cause
panel of the appropriate regulatory board the investigative report of the
department. The report shall contain the investigative findings and the
recommendations of the department concerning the existence of probable
cause. At any time after legal sufficiency is found, the department may
dismiss any case, or any part thereof, if the department determines that
there is insufficient evidence to support the prosecution of allegations
contained therein. The department shall provide a detailed report to the
appropriate probable cause panel prior to dismissal of any case or part
thereof, and to the subject of the complaint after dismissal of any case or
part thereof, under this section. For cases dismissed prior to a finding of
probable cause, such report is confidential and exempt from 119.07(1).
In Carroll’s case, no party conducted an investigation, because the
Ordinance does not provide for qualified staff, or any investigative staff
for that matter. As such, no investigative report was report was prepared
12
for the probable cause panel. Carroll’s due process violations were
compounded by the fact that the Building Department and Contractor
Board have no probable cause panel. Thus, Carroll’s protections of
confidentiality have been absolutely circumvented.
h. violates Florida Statute 489.124(1) which states that all contractors
who are registered or certified pursuant to this chapter shall maintain
complete financial and business records for the immediately preceding 3
years. The business and financial records to be maintained shall include
minutes of corporate meetings, business contacts, telephone records,
insurance policies, letters of complaint, notices received from government
entities, bank statements, canceled checks, records of accounts receivable
and payable, financial statements, loan documents, tax returns, and all
other business and financial records the contractor maintains in the regular
course of business.
In Carroll’s case, the Contractor Board is attempting to force
Carroll to leave his work for the University of Virginia and appear before
them with proprietary business records beyond the statutory 3 year period.
The Contractor Board is on a fishing expedition, working backwards
looking for new violations of the Ordinance and Florida Statute 489.
i. violating Carroll’s fundamental due process protections to know
what claims he faces as provided at 6-112 of the Ordinance. After the
close of the claimant’s case (and after the Contractor Board’s collective
realization that the Building Department did not prove a single claim
13
against Carroll) the Contractor Board decided to substitute Count III,
which was 6-114(c)(12) (Fraud), and replace it with 6-114(c)(2) (Aiding
and Abetting). Count III of the complaint is clear on it’s face and further
crystallized by the additional Statutory enumeration 489.129(1)(l), not
489.129(1)(d). Trial by ambush is still illegal in Florida, even in the
backwoods of Walton County.
j. violating 6-112(A) of the Ordinance which reads “if a violation of
this ordinance or the building code of the State of Florida is found, the
building inspector shall notify the contractor and give him or her a
reasonable time to correct the violation. Should the violation continue
beyond the time specified for correction, the building inspector shall
notify the Board and request a hearing. The Board through its clerical
staff, shall schedule a hearing on the violation and notice shall be
furnished as specified in this ordinance.”
In Carroll’s case, the Contractor Board and Building Department
bypassed this essential step in violation of Carroll’s fundamental rights as
a U.S. citizen and Florida resident.
k. violating 6-112(E) of the Ordinance which states that if the owner
of the property which is subject to an enforcement proceeding before the
Board transfers ownership of such property between the time the initial
complaint was served and the time of the hearing, such owner shall:
(1) disclose in writing the existence and the nature of the
proceeding to the prospective transferee;
14
(2) deliver to the prospective transferee a copy of the pleadings,
notices and other materials relating to the enforcement proceeding
received by the owner;
(3) disclose in writing to the prospective transferee that the new
owner will be responsible for compliance with the applicable code and
with orders issued in the enforcement proceeding;
(4) file a notice with the Board of the transfer of the property, with
the identity and address of the new owner and copies of the disclosures
made to the new owner, within five days after the date of the transfer.
Neither Kaye, the Building Department nor the Contractor Board
followed letter or spirit of the law.
39. It is the position of the County, the Commissioners, the Building
Department and the Contractor Board that, pursuant to the Ordinance, they may continue
to improperly circumvent Carroll’s rights to due process and equal protection.
40. Carroll asserts that he is a U.S. citizen just like Craig Baranowski, who
controls the unlicensed CJB Construction, Inc., and that the inequality which Baranowski
enjoys at Carroll’s expense is unconstitutional and should be abhorred by any red
blooded American.
41. It is the position of the County, the Commissioners, the Building
Department and the Contractor Board that the County Government’s agents are
authorized to meet in the back rooms of County offices, with the County Attorney, Lynn
Hoshihara, Esq. and fabricate documents under the color of law in order to black ball
Carroll indifferent to specific, constitutional federal or State statutory basis for doing so.
15
WHEREFORE, Carroll respectfully requests that this Court enter a declaratory
judgment:
a. that the Ordinance is constitutionally defective because it permits the
Building Department and Contractor Board to charge contractors and set Administrative
Hearings prior to notification of a consumer complaint to the contractor in violation of
the Florida and United States Constitutions and other Statutory authorities named herein;
b. that the Ordinance is constitutionally defective because it permits the
Building Department and Contractor Board to charge contractors with complaints beyond
the statute of limitations periods;
c. that the Ordinance is constitutionally defective because it permits the
Building Department and Contractor Board to issue Administrative Complaints, which
become public record, while bypassing a contractor’s right to the protection of cases
dismissed prior to a finding of probable cause, which are confidential and exempt from
119.07(1).
d. enjoining Walton County, the Commissioners, the Building Department,
the Contractor Board, and all persons acting in concert or participation with them,
including their agents, attorneys, servants, directors, employees, jointly and severally,
from enforcing or threatening to enforce the Ordinance; and
e. awarding any and all further relief this Court may deem appropriate.
Count II – Violation of 42 U.S.C. § 1983
42. Carroll realleges and incorporates paragraphs 1 through 34 as if fully set
forth herein.
43. 42 U.S.C. § 1983 states, in pertinent part:
16
Every person who, under color of any statute, ordinance,
regulation, custom or usage, of any State or Territory, or
the District of Columbia, subjects, or causes to be
subjected, any citizens of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding
for redress.
44. Walton County, the Commissioners, the Contractor Board, Dalton,
Bearden, DePauw and the Building Department all fall within the definition of a “person”
under 42 U.S.C. § 1983, and may be sued for declaratory and injunctive relief pursuant to
§ 1983.
45. Walton County acted “under color” of State law when it enacted the
Ordinance and through the Defendants continuing enforcement of the Ordinance.
46. The Ordinance is constitutionally defective because it condones, provides
the vehicle for the Defendants, or otherwise:
a. unlawfully delegates legislative authority to the Building
Department (unelected County Government employees) by conferring
upon them total discretion to charge contractors with violations of the
Ordinance and coerce them to defend against same without
constitutionally-sufficient, specific, mandatory, objective standards or
criteria for doing so in contravention of the Fifth Amendment of the U.S.
Constitution, as applied to the States through the Fourteenth Amendment
of the U.S. Constitution, and Article I, Section 9 of the Florida
Constitution.
17
b. violates Article I, Section 2 of the Florida Constitution by
depriving Carroll of his basic inalienable rights (among which are the right
to enjoy and defend life and liberty, to pursue happiness and to be
rewarded for industry) while utilizing the hypocrisy and inequality of
permitting an unlicensed contractor, CJB Construction, Inc. to take
Carroll’s work and avoid charges under the same Ordinance.
c. violates Florida Statute 125.01(1) related to the enactment and
enforcement of a Walton County Ordinance which stands inconsistent
with Florida Statute 455.
d. violates 455.225 which holds that disciplinary proceedings for
each board shall be within the jurisdiction of the department.
e. violates 455.225 (1)(a) which holds that the department, for the
boards under its jurisdiction, shall cause to be investigated any complaint
that is filed before it if the complaint is in writing, signed by the
complainant, and legally sufficient. Freddy’s complaint was not signed or
legally sufficient.
f. violates 455.225 (1)(b) which holds that when an investigation of
any subject is undertaken, the department shall promptly furnish to the
subject or the subject’s attorney a copy of the complaint or document that
resulted in the initiation of the investigation. The subject may submit a
written response to the information contained in such complaint or
document within 20 days after service to the subject of the complaint or
document. The subject’s written response shall be considered by the
18
probable cause panel. Carroll was not notified of Freddy’s complaint, and
there was no investigation or opportunity for Carroll to submit a written
response. The Building Department covertly prepared the Administrative
Complaint and set it for final hearing prior to notifying Carroll.
g. violates 455.225 (2) and which holds that the department shall
allocate sufficient and adequately trained staff to expeditiously and
thoroughly determine legal sufficiency and investigate all legally
sufficient complaints. When its investigation is complete and legally
sufficient, the department shall prepare and submit to the probable cause
panel of the appropriate regulatory board the investigative report of the
department. The report shall contain the investigative findings and the
recommendations of the department concerning the existence of probable
cause. At any time after legal sufficiency is found, the department may
dismiss any case, or any part thereof, if the department determines that
there is insufficient evidence to support the prosecution of allegations
contained therein. The department shall provide a detailed report to the
appropriate probable cause panel prior to dismissal of any case or part
thereof, and to the subject of the complaint after dismissal of any case or
part thereof, under this section. For cases dismissed prior to a finding of
probable cause, such report is confidential and exempt from 119.07(1).
In Carroll’s case, no party conducted an investigation, because the
Ordinance does not provide for qualified staff, or any investigative staff
for that matter. As such, no investigative report was report was prepared
19
for the probable cause panel. Carroll’s due process violations were
compounded by the fact that the Building Department and Contractor
Board have no probable cause panel. Thus, Carroll’s protections of
confidentiality have been absolutely circumvented.
h. violates Florida Statute 489.124(1) which states that all contractors
who are registered or certified pursuant to this chapter shall maintain
complete financial and business records for the immediately preceding 3
years. The business and financial records to be maintained shall include
minutes of corporate meetings, business contacts, telephone records,
insurance policies, letters of complaint, notices received from government
entities, bank statements, canceled checks, records of accounts receivable
and payable, financial statements, loan documents, tax returns, and all
other business and financial records the contractor maintains in the regular
course of business.
In Carroll’s case, the Contractor Board is attempting to force
Carroll to leave his work for the University of Virginia and appear before
them with proprietary business records beyond the statutory 3 year period.
The Contractor Board is on a fishing expedition, working backwards
looking for new violations of the Ordinance and Florida Statute 489.
i. violating Carroll’s fundamental due process protections to know
what claims he faces as provided at 6-112 of the Ordinance. After the
close of the claimant’s case (and after the Contractor Board’s collective
realization that the Building Department did not prove a single claim
20
against Carroll) the Contractor Board decided to substitute Count III,
which was 6-114(c)(12) (Fraud), and replace it with 6-114(c)(2) (Aiding
and Abetting). Count III of the complaint is clear on it’s face and further
crystallized by the additional Statutory enumeration 489.129(1)(l), not
489.129(1)(d). Trial by ambush is still illegal in Florida, even in the
backwoods of Walton County.
j. violating 6-112(A) of the Ordinance which reads “if a violation of
this ordinance or the building code of the State of Florida is found, the
building inspector shall notify the contractor and give him or her a
reasonable time to correct the violation. Should the violation continue
beyond the time specified for correction, the building inspector shall
notify the Board and request a hearing. The Board through its clerical
staff, shall schedule a hearing on the violation and notice shall be
furnished as specified in this ordinance.”
In Carroll’s case, the Contractor Board and Building Department
bypassed this essential step in violation of Carroll’s fundamental rights as
a U.S. citizen and Florida resident.
k. violating 6-112(E) of the Ordinance which states that if the owner
of the property which is subject to an enforcement proceeding before the
Board transfers ownership of such property between the time the initial
complaint was served and the time of the hearing, such owner shall:
(1) disclose in writing the existence and the nature of the
proceeding to the prospective transferee;
21
(2) deliver to the prospective transferee a copy of the pleadings,
notices and other materials relating to the enforcement proceeding
received by the owner;
(3) disclose in writing to the prospective transferee that the new
owner will be responsible for compliance with the applicable code and
with orders issued in the enforcement proceeding;
(4) file a notice with the Board of the transfer of the property, with
the identity and address of the new owner and copies of the disclosures
made to the new owner, within five days after the date of the transfer.
Neither Kaye, the Building Department nor the Contractor Board
followed letter or spirit of the law.
47. Walton County, the Commissioners, the Contractor Board, Dalton,
Bearden, DePauw and the Building Department acted “under color” of the Ordinance
when it deprived Carroll of its Fifth Amendment rights, as applied to the States through
the Fourteenth Amendment, by delegating absolute complaint power to the Building
Department, an unelected party, without providing in the Ordinance constitutionally-
sufficient, specific, mandatory, objective standards or criteria for the enforcement or
release of claims to Carroll thereunder .
48. Walton County, the Commissioners, the Contractor Board, Dalton,
Bearden, DePauw and the Building Department acted “under color” of the Ordinance
when it deprived Carroll his fundamental right to notice of a customer’s complaint and
his right to respond prior to facing discipline.
22
49. Walton County, the Commissioners, the Contractor Board, Dalton,
Bearden, DePauw and the Building Department acted “under color” of the Ordinance
when it deprived Carroll his Fifth Amendment rights, as applied to the States through the
Fourteenth Amendment, by threatening to fine Carroll and depriving him the right to
enjoy and defend life and liberty, to pursue happiness and to be rewarded for industry.
50. Carroll has no adequate remedy at law, and these continuing and ongoing
constitutional violations “under color” of law have caused and will continue to cause
irreparable harm to Carroll’s constitutionally protected rights.
51. Carroll is entitled to seek and recover his costs from Walton County and
the other Defendants from the inception of this action pursuant to 42 U.S.C. 1988.
52. This case concerns the determination of an issue of facts under Chapter
86. Carroll demands the fact issues be tried by jury in accordance with § 86.071.
53. WHEREFORE, Carroll respectfully requests that this Court enter
judgment his favor and against the Defendants for violating 42 U.S.C. § 1983, violations
of Article I, Section 2 of the Florida Constitution against Carroll by the Building
Department and Contractor Board, violations of Florida Statute 125.01(1) related to the
enactment and enforcement of a Walton County Ordinance which stands inconsistent
with general or special law, and Florida Statutes 455 and 489 related to the violation of
fundamental due process against Carroll by the Defendants, entering injunctive relief,
awarding Carroll his costs from the Defendants, and other such relief as this Court deems
appropriate. Specifically, Carroll seeks a permanent, prohibitory injunction which
enjoins the Defendants and all persons acting in concert with them, including their
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agents, attorneys, servants, directors, employees, jointly and severally, from enforcing or
threatening to enforce Ordinance 2003-16.
Verification John Carroll, certifies on oath that he has read and understood the
foregoing Verified Petition and that the same is true in substance and in fact to the best of
his knowledge, information and belief.
_________________________________
John Carroll
Subscribed and sworn to before me this 29th day of February, 2012.
_____________________________________ Notary Public
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished to Lynn Hoshihara, 161 E Sloss Ave, DeFuniak Springs, Fl 32433, Office of
the State Attorney, 1st Judicial Circuit, 524 East Highway 90, DeFuniak Springs, FL
32435 by mail this 29th day of February, 2012.
_____________________________
John P. Carroll