On September 21, on his Wide Open Wednesday, Bill Mick took a call from his good friend Scott Cuthbert, in Palm Bay Florida:
Scott Cuthbert: I'll give you my septic tank update.
Bill Mick: Oh good! Lay it on me...well not literally!
Bill Mick Live can be heard from 6am-9am weekdays on WMMB 1240/1350, and at your leisure on his podcasts:
Bill Mick's Website
Here is the podcast, so you can find out how that call went, if you weren't listening live that day:
Scott Cuthbert on Bill Mick Live
(Starting at minute 5)
And then, on the following Monday, Bill Mick put this up on his webpage:
And one of you, Scott from Palm Bay, is fighting the man. The man cheats. Here’s the video: YouTube Video of Scott Cuthbert's Kangaroo Court Hearing
So what's the story here? Well, let's let Scott Cuthbert tell you himself, using the words that only he would use ('cause the rest of us don't talk like this):
Comes now The Respondent, Scott A. Cuthbert
From: Scott Cuthbert
To: F.A.C.E.OFF. Movement (and alla Scott Cuthbert's other friends everywhere)
Sent: Tuesday, September 13, 2011 6:39 PM
Subject: septic hearing doc.doc
OK friends. This was filed on 9.13.2011. My first hearing is 9.15.2011.While this pleading is limited to Aerobic Treatment Units, it is designed to attack the statewide program that is due to kick in in January 2012. The new statewide program will affect
2.6 MILLION systems
and will cost Floridians about 4 BILLION $$$$
over the next 5 years.
I know the politicians have told you this will be repealed-but they have already had two chances and the law is still on the books. Any help and support you can now offer would be greatly appreciated--
including your prayers.
Thank you, Scott
Comes now The Special Magistrate, Stewart B. Capps
Scott Cuthbert to Bill Mick: I got news for you. You absolutely, never in your lifetime, wanna go in front of the Special Code Enforcement Magistrate for Brevard County!
IN THE CHAPTER 162 FLORIDA STATUTE CODE ENFORCEMENT PROCEEDING BEFORE THE SPECIAL MAGISTRATE
OF BREVARD COUNTY, FLORIDA
BOARD OF COUNTY COMMISSIONERS
OF BREVARD COUNTY, FLORIDA
a political subdivision of
the State of Florida,
COMPLAINT # 11CE-01943
Petitioner
V.
SCOTT A. CUTHBERT,
Respondent
______________________________________/
RESPONDENTS MOTION TO DISMISS,
Scott Cuthbert: Oh Bill, it gets so much worse, because he said they don't do motion practice in his courtroom, okay? Except if you look at the Rules of the Special Magistrate, on the Brevard County Website, Rule#7 is Motions for Rehearing, and Rule#13 is, if you're not a lawyer, and you want copies of the forms you have to file, they will give you the copies of the motions they have on file, to file in his proceedings, but he said he didn't do motion practice 3 or 4 times.
Bill Mick: So he doesn't know what he's doing? Is that what you're saying?
and
STATEMENT OF AFFIRMATIVE DEFENSES.
Comes now the Respondent, Scott A. Cuthbert and moves this action be dismissed with prejudice as a code enforcement / administrative action for the reasons stated as follows as cause therefore, with said reasons also presented as Respondents Affirmative Defenses:
THE FACTS
1. On its face, this Complaint, #11CE-01943, is prosecuted solely on the allegation that Respondents (as the “owner of an aerobic treatment unit”) has failed to maintain a “current maintenance service agreement with an aerobic treatment unit maintenance entity permitted by the department”. This is alleged as a violation of section 381.0065(4)(u) Florida Statues as “adopted by Brevard County Code” (without any reference to any Brevard County Code number).
2. Said section 381.0065(4)(u) F.S. states in its entirety that:
“The owner of an aerobic treatment unit system shall maintain a current maintenance service agreement with an aerobic treatment unit maintenance entity permitted by the department. The maintenance entity shall obtain a system operating permit from the department for each aerobic treatment unit under service contract. The maintenance entity shall inspect each aerobic treatment unit system at least twice each year and shall report quarterly to the department on the number of aerobic treatment unit systems inspected and serviced. The owner shall allow the department to inspect during reasonable hours each aerobic treatment unit system at least annually, and such inspection may include collection and analysis of system-effluent samples for performance criteria established by rule of the department.”
Comes now The Code Enforcement Officer...ooooooops no, sorry...it's his boss, Mr. Addington!
Scott Cuthbert: It's even more, because...the inspector that came out to my house, he didn't show up for the prosecution, okay, he wasn't there.
Bill Mick: How were you found guilty then, with no evidence presented against you?
Scott Cuthbert: His supervisor presented the evidence.
Bill Mick: But was he there to witness what had occurred?
Scott Cuthbert: No.
Bill Mick: So you had hearsay being admitted against you?
3. On its face, the plain, clear language of this section of law creates an “individual mandate” which requires every property owner in the state of Florida with an “Aerobic Treatment Unit” (ATU) for a septic system to purchase an expensive service from a private “maintenance entity” for as long as they own the property.
4. The last sentence also mandates the property owner “allow the department to inspect” … (these ATU’s) “at least annually” with samples “collected”.
5. The Brevard County Environmental Health Department inspected respondents system on or about July 14, 2011 (as evidenced by the “Notice” hung on the front door knob- a true and correct copy is attached hereto as “Respondents Exhibit A”) and made no allegation of, and has submitted no evidence that, Respondents ATU system is in failure.
6. In late May of 2011, Respondent received by way of U.S. Mail a communication from Brian Davis Septic & Backhoe Services (hereinafter “Brian Davis”) containing a demand for payment of “Current Charges: County Fee-Biennial Op Permit for ATU/Perf-based …. $50.00” and an additional $100.00 for the “OSTDS Operating Permit – ATU, for a total demand of $150.00. Said demand and envelope are attached hereto as “Respondents Exhibit B1 and B2”.
7. In an envelope post-marked 31 May 2011 from Brian Davis, Respondent received a demand for payment of $300.00 for renewal of a “2 YEAR SERVICE CONTRACT”. True and correct copies of said documents are attached hereto as “Respondents Exhibits C1, C2 and C3. The total combined cost of the demands made in paragraphs 6 & 7 above totals $450.00.
8. With respect to residential properties, Respondent can find no pre- purchase disclosure requirements to prospective buyers regarding the maintenance contracts and operating permit costs relating to ATU’s. In fact, Respondent can find no price controls or consumer protection provisions whatsoever within section 381.0065(4) F.S. or any other provisions of law.
Comes now The Prosecuting Attorney, Ms. Becky Biehl-Hill
Scott Cuthbert: The first thing I 'm going to do is object to being forced to compel to testify against myself. I have the right against self-incrimination, and your Statue 162.07 says you will take testimony from witnesses, but I do have the right against self incrimination. Because I want to make a record of this cause, I will take the oath and testify, to create that record, but I would ask...I'm making the objection, for purposes of appeal...but I would ask that my learned opponent, Ms. Biehl-Hill, who is the prosecuting attorney also take the oath so that everything she says is a matter of fact is the truth and everything she says as a matter of law is the truth.
Special Magistrate: Well, she's not required. She's not giving testimony. Also, she is an Officer of the Court, which means she is compelled to be truthful in any tribunal [laughter can be heard in the background].
9. Respondent has lived in Florida since 1960, with thirty (30) plus of those years in houses with septic tanks. During this time, he has only had to have one “black water” tank pumped out a single time. When respondent purchased this property (without ATU maintenance cost disclosure), he thought nothing of buying a home with an ATU. In fact, when respondent first started receiving demands for payment for “operating permits” and “maintenance contracts”, he thought said demands were a scam. Respondent did not believe the legitimacy of these demands until he received his first “Notice of Non Compliance”, as dated June 18, 2009. A true copy of this “Notice of Non Compliance” is attached hereto as Respondents Exhibit D1 and D2. After being threatened with a $550.00 charge for a “contested hearing fee” and up to $500.00 daily accruing fines with no maximum limit [see section 381.0065(6)(b)3 F.S. 2011], respondent purchased a $450.00 “maintenance agreement” form Brian Davis—the only Brevard County “registered” contractor in central Florida for the type of ATU installed on respondents property. A true copy of that receipt is attached hereto as “Respondents Exhibit E”.
10. Upon his ATU being “inspected” for the first time, respondent received a “proposal” (Estimate #8889, as dated July 7, 2009) from Brian Davis demanding $395.00 to “Install New Filter & Repair Alarm Panel”. A true and correct copy of said “PROPOSAL” is attached hereto as “Respondents Exhibit F”. Respondent purchased an air filter for $15.21 from the manufacturer of his ATU system and replaced it himself. With restoration of proper airflow, the “alarm panel” reset itself.
11. The “Notice of Violation” dated July 18, 2011, mailed to respondent via certified U.S. Mail, with its enclosed “Enforcement Process” (true copies of which are attached hereto as Respondents Exhibit G1, G2, & G3) plainly states that “Failure to comply” with sections 381.0065(4)(u) F.S. individual mandate “will result in the commencement of appropriate enforcement which may include filing charges in criminal or civil court…”. The “enforcement process” section- under “FINES” (G3) states “The fine imposed shall not exceed $1,000.00 per day…”
AVERMENTS OF UNCONSTITUTIONALITY
Scott Cuthbert to Bill Mick: I told him it was unConstitutional. I told him that was the way I was attacking it. I told him that as an Administrative Hearing Officer he could not decide on the Constitutionality of laws. He agreed, proceeded with the hearing [Scott laughs] and found me in violation...assessed $550 Administrative Cost and a $25 a day accruing fine until hell freezes over 'cause that'll be when I decide to buy a maintenance contract!
12. As more fully set forth in the paragraphs that follow, Respondent alleges section 381.0065(4)(u) F.S. is facially unconstitutional
13. This proceeding is a legislative/executive, Chapter 162 F.S. code enforcement action. It is not an Article III Federal Court proceeding, nor is it an Article V Florida Court action. While quasi-judicial and penal in nature, it is still an administrative proceeding. To allow a legislatively/executively appointed Special Magistrate to rule on the constitutionality of a legislative enactment would violate the separation of powers doctrine. In addition, as no man (the legislature) may sit in judgment of his own cause (deciding the validity of its own statute), to allow this would violate Respondents Due Process right to be heard by a fair and impartial tribunal. In Key Haven Associated Enterprises, Inc., v. Board of Trustees of the Internal Imp. Trust Fund, 427 So. 2d 153,157 (Fla. 1982), superceded by statute on other grounds as noted in Bowen v. Florida Dep’t of Envtl. Regulation, 448 So. 2d 566(Fla. 2d DCA 1984) “the facial constitutionality of a statute may not be decided in an administrative proceeding”, and that "it is pointless to require applicants to endure the time and expense of full administrative proceedings."
14. As Chapter 162 Florida Statutes contains no provisions for any counter-claims Respondent may have, His Due Process rights to be heard fully and fairly at a meaningful time and in a meaningful manor are also abridged.
15. For the reasons set forth in paragraphs 12, 13 and 14 above, The Special Magistrate lacks subject matter jurisdiction in this cause.
STANDARD OF REVIEW
16. In the State of Florida v. J.P. , 907 So.2d 1101 ( Fla. 2004) , The Florida Supreme Court ruled that :
(At page 1109) “When a statute or ordinance…. impairs the exercise of a fundamental right, then the law must pass strict scrutiny.” (Internal citations omitted).
This decision also held (at page 1110):
“…that where [a] law intrudes on fundamental right to privacy guaranteed in Florida’s Constitution, the State must demonstrate that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means” (Internal citations omitted).
And,
(At page 1112) "[T]he Florida Constitution contains, in Article I, section 23, a strong right of privacy provision." and “Further, the Florida constitutional privacy right embraces more privacy interests, and extends more protection to the individual in those interests, than does the federal Constitution." (Internal citations omitted).
PRIVACY/DUE PROCESS RIGHTS
17. Florida’s Constitution, within its Article I states that:
SECTION 23. Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.
Scott Cuthbert to Bill Mick: I told him that under the United States Supreme Court precedent of Camara vs. the City of San Fransisco, where the United States Supreme Court said, "County and City Health/Safety Inspections are subject to the requirements of The 4th Amendment prohibition against illegal search and seizures" and they have to get your consent, or an inspection warrant, to search your property. He said, "No I don't!" He said, "You have a permit."
"No, I don't have a permit.
That's why you are suing me, because I refused to buy one."
And he goes, "Well, since you had a permit,
that gives us the right to go on your property and search any time we want."
I said, "No it doesn't!"
18. In addition the above privacy rights, incorporated into every Florida property owners and citizens Federal 5th Amendment and Article I, Section 9 Florida Constitution Due Process Rights, is the fundamental right to “presumed innocence’s”. This doctrine was officially incorporated into Federal jurisprudence by the case of Coffin v. United States, 156 US 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895). Presumed innocence’s was recognized as Florida law by the Florida Supreme Court in Davis v. State, 90 So.2d 629, 631 (Fla. 1956). The doctrine of presumed innocence is also incorporated within Article 11, section 1 of the United Nations 1948 “Universal Declaration of Human Rights”. Floridians also enjoy the Due Process right against “self-incrimination”. In State ex rel. Mitchell v. Kelly, 71 So.2d 887 (Fla. 1954), the court noted “[self-incrimination] extend[s] to forfeiture and penal liability. And the protection provided applies to all types of proceedings wherein testimony is given and applies alike to a witness as well as a party who is accused”.
19. Respondent avers that any reasonable property owner knows when they have a problem with their septic system. Florida property owners do not need coerced inspection contracts that trample their presumed innocence’s rights. Citizens should not be forced to pay to have their privilege against self-incrimination striped away. Any reasonable homeowner with basic home maintenance skills and with average intelligence should be able to maintain their “Onsite Sewage Treatment and Disposal System” (septic tank system) themselves. Any system design that cannot be maintained without the need for an expensive “operating permit” required to be obtained through a licensed/registered septic tank contractor, is not fit for its designed and intended use in a residential setting. Imposing such requirements upon residential properties cannot rationally be construed as being the “least intrusive means” to achieve state goals.
Scott Cuthbert to Bill Mick: And then I read him the part of the Statute that says, "Residential Premises" and I defined "Residential Premises" from Black's Law Dictionary as, "The land and the structures on it." And then I read to him that, under their own enforcement procedure, it says for Residential Premises they are not allowed to enter onto the property unless they get the owner's consent, or a valid inspection warrant, and then I cited Florida Statute 933, which is the Inspection Warrant Procedure...
And he said, "No, I don't have to do that."
And I said, "Your Honor, the guy just committed perjury!"
And the Special Magistrate said, "Oh, he's entitled to his opinion."
That's when I asked the guy to disqualify himself, and recuse himself...because I knew I was not going to get a fair and impartial hearing, right then and there...and he kept right on goin'!
20. Further, “mandating” property owners (coerced self-incrimination) to surrender their Article I, section 23 Privacy Rights for annual “inspections” (unconstitutional searches) without any evidence of a septic system failure (presumed innocence) also cannot rationally be construed as being the “least intrusive means” to achieve state goals and as being in compliance with Due Process.
INVOLUNTARY SERVITUDE
21. Amendment XIII to the Federal Constitution in its Section 1 states that:
Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject their jurisdiction.
Section 2. states:
Congress shall have the power to enforce this Article by appropriate legislation.
Under Title 18 United States Code 1581 et. seq., Involuntary Servitude & Peonage is legally defined as “A condition of compulsory service or labor performed by one person, against his will, for the benefit of another person due to force, threats, intimidation or other similar means of coercion and compulsion directed against him.”
Title 18 United States Code section 1589 ; Forced Labor, Provides that: Whoever knowingly provides or obtains the labor or services of a person - (3) by means of the abuse or threatened abuse of law or the legal process, shall be fined under this title or imprisoned not more than 20 years, or both.
22. As fully stated and referenced in paragraph 11 above, the “Notice of Violation” dated July 18, 2011, mailed to respondent, with its enclosed “Enforcement Process” (Respondents Exhibits G1, G2, & G3) plainly states that Respondents “Failure to comply” with sections 381.0065(4)(u) F.S. individual mandate “will result in the commencement of appropriate enforcement which may include filing charges in criminal or civil court…”. The “enforcement process” section- under “FINES” (G3) states “The fine imposed shall not exceed $1,000.00 per day…”.
23. The maximum per day fine allowed pursuant section 381.0065(6)(b)3 F.S. 2011 is $500.00, with no cap or maximum limit. The very purpose of a Chapter 162 F.S. proceeding is “.. to impose..other noncriminal penalties...”
24. Respondent alleges that the $550.00 administrative charge for a contested hearing, the $500.00 daily accruing fine under section 381.0065(6)(b)3 F.S. 2011 – with no cap or maximum fine limit, or the $1,000.00 daily accruing fine with no cap or maximum fine limit under the enforcement process- along with the statement that enforcement “may include filing charges in criminal…court”, all either separately or combined, constitute abuse, threatened abuse, legal threats, extortion, coercion, legal coercion and/or duress to force Florida citizens/ property owners- including respondent, into surrendering their freewill when entering the individual mandates required by section 381.0065(4)(u) F.S. Respondent further alleges by subjugating its citizens into these individual mandates, the state creates a condition of compulsory service or labor performed by one person, against his will, for the benefit of another person due to force, threats, intimidation or other similar means of coercion and compulsion directed against them , and these actions create conditions of involuntary servitude, peonage and/or forced labor.
25. Respondent avers the “least sophisticated” citizen standard should govern whether or not means of the abuse or threatened abuse of law or the legal process, or if conditions of compulsory service or labor performed by one person, against his will, for the benefit of another person due to force, threats, intimidation or other similar means of coercion and compulsion directed against him in determining if conditions of involuntary servitude, peonage or forced labor exist. See Jeter v. Credit Bureau, Inc. 760 F.2d 1168 (1985) Court of Appeals, 11th Circuit “we adopt the standard of "least sophisticated consumer" as previously followed by the federal courts, relating to debt collection.”
26. In United States v. Kozminski 487 US 931, 108 S. Ct. 2751, 101 L. Ed. 2d 788, 1988 the Court held legal coercion is a condition of involuntary servitude. And in Toibb v. Radloff 501 US 157, 111 S. Ct. 2197, 115 L. Ed. 2d 145,1991 the Court noted (at page 166) concern about debtor's being forced into bankruptcy under Chapter 13 and that such a debtor, whose future wages are not exempt from the bankruptcy estate, “would be compelled to toil for the benefit of creditors in violation of the Thirteenth Amendment's involuntary servitude prohibition. See H. R. Rep. No. 95-595, at 120.” In Vitakis-Valchine, v. Valchine, 793 So.2d 1094 (Fla. 4th DCA, 2001), the court cited Florida Rule of Mediation 10.310(a). which states in part “A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination.” , and Rule 10(b) which states “Coercion Prohibited. A mediator shall not coerce or improperly influence any party to make a decision or unwillingly participate…” Holding third parties cannot be allowed to use duress or coercion to induce parties to contract, the court noted that “parties must be given the opportunity to freely decide upon any agreement” and than stated “We believe that it would be unconscionable for a court to enforce a settlement agreement reached through coercion or any other improper tactics utilized by a court-appointed mediator.” See also Hall v. Humana Hosp. Daytona Beach, 686 So. 2d 653 – Fla. 5th DCA, 1996.
27. Respondent alleges that during enforcement of section 381.0065(4)(u) F.S., state and county employees/agents are no ordinary third parties—they are in both fact and law, engaged in enforcing the police powers of the state. A statutorily created “individual mandate” that requires a residential property owner be forced or coerced into a contractual obligation with a private third party—against their freewill, with no freewill “meeting of the minds”, and with no price controls or consumer protections whatsoever -under the duress of the use of the states police powers to force payment of the contractual debt under threat of “criminal” prosecution, imposition of daily accruing “civil” fines with no maximum limit, along with the imposition of administrative fees, is both unconscionable and unconstitutional. While this may not be the classic slavery, which was the underlying cause of the 1860’s United States Civil War, it is unquestionably the INVOLUNTARY SERVITUDE prohibited by Amendment 13 to the Federal Constitution.
Scott Cuthbert: At the end, the guy gave me a lecture on you need to comply with this, because these rules of appellate procedure...they're so complicated, you can't understand them, so you better buy this contract!
Bill Mick: [Laughing] What a jerk!
Scott Cuthbert: One of my points is that this law creates an individual mandate...and I told him this in Court...which the 11th Federal Circuit Court of Appeal just declared was unConstitutional for Obamacare, because the State and the Government cannot force a private party to buy another private party contract or face penalties. That is also legal coercion, in violation of The 13 Amendment to the Constitution of the United States, and this guy, by threatening me not to appeal, just committed another act in violation of Title 18, United States Code, Section 241, which prohibits conspiracies to subject people and put them into a state of peonage and Involuntary Servitude!
OBLIGATION OF CONTRACT
28. Article I, Section 10 of the Federal Constitution and Article I, Section10, of the Florida Constitution both prohibit laws impairing the obligation of contracts. The individual mandate of section 381.0065(4)(u) F.S. has striped the respondent Florida property owner of his free will and freedom of choice and is nothing less than the use of extortion, coercion and/or duress to force him into a contract (with no consumer protection whatsoever) he does not want to enter, with a party he does not want to associate with (i.e., no meeting of the minds).
29 . In the State of Florida, et.al. v. The United States Department of Health and Human Services, Case Number 3: 10-cv-91-RV/EMT (2011), Federal District Court Judge Roger Vinson declared “The Patient Protection and Affordable Care Act” UNCONSTITUTIONAL. In deciding the “individual mandate”--- forcing an individual to buy insurance, was Constitutionally prohibited, Judge Vinson noted (at page 41) that: “[t]he government has never required people to buy any good or service as a condition of lawful residence in the United States.” Judge Vinson continued (at page 42) by stating:
“It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be ‘difficult to perceive any limitation on federal power’ (internal citations omitted), and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended. See id. at 592(quoting Hamilton at the New York Convention that there would be just cause to reject the Constitution if it would allow the federal government to ‘penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals’)”.
30. As the State of Florida itself just prevailed in having a Federal Law forcing an individual to “buy insurance” declared unconstitutional, how could it possibly be Constitutional—especially in view of the “Equal Protection” clause of the Fourteenth Amendment to the Federal Constitution and Article I, Section 2 of the Florida Constitution – for Florida to force property owners to buy “septic” contracts? How can the State Constitutionally force a citizen to purchase from a third party an “operating permit” and a “maintenance service agreement” to flush the toilet in their house?
31. It must be noticed that the ruling of Judge Vinson above was just upheld on Appeal on August 12, 2011, by the 11th Federal Circuit Court of Appeals, Docket Nos. 11-11021 & 11-11067, The individual mandate of section 381.0065(4)(u) F.S. violates the prohibition against impairing the obligation of contracts.
ILLEGAL SEARCH AND SEIZURES
32. Article I, Section 12 of the Florida Constitution states:
“Searches and seizures.—The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.”
Amendment IV to the Federal Constitution states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.
33. The Founding Fathers adopted this prohibition against illegal searches and seizures as a response to the abuse of the “writs of assistance” used by King George prior to the American Revolution. As noted by the court in Boyd v. United States 116 U.S. 616, Supreme Court (1886) at 625, on February of 1761, James Otis resigned his office as the Kings Advocate-General in order to represent the people in opposition to these ”Writs of Assistance” before the Superior Court of Massachusetts. He argued to abolish the use of these “Writs of Assistance”, pronouncing them to be "the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book”. When the Kings Court refused to stop the issuance of these writs, John Adams proclaimed, "then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born." At page 630, Justice Bradley further stated:
“The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence, — it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.
Respondent submits the individual mandate created by section 381.0065(4)(u) F.S is as repugnant to the liberties of freemen, as the King’s “Writs of Assistance” and are null, void and unconstitutional.
Scott Cuthbert: You're not citing me for something that says my ATU does not work. You're citing me because I have refused to purchase a contract from a private party to inspect and maintain my system. Correct?
Code Enforcement Officer's Boss: As per Florida Statute. That's correct.
Scott Cuthbert: It's my contention that Statue creates an individual mandate that is unConstitutional, and the Statute must fell.
Prosecuting Attorney: This isn't the venue for that.
Scott Cuthbert: Excuse me! How can I get fundamental due process if I can't present my defenses that the Statute, on its face, is unConstitutional?34. In Camara v. Municipal Court of the City and County of San Francisco, 387 US 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 - Supreme Court, 1967, the Court held that all “health and safety” code enforcement actions were subject to the provision of the Fourth Amendments prohibitions against illegal searches and seizures and struck down the City’s law allowing for warrantless inspections as being UNCONSTITUTIONAL on its face. As section 381.0065(4)(u) F. requires respondent as a property owner to allow for annual “inspections” without any “probable cause” and without any evidence of system failure , said section violates respondents IV Amendment rights against unreasonable search and seizure.
UNFUNDED MANDATES
35. Section 381.0065 (4) (u) F.S.(2010) contains an “unfunded mandate” on Florida property owners, i.e., citizens are forced to pay whatever costs are required to obtain a maintenance agreement and operating permits. Article VII, Section 18 of the Florida Constitution prohibits the State from imposing “unfunded mandates” upon counties and cities, etc. The Federal 14th Amendments, Section 1 “Equal Protection Clause” prohibits states from denying equal protection under law. Article I, Section 2, Basic Rights, of the Florida Constitution states, “All natural persons… are equal before the law...” As it is the people that are the true sovereign, relinquishing only as much of their sovereignty as is necessary to form their constitutional rule of law, they must be considered to have at least the equal protections they have granted to the state. Under these “Equal Protection” protections, it is UNCONSTITUTIONAL for the State to impose an “unfunded mandate” upon its citizens, or to place the financial interest of businesses (un-natural persons) over those of natural citizens.
Wherefore,
Respondent(s) prays section 381.0065(4)(u) F.S. be declared null and void as being facially unconstitutional, or that this prosecution be dismissed with prejudice as a code enforcement action that is in lack of subject matter jurisdiction, with no cost, fees, or fines levied against Respondent.
continued next page
Respondent has read this pleading, agrees with its averments, and believes it to be true and correct to the best of his personal knowledge, information and belief.
____________________________________________
Scott A. Cuthbert dated Sworn to and Subscribed to me this ________ day of September, 2011 Notary:
_____________________________________________________________________-
Respondent hereby certifies hand delivery of a true and correct copy of these pleadings, one each to the office of the Clerk to the Special Magistrate of Brevard County, Florida and the office of the Brevard County Attorneys Office.
Acknowledgement of Receipt
Special Magistrate
______________________________________________________________________
Printed Name (or seal)
______________________________________________________________________
Signed name
******************************************************
County Attorney
Printed Name (or seal)
________________________________________________________________________
Signed name
Special Magistrate: You're right. In paragraph 5 of your brief, you're right...I have no jurisdiction...I'm not here to judge the Constitutionality of any Statutes. This is not the first time this has come up. It's come up many many times, so...
Scott Cuthbert: You have to have jurisdiction, before you can make the ruling, and I'm asserting you do not have jurisdiction, because you can't hear my defense, and you just admitted you can't hear my defense! Special Magistrate: I cannot rule on Constitutionality of Statutes...Normally, on cases like this, I give you 14 days to cure it, $25/day fine, and I award the cost of... typically it would be $550...And I don't know whether the County has anything? Prosecuting Attorney: The County has no reason to ask for anything different. Special Magistrate: Yeah. That's typically how I do this. And, uh, you know, it's your prerogative how you want to handle that Constitutionality issue. I think, before you do anything, you should talk to a lawyer, because there's alot of procedural steps you have to go through. It's not just pop in and file in a lawsuit. There's certain notice provisions you have to do. It's fairly complicated.
Scott Cuthbert: Oh I understand...and I've given you the case of Wilson vs Orange County which says you've just subjected yourself to a Title 42, Section 1983, Civil Rights Lawsuit, 'cause you've just thrown your qualified immunity out the window, because I truly believe that what you're doing is malicious...denying me the opportunity to notice, because fundamentally, if I can't present the challenge to the Constitutionality of the Statute, I'm denied due process!
Special Magistrate: I understand your arguments, but you know what, you gotta find another court, and another day to present those. Scott Cuthbert: We'll see each other again then! Special Magistrate: Alright.Scott Cuthbert: Looking forward to it Ms. Biehl-Hill! Prosecuting Attorney: Thank you Mr. Cuthbert. Special Magistrate: So on the case #11CE1943, I will find there is a violation, 14 days to cure, $25 a day fine, and award the County their cost of $550, due within 30 days.Scott Cuthbert to Bill Mick: We had the video, 'cause I had Penny Canales come with me and make a video of this hearing.
Bill Mick: They didn't take her camera, and break it, and pull the film out of it, or anything?
Scott Cuthbert: No. He tried to do that once before, but he got an order from Scott Knox [Brevard County Attorney] saying you gotta let cameras in here!
Note: Aerobic Treatment Units (hereinafter ATU’s) are now required (with limited exception) to be installed on all residential lots of less than one-half (1/2) acre pursuant section 381.0065(4)(a) F.S.
Section 162.02, Florida Statutes. Intent.—It is the intent of this part to promote, protect, and improve the health, safety, and welfare of the citizens of the counties and municipalities of this state by authorizing the creation of administrative boards with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective, and inexpensive method of enforcing any codes and ordinances in force in counties and municipalities, where a pending or repeated violation continues to exist.
Scott Cuthbert: [Laughing] It was just the biggest joke that I have ever heard!
Bill Mick: Scott, Good Luck! Keep us updated on the fight! What a story!!!
![sunsetdrag[1]](http://farm6.static.flickr.com/5119/5905804129_6042cb6fa6.jpg)
