Could a Special Magistrate have averted a horrible tragedy?

The ghastly death of two-year old Marissa Leigh Ann Daniels last week was sensitively reported by Millard K. Ives in the Daily Commercial and at DailyCommercial.com.

Assistant Editor Scott Callahan titled Ives’ story with the words of Fruitland Park’s veteran assistant police chief, David Borst: ‘A tragedy that could have easily been avoided.’

The timeline is harrowing: Five months ago someone drove a truck over the top of a septic tank at a Fruitland Park home, broke the lid and didn’t replace it—or cover the resulting hole. In the late summer sun, the grass and weeds grew back quickly and obscured the 12-inch by 24-inch opening.

Last Tuesday, a neighbor called Fruitland Park to report it. The Florida statute that governs municipal code enforcement calls it “a serious threat to the public health, safety, and welfare.”

Deputy Police Chief David Borst responded quickly and even returned a second time, but the city didn't have the power to fix the problem before tragedy struck.

Deputy Police Chief David Borst responded quickly and even returned a second time, but the city didn’t have the power to fix the problem before tragedy struck.

The city responded the same day. Community Development Director Charlie Rector visited the house with Deputy Chief Borst—police officers are designated Code Inspectors by statute and serve as Code Enforcement Officers in Fruitland Park.

Besides the open hole in the septic tank they found two other violations—overgrown weeds and an unsecured swimming pool filled with dirty green water: a dangerous violation that is much more common since the housing collapse and wave of foreclosures.

Tuesday afternoon, there was no one home at the Fruitland Park address.

They hung a copy of the code violation on the doorknob—an official notice to get the problems fixed within 14 days. Boorst returned again that evening to learn the occupants—a man and his mother—were moving out the next day. The lender had foreclosed on the house and evicted them.

The next morning friends when showed up to help with the move they brought three children. A Lake County Sheriff’s Deputy arrived to force the eviction. The children were sent to the back yard to play.

That’s when the worst of all possible endings happened.

Sometime after 11 a.m., adults noticed one of the children was missing. They began searching. Someone covered the septic tank hole so searchers wouldn’t stumble into it. They probed the murky swimming pool with a net. The sheriff’s deputy summoned Fruitland Park Police.

Fruitland Park brought along Bella, the department’s K9 search dog, who specializes in search and rescue. The dog immediately alerted on the open septic tank.

Hours later, city utility workers had drained the septic tank to discover what they were hoping they would not.

Rector later explained that the city had done what the law permits. Absent a criminal complaint, the best Borst could offer was a written violation—an official notice that the responsible party had 14 days to fix the problem.

The statute is pretty plain: “Prior to issuing a citation, a code enforcement officer shall provide notice to the person that the person has committed a violation of a code or ordinance and shall establish a reasonable time period within which the person must correct the violation.”

To make matters worse, the house was in foreclosure. Eviction was under way—on the order of the sheriff. The city had no immediate remedy to offer in what proved to be a fatally dangerous condition.

Fruitland Park’s Code Enforcement Board, which had not met for the two previous months—was scheduled to meet on Thursday. The Board could have forced the issue, sent city workers to correct the problem, billed the legal owners and registered a lien against the property to collect their costs, if necessary.

But not in time to save Marissa. Due process—the constitutional right that protects our property and privacy rights—takes time. This time, it ended in tragedy.

Fruitland Park calls itself “The Friendly City.” Its commissioners and most residents extoll the family-friendly culture here. And they back it up. Where some cities support art fests, biker weekends and concerts, Fruitland Park creates events for children.

More than 2,000 kids showed for the city’s annual Trick or Treat through the Shiloh neighborhood and every police officer, fire fighter, and volunteer was on hand to help direct the flow, along with city utilities workers. For days after the annual Hometown Christmas event on the front lawn of City Hall, Community Development Director Charlie Rector was hoarse. He played Santa Claus, and about 500 kids sat on his lap. He talked to all of them.

The tragedy of two-year old Marissa Leigh Ann Daniels is a shame the whole city shares.

Fruitland Park’s leaders and representatives will likely explore what can be done to keep such a tragedy from occurring in the future.

The city’s Charter Review Committee may discuss the incident at its next meeting Tuesday evening at 6 p.m. in the City Commission Chambers.

The City Commission may consider a response at its regularly scheduled meeting on Thursday at 7 p.m. Fruitland Park residents are encouraged to attend both meetings.

There is a solution. It won’t forgive the tragedy, but it might prevent a similar one in the future.

Code enforcement in Fruitland Park is governed by Chapter 9 of the city’s Municipal Code. Chapter 9 follows Chapter 162 of the Florida Statutes almost to the word.

Chapter 162 gives municipalities an alternative to deal with code violations. It’s called a Special Magistrate.

A Special Magistrate is usually a member of the Florida Bar whose powers encompass those of the Code Enforcement Board. The Magistrate cannot initiate code enforcement measures, but only respond to code enforcement complaints. A Special Magistrate serves as the mediating authority regarding code complaints with a single goal: the speedy resolution of the complaint to the benefit of “public health, safety and welfare.” And typically, especially in a situation where a dangerous condition is immediate, a Special Magistrate can respond quickly.

In a perfect world, a Special Magistrate might have done just that last Tuesday—and ordered or authorized city workers to ameliorate the immediate danger in time to avert the tragedy.

Today, the area around the septic tank is cordoned off. The hole is covered. City workers will fill in the cavity. But the best actions by the best people are all a week late foe Marissa.

Due process is a constitutional right. It is critical to the preservation and protection of our property and privacy rights, which are essential to our way of life in America. Properly structured, a Special Magistrate can be a way to streamline the decision-making process, layering the due process to protect civil rights while remedying imminently dangerous situations before a tragedy occurs.

The city’s Code Enforcement Board might still play a valuable role in overseeing the decisions of the Special Magistrate, providing an immediate and local means of appeal, and might also serve as the City Commission’s advisory board with regard to city codes and policies.

It would take little more than a city ordinance to create a Special Magistrate to deal with code enforcement issues. Maybe it’s time to consider it.

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