Does Laches Bar Prosecution of Code Violation 24 Years after Gov't has Knowledge of Non-Life Threatening Infraction?

In 2001, Sandra Carter bought a modest single-family, stilt house in the Florida Keys -- built in 1976 -- for $116,000. The house came with a history that is on its way to becoming an enigma. There is an enclosed area on the ground floor (below base flood elevation) that, according to Monroe County, violates the local floodplain ordinance. On June 8, 2007, Code Enforcement cited her on six counts, including using the enclosed space for habitation, using the space (for anything?), and turning her single-family home into a duplex. Though her attorney raised laches as a defense, the hearing officer concluded that Ms. Carter must have known the structure was illegal because she "had worked as a realtor in Monroe County." She was ordered to cease, desist, obtain an after-the-fact permit (which they won't give her), or demolish "as directed."

What Ms. Carter "knew" seems a a stretch. If a drug dealer knew he was committing a crime, does his knowledge toll the statute of limitation? I don't think so. And, for those who do not live in flood-prone areas, these enclosed areas have always been allowed in the Florida Keys (with a building permit). What is not allowed is renting them out as apartments (or even allowing the grandchildren to sleep there). The standard FEMA flood insurance policy even insures freezers, water heaters, air conditioners, washers and dryers in such enclosures.

Ms. Carter appealed, again raising laches as a defense. The Circuit Court noted that the "illegal" enclosure has been on the Property Appraiser's records since at least 1983, and probably since the late 1970's. But Code Enforcement's citation omitted the date the "illegal" space was enclosed (i.e., heinous crime committed). On that technical detail, the Court reversed the hearing officer's order. In its September 29, 2008 opinion, the Court also stated:

"... the date of the offense has created an enforcement situation where the County is belatedly taking action against a property owner, at least twenty-four years after the violation was apparently known to the County. Under these circumstances, it is entirely possible that the doctrine of laches would properly preclude such a belated enforcement."

Kudos to Ms. Carter's attorney, Lee R. Rohe, for a job well done. Now he needs to follow though with the Third District Court of Appeal, and get a nice, precedential written opinion.