final until disposition of timely filed motion for rehearing.
of Certiorari to the Circuit Court for Miami-Dade County,
Appellate Division, Gisela Cardonne Ely, George A. Sarduy,
and Eric Hendon, Judges. Lower Tribunal Nos. 15-164 &
Victoria Méndez, City Attorney, and Forrest L.
Andrews, Assistant City Attorney, for petitioner.
Buschel Gibbons, P.A. and Robert C. Buschel and Eugene G.
Gibbons (Ft. Lauderdale), for respondent.
SUAREZ, LAGOA, and SCALES, JJ.
City of Miami (the "City") petitions for
second-tier certiorari from a decision from the appellate
division of the circuit court that overturned the City
Manager's termination of former police officer Larry
Hagan ("Hagan"). While the proper venue for appeal
of the City Manager's action was the appellate division
of the circuit court, we conclude that the appellate division
departed from the essential requirements of law in reversing
Hagan's termination. As grounds to reverse, the appellate
division held that the Civil Service Board lacked
jurisdiction to hear Hagan's case as it was required to
and failed to hold his hearing within thirty days of Hagan
filing his grievance; and that the City Manager was required to
hold a separate hearing before terminating Hagan and failed
to do so. We reverse each of the holdings in the opinion as
each departs from the essential requirements of the law. We
therefore grant the City's petition and quash the opinion
of the appellate division and remand for reinstatement of the
City Manager's judgment.
the parties disagree about the details of the preliminary
events, for purposes of this appeal it is sufficient to state
that in 2013 Hagan's on-duty sergeant recommended that he
be reprimanded for behavior which is irrelevant to this
appeal. Despite the sergeant's recommendation,
Hagan's commander determined that he should be suspended
for 120 hours based on a "pattern of behavior."
Hagan requested a grievance hearing by the Civil Service
Board, pursuant to the remedies afforded him under the City
of Miami Code of Ordinances. The hearing took place and the
Civil Service Board found Hagan guilty of numerous violations
and recommended the 120 hour suspension. Those findings and
recommendation were forwarded to the City Manager, also
pursuant to the procedures set forth in the Code of
Ordinances. The City Manager affirmed the Civil Service
Board's factual findings, but rejected its suspension
recommendation and instead terminated Hagan. Hagan was
credited back the time already served on the 120 hour
suspension after his termination.
then filed a Petition for Certiorari with the appellate
division of the circuit court alleging that he was not
afforded due process because he was not notified he could be
terminated; that the essential requirements of the law were
not observed because he was punished twice for the same
conduct; and that the Civil Service Board's findings of
fact were not supported by competent substantial evidence.
After oral argument, the appellate division of the circuit
court requested additional documents from the parties, but
did not inform the parties why it requested those documents
and did not request any additional briefing from the parties.
Subsequently, the appellate division issued the opinion in
question and granted Hagan's petition, concluding that
the Civil Service Board lacked jurisdiction to adjudicate
Hagan because it was required by the City Ordinance to hold
his grievance hearing within thirty days of the filing of his
grievance request and did not do so. The appellate division
also found that the City Manager's disciplinary decision
violated the essential requirements of law because the City
was required to hold a separate hearing when the City seeks
to terminate an employee and fails to do so. Finally, the
appellate division concluded that it had jurisdiction to hear
Hagan's petition and ordered that he be reinstated with
back pay. We reverse, as the appellate division deviated from
the essential requirements of the law in arriving at each
Followed by the Parties
first note that, as established in our parallel opinion in
City of Miami v. Jean-Phillipe, No.17-1172 (Fla. 3d
DCA ___, 2017), which is issued simultaneously herewith,
Hagan properly availed himself of his right to review the
City Manager's decision in the appellate division of the
circuit court. Miami- Dade Cnty. v. Moreland,
879 So.2d 23 (Fla. 2d DCA 2004); Bass v. Metro Dade Cnty.
Dep't of Corr. and Rehab., 798 So.2d 835 (Fla. 3d
DCA 2001); City of Miami Springs v. Barad, 448 So.2d
510, 511 (Fla. 3d DCA 1983); Sch. Bd. of Leon Cty. v.
Mitchell, 346 So.2d 562, 568 (Fla. 1st DCA 1977) (cited
by Barad, examining history of the APA and holding
"in the vast majority of cases, the sole method of
challenging agency action, whether formally recognized as an
'order' or a 'rule', as it affects the
substantial interests of a party is by petition for review to
the appropriate Court of Appeal.").
although Hagan captioned his pleading in the appellate
division of the circuit court as a petition for certiorari,
the review which was, and should have been, afforded by the
appellate division was plenary. 2 Fla. Prac., Appellate
Practice § 19:9 (2016 ed.) stating:
Article V, § 5(b) of the Florida Constitution states
that the circuit courts shall 'have the power of direct
review of administrative action prescribed by general
law.' However, there is often no general statute that
authorizes an appeal from a decision by a local
administrative body such as a county commission. To implement
the basic right of appellate review, the courts have held
that an unappealable decision by a local administrative
tribunal is reviewable by certiorari in the ...