FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Petition for Certiorari Review of Decision from the Circuit
Court for Orange County Acting in its Appellate Capacity.
Michael E. Marder, and Thu Pham, of Greenspoon Marder LLP,
Orlando, and John H. Pelzer, Of Greenspoon Marder LLP, Fort
Lauderdale, For Petitioner.
Marquardt Asad, and William C. Turner, Jr., of Orange County
Attorney's Office, Orlando, for Respondent.
Florida Investments, Inc., Petitioner ("CFI"),
argues that the circuit court, acting in its appellate
capacity, departed from the essential requirements of the law
by treating CFI's appeal as though it were instead a
petition for a writ of certiorari and then dismissing the
petition. We agree with CFI that section 162.11, Florida
Statutes (2017), provides for a plenary appeal to the circuit
court as a matter of right from a final administrative order
of an enforcement board. However, the record reveals that CFI
requested a more limited review, which the circuit court may
have conducted. Because it is unclear whether the circuit
court indeed employed the scope of review requested by CFI,
we remand for further proceedings.
review of the circuit court's appellate decision is by
way of second-tier certiorari, which limits our consideration
to whether the circuit court: (1) afforded CFI procedural due
process and (2) applied the correct law. See Haines City
Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995);
DMB Inv. Tr. v. Islamorada, Vill. of Islands, 225
So.3d 312, 316 (Fla. 3d DCA 2017).
cited for a violation of the building code by Orange County
Code Enforcement Division with regard to what were deemed to
be unsafe conditions in a structure that had been partially
demolished during certain activities engaged in by CFI.
Because CFI contested the violation and ownership of the
building in question, an evidentiary hearing was held before
the Orange County Special Magistrate who entered a final
administrative order against CFI and in favor of Orange
took an appeal, ostensibly pursuant to section 162.11,
requesting the circuit court to reverse the final order
entered by the magistrate. That section provides:
162.11 Appeals. An aggrieved party, including the local
governing body, may appeal a final administrative order of an
enforcement board to the circuit court. Such an appeal shall
not be a hearing de novo but shall be limited to appellate
review of the record created before the enforcement board. An
appeal shall be filed within 30 days of the execution of the
order to be appealed.
§ 162.11, Fla. Stat. (2017).
correctly argues, that statutory section clearly provides for
an appeal as a matter of right to the circuit court. See
City of Ocala v. Gard, 988 So.2d 1281, 1282-83 (Fla. 5th
DCA 2008). This Court has described the nature of such an
appeal as plenary. Id. at 1283. There is nothing in
the statute to suggest otherwise. "[W]here the language
of a statute is plain and unambiguous there is no occasion
for judicial interpretation." DMB Inv. Tr., 225
So.3d at 317 (quoting Forsythe v. Longboat Key Beach
Erosion Control Dist., 604 So.2d 452, 454 (Fla. 1992)).
Accordingly, if CFI had pursued a plenary appeal, the circuit
court would have departed from the essential requirements of
the law if it provided a more limited review, such as that
afforded by first-tier certiorari review.
CFI appealed the magistrate's order to the circuit court,
it did not request a plenary appeal. Instead, CFI
specifically requested the circuit court to conduct a
first-tier review of the magistrate's order, governed by
a three-prong standard of review, to determine whether: (1)
procedural due process was afforded; (2) the essential
requirements of law were observed; and (3) the
magistrate's final order was supported by competent
substantial evidence. It is understandable that CFI requested
the circuit court to follow that procedure, as there are
several Florida Supreme Court cases suggesting that the
three-pronged first-tier review is the appropriate scope for
a circuit court's appellate review of an agency or board
decision; however, none of those cases discuss, concern, or
cite section 162.11. See, e.g., Dusseau v.
Metro. Dade Cty. Bd. of Cty. Comm'rs, 794 So.2d
1270, 1273-74 (Fla. 2001); Fla. Power & Light Co. v.
City of Dania, 761 So.2d 1089, 1092 (Fla. 2000);
Haines City Cmty. Dev., 658 So.2d at 530; City
of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.
1982). Indeed, section 166.061, Florida Statutes (1980), the
predecessor to section 162.11, originally provided that
"[a]n aggrieved party may appeal a ruling or order of
the enforcement board by certiorari in
circuit court." (emphasis added). However, in 1982 the
Legislature amended section 166.061 by deleting the word
"certiorari." Ch. 82-37, § 10, Laws of Fla.
The Legislature then renumbered that section, and in 1985
amended the statute further by using only the unmodified word
"appeal" repeatedly. Ch. 85-150, § 3, Laws of
Fla. Section 162.11 is the current and controlling grant of
appellate review, by appeal and not by certiorari, from an
enforcement board to circuit court, as further authorized by
the Florida Constitution. See Art. V, § 5(b),
case at hand, the circuit court's initial appellate
decision stated: "We treat this appeal as a petition for
writ of certiorari, see Orange County v. Lewis, 859
So.2d 526, 528 n.1 (Fla. 5th DCA 2003), and deny
certiorari." Indeed, this Court in Lewis stated
that a circuit court's review of an administrative
body's decision was by certiorari and was limited to a
consideration of the three-prong test mentioned above. 859
So.2d at 528 n.1. However, as in the above-cited supreme
court cases, Lewis does not discuss or cite section
162.11. In a more recent case, this Court noted that
"[s]ection 162.11 . . . specifically authorizes appeals