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Central Florida Investments, Inc. v. Orange County

Florida Court of Appeals, Fifth District

November 7, 2019

CENTRAL FLORIDA INVESTMENTS, INC., Petitioner,
v.
ORANGE COUNTY, FLORIDA, Respondent.

         NOT 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.

          Elaine Marquardt Asad, and William C. Turner, Jr., of Orange County Attorney's Office, Orlando, for Respondent.

          EDWARDS, J.

         Central 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.

         Our 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).

         CFI was 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 County, Respondent.

         CFI 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).

         As CFI 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.

         When 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), Fla. Const.

         In the 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 ...


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