Petition for Writ of Certiorari to Review Quasi-Judicial Action, Agencies, Boards, and Commissions for Local Government: ZONING – Procedural due process – Although appellant was limited to contest constitutional violations of procedural due process, his arguments were not within the scope of his pleadings – Although court had granted opportunity to amend pleadings, appellant had not done so in timely manner and further opportunity was foreclosed – Due process argument concerning city’s stipulated agreement procedure did not pertain to facts of this case and was beyond scope of reply brief. Petition denied. Hamm Family Living Trust v. City of St. Petersburg, No. 02-3385-CI-88A (Fla. 6th Cir. App. Ct. May 28, 2003).











                                                                                                                                Ref No. 02-3385 CI-88A






                THIS CAUSE came before the Court on a Petition for Writ of Certiorari after the City of St. Petersburg’s Hearing Officer issued a Final Order Conditionally Approving Demolition of the Single Family Residence and Garage/Apartment structures located at 916 – 11th Street South in St. Petersburg.

                The matter arose when the Codes Compliance Assistance Department of the City of St. Petersburg sent a Demolition Violation Notice to the Petitioner that stated that conditions on the property did not comply with Chapter 8, Section 8-366 of the city code entitled “Structure(s) Determined Unfit and/or Unsafe for Human Habitation.” The Petitioner was given a month to correct the conditions and told that an inspection of the completed work must be scheduled. If additional time was necessary in order to obtain permits, the Petitioner was informed that he had to contact the Building Demolition Coordinator in writing before the deadline.

                At the same time, the Codes Compliance Assistance Department requested the Fire Codes Enforcement Division to inspect the structures in order to determine whether the structures constituted a fire hazard. The Fire Codes Enforcement Division subsequently determined that the structures did not constitute a “fire/safety hazard.”

                Upon inspections by a city engineer, it was recommended that both structures be demolished since they were presently unfit for human habitation. However, the structures were restorable, although in the case of the garage apartment building, only if the structural damage and termite damaged areas were repaired. More than six months later, the City issued a Notice of Intent to Demolish.

                In accordance with the Notice, Petitioner filed a Condemnation Appeal Application. After hearing, the Hearing Officer entered an order upholding the Order of the City’s Building Official. He determined that the structures were unfit and/or unsafe pursuant to St. Petersburg City Code Chapter 8, Article VII, Division 4, and as defined in Section 8-206. The Hearing Officer further found that the City’s Building Official had determined the structures were unfit and/or unsafe upon his review of the engineer’s reports and after a personal inspection of the premises. The HO also found that the Petitioner had received the Notice of Condemnation/Order to Demolish; had sufficient notice of the hearing; and had an opportunity to present testimony and evidence.

                The Final Order, however, gave Petitioner 45 days in which to (1) enter into a fully executed stipulation agreement with the city, which required approval by the Hearing Officer or (2) have the structures demolished under proper permit. After the expiration of the 45-day period, the City could proceed with the demolition and removal of the structures if a stipulation agreement had not been executed and if the structures had not already been demolished by Petitioner. The Order further provided that the Petitioner could seek judicial review with the Circuit Court within 30 days from the date of the order.

                The Petitioner then timely filed a Petition for Writ of Certiorari with this Court. He argued that the city’s actions constituted an unconstitutional taking without providing the Petitioner his due process rights and that the Hearing Officer exceeded his authority by rendering an opinion that was not supported by the evidence presented. Specifically, he alleged that the city failed to enumerate the basis for the city’s decision to demolish the structures or to justify the taking of the Petitioner’s property when the less invasive remedy of securing the property was available under the city code. He also argued that by permitting only a ten-minute period to present argument and testimony, his due process rights were denied.

                The jurisdiction of this Court having been timely invoked, review of the quasi-judicial decision of the City of St. Petersburg Hearing Officer is limited to a review of (1) whether procedural due process was accorded; (2) whether the essential requirements of the law were observed; and (3) whether the administrative findings and judgment were supported by competent, substantial evidence.

                Review of Petitioner’s due process claim is hampered by his failure to provide an adequate transcript of the hearing before the City’s Hearing Officer. The Notice of Appeal Hearing specifically provided that “[i]n preparation for the Appeal Hearing, the appellant is encouraged to ensure that a verbatim record of the Appeal Hearing proceedings is made which includes the testimony and evidence upon which any further appeal might be based.” The Notice also included a copy of the Condemnation Appeal Hearing Procedures, which stated that if any party sought to appeal a decision of the Hearing Officer, the appellant was responsible for making a recording of the proceedings. Although the City makes a record, it cautioned that the City’s record could be incomplete or lost due to recording or storage failures. “Interested parties are encouraged to ensure that a verbatim record of the Hearing proceedings is made which includes the testimony and evidence upon which any further appeal might be based.” (City of St. Petersburg Condemnation Appeal Hearing Procedures, p 2.).

                The Petitioner relied on the City’s tape, and the resulting transcript he had prepared contained many blank spaces. Since the transcript was not accepted by this Court, Petitioner in his Reply brief recognized and agreed that he could not “challenge whether the decision by the Hearing Officer was supported by substantial competent evidence” and could not address “the actual conduct of the hearing.” Instead, Petitioner focused on the “constitutional violations of procedural due process in the actions of the City and the violation of the Doctrine of Unconstitutional Condition in the City Code.”

                Although this Court had granted Petitioner an opportunity to amend his Petition, Petitioner did not timely avail himself of the opportunity and this Court subsequently expressly denied further opportunity to do so. As the Respondent correctly points out, the issue of inadequate publication of the Notice of the Appeal Hearing in the Tampa Tribune, which was raised for the first time in the Reply brief, is an attempt to amend the Petition and exceeds the permissible scope of the Reply.

                The second issue the Petitioner discusses in his Reply brief is that the City’s stipulated agreement procedure forces a property owner to forego the right to a due process hearing before a disinterested court if he is going to avail himself of the discretionary benefit of the stipulated settlement procedure. Not only is the argument not made in the Petition, but the Hearing Officer’s opinion expressly permitted Petitioner 45 days in which to enter into a stipulated agreement after the hearing. It is only at that point that demolition could occur. The argument does not pertain to the facts of this particular case and Petitioner concedes that it does not. Therefore, it is

                ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED. It is further

                ORDERED AND ADJUDGED that the Order Staying Demolition is lifted.

                DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ day of May 2003.





                                                                                                                JOHN A. SCHAEFER

                                                                                CIRCUIT JUDGE, APPELLATE DIVISION




cc: Charles D. Hinton, Esq., Deane & Hinton, P.A., Attorneys for Petitioner

     Jeffrey A. Blau, Esq., Co-Counsel for Petitioner

     Pamela D. Cichon, Esq. and John C. Wolfe, City Attorney