Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Substantial Competent Evidence – City is not required to specify which Code violations existed at the time of the lien certification – Court lacked jurisdiction to review earlier order finding Code violations existing and subjecting appellant to the fine where order was not appealed – Appellant did not provide evidence to the City that the Code violations had been corrected – Order Imposing Lien affirmed.  Allums v. City of St. Petersburg, No. 02-9141CI-88B (Fla. 6th Cir. App. Ct. March 29, 2004). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

BRUCE ALLUMS

                        Appellant,

vs.                                                                                                Appeal No.02-9141CI-88B

                                                                                                    UCN522002CA009141XXCICI

CITY OF ST. PETERSBURG,

CODE ENFORCEMENT BOARD,

                        Appellee.

____________________________________/

ORDER AND OPINION

 

            THIS CAUSE came before the Court on the Initial Brief, filed by the Appellant, Bruce Allums (Allums), and the Answer Brief, filed by the Appellee, City of St. Petersburg, Code Enforcement Board (Board).  Allums filed his Notice of Administrative Appeal following the entry of the Order Imposing Lien (Order), entered by the Board on October 25, 2002. [1]   In reviewing the administrative action taken by the Board, this Court must consider whether Allums was afforded procedural due process, whether the essential requirements of law were observed and whether the Board’s action is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action).  Upon consideration of the same and being otherwise fully advised, the Court finds that the requested relief must be denied as set forth below.

             The only issue raised by Allums is whether the Order is supported by competent substantial evidence.  Allums argues that the Order is not supported by competent substantial evidence as the Order does not specify which Code violations occurred, rather simply states that “violations existed from 9/26/2002 to 10/23/2002.”  Allums also argues that the Board did only one inspection, on October 22, 2002, so there was no factual basis to impose a per diem fine of $150 for the 28-day period in question resulting in the lien certification in the amount of $4,200. [2]  

Lastly, Allums challenges the Board’s previous finding that there was “auto repair taking place outside a fully enclosed structure.”

            Initially, the Court finds that the Board is not required by the City of St. Petersburg Code, nor by Florida Statute, to specify which Code violations existed at the time of certifying the lien.  The record shows that Allums was fully aware of the Code violations the Board was charging him with on August 28, 2002, when the Board entered its Order and Notice that found Allums’ property had not been brought into compliance with the Board’s Code.  Importantly, this Order and Notice was not appealed and the Court lacks jurisdiction to review the Order and Notice in the present appeal.  See City of Plantation v. Vermut, 583 So.2d 393, 394 (Fla. 4th DCA 1991)(holding that where appellants appealed only code enforcement board’s order confirming fine assessed in earlier order and imposing lien for fine, and did not appeal earlier board order subjecting them to fine, circuit court lacked jurisdiction to set aside first order); see also City of Fort Lauderdale v. Bamman, 519 So.2d 37, 38 (Fla. 4th DCA 1987)(same); Kirby v. City of Archer, 790 So.2d 1214, 1215 (Fla. 1st DCA 2001)(same).   

            Further, Allums was again informed of the Code violations and put on notice when the Board certified a lien of $450, on September 27, 2002, for not correcting the cited violations as mandated by the Board in its August Order.  This order, which imposed a $150 per diem fine, was also not appealed.  The hearing before the Board on October 23, 2002, was a continuation of the Board’s attempt to compel Allums to correct the same Code violations.  Indeed, during the hearing, the Chairman asked Allums if he “sensed what the Board wanted done” after the Board certified the $450 lien in September, to which Allums responded, “[t]hat’s correct.”     

            Lastly, the Code Inspector, Linda Phillips, testified during the hearing that Allums’ property “was inspected, last inspected on October 22, 2002,” indicating it had been inspected more than once during the 28-day period. (emphasis added).  Additionally, Allums did not provide evidence that the Code violations had been corrected and, with the exception of doing auto repair work, conceded that the violations had not been corrected as directed by the Board in its previous Order and Notice.  Accordingly, the Court finds that the Board’s decision is supported by competent substantial evidence and must be upheld.

            Therefore, it is,

            ORDERED AND ADJUDGED that the Order Imposing Lien is affirmed. 

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of March 2004.

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

 

Milton A. Galbraith, Jr., Assist. City Atty.

Post Office Box 2842

St. Petersburg, FL  33731

 

Warren J. Knaust, Esquire

2167 Fifth Avenue North

St. Petersburg, FL  33713



[1] Allums is seeking review of final administrative action.  Therefore, the Court will treat Allums’ Notice of Appeal as a petition for writ of certiorari.  See Fla. R. App. P. Rule 9.100(c)(1)(providing for certiorari review of local government quasi-judicial action); see also Johnson v. Citizens State Bank, 537 So.2d 96, 97 (Fla. 1989)(stating that an appellate court has jurisdiction to review a cause even though the form of appellate relief is mischaracterized).

[2] The Board concedes that the original order incorrectly named John Oxley as the Chairperson of the Code Enforcement Board, instead of Sheldon Schwartz.  This scrivener’s error was subsequently corrected by the Board and has no bearing on the outcome of this appeal.