Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Competent Substantial Evidence – form order entered by the Board finding Petitioner in violation of City’s Code for not removing two commercial signs is not supported by the record – the City concedes that the understanding of the parties was that the entire matter would come back before the Board in thirty days to allow the Petitioner to further research whether a permit had ever been issued for signs  – Petition granted. Bryan Media, Inc. v. City of St. Petersburg, No. 04-0091AP-88A (Fla. 6th Cir. App. Ct. January 27, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

BRYAN MEDIA, INC.,

a Florida Corporation,

                        Petitioner,

 

 

vs.                                                                                                Appeal No. 04-0091AP-88A

                                                                                                    UCN522004AP000091XXXXCV

 

 

CITY OF ST. PETERSBURG,

                        Respondent.

________________________________________________/

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response, and the Reply.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The Petitioner, Bryan Media, Inc., a Florida Corporation (Bryan Media), seeks review of the Order, entered November 17, 2004, in which the Code Enforcement Board of the City of St. Petersburg (Board), found that two signs located on property owned by CSX, Transportation, Inc. (CSX),[1] violated the City of St. Petersburg Code.  In reviewing the administrative action taken by the Board, this Court must determine whether Bryan Media was afforded procedural due process, whether the essential requirements of law were observed, and whether the City’s findings and judgment are 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). 

            Bryan Media owns two adjoining signs that sit on vacant property owned by CSX, located at 498 22nd Street South.  On August 3, 2004, the City cited CSX for violating Chapter 16, Sections16-671 and 16-668, which prohibits off-premises signs.  At the hearing before the Board, the City’s code investigator, Ron Guynn, and the City’s code inspection supervisor, Gary Bush, testified about the code violations.  Mr. Guynn testified that CSX owned the property, but that no “book and page” was located for the property address.  Mr. Guynn also testified that the City had not found a permit on record for the signs and, therefore, the signs were prohibited.  Mr. Bush testified that the signs are prohibited because the City changed its policy regarding signs in that location.  Mr. Bush did not know when the new policy went into effect.  Mr. Bush testified that he conferred with other City employees, including “the lady who issues permits,” and they agreed that the City is no longer permitting “those kinds of signs.”

            Counsel for Bryan Media, Rory B. Weiner, represented that the signs were erected in 1982 and had been used continuously since 1982.  Mr. Weiner stated that he was working with the City’s engineering department to try to locate the permit.  Mr. Weiner argued that it had strong circumstantial evidence, including drawings of the property and proposed sign locations, that would support the conclusion that the signs were lawfully erected.  Without objection from the City, Bryan Media requested 30 additional days to continue to research the matter.  The Board agreed that additional time was needed to determine whether a permit was ever issued.  The Board then entered, via oral vote, the Order, a fill-in-the-blank form order, which found CSX to be in violation of the Code and gave CSX until December 17, 2004, to correct the cited violations.  As set forth in the Order, the case was scheduled to be heard before a special magistrate on January 25, 2005, to determine whether fines should be imposed for noncompliance.    

            Bryan Media argues that there is not competent substantial evidence to support the Board’s Order and that the Board failed to observe the essential requirements of law.  In addressing the first issue, the Court agrees that the Order entered by the Board is not supported by competent substantial evidence.  See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002)(describing competent substantial evidence as such evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached”).  It is clear in viewing the videotape of the code enforcement hearing, that the consensus and understanding of the Board members was that the matter would come back before them after the parties had additional time to research whether a permit had ever been issued and to “sort it out.” 

            In its Response, the City concedes, in footnote 5, that the express understanding of the Board was that an additional 30 days was warranted for the parties to further review the permit issue.[2]  However, the form order that was entered failed to properly defer the matter; rather, it found that the property was not in compliance and gave the violator 30 days to seek judicial review.  Bryan Media had no option but to seek certiorari relief.  Under these undisputed facts, the Court finds that the Order must be quashed and this matter remanded to the Board for further proceedings.  The Court need not address the remaining issue.

           

 

            It is therefore,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby granted and this cause is remanded for action consistent with this Order.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of January 2006.

 

 

 

                                                _______________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

 

 

_______________________________                      ______________________________

LAUREN LAUGHLIN                                            JAMES CASE

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division

 

 

Copies furnished to:

Rory B. Weiner, Esquire

10150 Highland Manor Drive, Suite 200

Tampa, FL  33610

 

Milton A. Galbraith, Esquire

Post Office Box 2842

St. Petersburg, FL  33731-2842

 



 

[1] CSX received notice of the proceedings below, but did not appear.  It is undisputed that Bryan Media, as the owner of the signs at issue, has standing to seek certiorari relief.

[2] The Court notes that the City invited Bryan Media to produce the permit for the signs if one had been found.  However, even if a permit or other evidence had been identified following the enforcement hearing, this Court could not consider it.  See Altchiler v. State, Dept. of Professional Regulation, 442 So.2d 349, 350 (Fla. 1st DCA 1983)(stating that an appellate court will not consider evidence that was not presented to the lower tribunal).