for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and
Commissions of Local Government: ADMINISTRATIVE
– Code Enforcement – City departed from the essential requirements of law in
failing to consider affidavits completed by Code Enforcement Officer as
required by the City’s Code – Affidavit that was completed 3 days before fine
hearing found that property was code compliant – City must comply with its Code
in providing notice to property owner of cited code violations – Petition
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
SHARON L. JACKSON
vs. Appeal No.05-0082AP-88A
THIS CAUSE came before the Court on the Amended 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 Amended Petition must be granted as set forth below.
Petitioner, Sharon L. Jackson (Jackson), seeks review of the Findings of Fact,
Conclusions of Law and Order (Order), entered September 8, 2005, by the Code
Enforcement Board (Board) of the Respondent, City of Oldsmar (City). In reviewing the administrative action taken
by the Board and the City, the Court must consider whether
record shows that
testified that he returned to the property on August 30, 2005, and that the
property was not in compliance. Kikis
could not locate the photos he had taken on August 30th.
Before this Court,
However, the Court will consider
Petitioner’s Exhibit AD3, Affidavit of Compliance, dated September 13, 2005,
and Exhibit AD4, Affidavit of Compliance, dated July 18, 2005, to the extent
that the Court finds that the Board departed from the essential requirements of
law in not considering these affidavits.
See Haines, 658 So.2d at 527; see also Housing
Authority of the City of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA
2004)(explaining that in determining whether there has been a departure from
the essential requirements of law, the appellate court “should not be as
concerned with the mere existence of legal error as much as with the
seriousness of the error”). Resolution
No. 97-01, which establishes Rules of Procedure for the City’s code enforcement
proceedings, specifically requires affidavits of compliance or non-compliance to
be filed with the Board for their consideration. See Resolution No. 97-01, Rule 5.
Enforcement, Section 2. The Court is
troubled by the fact that these affidavits were not provided to the Board prior
to the hearing, particularly since the September 13th affidavit, sworn to by
Rehmer, states that the property was in compliance on August 29, 2005, just 3
days before the hearing. The Court finds
that the failure of the City to timely provide the Board with these affidavits
is fundamental error that goes to the foundation of this case and, standing
alone, requires certiorari relief.
the Court needn’t address the remaining issues, the Court makes the additional
findings for the sake of clarity on remand and for the of sake judicial economy
to avoid potential multiple, piecemeal appeals.
First, the Court finds that the appealed Order does not provide a
scheduled date of compliance as required by Resolution No. 97-01, Rule 4.
Hearings, Section 1, k. and Rule 5. Enforcement, Section 1. While Section 2-133 states that an order “may”
include a specified date of compliance,
the intent evidenced throughout the Code and Resolution 97-01 is to put the
violator on notice as to what needs to be corrected within a time frame
established by order. See e.g.
Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1287 (
the Court finds that the Board must consider whether
Third, the Board must
consider whether the City had an obligation to abate the nuisance itself, and
assess the costs for such abatement against
Contrary to the Board’s argument, this language is mandatory and there is no language in Section 26 to suggest that the City has the “option” of abating a nuisance when a violator fails to timely do so. To the extent that there is a conflict between Section 2, which discusses code enforcement proceedings in general, and Section 26, which addresses specifically nuisance proceedings, Section 26 controls. See Palm Beach County Canvassing Board, 772 So.2d at 1287 (stating that when two statutory provisions conflict, the specific statute controls over the general statute). Therefore, it is,
ORDERED AND ADJUDGED that the Amended Petition for Writ of Certiorari is granted and the Order is quashed. The Respondent’s Motion for Attorney’s Fees is denied.
DONE AND ORDERED in Chambers, at
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
LAUREN LAUGHLIN BRANDT C.
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Sharon L. Jackson
Thomas J. Trask, Esquire
Court notes that
 The Court reiterates that the decision to grant certiorari relief in this case is not based on these findings.