Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – due process - jurisdiction – Court does not have jurisdiction to review previous orders imposing fines that were not timely appealed – Court does have jurisdiction to review Order Imposing Lien, entered October 28, 2005, as petition was filed within thirty days seeking review of this Order – Order must be quashed when City failed to provide Petitioner with notice and the opportunity to challenge the imposition of the lien – procedural due process is required even when property owner has previously appeared before the administrative agency to submit testimony and evidence on the same code violations - Petition granted. CSX Transportation, Inc.  v. City of St. Petersburg, Appeal No. 05-0096AP-88A (Fla. 6th Cir. App. Ct. Oct. 4, 2006). 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

CSX TRANSPORTATION, INC.,

                        Petitioner,

 

vs.                                                                                                Appeal No.05-0096AP-88A

                                                                                                    UCN522005AP000096XXXXCV

 

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, CSX Transportation Inc. (CSX), seeks review of the Order Imposing Lien (Order), entered October 28, 2005,[1] by a Special Magistrate for the Respondent, City of St. Petersburg (City).  In reviewing the administrative action taken below, the Court must consider whether CSX was afforded procedural due process, whether the essential requirements of law were observed and whether the Order 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).

            The record shows that CSX is the owner of real property situated between 30th Avenue North and 38th Avenue North in St. Petersburg.  The subject property contains a section of railroad right of way, 100 feet in width and approximately 8 blocks long.  The property contains a single pair of railroad tracks and a long concrete platform that was once used as shelter for passengers.  The platform and concrete structures are in an abandoned and deteriorated state.  CSX was cited by the City for several code violations. 

            On July 27, 2005, the Code Enforcement Board (Board) held a hearing on the code violations.  After receiving testimony and evidence, the Board concluded that CSX had failed to bring its property into compliance and further ordered that CSX was to correct all code violations by August 11, 2005.  The Board’s Order and Notice states that the matter would be considered again by a Special Magistrate on August 23, 2005, and that a fine of $ 250.00 per day would be imposed for failure to bring the property into compliance.  CSX was mailed a copy of the Order and Notice.  Thereafter, on August 26, 2005, September 30, 2005, and October 28, 2005, the Special Magistrate found that the violations had not been corrected and imposed fines against CSX in the amounts of $ 3,000.00, $ 8,750.00, and $ 7,000.00, respectively.

            Before this Court, CSX argues that the imposition of fines is unlawful as CSX was not provided with notice and an opportunity to defend itself and, further, that the imposition of fines violates federal preemption laws.  Initially, the Court reiterates that it does not have jurisdiction to review the orders entered on July 27, 2005, August 26, 2005, and September 30, 2005, as the time to seek appellate review of these orders has passed.[2]  See Fla. R. App. P. Rule 9.100(c); see also Kirby v. City of Archer, 790 So.2d 1214, 1215 (Fla. 1st DCA 2001); City of Plantation v. Vermut, 583 So.2d 393, 394 (Fla. 4th DCA 1991); City of Ft. Lauderdale v. Bamman, 519 So.2d 37, 38 (Fla. 4th DCA 1987).  Additionally, the Court cannot consider documents that were not submitted to the Special Magistrate during the lien hearing below.    As stated in this Court’s Order Granting Motion to Strike, et. al., entered April 12, 2006, the Court will not consider the affidavits of Shane Whitemore, Joseph Wade, George Lee, nor the later filed affidavit of Jeff Luthi.  See Altchiler v. Department of Professional Regulation, 442 So.2d 349, 350 (Fla. 1st DCA 1983). 

            Based on the scant record provided by the parties, the Court finds that certiorari relief must be granted as to the Order Imposing Lien, entered October 28, 2005, since there is nothing in the record to show that CSX was provided with either a predeprivation or postdeprivation process to challenge the validity of the fines imposed.  As made clear by the Second District Court of Appeal in Massey v. Charlotte County, 842 So.2d 142 (Fla. 2d DCA 2003), the City must give the property owner notice and opportunity to be heard to challenge the validity of the fines or imposition of the lien.  This procedural due process is required even when the property owners have previously appeared before the administrative agency to submit testimony and evidence on the same code violations.  See id. at 146. 

            While it appears that the City mailed a copy of the Order Imposing Lien to CSX, the City does not have any written procedure in place to “provide the property owner with notice and an opportunity to be heard concerning any factual determination necessary to impose a fine.”  Id. at 147.[3]  As suggested by the Second District in footnote 3, such a procedure may be to mail the order imposing lien to the property owner with a notice that the property owner could request a hearing to challenge the fine within a specified period; failure to timely challenge the fine would result in the lien being recorded.  See id.  Hence, the Court concludes that the City departed from the essential requirements of law in the proceedings below, as the City failed to provide CSX with any meaningful opportunity to rebut or address new findings on the code violations.  The Court finds that it needn’t address the remaining issue. 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Order Imposing Lien, entered October 28, 2005, is quashed.   

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of September 2006.

 

 

 

                                                ________________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

 

 

______________________________                        ______________________________

LAUREN LAUGHLIN                                              BRANDT C. DOWNEY, III

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

Copies furnished to:

Daniel J. Fleming, Esquire

Alfred E. Corey, Esquire

800 West DeLeon Street

Tampa, FL  33606

 

Milton A. Galbraith, Esquire

Post Office Box 2842

St. Petersburg, FL  33731

 



[1] As reiterated throughout this order, the decision to grant certiorari relief is directed only to the Order Imposing Lien, entered October 28, 2005.

[2] The Court concluded that it would not exercise jurisdiction to review such earlier orders in its Order Dismissing Notice of Appeal without Prejudice, entered January 4, 2006.

[3] The Court is assuming that the Board considered the criteria set forth in Florida Statutes, section 162.09(2)(a), in originally determining at the July hearing that $ 250.00 per day should be imposed.  See Massey, 842 So.2d at 145.