Administrative: CODE ENFORCEMENT – Jurisdiction – Competent Substantial Evidence—Appellate panel has jurisdiction; appeal was timely as it sought appellate review of the Board’s order denying reduction in fine and the Appellant filed its appeal within 30 days of that order – Appellant did not seek review of the underlying administrative order. Board’s decision to deny Appellant’s Request for Reconsideration of Fine was supported by competent substantial evidence. Affirmed. MidFirst Bank v. City of Dunedin, Code Enforcement Board, No. 12-000032AP-88B (Fla. 6th Cir. App. Ct. February 13, 2013).
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
v. Ref. No.: 12-000032AP-88B
CITY OF DUNEDIN,
CODE ENFORCEMENT BOARD,
ORDER AND OPINION
THIS CAUSE is before the Court on appeal filed by MidFirst Bank, from the City of Dunedin Code Enforcement Board’s Order denying MidFirst’s request for a reduction of fines accrued in underlying code enforcement action.
On September 18, 2008 MidFirst filed a foreclosure action in Pinellas County. On June 7, 2011, after MidFirst acquired title, a Code Inspector for the City of Dunedin sent a violation letter to MidFirst. A hearing was set, and the case went before the Board on August 2, 2011. At that meeting, the Board set a compliance date of August 22, 2011, by which time MidFirst would be required to bring the property into compliance or a per diem fine of $250.00 would be assessed against the property. An Affidavit of Compliance was executed on March 1, 2012, and recorded on April 5, 2012.
On April 25, 2012, MidFirst petitioned the Board to consider a reduction of the $47,500.00 fine. On June 5, 2012 the Board heard argument and voted to deny the request to reduce the fine. It is this Order Denying Request for Reduction of Fine that MidFirst appeals.
STANDARD OF REVIEW
An appeal of a Code Enforcement Board's order to the circuit court “shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board.” Sarasota County v. Bow Point on Gulf Condo.Developers, LLC, 974 So. 2d 431, 433 n.3 (Fla. 2d DCA 2007). When the circuit court in its appellate capacity reviews local governmental administrative action, “three questions are asked: whether due process was afforded, whether the administrative body applied the correct law, and whether its findings are supported by competent substantial evidence.” Lee County v. Sunbelt Equities, II, Ltd. P'ship, 619 So. 2d 996, 1003 (Fla. 2d DCA 1993). The circuit court is not permitted to go further and reweigh the evidence presented to the administrative agency.
This Court has jurisdiction to review the Board’s June 15, 2012 Order Denying Request for Reduction of Fine. MidFirst appealed this Order within the thirty-day jurisdictional time limit. Florida Statutes §162.11. Relying on Spradlin v. Town of North Redington Beach, 14 Fla. L. Weekly Supp. 215 (Fla. 6th Cir. App. Ct. Nov. 16, 2006) and City of Palm Bay v. Palm Bay Greens, L.L.C., 969 So. 2d 1190 (Fla. 5th DCA 2007), the Board contends that this Court lacks jurisdiction because the appeal was filed more than thirty days after the rendition of the underlying March 6, 2012 order assessing the fine. The Board’s reliance on these cases is misplaced.
In Spradlin, the board entered an Administrative Fine Order on October 10, 2005, finding that the petitioner had failed to correct a violation and ordered the petitioner to pay a fine. This order was not appealed, and one month later the petitioner filed a Motion for Reconsideration of Fine. The board considered the motion and entered an Order Conditionally Reducing Administrative Fine. It was from this order that the petitioner appealed. However, the court in Spradlin found that the petitioner raised no issues directed at the Order Conditionally Reducing Administrative Fine, but generally argued that the original Administrative Fine Order, entered on October 10, 2005, was not supported by substantial competent evidence. Because the petitioner only raised issues directed at the underlying October 10, 2005 order, the court found that the appeal was untimely since it was not within thirty days of entry of the order to be reviewed. The appellant in the instant case, however, seeks appellate review of the Order Denying Reduction in Fine, not the underlying Administrative Final Order as was the case in Spradlin.
The Board’s reliance on City of Palm Bay is similarly misplaced as the appellant in that case was also appealing the underlying order of violation, not an order denying a fine reduction as in the instant case. Because MidFirst appealed the Order Denying Reduction in Fine within thirty days of its rendition, the appeal is timely and this Court has jurisdiction to review that Order. See City of Miami v. Cortes, 995 So. 2d 605 (Fla. 3d DCA 2008) (finding that an appeal of a mitigation order was timely filed although the appeal of the underlying enforcement order not filed within thirty days of rendition was outside the scope of the circuit court’s review).
COMPETENT SUBSTANTIAL EVIDENCE
Finding that this Court has jurisdiction, we address MidFirst’s argument that the Board’s decision to deny its Request for Reconsideration of Fine was not supported by competent substantial evidence. In reviewing local administrative action to determine whether the agency's determination is supported by competent substantial evidence, a circuit court may not re-weigh the evidence to substitute its judgment for that of the agency. City of Hialeah Gardens v. Miami-Dade Charter Found., Inc., 857 So. 2d 202, 205 (Fla. 3d DCA 2003). “A local government’s quasi-judicial decision must be upheld if there is any competent, substantial evidence supporting it.” Orange County v. Butler, 877 So. 2d 810, 813 (Fla. 5th DCA 2004) (emphasis in original). The Board’s rules of procedure provide that a petition for reconsideration of a fine must include “conclusive evidence showing extreme or undue hardship in the payment of the fine or preventing the violator from coming into compliance within the time period established by the Board’s order.” DECB Rules of Procedure, Rule 5, §4.
MidFirst contends that it advised the Board that it took title to the property with existing violations, acted diligently within the constraints placed upon it by HUD to remedy the issues, and discovered lead in the property which caused further delay. The record of the proceedings makes it clear, however, that the Board heard these concerns and considered them. In addition, the Board also heard evidence that MidFirst was allowed extra time to correct the violations before any fines would accrue, and that MidFirst took nearly nine months to correct the violations.
The Board’s decision to deny MidFirst’s Request for Reconsideration of Fine was based on competent substantial evidence, and this Court may not reweigh the evidence to substitute its judgment for that of the agency.
Accordingly, it is
ORDERED that the above-styled appeal is DENIED.
DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida, on this ______day of ___________ 2013.
Original order entered on February 13, 2013, by Circuit Judges Amy M. Williams, Jack Day, and Peter Ramsberger.
Copies furnished to:
ERIN M. BERGER, ESQUIRE
LAUREN A. ROSS, ESQUIRE
KASS SHULER, PA
PO BOX 800
TAMPA, FL 33601
CITY OF DUNEDIN CODE ENFORCEMENT BOARD
C/O CHAIRMAN MICHAEL L. BOWMAN
750 MILWAUKEE AVENUE
DUNEDIN, FL 34697