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
APPELLATE DIVISION
MIDFIRST BANK,
Appellant,
v. Ref.
No.: 12-000032AP-88B
UCN: 522012AP000032XXXXCV
CITY OF DUNEDIN,
CODE ENFORCEMENT BOARD,
Appellee.
__________________________________/
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.
PROCEDURAL
HISTORY
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.
JURISDICTION
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.
CONCLUSION
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