Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – Plain and ordinary meaning of City’s Code applies to code enforcement proceeding – the Egyptian hieroglyphics on the exterior of the restaurant were art as defined by the City’s Code – no record evidence to support City’s finding that the hieroglyphics were a “sign” intended to information to the public – Petition granted. Dauti v. City of Clearwater, Appeal No. 06-0088AP-88B (Fla. 6th Cir. App. Ct. Sept. 11, 2007).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

ISA Q. DAUTI,

Petitioner,

vs. Appeal No.06-0088AP-88B

UCN522004AP000088XXXXCV

CITY OF CLEARWATER,

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 briefs, the record and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

The record shows that the Petitioner, Isa Q. Dauti (Dauti), owns the Piramida Restaurant located at 1535 Gulf-to-Bay Boulevard, in Clearwater. Piramida serves food with an Egyptian theme and decorated the exterior of its restaurant with Egyptian hieroglyphics. The Respondent, City of Clearwater (City), cited Dauti for violating the City’s Code, Section 3-1806.B.3., which limits signs to one attached sign per business establishment, and Section 4-1002, a citation for erecting a sign without the proper permit. The City’s Municipal Code Enforcement Board (Board) considered the Code violations at a hearing held on August 23, 2006. After considering the testimony and evidence presented, the Board entered its Order finding Dauti in violation of the City’s Code and imposing a fine of $ 250.00 per day if the Code violations were not corrected by September 15, 2006. Dauti sought a rehearing of the Board’s decision which was denied on October 25, 2006.

Before this Court, Dauti’s primary argument is that the City erred in finding that the artwork on the exterior of the restaurant was an illegal sign and not artwork. Dauti also argues that the City was estopped from fining Dauti for the artwork and that the City’s decision is arbitrary and capricious. In reviewing the administrative action taken by the City, the Court must consider whether Dauti 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).

Initially, the Court finds that it has jurisdiction over the Petition. As set forth in the Board’s Order, entered August 28, 2006, Dauti was given thirty days to seek rehearing or reconsideration of the Board’s decision. Dauti sought rehearing/reconsideration, which was denied on by the Board on October 25, 2006. The 30-day window to seek circuit court appellate review began on October 26, 2006, with the thirtieth day falling on Friday, November 24, 2006, a court holiday. Duati timely filed his Notice of Appeal on the next business day, Monday, November 27, 2006. Although Dauti initially sought improper appellate review by filing a Notice of Appeal instead of a Petition, Dauti nonetheless timely invoked this Court’s appellate jurisdiction. See R.S. Johnson v. Citizens State Bank, 537 So.2d 96, 97 (Fla. 1989)(explaining that appellate court has jurisdiction to review a cause even the form of appellate relief may be mischaracterized).

In reviewing the primary issue, it is well-settled that zoning regulations are subject to the same rules of construction as statutes. See Rinker Materials Corp. v. City of North Miami Beach, 286 So.2d 552, 553 (Fla. 1973). Before principles of statutory construction are applied, the Court must first apply the plain and ordinary meaning of the words used unless this would lead to an unreasonable or clearly erroneous result. See Baker v. State, 636 So.2d 1342, 1343 (Fla. 1994)(stating that “[i]t is well established that construction and interpretation of a statute are unnecessary when it is unambiguous”); see also Gallagher v. Manatee County, 927 So.2d 914, 919 (Fla. 2d DCA 2006)(explaining that a statute’s plain and ordinary meaning must control unless this leads to an unreasonable result or a result clearly contrary to legislative intent). A court’s function is to interpret statutes to give effect to each word and avoid interpretations that would render portions of it useless. See Florida Dept. of Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 324 (Fla. 2001); see also Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273 (Fla. 2000). When two statutory provisions conflict, the specific statute controls over the general statute. See Palm Beach, 772 So.2d at 1287. A court must defer to an agency’s interpretation of a statute it is charged with enforcing unless it is contrary to law. See id. at 1283; see also Florida Dept. of Revenue, 789 So.2d at 323.

Duati argues that the Egyptian hieroglyphics on the exterior of the restaurant are art, not a sign, and therefore do not need a permit. The City Code defines art work as: “drawings, pictures, symbols, paintings or sculpture which do not identify a product or business and which are not displayed in conjunction with a commercial, for profit or nonprofit enterprise.” See City Code, § 8-102. Sign is defined, in part, as: “any surface, fabric, device or display which bears lettered, pictorial or sculptured matter, including forms shaped to resemble any human, animal or product designed to convey information to the public and is visible from an abutting property, public right-of-way, or body of water.” Id. The Board concluded that the hieroglyphics were not art because they were displayed in conjunction with a commercial enterprise, the Piramida Restaurant, and that the hieroglyphics were a sign designed to convey information to the public.

However, there is nothing in the record to show what the alleged “sign” was designed to convey to the public. Further, the alleged “sign” does not identify any product or business. The record is void of any evidence that the hieroglyphics, which are simply carved drawings on the perimeter of Piramida Restaurant, identify any product or business or convey any information to the public. Accordingly, the Court finds that the City’s interpretation of its Code in finding that the hieroglyphics are a sign is not supported by competent substantial evidence.

Therefore, it is,

ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Order is quashed.

DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of September 2007.

_________________________________

DAVID A. DEMERS

Circuit Judge, Appellate Division

_______________________________ ______________________________

PETER RAMSBERGER AMY M. WILLIAMS

Circuit Judge, Appellate Division Circuit Judge, Appellate Division

Copies furnished to:

Scott D. LaRue, Esquire

2401 West Bay Drive, Suite 101

Largo, FL 33770

Andrew J. Salzman, Esquire

Post Office Box 15309

Clearwater, FL 33766