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second-way certiorari

Code Enforcement Board Appeal

Posted by David Adelstein on November 24, 2019
Appeal, Standard of Review / Comments Off on Code Enforcement Board Appeal

If you have ever been in front of an enforcement board (such as a code enforcement board or have received a final order relating to a code enforcement issue), you may be familiar with your appellate rights under Florida Statute s. 162.11:

An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board to the circuit court. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board. An appeal shall be filed within 30 days of the execution of the order to be appealed.

You appeal the enforcement board’s final administrative order to the circuit court.  This is a plenary appeal as a matter of right.   

If you don’t like the circuit court’s ruling, then you can appeal by second-way certiorari to the district court, but this appeal is limited to: (1) whether the circuit court afforded procedural due process; and (2) whether the circuit court applied the correct law.  Central Florida Investments, Inc. v. Orange County, 2019 WL 5848987 (Fla. 5thDCA 2019).  This is a very tough appeal.

An example of second-way certiorari can be found in Central Florida Investments where the Orange County Code Enforcement Division cited the petitioner for a violation of the building code “with regard to what were deemed to be unsafe conditions in a structure that had been partially demolished.”  Central Florida Investments, 2019 WL at *1.   The petitioner contested the violation and a hearing was held with a final administrative order being entered against the petitioner.  The petitioner took an appeal asking the circuit court to reverse the final administrative order under a limited standard of appellate review.  This is a standard of review more limited than the plenary appeal the petitioner was entitled.  The petitioner did this because of confusing case law that would suggest this limited standard of review could arguably apply, however, such case law was not in reference to appeals under s. 162.11.  See Central Florida Investments.  

The district court of appeal, limited by its second-way certiorari review, granted certiorari ONLY because it appeared the circuit court did not apply the correct limited standard of appellate review.  The district court of appeal was going to hold the petitioner’s feet to the fire regarding the more limited standard of appellate review by the circuit court, but considering the circuit court, sitting in an appellate capacity, applied an incorrect standard of review, remanded the matter back to the circuit court to state whether the circuit court applied the limited appellate review the petitioner sought. 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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