Cherokee Crushed Stone, Inc. v. City of Miramar, 82-770

• Decision Date: 03 November 1982
• Docket Number: No. 82-770,82-770
• Citation: 421 So.2d 684
• Parties: CHEROKEE CRUSHED STONE, INC., Appellant, v. CITY OF MIRAMAR, Appellee.
• Court: Florida District Court of Appeals

Page 684

421 So.2d 684

CHEROKEE CRUSHED STONE, INC., Appellant, v. CITY OF MIRAMAR, Appellee.

No. 82-770.

District Court of Appeal of Florida,

Fourth District.

Nov. 3, 1982.

William D. Ricker, Jr., of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellant.

Edward Paul Kreiling, City Atty., Miramar, for appellee.

OPINION ON MOTION TO DISMISS APPEAL

HERSEY, Judge.

Cherokee Crushed Stone, Inc., appellant here, made application to appellee, City of Miramar, for a special exception required to conduct certain mining operations on land zoned agricultural. From an adverse determination by the City Commission appellant sought review in the circuit court by petition for writ of certiorari. The circuit court, after hearing, issued an opinion in the form of an order denying relief. The present appeal concerns this order of the circuit court. Appellee has filed a motion to dismiss the appeal. Appellant's response requests that we address the following issue:

DOES ARTICLE V, SECTION 4(B)(1) OF THE FLORIDA CONSTITUTION GUARANTEE THE RIGHT TO A PLENARY APPEAL FROM A FINAL ORDER OF A CIRCUIT COURT WHICH HAS EXERCISED ITS CERTIORARI JURISDICTION TO REVIEW ADMINISTRATIVE ACTION?

The action of the City Commission was administrative action; however, neither special nor general law has constituted the City of Miramar an "administrative agency" as contemplated by the Administrative Procedure Act and particularly Section 120.52(1)(c), Florida Statutes (1981). Were it otherwise, appeal from the ruling of the City Commission would be directly to this court (rather than the circuit court) by virtue of Section 120.68, Florida Statutes (1981).

We initially considered the motion to dismiss and prepare this opinion without the benefit of the supreme court's decision in City of Deerfield Beach v. Vaillant, 419 So.2d 624 (1982). That opinion appears to resolve the primary issue posed by appellant's question but leaves open an important subsidiary question.

As we have indicated, the municipality involved here has not by special or general law been rendered subject to the Administrative Procedure Act and its administrative action is not subject to direct review by a district court. Further there is no provision of general or special law permitting appeal of this municipality's administrative action to the circuit court. An ordinance of the municipality authorizes the filing of a petition for writ of certiorari with the circuit court to review agency action. While such an ordinance may confer standing on a party to proceed it may not confer jurisdiction on the circuit court where none otherwise exists nor does it determine the scope of review.

There being no review available directly to either the district or the circuit courts, we conclude that review is available only through the trial court's constitutional power to issue its discretionary writ of certiorari.

Resort to the district court from the circuit court in such a case is also limited to a petition for writ of certiorari.

At issue here, then, is the nature and extent of review that should be accorded by the district court to administrative action of an agency not subject to the Administrative Procedure Act and initially not "appealable" to the circuit court by virtue of general, special or decisional law. The answer to this question should depend upon the scope of review which has been or should have been afforded by the circuit court.

Section 4(b)(1) of Article V of the Florida Constitution provides that "final judgments or orders of trial courts, including those entered on review of administrative action" are appealable as a matter of right to the district courts unless they are directly appealable to the supreme court or a circuit court. In City of Deerfield Beach v. Vaillant, 399 So.2d 1045 (Fla. 4th DCA 1981), this court determined that a final judgment of a circuit court acting in its review capacity is not appealable as a matter of right if it has already been "appealed" (by certiorari) to a circuit court. The difficulty we now perceive in applying that standard is created by the language of the constitutional provision itself. There are only two trial courts, the county court and the circuit court, and only the latter has jurisdiction to review agency or administrative action. If the term "circuit court" is substituted for the term "trial court" in the paraphrased constitutional provision the seeming non sequitur is apparent:

District courts of appeal shall have jurisdiction to hear appeals ... from final judgments of circuit courts ... entered on review of administrative action ... not directly appealable to ... a circuit court. [Emphasis added.]

Obviously an appeal may not be taken from one circuit court to another circuit court. The only logical interpretation of the literal language of this provision is that an appeal to the district court is appropriate from any final judgment or order of a circuit court entered on review of administrative action.

The scope of review in such cases has been subjected to scrutiny by this and other district courts of appeal, and now by the supreme court, and divergent views emerge from the case law. The scope of review afforded has depended in the past upon whether the court takes the position that review is by certiorari in the district court (the pyramid hypothesis of Campbell v. Vetter and City of Deerfield Beach v. Vaillant ) or by appeal. In Vaillant this court squarely aligned itself with the view that the circuit court provides an appeal of administrative action, reviewable in the district court by petition for writ of certiorari despite the fact that the constitution uses the term "appeal." Our reasoning was based upon the proposition that review by the circuit court of administrative action, although referred to as certiorari, is not discretionary and in scope is basically the same as an appeal. City of Deerfield Beach v. Vaillant, supra; Campbell v. Vetter, 375 So.2d 4 (Fla. 4th DCA 1979). See also Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1981).

Conflicting with this court's view in Vaillant are, inter alia, the following cases: (1) Dade County v. Gayer, 388 So.2d 1292 (Fla. 3d DCA 1980), which states, "Since the final judgment, entered by the trial court on review of the administrative action, has not otherwise been made directly appealable to the Supreme Court, it is, under plain construction of Article V, Section 4(b)(1) ... reviewable here by way of appeal." But see: Metropolitan Dade County v. Mingo, 339 So.2d 302 (Fla.1976) in which the scope of review was said to be "limited to a determination of whether the circuit court applied the applicable law and acted in accordance with established procedure" which is indicative of certiorari although the proceeding was described as an appeal. See also: United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979), the court stating: "We hold such final judgment [from the circuit court in an original certiorari proceeding] is reviewable here by appeal and deny the motion to dismiss." And see Save Brickell Avenue, Inc. v. City of Miami, 393 So.2d 1197 (Fla. 3d DCA 1981) holding that certiorari is the appropriate vehicle to reach the district court where the proceeding in the circuit court was an appeal. (2) Odham v Petersen, 398 So.2d 875 (Fla. 5th DCA 1981), which also bases review by appeal of a circuit court order entered on review of administrative action on Article V, Section 4(b)(1). See also County of Volusia v. Transamerica Business Corp., 392 So.2d 585 (Fla. 5th DCA 1980), which determined that where "the petition for certiorari in the circuit court was an original proceeding requesting that court to review the administrative order ... [a]n appeal from that order to this court is proper," citing to Article V, Section 4(b)(1); The Florida Companies v. Orange County, 411 So.2d 1008 (Fla. 5th DCA 1982), which stated that since the circuit court was acting in review of administrative action, appellant had a right of appeal from the circuit court's order denying certiorari.

Norman v. Pinellas County, 250 So.2d 279 (Fla. 2d DCA 1971), does not directly conflict with Vaillant because it was not decided pursuant to Article V, Section 4(b)(1). On the other hand, Norman did indicate that a "constitutional right of appeal" was available to review a circuit court order entered on review of administrative action.

Several arguments are made against construing Section 4(b)(1) as providing a right of appeal from an order of the circuit court entered on review of administrative action. One such argument is that the parties are then afforded, in effect, several appeals, a right not even accorded to criminal defendants. Thus, an administrative order may be "appealed" to the circuit court and the circuit court's decision then reviewed again by the district court. It has been argued that such a chain of review is contrary to traditional concepts of appellate review, may operate to lengthen the process of exhaustion of administrative remedies, and, incongruously, to provide parties in administrative actions greater review rights than are afforded to civil litigants and criminal defendants.

It has also been argued that interpretation of Section 4(b)(1) as not extending the right of appeal to orders entered by the circuit court on review of administrative action is supported by Rule 9.030(b)(1)(A) and (2)(B), Florida Rules of Appellate Procedure. Those portions of the rule provide:

(b) Jurisdiction of District Courts of Appeal.

(2) Certiorari Jurisdiction. The certiorari jurisdiction of district courts of appeal may be sought to review.

....

(B) final orders of circuit courts acting in their review capacity.

Although this rule, adopted subsequent to the constitutional revision, "is not...