City of Palm Bay v. Palm Bay Greens, LLC

• Decision Date: 07 December 2007
• Docket Number: No. 5D07-1910.,5D07-1910.
• Citation: 969 So.2d 1187
• Parties: CITY OF PALM BAY and City of Palm Bay Code, etc., Petitioner, v. PALM BAY GREENS, LLC, Respondent.
• Court: Florida District Court of Appeals

969 So.2d 1187

CITY OF PALM BAY and City of Palm Bay Code, etc., Petitioner, v. PALM BAY GREENS, LLC, Respondent.

No. 5D07-1910.

District Court of Appeal of Florida, Fifth District.

December 7, 2007.

John K. Shubin, Juan J. Farach and Lucinda A. Hofmann, of Shubin & Bass, P.A., Miami, for Petitioner.

James P. Beadle, of Spira, Beadle & McGarrell, P.A., Palm Bay, for Respondent.

PER CURIAM.

The petitioners, City of Palm Bay ["City"] and City of Palm Bay Code Enforcement Board ["Board"] seek prohibition review of an appellate order of the circuit court denying the City and Board's motion to dismiss a petition for writ of certiorari in which the respondent, Palm Bay Greens, LLC ["Landowner"], seeks review of a decision of the Board finding the Landowner in violation of certain City code provisions. The prohibition petition asserts that the circuit court appeal was untimely filed.¹ We agree.

On July 12, 2006, the Board found the Landowner in violation of various provisions of the City code relating to maintenance of the property and ordered the Landowner to bring the property into compliance by August 11, 2006, (exterior maintenance and trash and debris removal) and September 10, 2006 (remaining violations). On July 19, 2006, the Landowner filed a motion for rehearing or, in the alternative, motion for clarification of this order. At its August 9, 2006, meeting, the Board voted to deny the Landowner's motion for rehearing. No written denial order was entered. However, at the landowner's request, the Board sent a letter to the Landowner on September 18, 2006, setting forth that the Board does not routinely enter written orders on such matters but confirming that the minutes of the Board's August 9, 2006, meeting reflect that the Board denied the rehearing motion.

On October 18, 2006, the Landowner filed a petition for writ of certiorari in the circuit court seeking review of the Board's order of violation, citing to the denial of its motion for rehearing and the Board's letter advising the Landowner of the denial of rehearing. The City moved to dismiss the Landowner's certiorari petition, asserting that the circuit court lacked jurisdiction to review the Board's July 12, 2006 order because the Landowner's motion for rehearing was not authorized and, therefore, did not toll the time to seek certiorari review. See Fla. R.App. P. 9.020(h). The circuit court held a hearing on the motion to dismiss and decided that the rendition date of the Board's original order was tolled until the date the Board sent the Landowner the letter informing the Landowner that the motion for rehearing was denied.² On February 7, 2007, the circuit court entered an order denying the City's motion to dismiss.

The City thereafter filed a motion for reconsideration of the denial order, citing Spradlin v. Town of North Redington Beach, 14 Fla. L. Weekly Supp. 215 (6th Jud. Cir. Pinellas Co. Nov. 16, 2006), in which the circuit court in its appellate capacity concluded that it lacked jurisdiction to review an order of a Code Enforcement Special Master where the Special Master considered an unauthorized motion for rehearing. The court in Spradlin relied on Rivers v. State, Department of Revenue, 508 So.2d 360, 361 (Fla. 2d DCA 1987), for the proposition that there is no statute, rule or code provision authorizing a motion for rehearing directed to a final agency action. The circuit court in Spradlin noted that no statute, rule or code provision tolled the time for rendition of the original order, and the fact that the Special Master exercised its inherent authority to reduce the fine did not change the unauthorized motion for rehearing into an authorized motion that would extend the time to seek an appeal. After conducting a hearing, the circuit court denied the City's motion for reconsideration.

Article V, section 5(b) of the Florida Constitution authorizes circuit court appellate jurisdiction for "direct review of administrative action prescribed by general law." Section 162.11, Florida Statutes, specifically authorizes appeals of final administrative orders of enforcement boards to the circuit court. To determine whether the circuit court is properly exercising appellate jurisdiction, the issue is whether the Board's order was subject to a motion for rehearing and, if so, whether the Landowner's motion for rehearing tolled the time in which to file an appeal. See Miami-Dade County v. Peart, 843 So.2d 363, 364 (Fla. 3d DCA 2003) (under Rule 9.110 failure to file notice of appeal within 30-day period constitutes "irremediable jurisdictional defect"). If the Landowner's motion for rehearing was authorized, the Landowner's certiorari petition was timely filed based on the date the Landowner was notified of the denial of the rehearing motion. If the motion for rehearing was not authorized, the certiorari petition was untimely.

The Landowner acknowledges that there is no specific rule or statutory authority for the rehearing or reconsideration of a local administrative agency decision, but urges that the local agency, here the Board, had the inherent power and authority to rehear and reconsider a previously entered order. The Landowner relies on Mills v. Laris Painting Co., 125 So.2d 745 (Fla.1960), for the proposition that administrative agencies have the inherent or implied power to rehear or reopen a cause where the proceeding is essentially a judicial one.

The City argues that while the Board had the inherent authority to rehear or reconsider its decision, it had to exercise that authority before the period in which to seek an appeal expired. When the Board declined to alter its decision by denying the rehearing motion on August 9, 2006, the Landowner had three days left in which to commence an appeal.

In Rutledge v. County of Hillsborough, 2005 WL 2416976 (Fla. 13th Cir.Ct. Sept. 2, 2005), cited by the Landowner, the circuit court in its appellate capacity rejected an appellee's argument that a notice of appeal filed after the denial of a motion for rehearing of a Code Enforcement Board order was untimely. In Rutledge, the County Code Enforcement Board on January 22, 2004, entered an order imposing a fine for code violations. The order gave the landowners until March 16, 2004, to correct the violations. Subsequently, the Board filed a lien and imposed fines retroactive to March 16, 2004. The Board then entered an order on August 2, 2004, imposing a $13,300 fine and lien on the...