Third District Court of Appeal State of Florida
Opinion filed January 12, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-0632 Lower Tribunal No. 19-09-K ________________
Michael Hayes and Debra Ferragamo-Hayes, Petitioners,
vs.
Monroe County, Florida, Respondent.
A Writ of Certiorari to the Circuit Court for Monroe County, Appellate Division, Timothy J. Koenig, Judge.
Lee Robert Rohe, P.A., and Lee Robert Rohe, for petitioners.
Robert B. Shillinger, Jr., Monroe County Attorney, and Peter H. Morris, Assistant Monroe County Attorney, for respondent.
Before LINDSEY, MILLER, and BOKOR, JJ.
MILLER, J. Petitioners, Michael Hayes and Debra Ferragamo-Hayes, seek
second-tier certiorari review of an opinion rendered by the appellate division
of the Circuit Court of Monroe County in favor of respondent, Monroe County,
Florida. In its decision, the circuit court affirmed a code enforcement order
finding petitioners in violation of certain county ordinances. Concluding the
circuit court departed from the essential requirements of law by failing to
apply the correct statutory and regulatory framework, we grant the petition.
BACKGROUND
The facts of this case require little elaboration. Petitioners purchased
a house elevated on columns in Cudjoe Key, Florida. At the time of
purchase, a downstairs enclosure and an abutting garage were located
below the living quarters. Permits to construct the enclosure and garage
were issued in 1977. 1
Approximately three years after acquiring the residence, petitioners
applied for a permit to remove and replace the upstairs and downstairs
siding. The County issued a permit differing from that sought in the
application, in that it prohibited any work relating to the lower enclosure.
Under the watchful eye of the County, petitioners replaced the siding on the
1 The current Monroe County Code of Ordinances limits the square footage of downstairs enclosures. The ordinance in place in 1977, however, contained no such restriction.
2 entire home, including the downstairs, without incident, and the work passed
a final inspection.
Despite this series of events, some seven months later, the County
determined the downstairs siding was unauthorized. After an e-mail
exchange, it further deemed the lower enclosure, including the garage, an
illegal expansion under the Monroe County Code of Ordinances (the
“Code”). Petitioners were cited for various violations and instructed to
remove the siding and demolish the lower enclosure. Estimates acquired by
petitioners demonstrated that bringing the home into compliance would entail
prohibitive costs.
As provided by Florida law, petitioners sought and obtained a hearing
before a special magistrate designated by the County to preside over code
enforcement violations. At the hearing, relying upon the final inspection,
along with the age of the downstairs enclosure and garage, petitioners
asserted enforcement of the Code was barred by estoppel and laches.
Efforts to develop these defenses were redirected by the magistrate.
While observing the case was one of the “more unfortunate cases” and
“very unfair,” the magistrate issued a perfunctory order, finding petitioners
violated sections 6-100 and 122-4(a)(9) of the Code. Factual and legal
findings did not accompany the decision.
3 Petitioners appealed the order in the Sixteenth Judicial Circuit Court.
By means of an articulate and expansive decision, the circuit court affirmed
the decision of the magistrate. A later motion for rehearing was summarily
denied, and the instant petition ensued.
ANALYSIS
Our inquiry on second-tier certiorari “‘is limited to whether the circuit
court afforded procedural due process and whether the circuit court applied
the correct law,’ or, as otherwise stated, departed from the essential
requirements of law.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d
1086, 1092 (Fla. 2010) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.
2d 523, 530 (Fla. 1995)). “[W]hile we are governed by a very narrow
standard of review, our discretionary use of our certiorari power must not be
so narrowly applied as to deprive litigants and the public [of] essential
justice.” City of Miami v. Cortes, 995 So. 2d 604, 605 (Fla. 3d DCA 2008).
Procedural due process is not an issue here, so we must determine
whether the circuit court applied the correct law. The issues in the instant
petition revolve around the core concern that the magistrate failed to
consider the doctrines of estoppel and laches as defenses to the Code
violations. In this regard, petitioners contend the lack of factual findings by
the magistrate rendered the order statutorily and regulatorily noncompliant,
4 which, in turn, obfuscated the issue of whether the magistrate considered
estoppel and laches or considered himself precluded from doing so.
Chapter 162, Florida Statutes (2021), “is divided into two parts, both of
which authorize proceedings for code-enforcement.” Sarasota County v.
Nat’l City Bank of Cleveland, 902 So. 2d 233, 235 (Fla. 2d DCA 2005). Part
I, entitled the “Local Government Code Enforcement Boards Act” (the “Act”),
allows a county or municipality to adopt an administrative code enforcement
system. Id.; see § 162.03(2), Fla. Stat. Part II provides for supplemental
methods of enforcement within the judicial system. Sarasota County, 902
So. 2d at 235; see § 162.21(8), Fla. Stat. The Act allows a county or
municipality to enforce its code through an administrative process by
designating either a special magistrate or code enforcement board, or both,
to preside over enforcement proceedings. § 162.03(2), Fla. Stat. In the
event a county implements an alternative system, dispensing with an
enforcement board, the designated special magistrate “shall have the same
status as an enforcement board.” Id. The code enforcement board is
required to “issue findings of fact, based on evidence of record and
conclusions of law, and . . . issue an order affording the proper relief” at the
conclusion of any code enforcement hearing. § 162.07(4), Fla. Stat.; see
also Massey v. Charlotte County, 842 So. 2d 142, 145 (Fla. 2d DCA 2003)
5 (“After notice to the property owner, the board must hold a hearing during
which it must take testimony under oath from the code inspector and the
alleged violator and must make findings and issue an order.”).
As relevant here, the County adopted an alternate code enforcement
system, as authorized by the Act. See Monroe County, Fla., Code §8-28
(2021); § 162.03(2), Fla. Stat. Under the alternative system, the County
designates code-compliant special magistrates to preside over code
enforcement hearings. As does the Act, the Code requires the special
magistrate to “issue findings of fact, based on evidence of record and
conclusions of law, and . . . issue an order affording the proper relief” at the
conclusion of the hearing. Monroe County, Fla., Code §8-29(c).
Applying this framework, while neither the Act nor the Code mandates
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Third District Court of Appeal State of Florida
Opinion filed January 12, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-0632 Lower Tribunal No. 19-09-K ________________
Michael Hayes and Debra Ferragamo-Hayes, Petitioners,
vs.
Monroe County, Florida, Respondent.
A Writ of Certiorari to the Circuit Court for Monroe County, Appellate Division, Timothy J. Koenig, Judge.
Lee Robert Rohe, P.A., and Lee Robert Rohe, for petitioners.
Robert B. Shillinger, Jr., Monroe County Attorney, and Peter H. Morris, Assistant Monroe County Attorney, for respondent.
Before LINDSEY, MILLER, and BOKOR, JJ.
MILLER, J. Petitioners, Michael Hayes and Debra Ferragamo-Hayes, seek
second-tier certiorari review of an opinion rendered by the appellate division
of the Circuit Court of Monroe County in favor of respondent, Monroe County,
Florida. In its decision, the circuit court affirmed a code enforcement order
finding petitioners in violation of certain county ordinances. Concluding the
circuit court departed from the essential requirements of law by failing to
apply the correct statutory and regulatory framework, we grant the petition.
BACKGROUND
The facts of this case require little elaboration. Petitioners purchased
a house elevated on columns in Cudjoe Key, Florida. At the time of
purchase, a downstairs enclosure and an abutting garage were located
below the living quarters. Permits to construct the enclosure and garage
were issued in 1977. 1
Approximately three years after acquiring the residence, petitioners
applied for a permit to remove and replace the upstairs and downstairs
siding. The County issued a permit differing from that sought in the
application, in that it prohibited any work relating to the lower enclosure.
Under the watchful eye of the County, petitioners replaced the siding on the
1 The current Monroe County Code of Ordinances limits the square footage of downstairs enclosures. The ordinance in place in 1977, however, contained no such restriction.
2 entire home, including the downstairs, without incident, and the work passed
a final inspection.
Despite this series of events, some seven months later, the County
determined the downstairs siding was unauthorized. After an e-mail
exchange, it further deemed the lower enclosure, including the garage, an
illegal expansion under the Monroe County Code of Ordinances (the
“Code”). Petitioners were cited for various violations and instructed to
remove the siding and demolish the lower enclosure. Estimates acquired by
petitioners demonstrated that bringing the home into compliance would entail
prohibitive costs.
As provided by Florida law, petitioners sought and obtained a hearing
before a special magistrate designated by the County to preside over code
enforcement violations. At the hearing, relying upon the final inspection,
along with the age of the downstairs enclosure and garage, petitioners
asserted enforcement of the Code was barred by estoppel and laches.
Efforts to develop these defenses were redirected by the magistrate.
While observing the case was one of the “more unfortunate cases” and
“very unfair,” the magistrate issued a perfunctory order, finding petitioners
violated sections 6-100 and 122-4(a)(9) of the Code. Factual and legal
findings did not accompany the decision.
3 Petitioners appealed the order in the Sixteenth Judicial Circuit Court.
By means of an articulate and expansive decision, the circuit court affirmed
the decision of the magistrate. A later motion for rehearing was summarily
denied, and the instant petition ensued.
ANALYSIS
Our inquiry on second-tier certiorari “‘is limited to whether the circuit
court afforded procedural due process and whether the circuit court applied
the correct law,’ or, as otherwise stated, departed from the essential
requirements of law.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d
1086, 1092 (Fla. 2010) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.
2d 523, 530 (Fla. 1995)). “[W]hile we are governed by a very narrow
standard of review, our discretionary use of our certiorari power must not be
so narrowly applied as to deprive litigants and the public [of] essential
justice.” City of Miami v. Cortes, 995 So. 2d 604, 605 (Fla. 3d DCA 2008).
Procedural due process is not an issue here, so we must determine
whether the circuit court applied the correct law. The issues in the instant
petition revolve around the core concern that the magistrate failed to
consider the doctrines of estoppel and laches as defenses to the Code
violations. In this regard, petitioners contend the lack of factual findings by
the magistrate rendered the order statutorily and regulatorily noncompliant,
4 which, in turn, obfuscated the issue of whether the magistrate considered
estoppel and laches or considered himself precluded from doing so.
Chapter 162, Florida Statutes (2021), “is divided into two parts, both of
which authorize proceedings for code-enforcement.” Sarasota County v.
Nat’l City Bank of Cleveland, 902 So. 2d 233, 235 (Fla. 2d DCA 2005). Part
I, entitled the “Local Government Code Enforcement Boards Act” (the “Act”),
allows a county or municipality to adopt an administrative code enforcement
system. Id.; see § 162.03(2), Fla. Stat. Part II provides for supplemental
methods of enforcement within the judicial system. Sarasota County, 902
So. 2d at 235; see § 162.21(8), Fla. Stat. The Act allows a county or
municipality to enforce its code through an administrative process by
designating either a special magistrate or code enforcement board, or both,
to preside over enforcement proceedings. § 162.03(2), Fla. Stat. In the
event a county implements an alternative system, dispensing with an
enforcement board, the designated special magistrate “shall have the same
status as an enforcement board.” Id. The code enforcement board is
required to “issue findings of fact, based on evidence of record and
conclusions of law, and . . . issue an order affording the proper relief” at the
conclusion of any code enforcement hearing. § 162.07(4), Fla. Stat.; see
also Massey v. Charlotte County, 842 So. 2d 142, 145 (Fla. 2d DCA 2003)
5 (“After notice to the property owner, the board must hold a hearing during
which it must take testimony under oath from the code inspector and the
alleged violator and must make findings and issue an order.”).
As relevant here, the County adopted an alternate code enforcement
system, as authorized by the Act. See Monroe County, Fla., Code §8-28
(2021); § 162.03(2), Fla. Stat. Under the alternative system, the County
designates code-compliant special magistrates to preside over code
enforcement hearings. As does the Act, the Code requires the special
magistrate to “issue findings of fact, based on evidence of record and
conclusions of law, and . . . issue an order affording the proper relief” at the
conclusion of the hearing. Monroe County, Fla., Code §8-29(c).
Applying this framework, while neither the Act nor the Code mandates
any specific amount of detail, the magistrate was required to make basic
findings supported by evidence. See id.; § 162.07(4), Fla. Stat; see also
Borges v. Dep’t of Health, 143 So. 3d 1185, 1187 (Fla. 3d DCA 2014) (“The
statutory and regulatory provisions’ requirement of factual findings is
ultimately based on principles of due process.”); Gentry v. Dep’t of Prof’l &
Occupational Reguls., State Bd. of Med. Exam’rs, 283 So. 2d 386, 387 (Fla.
1st DCA 1973) (“It has been repeatedly held by the courts of this state that
in order to assure due process and equal protection of the law, every final
6 order entered by an administrative agency in the exercise of its quasi-judicial
functions must contain specific findings of fact upon which its ultimate action
is taken.”); McKeegan v. Ernste, 84 So. 3d 1229, 1230 (Fla. 4th DCA 2012)
(finding order devoid of rule-based requirement to render factual findings
facially deficient). And here, the magistrate did not.
The circuit court, however, veered away from this patent deficiency
and summarily determined “the Special Magistrate was attuned to the
equitable principles in play.” As argued by petitioners, this “placed the
reviewing Circuit Court in the de facto position of performing the Special
Magistrate’s statutory duty of issuing findings of fact and conclusions of law.”
In other words, the diligence and thoroughness of the circuit court cannot
compensate for the lack of findings by the magistrate.
The failure to apply a controlling legal decision or statute “is a classic
departure from the essential requirements of the law.” State v. Jones, 283
So. 3d 1259, 1266 (Fla. 2d DCA 2019); see also Gonzalez v. State, 15 So.
3d 37, 39 (Fla. 2d DCA 2009) (“A departure from the essential requirements
of law, alternatively referred to as a violation of clearly established law, can
be shown by a misapplication of the plain language in a statute.”); Just.
Admin. Comm’n v. Peterson, 989 So. 2d 663, 665 (Fla. 2d DCA 2008)
(“When the circuit court does not apply the plain and unambiguous language
7 of the relevant statute, it departs from the essential requirements of law.”).
Had the circuit court applied the regulatory and statutory provisions requiring
written findings in this case, it would not have affirmed the code enforcement
order. Accordingly, we conclude the decision departed from the essential
requirements of law.
The decision to grant or withhold relief by way of second-tier certiorari
largely depends on our “assessment of the gravity of the error and the
adequacy of other relief.” Custer, 62 So. 3d at 1092 (quoting Heggs, 658
So. 2d at 531 n.14). In the instant case, if the legal error is left uncorrected,
it will remain unknown whether the magistrate considered and rejected the
doctrines of laches and estoppel or simply believed he was precluded from
doing so. As we have previously held in a similar procedural and factual
context that such defenses are conclusive, allowing the decision to stand
threatens to compromise the very due process the regulatory and statutory
scheme strives to afford. See Castro v. Miami-Dade Cnty. Code Enf’t, 967
So. 2d 230, 234 (Fla. 3d DCA 2007). Accordingly, we grant the petition for
certiorari and quash the decision affirming the code enforcement order.
Petition granted.