CITY OF MIAMI V. CORTES & SABINA

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 08-2085

Case Date: 11/19/2008

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2008
Opinion filed November 19, 2008. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D08-2085 Lower Tribunal Nos. 05-269 AP; 03-10020 ________________

City of Miami, a Municipal Corporation of the State of Florida,
Petitioner, vs.

Eumelia Cortes and Amado Sabina,
Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Bertilo Soto, and Rosa I. Rodriguez, Judges. Julie O. Bru, City Attorney, Victoria Mendez and John A. Greco, Assistant City Attorneys, for petitioner.

Eumelia Cortes and Amado Sabina, in proper persons.

Before GERSTEN, Chief Judge, and RAMIREZ and WELLS, JJ. WELLS, J.

The City of Miami petitions this court for a writ of certiorari to review a decision of the circuit court appellate division which vacates both a final administrative enforcement order assessing a fine for code violations and a mitigation order reducing that fine. We agree with the City that the appellate division's decision constitutes a departure from the essential requirements of law and grant the petition for certiorari. We have jurisdiction to conduct a review by petition for writ of certiorari of an appellate decision of the circuit court. See Fla. R. App. P. 9.030(b)(2)(B). The scope of our review on second-tier certiorari is limited to whether the circuit court (1) afforded procedural due process, and (2) applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 528 (Fla. 1995); see also Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003); Castro v. Miami-Dade County Code Enforcement, 967 So. 2d 230, 233 (Fla. 3d DCA 2007). As we observed in Southern Group Indem., Inc. v. Humanitary Health Care, Inc., 975 So. 2d 1247, 1250 (Fla. 3d DCA 2008), citing to Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682-83 (Fla. 2000), while 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 to essential justice. From

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this observation follows our conclusion that the exercise of our certiorari power is appropriate in this case. On October 3, 2003, the City's Code Enforcement Board ("Board") held a hearing where property owner Amado Sabina pled guilty to a code violation for performance of work on a residential property without a final permit. The Board entered an enforcement order on October 10, 2003.

Property owners Sabina and Eumelia Cortes were afforded 60 days to correct the violation or face a fine of $250 per day. The property owners failed to correct the violations and fines totaling $105,750 were assessed. On June 2, 2005, the Board held a mitigation

hearing to determine whether to reduce the amount of the fines accrued. All of the witnesses at the hearing were duly sworn. At the conclusion of that hearing, the Board reduced the fine to $10,000 and entered a mitigation order. The property owners appealed the mitigation order to the appellate division of the circuit court, arguing that the mitigation order should be set aside because the city inspector had improperly delayed inspection for a period of six months. However the Board had already accepted this argument in reducing the fine to $10,000. The appellate division nonetheless reversed both the enforcement and mitigation orders.

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As to the enforcement order, Sabina, as property owner, pled guilty at the enforcement hearing, and neither he nor fellow property owner Cortes appealed that order. See

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