The appealing nature of local code enforcement board decisions.

• Author: Cecil, Victoria L.

When it comes to seeking judicial review of decisions rendered by local administrative agencies, many lawyers, and even some judges, mistakenly assume that such review is commenced for all agencies in the same manner--by petition for writ of certiorari. However, not all local administrative agencies are created equal. A careful reading of Florida Rule of Appellate Procedure 9.190(b) reveals that certain local agencies are treated differently when it comes to judicial review of their decisions. Unfortunately, this exception is often overlooked by both lawyers and appellate judges, resulting in courts conducting judicial reviews that the Florida Legislature never intended, thus, departing from the essential requirements of the law. This article will focus on one particular local administrative agency that often receives improper judicial review--municipal and county code enforcement boards.

The Rule

Florida Rule of Appellate Procedure 9.190 is the rule that governs judicial review of all administrative action. According to Florida law, decisions of local code enforcement boards are "quasi-judicial" in nature and are not subject to the Administrative Procedure Act (APA) in F.S. Ch. 120. (1) With these two facts in mind, Rule 9.190(b)(3) states that "[r]eview of quasi-judicial decisions of any administrative body, agency, board, or commission not subject to the APA shall be commenced by filing a petition for certiorari in accordance with rules 9.100(b) and (c), unless judicial review by appeal is provided by general law." (2)

It is this exception noted in italics that is often overlooked by lawyers and appellate judges when faced with a decision rendered by a local government agency. According to Rule 9.190(b)(1), if judicial review by appeal is provided by general law, then review of such quasi-judicial decisions is not commenced by petition for certiorari, but instead commenced pursuant to Rule 9.110(c), which sets forth the procedure for commencement of a direct appeal. Specifically, Rule 9.110(c) states that:

In an appeal to review final orders of lower administrative tribunals, the appellant shall file the original notice [Notice of Appeal] with the clerk of the lower administrative tribunal within 30 days of rendition of the order ... and file a copy of the notice, accompanied by filing fees ... with the clerk of court.

Indeed, even if one were to misread Rule 9.190(b)(3) and refer to Rule 9.100 for the commencement process, Rule 9.100(a) reveals that proceedings set forth in Rule 9.030(c)(1)(C), which includes "all administrative action that is provided by general law," are not applicable to Rule 9.100. Thus, when faced with a quasi-judicial decision rendered by a local administrative agency, the first and obvious question should be whether judicial review by appeal is provided by general law for that local agency. In the case of code enforcement boards, the answer is a definitive "yes."

Part I of F.S. Ch. 162 governs local code enforcement boards. Specifically, F.S. [section] 162.11 (2006) states:

An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board to the circuit court...