Review of local administrative actions by common law certiorari after Pleasures II v. City of Sarasota: what's a local government got to do to get reviewed around here?

• Author: Lincoln, Robert

In Pleasures II v. City of Sarasota, 832 So. 2d 185 (Fla. 3d DCA 2002), the Second District Court of Appeal reached the unsurprising conclusion that municipalities do not have the authority to confer certiorari jurisdiction on the circuit courts, and that even if such authority existed, it would be improper to use certiorari, to review an administrative decision that was not quasi-judicial in nature and procedure. This article will quickly review the decision and then address the more pressing question of how local government can establish local administrative procedures that will properly receive certiorari review--a valid and valuable goal for reducing the time and cost of resolving conflicts over local administrative actions. It will then examine some of the examples of quasi-judicial proceedings employed by Florida local governments.

Pleasures H involved the City of Sarasota's denial of a business permit to operate an adult-use business. Under the ordinance, the decision was made by the manager of the department of building, zoning, and code enforcement, but was not subject to a hearing, nor was a written decision required. The ordinance also provided that appeal of the decision should be by certiorari in the circuit court, which became the focus of the Second District's ruling. The court rejected arguments that municipal authority to confer jurisdiction in the circuit court might be found in the Municipal Home Rule Powers Act, in "residual" authority from the pre-Home Rule F.S. [section] 176.02 (which formerly covered municipal zoning and provided for appellate authority from acts of the board of adjustment), or in current F.S. [section] 26.02, which provides for certiorari appeal from the final administrative acts of local code enforcement boards. (1)

The decision applies equally to counties (charter or not) and cities. The court found that the Florida Constitution's Article V requirements that jurisdiction of the circuit court be by general law and be uniform throughout the state precluded local governments from creating certiorari jurisdiction by ordinance. The city's logic would allow each local government in Florida to create jurisdiction, a result clearly inconsistent with the constitution. (2) Perhaps more importantly, the court also pointedly noted that certiorari review was inappropriate to the underlying decision in any case, for "when an executive makes a decision without conducting a hearing, there is nothing for the circuit court to review. (3) Thus, even if the local government had authority to confer jurisdiction in the circuit court to review local decisions, it would be improper to use that authority to provide for a certiorari review of an administrative decision that was not quasi-judicial in nature.

It is unsurprising that the City of Sarasota or any other local government would want to establish certiorari as the means by which a local administrative decision was reviewed. The alternative--a de novo attack for declaratory or injunctive relief--is time-consuming and expensive: Motion practice, discovery, hearings, and the need for a trial combine to make litigating de novo attacks on local administrative issues extremely unattractive. Certiorari review, by comparison, has a short fuse (the petition must be filed within 30 days of the action), no discovery, and a decision based on the record and briefs, perhaps without even a formal hearing on the writ. The standard of review is whether the decision comported with the applicable law--strict scrutiny of the findings, due process afforded, and application of the law--and whether it was supported by competent, substantial evidence--deferential review of the administrative fact finding and weighing of evidence. (4)

There is a simple path to creating certiorari jurisdiction over a local decision: Local ordinances simply need to provide an administrative decision-making process that terminates in a quasi-judicial hearing. (5) The question for the local government attorney (and the local commission) then becomes "how do I draft an administrative procedure that results in a proper quasi-judicial hearing?" There are two interrelated aspects to this: the structure itself (who holds the quasi-judicial hearing), and then the process to be used.

Enumerating all of the procedural requirements of quasi-judicial hearings would take more space than is available here. A quick review of basic principles is in order. The requirements of a quasi-judicial hearing were well laid out by the Third DCA in Jennings v. Dade County, 589 So. 2d 1137, 1340-41 (Fla. 3d DCA 1991):

Quasi-judicial proceedings are not controlled by strict rules of evidence and procedure. Nonetheless, certain standards of basic fairness must be adhered to in order to afford due process. Consequently, a quasi-judicial decision based upon the record is not conclusive if minimal standards of due process are denied. A quasi-judicial hearing generally meets basic due process standards if the parties are provided notice of the hearing and an opportunity to be heard. In quasi-judicial zoning hearings the parties must be able to present evidence, cross-examine witnesses and be informed of all of the facts upon which the commission acts.

In addition, the hearing must be fair and impartial.

Breaking this down, we find the following requirements for a quasi-judicial hearing:

* Notice. The affected parties must have notice of the hearing. In most regulatory matters, informing the applicant by letter of the date, time, and place will be sufficient; if a number of parties are affected, the notice may need to be public. (6)

* Hearing. Quasi-judicial hearings can be very informal and in fact might simply consist of a meeting with the decisionmaker. The rules of evidence need not apply; verbal statements can be taken without oaths or cross-examination in many cases, hearsay can be admitted, and documents need not be original or authenticated. (7) The record--whether written or testimonial--must be present or made at the hearing and the parties must be able to comment on the evidence or to introduce contrary evidence.

* Written decision. The decision must be based on the record as it is produced at the hearing, and should include an analysis of the applicable statutes, ordinances, regulations, and policies as well as the facts. This is a critical element for effective record review, and a summary decision ("The permit is denied.") is insufficient, (8) The issuance of a written decision also clearly identifies the date from which the 30-day window to attack the decision begins.

* Fairness protections. This requires an unbiased decisionmaker, which in turn requires protecting the decisionmaker and the...