HAYDEE ALFARO GONZALEZ

v.

CITY OF MIAMI, FLORIDA CODE ENFORCEMENT BOARD

Before: TRAWICK, WALSH and SANTOVENIA, JJ.

PER CURIAM.

Filing # 126616786 E-Filed 05/11/2021 06:50:54 PM [*2] Page 2 of 13

AFFIRMED.

This is a consolidated appeal of two separate orders entered by the City of Miami (“City”) Code Enforcement Board and Unsafe Structures Panel regarding Appellant’s property located in the City of Miami (“Property”): a Final Administrative Enforcement Notice of the City Code Enforcement Board dated March 2, 2018 and a final action Order of the City’s Unsafe Structures Panel dated July 27, 2018. Factual and Procedural History Petitioner runs a boarding house for men at the Property. The Property is comprised of two structures containing a total of nine bedrooms and nine bathrooms. The code enforcement history throughout Appellant’s ownership of the Property includes multiple citations for construction of additions and work performed without permits. The City issued five notices of violation to Appellant for May 25, 2017 through January 17, 2018 for work completed without a permit (“current violations”). The notices of violation mandate correction of the current violations and inspector approval of the corrections within a specific time period.

On March¹, 2018, a hearing was held before the City Code Enforcement Board (“Board”) regarding the current violations. The Board found the Appellant guilty of charges involving work without a permit for a fence, concrete wall and [*3] Page 3 of 13 driveway, all of which Appellant had conceded. The Board also found the Appellant guilty of work without a permit as to a second kitchen and the rooms and bathrooms exceeding the five that existed in 1994 per the County property records. The Board gave Appellant sixty days to acquire after-the-fact permits for the work without a permit and levied a $250 per day fine. Following the hearing, the Board issued a March 2, 2018 Final Enforcement Notice (“Board’s Order”). On March 23, 2018, Appellant appealed the Board’s Order. After entry of the Board’s Order, an inspection was conducted by the Unsafe Structures Section of the City’s Building Department. The unsafe structures inspector issued a repair or demolish notice to the Appellant on March 7, 2018. This citation referred to the work done without a permit in the Board’s Order and additional violations for an unsafe structure. On July 27, 2018, a hearing was held before the City’s Unsafe Structures Panel. Rene Diaz, the Chief of the Unsafe Structures Section, testified as to the unsafe Property conditions and presented photographs as evidentiary support. Diaz testified about fire safety concerns regarding the Property posed by hanging electrical wires and restricted egress as well as safety concerns involving exposed drainpipes and flooding issues related to the level of a concrete slab. Diaz further testified that a permit search confirmed that there were no permits issued for any construction on the Property. At the conclusion of the hearing, the Unsafe Structures Panel adopted the recommendations of the [*4] Page 4 of 13 Unsafe Structures Section. The final action Order of the Unsafe Structures Panel dated July 27, 2018 (“Panel’s Order”) required the Appellant to repair or demolish the unsafe structure within 180 days. On July 31, 2018, Appellant appealed the Panel’s Order and moved to consolidate its appeals of both the Board’s Order and the Panel’s Order. In December 1994, the Property was first cited for work done without a permit. Appellant claims that the 1994 notice of violation pertains to an addition to the Property’s main building which was constructed in 1981. On March 8, 1995, the Board entered a final order affirming that violation. Appellant successfully appealed that order, which was reversed by this court on September 6, 1996. See Haydee Alfaro Gonzalez v. City of Miami, Slip Opinion, Eleventh Judicial Circuit Court Appellate Division Case No. 95-147 AP 01. Appellant argues that the notices of violation issued to Appellant for May 25, 2017 through January 17, 2018 for work completed without a permit pertain to the same work which was the subject of the 1994 notice of violation. Furthermore, Appellant argues in this appeal that the City is barred from pursuing the current violations against Appellant because of this court’s reversal of the 1995 Code Enforcement Board order. The City’s position, however, is that the Board’s Order and the Panel’s Order in this appeal do not pertain to any work done prior to 1996. The file of the City Code Enforcement inspector indicates that the current violations were for further [*5] Page 5 of 13 work that had been completed after the 1995 final order was reversed in September 1996. An inspection note in the Code Enforcement inspector’s file indicates that a May 8, 1996 inspection of the Property revealed a total of five bedrooms and five bathrooms. A subsequent inspection on December 27, 1996 revealed eight bedrooms and eight bathrooms with two kitchens. Upon inquiry, the inspector was informed that there was a ninth bedroom and an additional bathroom behind a locked door. At a March 10, 2017 Property inspection, the Code Enforcement inspector noted that the square footage for the buildings had doubled. Standard of Review The applicable standard of review of an administrative decision by the circuit court includes a determination of: (1) whether procedural due process is accorded; (2) whether the essential requirements of the law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence. See Broward County v. G. B. V. International, Ltd., 787 So. 2d 838 (Fla. 2001); Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995). Relevant City Code Provisions Code Violations Code violations are addressed in Chapter 2, Article X of the City of Miami Code. This Chapter requires that a property owner be given notice of the violation [*6] Page 6 of 13 in writing and a reasonable time in which to correct the violation. Section 2-815 (c)- (e) of the City of Miami’s Code delineates the procedures for hearings before the Code Enforcement Board. As with any administrative hearing, “formal rules of evidence shall not apply.” Id. Unsafe Structures Section 8-5 of the Miami Dade County Code provides that a municipality may establish by ordinance its own standards and administrative process to address unsafe structures within its boundaries, including a process for appeal. A municipality adopting such ordinance shall also be authorized to establish its own standards for declaring a structure to be unsafe, and for the repair or demolition of an unsafe structure. Article VI, Chapter 10 of the City of Miami Code addresses unsafe structures. Section 10-101(J)(1) of the City of Miami Code applies to all multi-unit structures. This Section applies the jurisdiction of the City’s Unsafe Structures Panel to situations “where there is a danger to the health, safety, and welfare of the citizens in the community.” Pursuant to the City Code, structures can be unsafe because of their condition: Buildings or structures that are, or hereafter shall become, unsafe, unsanitary or deficient, and dilapidated facilities, with inadequate means of egress, or which constitute a fire or windstorm hazard, or are otherwise dangerous to human life or public welfare by reason of illegal or improper use, occupancy or maintenance, or which have been [*7] Page 7 of 13 substantially damaged by the elements, acts of God, fire, explosion or otherwise, shall be deemed unsafe structures and a permit shall be obtained to demolish the structure, or where specifically allowed by this article, to bring the building into compliance with the applicable codes as provided herein.

§ 10-101(a)(2), City of Miami Code. The Code includes a separate basis for finding that a building or structure is unsafe if it was constructed or is being constructed without the required permits: Incomplete buildings commenced without a permit or for which the permit has expired, or completed buildings commenced without a permit or for which the permit has expired, prior to completion and no certificate of occupancy has been issued, shall be presumed and deemed unsafe and a permit shall be obtained to demolish the structure or bring the building into compliance with the applicable codes as provided herein.

§ 10-101(a)(3), City of Miami Code. A building can be unsafe, therefore, because of its current condition or because it was constructed without the required permits, and each of these bases for declaring a structure unsafe is entirely independent of the other. Under the City Code, if a building is deemed an unsafe structure and is ordered to be repaired and such repairs are not completed within a reasonable time, the building will be demolished. § 10-101(a)(4), City of Miami Code. Analysis (1) Procedural Due Process Procedural due process requires notice and an opportunity to be heard. Kupke [*8] Page 8 of 13

v. Orange County, 838 So. 2d 598 (Fla. 5th DCA 2003). Procedural due process in the administrative setting does not always require application of the judicial model. Hadley v. Dept. of Admin., 411 So. 2d 184 (Fla. 1982). The formalities of judicial proceedings are not necessary to meet due process requirements in an administrative hearing. Id. Under all circumstances, due process requires notice reasonably calculated to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections. Dawson v. Saada, 608 So. 2d 806 (Fla. 1992). A review of the record demonstrates that the Appellant was afforded notice and an opportunity to present testimony, witnesses and objections at both the City Board and Panel hearings. Appellant was thus afforded due process. (2) Essential Requirements of the Law

A ruling constitutes a departure from the essential requirements of the law when it amounts to a violation of a clearly established law resulting in a miscarriage of justice. Miami Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003). Appellant argues that there was a departure from the essential requirements of law because the Panel lacked subject matter jurisdiction to enter an unsafe structures order. Appellant also argues that the Property is commercial (citing no zoning [*9] Page 9 of 13 designation), while the Board only allegedly has jurisdiction to hear code violations for single-family and duplex residences. The County Code allows for municipalities to set up their own administrative process to address unsafe structures, and the City has done so in Chapter 10 of the City Code. The City Code states generally, without limitation to single family houses or duplexes, that the “[u]nsafe structures panel(s) shall hear unsafe structures cases, and appeals of decisions, of the city building official declaring properties and their structures and accessory structures to be unsafe where there is a danger to the health, safety, and welfare of the citizens in the community, all in the manner prescribed in this article.” § 10-101 (a), City of Miami Code. Furthermore, the City Code also states specifically that the procedures regarding its unsafe structures panel “shall be applicable to all multi-unit structures.” § 10-101 (j), City of Miami Code. Appellant also argues that there was a departure from the essential requirements of law because the Board acted arbitrarily and capriciously in ignoring the 1996 opinion of this court reversing the Board’s March 8, 1995 final order. However, Appellant’s reliance on the 1996 reversal of the Board’s 1995 final order is misplaced. The reversal was based on the City’s failure to meet its evidentiary burden to show that a permit was not issued after Appellant alleged that she had in fact obtained a permit for the construction work. However, there was no substantive finding by the court that Appellant had either obtained permits for the work or that [*10] Page 10 of 13 there were no code enforcement violations at the Property which would preclude a contrary finding by the Board or Panel regarding work done after 1996.1 As such, the Board’s Order and Panel’s Order comply with the essential requirements of the law.

(3) Competent Substantial Evidence Both the Board and the Panel engaged in fact-finding determinations strictly limited by City Code provisions. Specifically, the City Code restricts the Board for “purposes of a civil violation notice … to whether the violation did occur, and if so, whether the person named in the civil violation can be held responsible for the violation.” Appellant “plead[ed] guilty” to the charge regarding work without a permit as to demolishing a wall, and “conced[ed]” the charges regarding work without a permit pertaining to a fence. Appellant testified and admitted that she did not obtain a permit for work on the driveway and even admitted that she had never obtained a permit for any of the work performed on the Property.

A review of the record reveals that the City of Miami failed to present substantial competent evidence to prove the lack of a permit by the Appellant Haydee Alfaro Gonzalez. After the question was raised by the Appellant that a permit was obtained, the burden shifted to the City to answer the question by presenting competent evidence as to the nature of and the quality of the search done by the City. Having failed to meet this burden, the finding by the Board must be reversed.

Appellant’s Appendix at 71-72. [*11] Page 11 of 13 Appellant’s testimony that she never obtained any permits, standing alone, is competent substantial evidence supporting the conclusion that the buildings are unsafe pursuant to the City Code. See § 10-101(a)(3), City of Miami Code (“completed buildings commenced without a permit… shall be presumed and deemed unsafe and a permit shall be obtained to demolish the structure or bring the building into compliance with the applicable codes as provided herein”). The testimony of Code Enforcement Inspector Vanessa Pino and Rene Diaz, the Chief of the Unsafe Structures Division at both hearings, as well as documentary evidence corroborated Appellant’s admission that permits were never issued for the work to the building constructed post-1995. Pino testified, using records from the County, that the number of bedrooms and bathrooms in the County records had increased since the 1994 violations from a five bedroom, five bathroom house to an eight bedroom, eight bathroom house in 1996. At the March 10, 2017 inspection, Pino observed eight bedrooms and eight bathrooms plus two kitchens, and the manager told her there was an additional ninth bedroom and bathroom behind a locked door. Inspector Pino testified that the City had no records of any permits for any of the violations at issue in the hearing—additional rooms, a kitchen, a fence, a driveway—since 1996. Appellant’s brief ignores her own admissions made at the hearing and instead focuses in very large part on the weight to be given the City’s evidence, the [*12] Page 12 of 13 credibility of the City’s witnesses, and evidence supporting a contrary conclusion to the Orders entered by the Board and the Panel. However, Appellant misconstrues this court’s standard of review on appeal. This court is not entitled to reweigh the evidence or substitute its judgment for that of the hearing officer. Dusseau v. Metropolitan Dade County Board of County Comm’rs, 794 So. 2d 1270, 1276 (Fla. 2001). “The appellate court cannot conduct an independent review searching for evidence to rebut the hearing officer’s decision.” Clay County v. Kendale Land Dev. Inc., 969 So. 2d 1177, 1181 (Fla. 1st DCA 2007). Instead, this limited review is confined to whether the decision is supported by the record. Education Development Center, Inc. v. City of West Palm Beach Zoning Bd. of Appeals, 541 So. 2d 106, 108 (Fla. 1989). “The question is not whether, upon review of the evidence in the record, there exists substantial competent evidence to support a position contrary to that reached by the agency. Instead, the circuit court should review the factual determination made by the agency and determine whether there is substantial competent evidence to support the agency’s conclusion.” Id.. The Florida Supreme Court in Dusseau, supra. held that “[a]s long as the record contains competent substantial evidence to support the agency’s decision, the decision is presumed lawful and the court’s job is ended.” 794 So. 2d at 1276. Accordingly, there is competent substantial evidence in the record below to support the Board’s Order, the Panel’s Order and the conclusion that work was done [*13] Page 13 of 13 without a permit to the interior of the main building after 1996. For the foregoing reasons, the Final Administrative Code Enforcement Notice of the City Code Enforcement Board dated March 2, 2018 and the final action Order of the City’s Unsafe Structures Panel dated July 27, 2018 are hereby AFFIRMED. TRAWICK, WALSH and SANTOVENIA, JJ. Concur

COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

[*14] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected]