DADE COUNTY

v.

JOSEPH SINITA

Before: TRAWICK, DE LA O, and ARECES, R., JJ.

TRAWICK, J.

[*1] This appeal, brought by Appellant, Miami-Dade County against Appellee, Sinita Joseph, seeks review of the Miami-Dade Code Enforcement Hearing Officer's Order entitled "Findings of Fact and Conclusions of Law" dated December 4, 2024, reversing Citation No. 2024-P049592. Based upon our review of the law, hearing transcripts, and the record in this case, this Court finds that the hearing officer failed to observe the essential requirements of the law due to impermissible ex-parte communications with a party.

Miami-Dade County Department Building Code Enforcement issued a Notice of Violation against the Appellee's residential property for the "failure to obtain required building permit(s) prior to commencing work on: 'dura fence.'" The notice of violation did not specify where on the property the violation was found. Prior to receiving this notice, the property owners had a legally permitted cement wall with picket bars and picket-style front gate which were both previously approved by the County.

Upon receiving the notice, Appellee submitted a permit application for the "dura fence" that was installed along the side of their property, which was inspected and approved by the County. [*2] However, the permit did not apply to the metal panels that were attached to the permitted front gate and wall.

On April¹, 2024, a building code enforcement inspector conducted another inspection of the subject property. The code enforcement inspector issued Citation No. P049592 (the "Citation") for failure to cure the code enforcement violation for the metal panels attached to other previously permitted structures on the property.

After receiving the citation, the Appellee requested an administrative hearing. During the administrative hearing, the Building Code Enforcement Department's representatives requested a recess to leave the room and gather additional records. 50:15- 50:19; 51:7. While the Code Enforcement Department representatives were absent from the room, the hearing officer, Appellee, and a witness proceeded to engage in ex parte communications about the case. 51:8-62:14. Instead of informing the Appellee and the witness that such communications were improper, the hearing officer engaged in a lengthy conversation about whether the Department assisted Appellee in correcting the alleged violation. This issue was ultimately the basis for the hearing officer's ruling. The ex-parte conversation spanned about twelve pages of the hearing [*3] transcript. The conversation only appeared to stop when the Department representatives returned to the hearing room.

Ex parte communications constitute a departure from the essential requirements of the law. See Rho-Sigma, Inc. v. Int'l Control & Measurements, Corp., 691 So. 2d 16, 17 (Fla. 3d DCA 1997) (holding that "the trial court departed from the essential requirements of the law by engaging in ex parte communications regarding the pending case" because this "placed into question the impartiality of the trial judge which must be beyond question to ensure the guaranty of a fair trial"). See also Rose v. State, 601 So. 2d 1181, 1183 (Fla. 1992).

Given the nature and extent of the ex-parte communication involving the hearing officer in this case, there was a departure from the essential requirements of law. Accordingly, the decision below is hereby QUASHED. This matter is REMANDED for proceedings consistent with this opinion. It is advisable that any such proceedings be conducted by another hearing officer.¹ Even though the [*4] DE LA O, and ARECES, R., JJ., concur. COPIES FURNISHED TO COUNSEL OF RECORD AND TO ANY PARTY NOT REPRESENTED BY COUNSEL Appellant argued that a violation still existed at the time of the hearing, the transcript reveals that the Appellee and the hearing officer may still have been unclear as to which violations were still pending and what exactly needed to be done to cure them. This may have deprived the Appellee of procedural due process. Should the County go forward with additional proceedings, this issue should be addressed by the hearing officer.