DDIST LLC

v.

CITY OF MIAMI

[*2] Before: TRAWICK, DE LA O, and ARECES, R., JJ.

TRAWICK, Judge.

This appeal, brought by the Appellant DDIST, LLC (Property Owner), against Appellee, the City of Miami, seeks review of the City of Miami's Unsafe Structure Panel's March 14, 2025 order requiring the total demolition of all six residential structures on Appellant's commercial property ("Order"). Based upon our review of the law, hearing transcript, and the record in this case, this Court finds that the panel failed to accord the Appellant with procedural due process.

Procedural due process requires that the agency provide reasonable notice and a fair opportunity to be heard. Housing Authority of the City of Tampa v. Robinson, 464 So. 2d 158, 164 (Fla. 2d DCA 1985).

While "the concepts of due process in an administrative proceeding are less stringent than in a judicial proceeding, they nonetheless apply. " A.J. v. State, Dep't. of HRS, 630 So. 2d 1187, 1189 (Fla. 2d DCA 1994); see also Hadley v. Department of Admin., 411 So. 2d 184, 187 (Fla. 1982) ("In such proceedings, it is sufficient if the accused has reasonable opportunity to defend against attempted proof of such charges...."). This opportunity to be heard must be meaningful. See Metropolitan Dade County v. Sokolowski, 439 So. 2d 932, 934 (Fla. 3d DCA 1983); Rucker v. City of Ocala, 684 So. 2d 836, 841 (Fla. 1st DCA 1996) (“To qualify under due process standards, the opportunity to be heard must be meaningful, full and fair, and not merely [*3] colorable or illusive.”) “Due process envisions a law that hears before it condemns, proceeds upon inquiry, and renders judgment only after proper consideration of issues advanced by adversarial parties." Scull v. State, 569 So. 2d 1251, 1252 (Fla. 1990).

Miami-Dade Cnty. v. Reyes, 772 So. 2d 24 (Fla. 3d DCA 2000). (Emphasis added).

Improper notice of the issues to be determined at a hearing is a violation of due process which taints the proceedings. In Connell v. Capital City Partners, LLC, 932 So. 2d 442, 443-444 (Fla. 3d DCA 2006), the Third District Court of Appeal held that the granting of relief which is not referenced in the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing violates due process:

We find that the order on appeal reflects an error on its face, as it reveals a denial of due process. Specifically, the order reflects that the only motion set for hearing was a motion to dismiss. The trial court, however, went beyond a determination of the motion to dismiss, by also requiring Connell to transfer $49,000 to Capital City. In requiring Connell to transfer $49,000 to Capital City, it appears that the trial court ruled on the declaratory action filed in Connell's counterclaim. It did so, however, without prior notice that the declaratory action would be considered at the hearing, and apparently without the submission of any sworn proof. This was error because the granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process. [Citations [*4] omitted]. As noted by the Fourth District Court of Appeal, "the meaning of procedural due process is clear: Parties whose rights are to be affected are to be heard; and in order that they may enjoy that right they must first be notified." Devaney, 564 So. 2d at 1230 (quoting Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972)).

Id. See also Khan v. Dep't of Revenue, 901 So. 2d 992, 992 (Fla. 4th DCA 2005) (It is an essential part of the concept of due process that any relief granted at a hearing be within the kind of relief sought by the notice given for hearing); Grandiniv. Carizo, 891 So. 2d 1216 (Fla. 3d DCA 2005) (the scope of the hearing was improperly expanded); Fouts v. Bowling, 596 So. 2d 95 (Fla. 3d DCA 1992) (The trial court's failure to provide appropriate notice renders improper the entry of summary judgment regardless of whether the trial court considered the "motion for summary judgment" on its own motion or at the instigation of defense counsel); Devaney v. Solitron Devices, Inc., 564 So. 2d 1229 (Fla. 4th DCA 1990) (The trial court violated due process rights when it expanded the scope of the hearing to address and determine the jurisdictional matter not noticed for hearing). See also Epic Metals Corp. v. Samari Lake E. Condo. Ass'n, Inc, 547 So. 2d 198 [*5] (Fla. 3d DCA 1989); Margulies v. Margulies, 528 So. 2d 957 (Fla. 3d DCA 1988).

Furthermore, reasonable notice must be reasonably calculated to convey the required information. Patricia Weingarten Associates, Inc. v. Jocalbro, Inc., 974 So. 2d 559 (Fla. 5th DCA 2008). Whether a particular method of notice is reasonably calculated to provide adequate notice depends on "due regard for the practicalities and peculiarities of the case." Vosilla v. Rosado, 944 So. 2d 289, 291 (Fla. 2006) (Emphasis added). Lastly, if legal error, especially in notices, is left uncorrected, the extent of the impact resulting from the error remains unknown, including whether an interested party would have presented a more developed case before the lower tribunal. Save Calusa, Inc. v. Miami-Dade County, 355 So. 3d 534 (Fla. 3d DCA 2023).

In the instant case, the Appellant contends that it was denied meaningful due process during the subject administrative hearing. We agree.

First, the hearing transcript indicates that the instant hearing was set pursuant to the City's amnesty program for unsafe structures. See Section 10-101(m) of the City Code entitled "Unsafe [*6] Structures - Amnesty Program." The objective and legislative intent of the amnesty program ordinance is to provide new property owners with an extension of time and an additional opportunity to correct violations and save properties from demolition orders that were entered due to the noncompliance of previous property owners.¹ Pursuant to the amnesty program, the Appellant requested the subject hearing for the purpose of removing the administrative "hold" that was preventing the Appellant from applying for permits to correct the violations. A hearing was granted pursuant to the Appellant's request, and a notice of hearing was sent to the Appellant.

The Notice of Hearing stated as follows:

As a result of the hearing, the Panel may order such work done as cited in the Building Official's Notice of Violation and if you fail to comply with the order of the City of Miami Unsafe Structures Panel, the Building Official may then proceed to remove such violation and place a lien against the property concerned to recover all costs of the enforcement action such as provided for in Chapter 8, Section 8-5 of the Miami-Dade County Code and Chapter 10, Article VI of the City of Miami Code.

[*7] The Notice of Hearing went on to state:

Please be advised, any property that is found in violation of the Building Code and Chapter 10 of the Code of the City of Miami shall have its Certificate of Use revoked pursuant to Section 2-211 of the Code of the City of Miami, Florida as amended.

As the Appellant argues, the notice of hearing lacks the express warning of the possibility that the panel would immediately order demolition of all structures on the property at the hearing. The Appellant contends that if it had any indication that an immediate demolition order could be the hearing result, it would have attended the hearing with counsel prepared to argue that issue, rather than appearing at the hearing merely to request the removal of the administrative holds. This Court agrees with the Appellant and finds that the Notice of Hearing did not clearly indicate that immediate demolition was going to be considered at the hearing.

The Appellant also contends that the "opportunity to be heard" at the hearing was illusory. Although the panel admittedly referred to the case as being set for hearing pursuant to the City's Amnesty Program, the panel did not treat the case as such. The panel refused to consider the Appellant's witness testimony that indicated plans to [*8] correct violations and immediately rejected the request to remove the administrative holds. Contrary to the spirit and intent of the Amnesty ordinance, the panel's statements and actions were punitive in nature, punishing the new property owner for the failings of the previous owner. Within approximately five minutes of opening the hearing, and despite Appellant's witness' uncontradicted testimony, the panel ordered the immediate demolition of all six residential structures on the Property within 30 days, without the opportunity to request an extension of time.

Furthermore, the transcript and the written order reflect that the panel's decision to demolish the structures was based on unsupported findings that contradict the facts in evidence. The panel appears to have based its decision in part on an incorrect conclusion that the buildings were "fully wood frame." However, according to the City's Case Resume (Appellee's Index 51), and the testimony of its own building official (See Appellant's Supplemental Appendix Transcript 4:3-4), the subject structures were concrete block structures ("CBS"), not "fully wood-framed structures." However, despite the evidence, the following statements were made by the panel's attorney: [*9] MS. DOOLEY: ... We have no choice but to recommend total demolition. I don't know how you take fully wood frame structures -- even when they're doing repairs on it, it looks like they're just redoing the -- the outside. MR. JACKSON: Yeah, I -- MS. DOOLEY: And the wood remains, which is not safe.

(Appellant's Supplemental Appendix Transcript 7:6-13). (Emphasis added). It is thus clear that this part of the panel's findings, which constituted a core basis of the demolition order, are not supported by the evidence in the record.

As for the written Order, this Court finds that the Order contains contradictions and errors on its face. Not only did the Order below go beyond the scope of the Notice of Hearing by ordering the immediate demolition of the structures, but as we stated earlier, the Order included findings not supported by the record. Again, the findings in the Order indicated that the structures were wood-framed ("WF") rather than concrete block ("CBS"). Moreover, there were no specific findings of fact in the Order to support or explain the panel's decision to immediately demolish all structures on the property, nor were there any findings made in relation to the Amnesty Program, under whose auspices this hearing was conducted. [*10] Accordingly, we find that the Appellant was not afforded procedural due process. As a result, the decision below is hereby QUASHED and this matter is hereby REMANDED for proceedings consistent with this opinion.

DE LA O, and ARECES, R., JJ., concur. COPIES FURNISHED TO COUNSEL OF RECORD

AND TO ANY PARTY NOT REPRESENTED BY COUNSEL