IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA LESTER SMULL, Petitioner, CASE NO.: 4 TH DCA CASE NO.:4D v. THE TOWN OF JUPITER, a Florida municipal corporation Respondent. / PETITIONER S BRIEF ON JURISDICTION BERROCAL & WILKINS, P.A. ROBERT W. WILKINS, ESQ. 801 Maplewood Drive, Suite 22-A Jupiter, FL Florida Bar No Telephone Facsimile COUNSEL FOR PETITIONER

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii STATEMENT OF THE CASE 1,2,3 SUMMARY OF ARGUMENT 3,4,5 ARGUMENT 5,6,7,8,9,10 CONCLUSION AND PRAYER FOR RELIEF 10 i

3 TABLE OF AUTHORITIES Cases Page(s) Harris v. Florida Real Estate Commission, 358 So. 2d 1153 (Fla. 1 st DCA 1978) 9 Mills v. Laris Painting Co., 125 So. 2d 745, 748 (Fla. 1961).2, 4, 6, 7, 8 Sharp v. Zoning Board of Appeals of the Town of Easton, 684 A.2d 713 (Conn. App. 1996)..9 Taylor v. Department of Professional Regulation, Board of Medical Examiners, 520 So. 2d 557 (Fla. 1988) 4, 7 The Board of County Commissioners of Sarasota County v. Webber, 658 So. 2d 1069 (Fla. 2d DCA 1995). 3, 5, 6, 7, 8, 10 Florida Statutes and Rules Florida Rule of Appellate Procedure 9.120(c)..3 Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv).. 3 Florida Rule of Appellate Procedure 9.020(a)(3) Florida Rule of Appellate Procedure Florida Constitution ArticleV, 3(b)(3 3 ii

4 STATEMENT OF THE CASE AND OF THE FACTS This Brief on Jurisdiction, filed pursuant to Fla. R. App. P (d), seeks this Court s review, pursuant to Fla. R. App. P (a)(2)(A)(iv), of a Fourth District Court of Appeals decision that expressly and directly conflicts with a previously rendered decision of this Court and the Second District Court of Appeals. Petitioner applied to the Town of Jupiter for a building permit to construct a canopy over his marina slip. (A-1) The Town's Planning and Zoning Division rejected the application and Petitioner appealed that decision to the Town Council. (A-1) The Town Council held a quasi-judicial hearing on the matter on December 7, After hearing testimony and accepting evidence, the Town Council voted to grant the administrative appeal and approve the building permit. (A-1). The vote was reflected in the written minutes of the Town kept by the Town Clerk. On January 4, 2000, at the second meeting of the Town Council after its December 7, 1999 meeting, the Town Council voted to reconsider its decision which granted Petitioner's appeal and approved the issuance of the building permit. (A-1). It was conceded below that the Town Code of Jupiter had no provision for rehearing or reconsideration of its quasi-judicial determinations. Petitioner filed an action in the circuit court for a writ of prohibition to pre- 1

5 vent the Town from reconsidering its decision. Both parties moved for summary judgment. The trial court granted the Town's motion for summary judgment, concluding that the Town had the inherent power to reconsider its previous vote and because the Town had never entered a written final decision with findings of fact and conclusions of law, as required by the Town Code, the appeal time had not begun to run. (A-1) The trial court so held despite record evidence before it that the December 7, 1999 vote was recorded in writing in the minutes of the Town Clerk entered that date and that 28 days had passed between the vote on December 7, 1999 and the January 4, 2000 reconsideration vote and no written order with findings of fact and conclusions of law had been prepared. Petitioner timely appealed the decision to the Fourth District Court of Appeals, which affirmed the trial court's summary judgment. The Fourth District, relying on Mills v Laris Painting Co., 125 So.2d 745, 748 (Fla. 1961), held that the Town Council had inherent authority to reconsider it s quasi-judicial decisions despite the fact that no statute or provision of the Town Code provided for such reconsideration. (A-2) The Fourth District further held that, because the Town had not filed a written final decision, despite the passing of 28 days, the time for an appeal had not started to run. In effect, the Town Council, by virtue of whether and 2

6 when it chooses to file, if at all, a written decision confirming its vote, controls the appellate process. Notice was filed, pursuant to Fla. R. App. P (c), on October 2, 2003, seeking to invoke the discretionary jurisdiction of the Supreme Court, pursuant to Fla.R.App.P (a)(2)(A)(iv) and ArticleV, 3(b)(3), Fla.Const. SUMMARY OF ARGUMENT This case presents an important issue concerning whether a municipality has the inherent authority to reconsider its quasi-judicial determinations and, if so, the time period within which such reconsideration must occur. It is undisputed that there is no written procedure either by statute or rule that authorizes the Town Council to reconsider its quasi-judicial determinations. Although it is not an administrative agency under the Administrative Procedure Act, the Town contended, and the court below found, that administrative agencies have inherent or implied power, comparable to that possessed by courts, to rehear or reopen a cause and reconsider its action or determination therein, where the proceeding is in essence a judicial one. (A-2) The Fourth District s decision directly and expressly conflicts with the Second District s decision in The Board of County Commissioners of Sarasota County 3

7 v. Webber, 658 So.2d 1069 (Fla. 2d DCA 1995), which holds that a county commission, acting in its quasi-judicial capacity, has the right to reconsider its decisions only during the same session. The Fourth District rejected this argument, and held instead that Mills v Laris Painting Co., 125 So.2d 745 (Fla. 1960) controlled. The Fourth District s decision directly and expressly conflicts with this Court s decision in Mills v Laris Painting Co., 125 So.2d 745 (Fla. 1960). In Mills, this Court addressed the inherent right of an administrative agency to correct clerical errors or mistakes in its decisions, not an inherent right to rehear or reconsider their decisions to change the decision. The Fourth District s decision expands the holding of Mills far beyond what this Court has ever done. See, Taylor v Department of Professional Regulation, Board of Medical Examiners, 520 So.2d 557 (Fla. 1988) (distinguishing the issue of rehearing and reconsideration from the issue of correcting clerical mistakes). Further, the Fourth District s decision applies case law previously limited to administrative agencies governed by the Administrative Procedure Act, to the quasi-judicial proceedings of town councils not governed by the Act, based solely on the definition of administrative agency in Florida Rule of Appellate Procedure 9.020(a)(3). Having found an inherent right to reconsider, the Fourth District determined 4

8 that the right to reconsider could be exercised at any time before the written decision is filed with the Town clerk, and that no written decision was filed with the Town clerk, so the time to appeal had not started to run. (A-2). The record before the trial court established that the Town Council s vote approving Lester Smull s administrative appeal was reflected in the Town Council s written and published final agenda and council minutes for the Town Council s regular meeting of December 7, The record below also established that 28 days had passed since the vote approving the Petitioner s appeal and the Town Council had not issued any written order containing findings of fact or conclusions of law. Despite this record showing, the Trial Court held that the written decision contained in the published minutes did not constitute a final recorded decision. A position the Fourth District Court of Appeals specifically agreed with, by stating no written ruling was prepared or filed with the Town Clerk to memorialize the decision. (A-2) ARGUMENT Prior to the Fourth District s decision in the instant case, the only case addressing the inherent right of reconsideration of a town council or similar entity exercising its quasi-judicial powers was The Board of County Commissioners of 5

9 Sarasota County v. Webber, 658 So.2d 1069 (Fla. 2d DCA 1995). In Webber, the county commission conducted a quasi-judicial hearing on an application for a variance and, at the conclusion thereof, voted to approve the variance. A recess was taken and one of the commissioners s realized he had voted the opposite of what he had intended. When they reconvened five minutes later (during the same session), the commission voted to reconsider its determination and then proceeded to vote against the variance. On appeal from the trial court s grant of certiorari and partial final judgment quashing the decision to deny the variance, the Second District first addressed the propriety of the commission s reconsideration of its vote. The Second District held that a county commission acting in a quasi-judicial capacity has, as a basic rule of parliamentary law, a right to reconsider its determinations during the same session when not otherwise provided by law. Id., at This rule is consistent with Robert s Rules of Order, which the Town of Jupiter expressly incorporated into its Town Code. Prior to the Fourth District s decision, the holding of Mills v Laris Painting Co., 125 So.2d 745 (Fla. 1960), was limited to administrative agencies governed by the Administrative Procedure Act and to an inherent right to correct mistakes in 6

10 their final judgments. Mills did not hold that administrative agencies have an inherent right to rehear or reconsider to change the decisions. See, Taylor v Department of Professional Regulation, Board of Medical Examiners, 520 So.2d 557 (Fla. 1988) (emphasizing the difference between petitions for rehearing or reconsideration, where a party is trying to change the administrative decision, and petitions to correct clerical errors in the final judgment). As a result of the Fourth District s decision, Mills has been expanded to include an inherent right to rehear or reconsider quasi-judicial decisions after the vote has been taken. No longer is Mills limited to the correction of clerical errors in a final judgment, based on the Fourth District s decision, it can now be used for reconsideration of the decision to change the result. Further, Mills and its progeny, previously limited to administrative agencies, now applies to any town council and similar entity not covered by the Administrative Procedure Act, simply by virtue of the definition of administrative agency in Florida Rule of Appellate Procedure The Fourth District s decision expressly and directly conflicts with the Second Circuit s decision in The Board of County Commissioners of Sarasota County v. Webber, 658 So.2d 1069 (Fla. 2d DCA 1995) concerning when a legisla- 7

11 tive body, exercising its quasi-judicial powers, can reconsider its decision after the vote when no rule or statute authorizes such reconsideration. Under Webber, the Town must act within the same session. Under the Fourth District s decision, regardless of how many sessions or meetings pass, the inherent right to rehear or reconsider a quasi-judicial determination exists so long as the Town has not rendered a written order that commences the appellate time clock. The Fourth District s decision expressly and directly conflicts with this Court s decision in Mills v Laris Painting Co., 125 So.2d 745 (Fla. 1960). Under the Fourth District s decision, Mills allows a town council to reconsider its vote in a quasi-judicial proceeding to change the outcome, not just to correct an error in the decision. Finally, the Fourth District s decision raises troubling issues concerning the finality of quasi-judicial determinations and when the body of law applicable to administrative agencies is to be applied to political subdivisions exercising quasijudicial authority. Under the Fourth Districts rationale, the mere definition of administrative agency to include decisions of any administrative body or board or commission not subject to the Administrative Procedure Act, is sufficient to apply the rationale of Mills to the Town Council. Why then not apply the case law that 8

12 holds that administrative bodies cannot assert that their own dispositive action was not taken with the formality which is the agency s responsibility? See, Harris v Florida Real Estate Commission, 358 So.2d 1153 (Fla. 1 st DCA 1978)(agency s failure to enter a proper order is an occasion for judicial review, not an impediment of it). On our facts, the record established that the vote on December 7, 1999 clearly decided the issue before the Town Council and the written minutes of the Town Clerk recited that vote and the rationale behind it. The Town let 28 days pass without entering a written order with findings of fact and conclusions of law as provided for in the Town Code. The Town then used its own failure to enter the written order as a basis to support its continuing jurisdiction to reconsider its decision. Under these facts, any administrative body, where there is no time requirement for issuing written orders, can control when it is willing to give up its jurisdiction and allow the appeal time to commence. It allows the administrative body to publish its decision and see which way the political winds are blowing before making its decision final. See, e.g., Sharp v Zoning Board of Appeals of the Town of Easton, 684 A.2d 713 (Conn.App. 1996)(if reconsideration after publication of decision is allowed, there would be no finality to proceedings and the result would 9

13 be subject to the whim of the board based on influence exerted upon them). Under the rationale of Webber, the Town s failure to timely follow its own procedures for issuing written orders would not effect its right to reconsider its determinations. CONCLUSION AND PRAYER FOR RELIEF With the rendering of the instant decision by the Fourth DCA, Florida is found with two polar opposite views on when a board or commission or town council can reconsider its quasi-judicial determinations. The Fourth District Court of Appeals of Florida opinion below expressly and directly conflicts with the previously rendered leading decision of the Second District Court of Appeals on when and how a town or board acting in its quasi-judicial capacity can reconsider its decision. For the reasons set forth, the Supreme Court has jurisdiction and should grant certiorari for review of the case below. 10

14 CERTIFICATE OF_SERVICE I HEREBY CERTIFY that a copy of the foregoing was served by U.S. Mail this 13 th day of October, 2003 on THE TOWN OF JUPITER, by serving Thomas Baird, Esq., U.S. Highway One, Suite 105, North Palm Beach, Florida CERTIFICATE OF COMPLIANCE WITH RULE I certify that the foregoing petition complies with the font requirements of Rule 9.100(l) of the Florida Rules of Appellate Procedure. BERROCAL & WILKINS, P.A. ROBERT W. WILKINS, ESQ. 801 Maplewood Drive, Suite 22-A Jupiter, FL Florida Bar Number COUNSEL FOR PETITIONER