WRIT NO.: FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI. Petitioner Dean Tasman ( Tasman ) timely petitions this Court for a Writ of

Similar documents
ORDER DENYING PETITION FOR WRIT OF CERTIORARI. ( CREC/Bell or Petitioner ), seeks certiorari review of Respondent s, Orange County Board of

IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC BRIAN MEATON

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI. Petitioners, Evelyn Bertolucci, Jose Bertolucci, Shelley Green, Mareta Forrest, Don

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Sherri Hamadeh-Gossweiler ( Petitioner ) timely filed this petition seeking certiorari

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM Petitioner, v. CASE NO. 5D

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

v. CASE NO.: 2009-CA O WRIT NO.: 09-30

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI. Petitioners seek certiorari review of a non-final order of possession removing

v. CASE NO.: 2007-CA O Writ No.: STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, DIVISION OF DRIVER LICENSES,

Third District Court of Appeal State of Florida

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. the Florida Department of Highway Safety and Motor Vehicles ( Department ) Final

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. of License Suspension. Pursuant to section , Florida Statutes, the order sustained the

v. CASE NO.: 2006-CA-2677-O WRIT NO.: 06-99

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI. Petitioner Mark Uiselli (Petitioner) timely filed this petition seeking certiorari review of

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

v. CASE NO.: 2009-CA-4217-O WRIT NO.: STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF DRIVER LICENSES,

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

v. CASE NO.: 2007-CA-5882-O Writ No.: STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, DIVISION OF DRIVER LICENSES,

Petitioner, WRIT NO.: 07-16

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI. Petitioner Timothy O Shaughnessy (Petitioner) timely filed this petition seeking

v. CASE NO.: 2009-CA O WRIT NO.: 09-19

FINAL ORDER REVERSING IN PART AND AFFIRMING IN PART TRIAL COURT

Third District Court of Appeal State of Florida

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

Third District Court of Appeal State of Florida, January Term, A.D. 2013

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Petitioner, John Bougon ( Bougon or Petitioner ) seeks certiorari review of the

v. CASE NO.: 2007-CA O STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY WRIT NO.: AND MOTOR VEHICLES, Respondent. /

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

JOANNE HUNT, Petitioner, CASE NO.: 2010-CA O v. WRIT NO.: 10-76

IN THE SUPREME COURT OF FLORIDA CASE NO.: SC

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Petitioner, Jennifer Loman ( Loman or Petitioner ) seeks certiorari review of the

IN THE SUPREME COURT OF FLORIDA CASE NUMBER SC Lower Court Case Number 4D

Petitioner, WRIT NO.: 08-07

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI. Florida Department of Highway Safety and Motor Vehicles (the Department) Final

Case No.: 2008-CA O

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

CASE NO.: 2009-CA O WRIT NO.: 09-53

v. CASE NO.: 2006-CA-0759-O Writ No.: STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, DIVISION OF DRIVER LICENSES,

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED OF FLORIDA SECOND DISTRICT

ORDER DENYING AMENDED PETITION FOR WRIT OF CERTIORARI. the Florida Department of Highway Safety and Motor Vehicles ( Department ) Findings of

Supreme Court of Florida

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FINAL ORDER REVERSING TRIAL COURT. Eviction entered June 2, 2014 in favor of Appellees, Herbert and Joann Greene ( the

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

Third District Court of Appeal State of Florida, January Term, A.D. 2009

v. CASE NO.: 2009-CA O WRIT NO.: STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF DRIVER LICENSES,

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

CASE NO. 1D T.R. Hainline, Jr., Emily G. Pierce, and Cristine M. Russell of Rogers Towers, P.A., Jacksonville, for Petitioner.

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Petitioner, James M. Kaminski (Petitioner), seeks certiorari review of the Department of

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

Third District Court of Appeal State of Florida, January Term, A.D. 2011

Third District Court of Appeal State of Florida, January Term, A.D. 2007

Supreme Court of Florida

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA. Petitioner, WRIT NO.: 12-43

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

Third District Court of Appeal State of Florida, July Term, A.D. 2010

WRIT NO.: FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI

v. CASE NO.: CVA Lower Court Case No.: 06-CC-13325

v. CASE NO.: 2009-CA O WRIT NO.: ORDER GRANTING IN PART PETITIONER S MOTION FOR CLARIFICATION AND REHEARING

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Safety and Motor Vehicles ( Department ) final order sustaining the suspension of his driver

IN Tl le SUPREME COURT FOR THE STATE OF FLORIDA. CASE NO. SCl3-153 L. T. CASR NOS.; 4DI J-4801, CA COCE

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM v. CASE NO. 5D06-125

IN THE SUPREME COURT OF FLORIDA CASE NO. SC THIRD DISTRICT CASE NO. 3D PROFESSIONAL MEDICAL GROUP, INC., A/A/O MARVELIS BAUZA, Petitioner,

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. v. Case No. 5D

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

Petition for Writ of Certiorari to the Board of Aldermen of the Town of St. Lucie Village.

IN THE SUPREME COURT OF FLORIDA CASE NO. SC STATE OF FLORIDA, Petitioner, vs. ERIC S. SMITH, Respondent.

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

Supreme Court of Florida

IN THE SUPREME COURT OF THE STATE OF FLORIDA. Appellants/Petitioners, ) LOWER COURT CASE NO. APPELLANT S BRIEF

FINAL ORDER AFFIRMING TRIAL COURT in favor of Appellee, Silver Glen Homeowners Association, Inc. ( Sliver Glen ). This

IN THE SUPREME COURT OF FLORIDA CASE NO. SC. TOWN OF PONCE INLET, Petitioner, PACETTA, LLC, ET AL. Respondents. LOWER CASE NUMBER: 5D

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA. Lower Case No.: 2012-TR A-W

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

Third District Court of Appeal State of Florida

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM Appellant, v. Case No. 5D

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Petitioner, Stephanie Wyatt ( Wyatt or Petitioner ) seeks certiorari review of the

Third District Court of Appeal State of Florida, July Term, A.D. 2010

FINAL ORDER AFFIRMING TRIAL COURT. Appellant, Auto Glass Store, LLC d/b/a 800 A1 Glass, LLC ( Auto Glass ), timely

Supreme Court of Florida

Third District Court of Appeal State of Florida

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA. Lower Case No.: 2008-SC O

IN THE SUPREME COURT OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM v. Case No. 5D

Transcription:

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA DEAN TASMAN Petitioner, CASE NO.: 2006-CA-4542-O WRIT NO.: 06-45 v. ORANGE COUNTY, FLORIDA Respondents. / Petition for Writ of Certiorari S. Brent Spain, Esquire Theriaque Vorbeck & Spain for Petitioner. Joel D. Prinsell, Deputy County Attorney Orange County, Florida, for Respondent Before EVANS, MacKinnon, and J. KEST, J.J. PER CURIAM. FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI Petitioner Dean Tasman ( Tasman ) timely petitions this Court for a Writ of Certiorari from the May 8, 2006, Decision of the Board of County Commissioners, Orange County Florida, regarding Tasman s application for a Special Exception to convert 921 square feet of his existing residence into an accessory dwelling unit. This Court has jurisdiction pursuant to rule 9.030(c)(3), Florida Rules of Appellate Procedure. We dispense with oral argument.

Factual and Procedural Background On March 2, 2006, the Orange County Board of Zoning Adjustment ( BZA ) held a public hearing on Tasman s application for a Special Exception to convert 921 square feet of his residence into an accessory dwelling unit for his father. The BZA found that Tasman s application met the requirements of the Orange County Code and approved it with the following pertinent condition: The attached accessory dwelling unit is for [Tasman s] family use only. No portion of the residence shall be rented out. (App. Ex. 5 at 1.) Thereafter, Tasman appealed the no rental condition to the Board of County Commissioners ( BOCC ) arguing the condition is not in compliance with section 38-1426 of the Orange County Code. A public hearing was held before the BOCC on April 18, 2006, and it approved the decision of the BZA, including the no rental condition, by a unanimous vote. Tasman s petition followed. Standard of Review A circuit court review of a quasi-judicial decision is limited to only a three-part standard of review: (1) whether procedural due process has been accorded; (2) whether the essential requirements of law were observed; and (3) whether the administrative findings and actions were supported by competent, substantial evidence. Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); County of Volusia v. City of Deltona, et al., 925 So. 2d 340, 343 (Fla. 5th DCA 2006). The circuit court is not entitled to make separate findings of fact or to reweigh the evidence. Haines City Cmty. 2

Dev., 658 So. 2d at 529; see also Dep t of Highway Safety & Motor Vehicles v. Kurdziel, 908 So. 2d 607, 609 (Fla. 2d DCA 2005). Discussion Tasman argues that the BOCC failed to follow the essential requirements of the law because it failed to follow the plain provisions of section 38-1426, Orange County Code, when it upheld a condition that the accessory dwelling unit could not be rented to a non-relative. Section 38-1426, states, in pertinent part: 38-1426. Accessory dwelling units... (c) (1) An accessory dwelling unit shall be occupied initially only by a relative. For purposes of this section, the term relative shall mean a sister, brother, lineal ascendant or lineal descendant of the owner of the lot or parcel on which the primary single-family dwelling unit is located.... (2) An accessory dwelling unit may be occupied by a nonrelative, provided: a. The accessory dwelling unit was occupied initially only be a relative and at least three (3) years have passed since the issuance of the certificate of occupancy for the accessory dwelling unit; or b. The accessory dwelling unit was occupied initially only by a relative, and the relative has died. By its plain and ordinary meaning, section 38-1426 specially allows the primary owner to rent an accessory dwelling unit to a non-relative after three years have passed or after the relative occupant dies. While courts should defer to a city or county s interpretation of its own ordinance when it calls for superior technical expertise and [a] special vantage point, such is not the case, here. City of Hialeah Gardens v. Miami- Dade Charter Found., Inc., 857 So. 2d 202, 206 (Fla. 3d DCA 2003). 3

We are not required to and do not defer to an agency s construction or application of a law or ordinance where we are equally capable of reading the ordinance. Fla. Hosp. v. Agency for Health Care Admin., 823 So. 2d 844, 848 (Fla. 1st DCA 2002) ( [A] court need not defer to an agency s construction or application of a statute if special agency expertise is not required, or if the agency s interpretation conflicts with the plain and ordinary meaning of the statute. ) City of Coral Gables Code Enforcement Board v. Tien, 967 So. 2d 963, 966 (Fla. 3d DCA 2007). The no rental condition clearly contradicts the plain and ordinary meaning of the ordinance and, therefore, the BOCC failed to follow the essential requirements of the law by imposing it. Tasman argues that this Court may properly quash just that portion of the BOCC s decision containing the no rental condition. Orange County, on the other hand, argues that this Court is limited to quashing only the entire Decision. The Fifth District Court of Appeal has held that: [a] court's certiorari review power does not extend to directing that any particular action be taken, but is limited to quashing the order reviewed. ABG Real Estate Dev. Co. v. St. Johns County, 608 So.2d 59, 64 (Fla. 5th DCA 1992) (emphasis added). The Florida Supreme Court has also held: Consistent with the limited purpose of this writ, the Court long ago delineated the narrow range of options that are available to a reviewing court on certiorari review. The role of the reviewing court in such a proceeding is to halt the miscarriage of justice, nothing more: On certiorari the appellate court only determines whether or not the tribunal or administrative authority whose order or judgment is to be reviewed has in the rendition of such order or judgment departed from the essential requirements of the law and upon that determination either to quash the writ of certiorari or to quash the order reviewed. When the order is quashed, as it was in this case, it leaves the subject matter, that is, the controversy pending before 4

the tribunal, commission, or administrative authority, as if no order or judgment had been entered and the parties stand upon the pleadings and proof as it existed when the order was made with the rights of all parties to proceed further as they may be advised to protect or obtain the enjoyment of their rights under the law in the same manner and to the same extent which they might have proceeded had the order reviewed not been entered. The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the respondent to enter any particular order or judgment. Broward County v. G.B.V. Intern., Ltd., 787 So.2d 838, 843-844 (Fla. 2001) (quoting Tamiami Trail Tours v. Railroad Commission, 174 So. 451, 454 (Fla. 1937) (on rehearing)). Thus, if this Court were to quash only the no rental provision of the BOCC s decision, we would be impermissibly directing the BOCC to enter a particular decision. By quashing the entire Decision we correctly place the parties and the BOCC back in the same position as if a Decision had never been rendered. Based on the foregoing, it is hereby ORDERED AND ADJUDGED that Dean Tasman s Petition for Writ of Certiorari is GRANTED. 1. The May 8, 2006, Decision of the Board of County Commissioners, Orange County, Florida is QUASHED. 5

DONE AND ORDERED in Chambers at Orlando, Orange County, Florida, this 18 day of March, 2008. _/S/ ROBERT M. EVANS Circuit Court Judge _/S/ CYNTHIA Z. MACKINNON Circuit Court Judge /S/ JOHN MARSHAL KEST Circuit Court Judge CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. mail, S. Brent Spain, Theriaque Vorbeck & Spain, 37 North Orange Avenue, Suite 500, Orlando, Florida 32801; and to Joel D. Prinsell, Orange County Attorney s Office, Orange County Administration Center, P.O. Box 1393, Orlando, Florida 32802-1393, on this 18 day of March, 2008. /S/ Judicial Assistant 6