# Third District Court of Appeal

State of Florida

Opinion filed September 20, 2023. Not final until disposition of timely filed motion for rehearing.

No. 3D23

- 145

Lower Tribunal No. 20

- 11 -K



### Monroe County, Florida, etc.,

Petitioner,

vs.



### Robert S. Jabour, etc., et al.,
Respondents.

On Petition for Writ of Certiorari from the Circuit Court for Monroe County, Appellate Division, James M. Barton, II, Senior Judge.

Derek V. H oward, Assistant County A ttorney, f or p etitioner.

Locke Lo rd LLP, a nd Michael P

. D e S imone ( West P alm Beach), for respondents.

Before LOGUE, C.J., and FERNANDEZ and LINDSEY, JJ.

PER CURIAM.1 PER CURAM.

Monroe County, Florida (the “County”) petitions this Court for second

tier certiorari rev iew of an opinion rendered by the circuit court, acting in its

appellate capacity. The circuit court reversed the Monroe County Code

Enforcement Special Magistrate’s (“Special Magistrate”) orders, which

concluded that Robert S. Jabour, as trustee of the Ro bert S. Jabour

Revocable Trust Dated January 4, 2007 (“Respondent”), violated county

code. For the reasons discussed herein, we deny the Petition.

Following the parties’ submissions and oral argument, the Special

Magistrate issued a Partial Summary Final O rder (the “PSFO”), determining

that Monroe County’s Land Development Code (“LDC”) section 130

- 88 is not

preempted by section 509.032(7)(b), Florida Statutes (2022), and that the

County is not prohibited, nor equitably estopped, from enforcing the section’s

prohibition on the vacation rental use of attached dwellings in the Mixed

- Use

district. Individual evidentiary hearings were then held, and the Special

Magistrate entered two orders, 1 finding Respondent in violation of LDC

section 134

- 1.(k)(1) and subject to a fine. The orders advised that

Respondent could appeal within thirty (30) days. Thereafter, Respondent

filed a timely Notice of Appeal with the circuit court. The circuit court reversed

1 Each order deals with a separate property owned by Respondent.2 the final orders, “based on the plain meaning of the applicable Code

sections” and remanded with directions to allow Respondent to apply for

either a special vacation rental permit or a waiver of the permit requirement.

A later motion for rehearing was denied; thereafter, the instant petition

followed.

On second

- tier certiorari review, our “‘inquiry is limited to whether the

circuit c ourt afforded procedural due process and whether the circuit court

applied the correct law,’ or as otherwise stated, departed from the essential

requirements of the law.” Custer Med. Ctr. v. United Auto. Ins. Co.

, 62 So.

3d 1086, 1092 (Fla. 2010) (quoting Haines City Cmty. Dev. v. Heggs

, 658

So. 2d 523, 530 (Fla. 1995)). In considering such review, the concern should

be on the seriousness of the error. Combs v. State , 436 So. 2d 93, 95 (Fla.

1983). “[C]ertiorari cannot be used to grant a second appeal to correct the

existence of mere legal error.” Custer

, 62 So. 3d at 1093. Here, procedural

due process is not at issue, so we must determine only whether the circuit

court applied the correct law.

Under section 162. 11, Florida Statutes (2022), “[a]n aggrieved party

.

. . may appeal a final administrative order of an enforcement board [or a

special magistrate] to the circuit court.” (emphasis added). Subject matter

jurisdiction “arises solely by virtue of law

. . . a nd cannot be created by waiver,3 acquiescence, or agreement of the parties.” State, Dep’t. of Health & Rehab.

Servs. v. Schreiber

, 561 So. 2d 1236, 1240 (Fla. 4th DCA 1990). We find

that the PSFO, which made no determination on whether a code violation

had occurred, is not a final administrative order required to be appealed

within thirty days. See City of Fort Lauderdale v. Bamman

, 519 So. 2d 37,

38 (Fla. 4th DCA 1987) (determining an order, which found respondents

were in violation and set a compliance deadline and non

- compliance fine,

was final); Hardin v. Monroe Cnty.

, 64 So. 3d 707, 709

- 10 (Fla. 3d DCA

2011) (holding an order which determined there were code violations, set a

compliance deadline, and a possible $20 fine for noncompliance, was not

timely appealed). Respondent properly appealed the later two final orders.

In its Petition, the County argues that the circuit court departed from

the essential requirements of law by failing to accord deference to the

Planning D irector’s interpretation of LDC section 130

- 88 and related LDC

provisions and reversing that interpretation. We find no such departure from

the essential requirements of the law in the circuit court’s decision.

Deference to an agency’s interpretation is not required where statutory

language is plain and unambiguous. See Dimitri v. Com. Ctr. of Miami Master

Ass’n.

, 253 So. 3d 715, 721 (Fla. 3d DCA 2018). In the instant case, the4 language of the applicable sections is clear a nd unambiguous, as stated by

the County, Respondent, the circuit court, and the Special Magistrate.

The County next argues that the circuit court departed from the

essential requirements of law by violating multiple principles of clearly

established law while interpreting LDC section 130

- 88. In interpreting a

statute, “[w]here possible, courts must give full effect to all statutory

provisions and construe related statutory provisions in harmony with one

another.” Forsythe v. Longboat Key Beach Erosion Control Dist.

, 604 So. 2d

452, 455 (Fla. 1992). In conducting such statutory interpretation, “courts

should avoid readings that would render part of a statute meaningless.” Id.

at 456. The “statutory purpose, while undoubtedly re levant to legal

interpretation, cannot trump the clear requirements of the applicable text.”

Krol v. FCA US, LLC

, 310 So. 3d 1270, 1274 (Fla. 2021). Here, the circuit

court’s opinion evidences its attempt to give full effect to the relevant sections

and to construe the statutory provisions in harmony with one another.

Ultimately, the circuit court reversed the challenged orders “based on the

plain meaning of the applicable code sections.” 2

2 While the County correctly argues that the circuit court misapprehended Rinker Materials Corporation v. City of North Miami , 286 So. 2d 552, 553 (Fla. 1973), in not clarifying that interpretation in favor of the property owner is only allowed when there is “no definition or clear intent,” the circuit court5 While the County argues the circuit court went beyond its scope of

review, by reweighing evidence and making new findings, we find no

departure from the requirements of law. “Reweighing of the evidence is

simply not apparent . . . [when] the circuit court’s analysis focused with

precision on the specific words i n the Code and their definitions, only

mentioning . . . testimony to summarize arguments before making its own

decision utilizing statutory interpretation.” Town of Longboat Key v.

Islandside Prop. Owners Coal., LLC

, 95 So. 3d 1037, 1040 (Fla

. 2d DCA

2012).

Accordingly, given the high standard for second

- tier certiorari review,

we deny the County’s petition.

Petition denied.

did not “rewrite” the applicable sections as the County claims. The circuit court merely looked to the plain and obvious meaning of the subject code.