Third District Court of Appeal

State of Florida 

Opinion filed March 2, 2022.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-0464

Lower Tribunal Nos. 19-AP-007-K, CE18090032

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Nicholas Sheckler,

Petitioner,

vs.

Monroe County, Florida,

Respondent.

A Writ of Certiorari to the Circuit Court for Monroe County, Appellate 

Division, Timothy J. Koenig, Judge.

Andrew M. Tobin, P.A., and Andrew M. Tobin, for petitioner.

Peter H. Morris, Assistant Monroe County Attorney, for respondent.

Before LINDSEY, HENDON and BOKOR, JJ. 

BOKOR, J.
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Petitioner, Nicholas Sheckler, seeks second-tier certiorari relief from 

the circuit court appellate division’s January 8, 2021 order. Because this 

court determines that the lower court’s January 8, 2021 order did not apply 

the correct law and essentially denied Sheckler his day in court to argue the 

merits of this claim, we grant the petition. 

In February 2018 Sheckler purchased a Hurricane Irma-damaged 

property in Big Pine Key, Florida. After an inspection by the county, the Big 

Pine Key property was declared unsafe and Sheckler was ordered to 

demolish the structure or seek permits to bring the structure up to code. 

Sheckler both applied for a building permit and submitted sealed building 

plans seeking approval to repair the property. While Sheckler’s permit 

application was still pending, the Monroe County Code Enforcement 

Department notified Sheckler of five code violations. The notice set a 

hearing before a code compliance special magistrate. Neither Sheckler nor 

his attorney appeared. On June 27, 2019, the special magistrate entered a

final order which: (1) assessed a $100.00 fine for each violation; (2) required

compliance on or before August 26, 2019; and (3) provided for further fines 

if compliance was not achieved by that date. The next day, the final order 

was recorded as a lien. On August 29, 2019, Sheckler’s building permit for 

the Big Pine Key property issued. 
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Some eight months later, Monroe County Code Compliance advised

Sheckler by letter of the lien on the Big Pine Key property and that, because 

the violations had not been cured, the daily fines, accrued for 247 days, 

totaled $123,500.00, and continued to increase every day they were not 

paid. On February 18, 2020, Sheckler appealed the special magistrate’s 

final order before the circuit court sitting in its appellate capacity. Sheckler’s 

appeal argued, inter alia, that the final order was unconstitutional and 

violated due process. 1 

On the morning of November 4, 2020, notwithstanding the pendency 

of the appeal before the circuit court, Sheckler paid all outstanding fines. 

Later that day, the circuit court rendered a decision on Sheckler’s appeal

reversing the portion of the June 27, 2019 final order which imposed the fines 

and the lien based on those fines. The circuit court agreed with Sheckler 

and found that the procedure employed by the special magistrate “bypassed 

the statutory requirements of Fla. Stat. § 162.09” and violated the procedure 

1 Specifically, Sheckler argued that the special magistrate’s final order 

violated due process because: (1) it was recorded as a lien on Sheckler’s 

property without a compliance hearing; (2) it failed to notify Sheckler as to 

what was required to comply; (3) the fine was not authorized by law or was 

otherwise excessive; and (4) the multiple fines were unconstitutional as they 

resulted from essentially one violation. 
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to impose fines established by statute and confirmed by Massey v. Charlotte 

County, 842 So. 2d 142, 144 (Fla. 2d DCA 2003). 

However, on December 4, 2020, Monroe County filed an amended 

motion for rehearing arguing that Sheckler’s voluntary payment in full of the 

fine, prior to the court’s determination, mooted Sheckler’s appeal. The circuit 

court agreed, determining that Sheckler’s payment of the lien rendered the 

due process challenge moot. Thus, in an opinion dated January 8, 2021, the

circuit court vacated the November 4, 2020 opinion in favor of Sheckler and 

dismissed Sheckler’s appeal as moot. Sheckler now seeks second-tier 

certiorari review of the circuit court’s January 8, 2021 opinion, arguing that 

the court applied the incorrect law, resulting in a denial of due process.

On second-tier certiorari review, this court’s inquiry is “limited to 

whether the circuit court afforded procedural due process and whether the 

circuit court applied the correct law.” Haines City Cmty. Dev. v. Heggs, 658 

So. 2d 523, 530 (Fla. 1995). Here, the circuit court, relying on Montgomery 

v. Department of Health & Rehabilitative Services, vacated its November 

2020 opinion based on a finding that Sheckler’s payment of the lien, in full, 

rendered his constitutional due process challenge moot. 468 So. 2d 1014, 

1016 (Fla. 1st DCA 1985) (explaining that “[a] case becomes moot, for 

purposes of appeal, where, by a change of circumstances prior to the 
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appellate decision, an intervening event makes it impossible for the court to 

grant a party any effectual relief”). However, as explained below, the trial 

court applied the incorrect legal principle, which resulted in a denial of due 

process.

As Sheckler correctly notes, the law clearly establishes that the 

involuntary nature of his payment precludes a finding of mootness.2 

“Payment to avoid onerous penalties is generally considered [to be] 

involuntary or compulsory.” Clements v. Roberts, 10 So. 2d 425, 427 (Fla. 

1942); see also North Miami v. Seaway Corp., 9 So. 2d 705, 706 (Fla. 1942) 

(holding that payment of an illegal tax “to avoid a cloud on the real estate or 

to avoid the imposition of substantial burdens upon property rights of the 

owner is not a voluntary payment”); see also Broward County v. Mattel, 397 

So. 2d 457, 460 (Fla. 4th DCA 1981) (holding that “payment of a tax is 

deemed involuntary where the penalty exacted for nonpayment is so severe 

that it constitutes coercion and duress”).

Because of the coercive effect of a lien on the property, and the 

availability of relief in the form of a refund, unlike in Montgomery, Sheckler’s 

2 “Clearly established law” includes “recent controlling case law, rules of 

court, statues, and constitutional law.” City of Coral Gables Code Enf’t Bd. 

v. Tien, 967 So. 2d 963, 965 (Fla. 3d DCA 2007) (quoting Allstate Ins. Co. v. 

Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003)).
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certiorari challenge presents a live case and controversy. Involuntary or 

compulsory payments are recoverable. Clements, 10 So. 2d at 427; see 

also Bill Stroop Roofing, Inc. v. Metro. Dade Cnty., 788 So. 2d 365, 368 (Fla. 

3d DCA 2001) (concluding that “our governments are required to refund 

taxes and fees illegally exacted”).

3

 A payment made to avoid the imposition 

of a substantial burden on his property rights amounts to coercion and 

duress sufficient to justify recovery of the illegally exacted fees. See Ves 

Carpenter Contractors, Inc., 422 So. 2d at 345; see also New Smyrna Inlet 

Dist. v. Esch, 137 So. 1, 4 (Fla. 1931) (explaining that “[w]here the levy of an 

illegal tax may become a cloud upon title to real estate, payment of the tax 

to avoid the cloud or to avoid the imposition of substantial burdens upon 

property rights of the owner is not a voluntary payment”); North Miami, 9 So. 

2d at 706 (same). 

Therefore, the finding of mootness by the circuit court both fails to 

apply the correct law and amounts to a violation of due process because the 

circuit court dismissed Sheckler’s appeal and did not consider his arguments 

3 For purposes of our analysis here, we treat the imposition of an illegal fee 

the same as an illegal tax. See Bill Stroop Roofing, Inc., 788 So. 2d at 367 

(explaining that “once the illegality of either [a tax or a fee] is established, the 

prerequisites for recovery are the same”) (citing Ves Carpenter Contractors, 

Inc. v. City of Dania, 422 So. 2d 342 n.2 (Fla. 4th DCA 1982)).
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on the merits. See Heggs, 658 So. 2d at 531 (citing approvingly to the district 

court’s analysis that second-tier certiorari review is appropriate where the 

appellate court’s decision is “so erroneous that justice requires that it be 

corrected”). Accordingly, we grant the petition for certiorari, quash the 

January 8, 2021 opinion of the circuit court, and remand for proceedings 

consistent with this opinion.

Petition granted.