17 CV 41 OPINION
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The Littells appealed a Code Enforcement Board penalty reduction order after the City of Orlando lost the recording of a critical portion of the board hearing. The Ninth Judicial Circuit reversed and remanded for a hearing de novo because the missing transcript prevented adequate appellate review.
A hearing de novo is the proper remedy under Florida law when the transcript of an administrative proceeding being appealed cannot be produced due to recording equipment failure, allowing the parties a fair opportunity to have their case heard and recorded again.
[1] When a recording of an administrative proceeding cannot be produced due to equipment malfunction, the proper remedy is a de novo hearing.
[2] An appellate court should reverse and remand for further proceedings when essential record evidence is unavailable.
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Join FLexlaw to unlock all legal intelligence“Appellee City of Orlando, in its response to appellants' motion to compel production of recording, acknowledges that it is "unable to produce" a tape that would have contained a recording of the second part of the Code Enforcement Board meeting, and "most likely the remainder of Appellants' case."”
Establishes the factual predicate for the appeal: the City lost the critical portion of the recording containing most of the Littells' case.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Code Enforcement Board of the City of Orlando held a hearing on the Littells' request for penalty reduction. The City was unable to produce a tape…
The full statement of facts, procedural history, and disposition for this case are member content.
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Before APTE, KEST, and CARSTEN, J.J.
PER CURIAM.
Appellants Robert and Ramona Littell challenge the order reducing penalty entered by the Code Enforcement Board of the City of Orlando. We reverse and remand for further proceedings. Appellee City of Orlando, in its response to appellants’ motion to compel production of recording, acknowledges that it is “unable to produce” a tape that would have contained a recording of the second part of the Code Enforcement Board meeting, and “most likely the remainder of Appellants’ case.” Thus, Appellee proposes that Appellants’ request for reduction of penalty be heard again by the Code Enforcement Board, and states it “will ensure that this proceeding will be properly recorded on tape.” Appellee adds that if, after rehearing, Appellants “are not satisfied with the Board’s second ruling on their request, then they may appeal it to this Court anew.” Under Florida law, the proper remedy in these circumstances is a hearing de novo. See, e.g., Alexander v. Fla. Dept. of Revenue, 174 So. 3d 1127 (Fla. 1st DCA 2015) (reversing and remanding for hearing de novo when transcript of the administrative proceeding that resulted in the order on appeal could not be produced due to malfunction in recording equipment). Accordingly, we reverse and remand for a hearing de novo on Appellants’ request for reduction of penalty. As Appellee suggests, if Appellants are not satisfied with the Code Enforcement Board’s ruling after the hearing de novo, they may appeal again to this Court. REVERSED and REMANDED for further proceedings. DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida, on this ______ day of __________, 2019.
_______________________________ ALAN S. APTE Presiding Circuit Judge
KEST and CARSTEN, J.J., concur. CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing order was furnished on this ______ day of __________, 2019, to the following: Christopher C. Cathcart, Esquire, Cathcart Law Group, P.A., 225 S. Westmonte Drive, Suite 1160, Altamonte Springs, FL 32714; Victoria Cecil Walker, Esquire, Assistant City Attorney, Orlando City Hall, 400 S. Orange Avenue, Orlando, Florida 32801.
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