MIAMI DADE COUNTY

v.

JOSE A SIERRA

PER CURIAM

This matter comes before this Court on appeal from an order of an administrative hearing officer for the Miami-Dade County Office of Code Enforcement. The facts are uncontroverted. Appellee operated an auto repair and gas station in Miami Beach. As part of his business, Appellee performed tire repairs requiring the disposal of tire waste. Such a business required a Waste Tire Generator Permit from the Miami-Dade County Department of Solid Waste. While Appellee had been issued such a permit, he allowed it to expire without renewal on October 1, 2019. The business continued to operate without a permit, and as a result, a citation was issued on December 3, 2019.

Appellee appealed the citation to an administrative hearing officer. At the hearing, Appellee did not contest the fact that his permit had expired and that he continued to dispose of waste tires without a permit. Instead, Appellee's son testified that his father had operated the business for an extended period of time and that he had never had an expired permit until now. He also stated that his father had not received a "courtesy permit application" from the Department. As a result, Appellee's son asked for leniency. Appellee presented no other evidence and presented no legal authority which have required the Department to issue a "courtesy permit application" or which would allow the exercise of leniency by the hearing officer upon the establishment of a permit violation.

The hearing officer asked the Department representative whether there was a requirement for a courtesy application being mailed to Appellee. The Department [*2] representative responded that there was not, and that any such mailing of an application was merely a courtesy. The Department representative maintained that the burden for renewal of a permit was entirely on the applicant.

At the conclusion of the hearing the hearing officer announced his ruling, stating:

I'm going to go the other way here, and I'm going to find you with a leniency that you (sic) . . . especially with all the other things that have been going on for the last year or so, all right? I hope the County is comfortable with that. Okay, I'm done.

In support of his ruling, the hearing officer reasoned:

Well you know, I understand the County's responsibility and obligation to follow through with the violations and everything else, but here's a person that has been in business for 35 years, and he's always renewed his license and he was somehow waiting for this courtesy paper to come in. I have the discretion to go one way or the other, and I'm going to set this one aside. So I hope the County doesn't fight this. You know, it's been a rough year for some of the businesses. I'm not going to add anything to it, especially for someone that's been there for so many years, has been so consistent with his license and everything else.

In his written decision, the hearing office indicated that the Department "is . . . correct in its assessments of the subject violation."

Circuit court review of an administrative agency decision is governed by a three-prong standard of review: "(1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent, substantial [*3] evidence." Bennett D. Fultz Co. v. City of Miami, 2005 WL 5302110 (Fla. 11th Cir. June 7, 2005) (citing Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993); Metropolitan Dade County v. Blumenthal, 675 So. 2d 598 (Fla. 3d DCA 1995), rev. dismissed, 680 So. 2d 421 (Fla. 1996)).

Appellant here argues that the hearing officer disregarded the essential requirements of law by basing his decision not on the applicable law, but on the basis of the Appellee's personal hardship. We agree with the Appellant and must reverse the order of the hearing officer. Section 15-17(3) of the Code of Miami-Dade County provides that:

[I]t shall be unlawful for any person to sell, trade or otherwise transfer new, used, or waste tires within Miami-Dade County without a Waste Tire Generator Permit from the Department of Solid Waste Management.

Section 15-17(3(c) further states that this permit requirement "[a]pplies to any person that is either principally or partially engaged in the selling, trading or otherwise transferring of new, used or waste tires, whether such transactions are for cash, barter or without consideration."

Section 15-32(a) prescribes that Any person found guilty of a violation of any provisions of this chapter shall pay a fine in accordance with the minimum fee schedule indicated in paragraph (d) of this section. At the discretion of the Director, violations of this chapter may be prosecuted pursuant to Chapter 8CC of the Code of Miami-Dade [*4] County.

The hearing officer clearly found that the Department had met its burden of proof and had established that Appellee had been disposing of waste tires without a permit. However, despite the mandatory language of Section 15-32(a), the hearing officer declined to find in favor of the Department and order that a fine be imposed. Instead, he indicated that he would exercise his discretion and show leniency by not requiring Appellee to pay a fine.

This Court is not unsympathetic with what the hearing officer was trying to do. Appellee was a long-time business owner who had always renewed his permit. It is entirely within the realm of possibility that the Appellee simply forgot to renew his permit, particularly since a courtesy reminder was not provided. It was certainly within the discretion of the Department to excuse Appellee's oversight, and in light of the suffering of business owners from the ruinous effects that the COVID-19 pandemic has wrought, foregoing a citation may have been appropriate. However, the hearing officer did not have the same discretion. No Miami-Dade County Code provision been cited which would support a hearing officer failing to impose a fine after a finding that a violation had been established under Section 15-17. Indeed, this Court, on similar facts, reversed the order of a hearing officer who, sympathetic to the plight of a dog owner, dismissed a citation for the failure of the owner to have the dog vaccinated for rabies. In Miami-Dade [*5] County v. Gustavo Perez, 27 Fla. L. Weekly Supp. 924(c) (Fla. 11th Cir. App. 2020), we said:

The hearing officer's dismissal appears to be based on compassion for the owner's personal issues. There is no code exception for an owner's personal hardship. Therefore, in dismissing the violations for a reason that has no basis in the code or any other law, her decision constitutes a failure to observe the essential requirements of law. We must therefore reverse the order dismissing the citations and remand for an adjudication of the citations and imposition of fines and costs.

While it may be unfortunate, we must make the same finding here. The hearing officer's order dismissing the citation is hereby REVERSED and we REMAND for an adjudication of the citation and the imposition of a fine and costs.

TRAWICK, WALSH and SANTOVENIA JJ., concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL