BIROL OZYESILPINAR

v.

CITY OF MIAMI BEACH

Page¹ of 6 NOT FINAL UNTIL TIME

EXPIRES FOR FILING MOTION

FOR REHEARING

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE

COUNTY, FLORIDA

APPELLATE DIVISION

CASE NO. 2021-42-AP-01 Lower Court Case No.:CC2020- 08192

BIROL OZYESILPINAR,

Petitioner,

v. CITY OF MIAMI BEACH,

Respondent. _____________________________/ ORDER GRANTING MOTION TO VACATE ORDER PRECLUDING

CITY OF MIAMI BEACH FROM FILING BRIEF

AND ORDER OF DISMISSAL Opinion filed: August 8, 2022 Petition for Writ of Certiorari from Final Order of Enforcement by City of Miami Beach Petitioner, Birol Ozyesilpinar, in proper person Rafael A. Paz, City Attorney for City of Miami Beach and Woody Clermont and Yoe Lopez, Senior Assistant City Attorneys, for Respondent.

Filing # 154890311 E-Filed 08/08/2022 03:45:35

PER CURIAM

This is an untimely-filed Petition for Writ of Certiorari, seeking to review a Notice of Violation in citation number CC2020-8192, dated on January 21, 2020. (App. at p. 5)1 The violation alleges the Petitioner engaged in a short-term rental without obtaining the requisite business tax receipt. Id. The face of the citation indicates that it was delivered by certified mail. The Appendix also contains a signed receipt of the certified delivery. Id. at p. 6. The Petitioner failed to appeal the citation to the Special Master within 10 days. Failure to appeal constituted a waiver of the right to contest the violation. See Section 102-387(d)(2), Miami Beach Code. Had the Petitioner appealed and had the citation been upheld, Petitioner would have been entitled to appeal that decision to the 11th Judicial Circuit, Appellate Division, within 30 days. See Section 162.11, Fla. Stat.; Section 102.387(d)(3)e, Miami Beach Code. But he did not. Instead, he did nothing. A year and a half later, on July 6, 2021, the City recorded a claim of lien on the property. (App. at p. 7) Forty-eight days later, he filed his Petition for Writ of Certiorari. In it, he cites Rule 9.141, Florida Rules of [*3] Page 3 of 6 Appellate Procedure, a rule providing for the right of a convicted criminal defendant to seek a belated appeal. He argues that his Petition is belated because he never received the notice of violation from the City and was unaware of the violation until he was served with the notice of claim of lien. The City of Miami Beach filed no response to the Petition, and, as a sanction, was precluded from filing a responsive brief or from participating in any oral argument. (DE 23) Thereafter, the City filed a motion to vacate the order and to dismiss this case. (DE 25) In its motion, the City argues that this Court lacks jurisdiction to entertain this Petition. The City points out that the Petitioner failed to exhaust his administrative remedies by failing to take a timely appeal of the citation to the Special Master. Therefore, there has been no final agency action which would entitle him to appeal to this Court. More importantly, the City argues that because this is an appeal authorized by general law, the Petitioner was required to file a notice of appeal within 30 days of rendition of the order of final agency action. See Rule 9.110(a)(2), Fla. R. App. P. Failing to file a timely notice of appeal divests this Court of jurisdiction, and it must, therefore, dismiss. See, e.g., State of Fla. Dep't. of Highway Safety & Motor Vehicles v. Melendez, 132 So. 3d 1237, 1237 (Fla. 3d DCA 2014) (“The 30-day filing deadline established by Rule 9.100(c) is jurisdictional in nature and not [*4] Page 4 of 6 merely a matter of procedure… As such, an untimely Petition divests this court of jurisdiction over the untimely filed Petition and it should be dismissed”.). Petitioner claims that he did not receive the notice of violation. He cites the criminal rule of appellate procedure entitling a criminal defendant to file a belated appeal. Setting aside the docket entry bearing out the Petitioner’s signed receipt of the Notice of Violation by certified mail (DE 19 at p. 5), we lack the authority to grant a belated appeal – or a belated petition for writ of certiorari – even under such alleged circumstances. Florida Rule of Appellate Procedure 9.190 governs appellate review of administrative actions. Rule 9.190(b)(3) provides that: “[review of quasi-judicial decisions of any administrative body, agency, board or commission not subject to the APA shall be commenced by filing a petition for writ of certiorari in accordance with rules 9.100(b) and ((c), unless judicial review by appeal is provided by general law.

§162.11, Florida Statutes, states:

An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board to the circuit court. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the code enforcement board. An appeal shall be filed within 30 days of the execution of the order to be appealed. (Emphasis added). In a recent decision of this Court dismissing a similar untimely appeal, we explained: [*5] Page 5 of 6 While Appellant asks this Court to exercise jurisdiction because of an asserted denial of due process, such a request is beyond the power of this Court to grant. Neither trial nor appellate courts in this state are authorized to extend the time for filing notices of appeal, “no matter what reason or method is employed in an attempt to do so.” Congregation Temple De Hirsch of Seattle, Wash. v. Aronson, 128 So. 2d 585, 586 (Fla. 1961). Similarly, in Jones v. Jones, 845 So. 2d 1012, 1013 (5th DCA 2003), the court dismissed an appeal filed more than 30 days after rendition of a judgment, stating: “[j]urisdictional time limits may not be altered by the actions or inactions of the parties or the trial court...The trial court was without authority to extend the time to file a motion for rehearing or to file the notice of appeal”. Following the same rationale, the court dismissed an appeal as untimely in Capone v. Florida Board of Regents, 774 So. 2d 825, 827 (Fla. 4th DCA 2000) (concluding that a court’s local rules and practices for filing of non-jurisdictional papers cannot usurp the constitutional power of the supreme court's authority to establish the time limit within which appellate review must be sought).

See Fla. Auto Reserve v. Town of Medley, 2021-43-AP-01, 2022 WL 205042 at *2 (Fla. 11th Cir. Ct. Jan. 11, 2022) (Trawick, J.).

Appellate court jurisdiction “may be ‘raised at any time ... because jurisdiction derives only from constitutional or statutory authority or in consequence of fundamental common-law principles.’” Bramblett v. State, 15 So. 3d 839 (Fla. 1st DCA 2009) (quoting Crapp v. Criminal Justice Standards & Training Comm'n, 753 So. 2d 787 (Fla. 3d DCA 2000)). For this reason, we grant the City’s motion to vacate this Court’s order precluding it from responding to the Petition. [*6] Page 6 of 6 Based on the foregoing authorities, we find that this appeal is untimely and must therefore be DISMISSED. TRAWICK, WALSH and SANTOVENIA, JJ., concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

[*7] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]