AUGUSTINE CARBON AND JANNIFER CARBON

v.

CITY OF MIAMI

[*1] Before: TRAWICK, DE LA O, and ARECES, R., JJ.

TRAWICK, Judge.

This appeal, brought by Appellants, Augustine and Jennifer Carbon (Property Owners) against Appellee, the City of Miami, seeks review of the City of Miami's Unsafe Structure Panel's (USP) order requiring the total demolition of all structures ("Order") on Appellants' commercial property, as rendered on January 24, 2025.

Based upon our review of the law, hearing transcript, and the record in this case, this Court finds that the panel failed to accord the Appellants due process.

Procedural due process requires that the agency provide reasonable notice and a fair opportunity to be heard. Housing Authority of the City of Tampa v. Robinson, 464 So. 2d 158, 164 (Fla. 2d DCA 1985).

While "the concepts of due process in an administrative proceeding are less stringent than in a judicial proceeding, they nonetheless apply." A.J. v. State, Dep't. of HRS, 630 So. 2d 1187, 1189 (Fla. 2d DCA 1994); see also Hadley v. Department of Admin., 411 So. 2d 184, 187 (Fla. 1982)(“In such proceedings, it is sufficient if the accused has reasonable opportunity to defend against attempted proof of such charges...."). This opportunity to be heard must be meaningful. See Metropolitan Dade County v. Sokolowski, 439 So. 2d 932, 934 (Fla. 3d DCA 1983); Rucker v. City of Ocala, 684 So. 2d 836, 841 (Fla. 1st DCA [*2] 1996) ("To qualify under due process standards, the opportunity to be heard must be meaningful, full and fair, and not merely colorable or illusive.") "Due process envisions a law that hears before it condemns, proceeds upon inquiry, and renders judgment only after proper consideration of issues advanced by adversarial parties." Scull v. State, 569 So. 2d 1251, 1252 (Fla. 1990).

Miami-Dade Cnty. v. Reyes, 772 So. 2d 24 (Fla. 3d DCA 2000). (Emphasis added).

The basic due process guarantee of the Florida Constitution provides that "[n]o person shall be deprived of life, liberty or property without due process of law." Art. I, § 9, Fla. Const.

Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue. Procedural due process under the Florida Constitution guarantees to every citizen the right to have that course of legal procedure which has been established in our judicial system for the protection and enforcement of private rights. It contemplates that the defendant shall be given fair notice and afforded a real opportunity to be heard and defend in an orderly procedure, before judgment is rendered against him....

Dep't of Law Enforcement v. Real Property, 588 So. 2d 957, 960 (Fla. 1991). (Emphasis added).

Improper notice of the issues to be determined at a hearing is a violation of due process which taints the proceedings. In Connell v. [*3] Capital City Partners, LLC, 932 So. 2d 442, 443-444 (Fla. 3d DCA 2006), the Third District Court of Appeal held that the granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process:

We find that the order on appeal reflects an error on its face, as it reveals a denial of due process. Specifically, the order reflects that the only motion set for hearing was a motion to dismiss. The trial court, however, went beyond a determination of the motion to dismiss . . . it appears that the trial court ruled on the declaratory action filed in Connell's counterclaim. It did so, however, without prior notice that the declaratory action would be considered at the hearing, and apparently without the submission of any sworn proof. This was error because the granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process. [Citations omitted]. As noted by the Fourth District Court of Appeal, "the meaning of procedural due process is clear: 'Parties whose rights are to be affected are to be heard; and in order that they may enjoy that right they must first be notified." Devaney, 564 So. 2d at 1230 (quoting Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972)).

Id. See also Khan v. Dep't of Revenue, 901 So. 2d 992, 992 (Fla. 4th DCA 2005) (It is an essential part of the concept of due process that any relief granted at a hearing be within the kind of relief sought by the notice given for hearing); Grandini v. Carizo, 891 So. 2d 1216 (Fla. [*4] 3d DCA 2005) (the scope of the hearing was improperly expanded). See also Fouts v. Bowling, 596 So. 2d 95 (Fla. 3d DCA 1992); Devaney v. Solitron Devices, Inc., 564 So. 2d 1229 (Fla. 4th DCA 1990); Epic Metals Corp. v. Samari Lake E. Condo. Ass'n, Inc, 547 So. 2d 198 (Fla. 3d DCA 1989); and Margulies v. Margulies, 528 So. 2d 957 (Fla. 3d DCA 1988).

Furthermore, reasonable notice must be reasonably calculated to convey the required information. Patricia Weingarten Associated, Inc. v. Jocalbro, Inc., 974 So. 2d 559 (Fla. 5th DCA 2008). Whether a particular method of notice is reasonably calculated to provide adequate notice depends on "due regard for the practicalities and peculiarities of the case." Vosilla v. Rosado, 944 So. 2d 289, 291 (Fla. 2006). Lastly, if legal error, especially in notices, are left uncorrected, the extent of the impact resulting from the error remains unknown, including whether an interested party would have presented a more developed case before the lower tribunal. Save Calusa, Inc. v. Miami- Dade County, 355 So. 3d 534 (Fla. 3d DCA 2023).

The Appellants contend that they were not properly notified that the issue of demolition would be determined at the hearing before the USP, which the panel admittedly referred to as a "first impression [*5] hearing" (although the panel did not substantively treat it as such). The Appellants also argue that they were denied meaningful due process during the subject administrative hearing. We agree.

The Notice of Violation (NOV), dated December 5, 2024, was entitled "UNSAFE STRUCTURE NOTICE OF VIOLATION

NOT

MEETING CRITERIA FOR IMMEDIATE DEMOLITION" and it stated as follows, in pertinent part (with emphasis added):

Need to start the process to repair, submit plans obtain required permit/inspections and bring property back into compliance as per fbc and local ordinances. Double fee +$110.00 or Unsafe Structure(s) Not Meeting Criteria for Immediate Demolition. This building or structure is, in the opinion of the City of Miami unsafe due to conditions or unpermitted work but is not determined to meet criteria for immediate or emergency demolition. The owner should contact the City of Miami Building Department immediately. THIS NOTICE SHALL NOT BE

REMOVED EXCEPT BY THE BUILDING OFFICIAL OR

DESIGNEE. If the structure(s) are not brought into compliance, the structure(s) may be ordered vacated and demolished. DATE POSTED 12/5/2024. This Notice may be appealed to the Unsafe Structure Panel within twenty (20) DAYS OF POSTING." Pursuant to Section 10- 101(h)(2) of the City Code, you shall have 60 days to submit permits that meet the minimum requirement for the scope of work necessary as reviewed by the Building Department, 90 days to obtain a permit and 120 to finalize the permit(s) obtained. [*6] According to the Notice of Violation, the Appellants had sixty (60) days from the date of this notice to apply for permits, the first of the deadlines provided in the notice. In other words, this notice set February 3, 2025 as the deadline to submit a permit application. The only reference to demolition was a statement that the structures "may" be ordered vacated and demolished if not brought into compliance within the time periods included in the notice.

The Notice of Hearing (NOH), dated December 20, 2024, set the date of the hearing for January 24, 2025, which was ten (10) days prior to the permit application deadline. The subject of this first hearing was presumably the Notice of Violation which stated that the violations did not qualify for immediate demolition and that the violations could be corrected and permits applied for within 60 days of the notice. The Notice of Hearing stated as follows (with emphasis added):

As a result of the hearing, the Panel may order such work done as cited in the Building Official's Notice of Violation and if you fail to comply with the order of the City of Miami Unsafe Structures Panel, the Building Official may then proceed to remove such violation and place a lien against the property concerned to recover all costs of the enforcement action such as provided for in Chapter 8, Section 8-5 of the [*7] Miami-Dade County Code and Chapter 10, Article VI of the City of Miami Code.

In the Notice of Hearing, there is no express notice of the possibility that the panel would consider a partial or total demolition of all structures on the property. The Notice of Hearing further stated (with emphasis added):

Please be advised, any property that is found in violation of the Building Code and Chapter 10 of the Code of the City of Miami shall have its Certificate of Use revoked pursuant to Section 2-211 of the Code of the City of Miami, Florida as amended.

Thus, rather than warn the Appellants about potential demolition, the notice merely warned that the certificate of use could be revoked if the panel found that the property was in violation. Further, the notice failed to include any indication of any urgency that would have justified the setting of the hearing prior to the sixty (60) days alloted to apply for permits.

To the contrary, the Notice of Violation specifically advised that the violation did not meet the criteria for demolition, and the Notice of Hearing did not indicate that there was any change in the conclusion of the Building Official regarding the issue of demolition. As a result, Appellants were not provided with a meaningful [*8] opportunity to challenge the Panel's sudden decision to demolish all structures on the property because they were not given fair notice that demolition would even be considered at this initial hearing of "first impression," and which was scheduled prior to the permit application deadline provided in the notice. Appellants contend that if they had any indication that a demolition order would be considered, they would have attended the hearing with a licensed engineer and necessary reports and drawings demonstrating their commitment to timely legalizing the unpermitted work. The lack of adequate notice supports these contentions.

Our concerns regarding a lack of adequate notice don't end there. During the hearing, Appellant presented witness testimony which included licensed contractors and representatives of a newly retained engineering firm, who indicated they could provide plans to correct violations caused by a previously-hired unscrupulous contractor whose license had been revoked. These witnesses stated that they could timely present information to apply for permits and correct the violations. In light of this testimony, Appellants requested a removal of an administrative "hold" on the property so that they could apply for permits to legalize the structures. Instead, the [*9] Building Official who issued the notice of violation changed his recommendation to the demolition of all structures on the property in light of alleged violations of "stop work" orders. This was yet another issue not referenced in the Notice of Hearing. Moreover, there were no specific findings of fact in the USP's Order to support or explain the panel's decision to adopt this significantly altered recommendation and demolish all structures on the property within 30 days.

Upon review of the record, we find that the Order below was rendered with insufficient notice of potential demolition. Indeed, the order affirmatively contradicted the notice that was provided - the demolition order was issued 10 days prior to the deadline provided in the Notice of Violation to obtain permits. This was a denial of due process.

For the foregoing reasons, this Court finds that the decision below deprived the Appellants of their right to procedural due process. Accordingly, the decision below is hereby VACATED and this matter REMANDED for proceedings consistent with this opinion.

DE LA O, and ARECES, R., JJ., concur. [*10] COPIES FURNISHED TO COUNSEL OF RECORD

AND TO ANY PARTY NOT REPRESENTED BY COUNSEL