DONNELLY

v.

HILLSBOROUGH COUNTY CODE ENFORCEMENT BOARD

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

MAUREEN C. DONNELLY,

Petitioner,

v.

HILLSBOROUGH COUNTY CODE ENFORCEMENT BOARD,

Respondent.

No. 2D2025-3092

September 9, 2026

Petition for Writ of Certiorari to the Circuit Court for the Thirteenth Judicial Circuit for Hillsborough County; sitting in its appellate capacity.

Paul T. Cardillo of Law Firm of Paul T. Cardillo, Tampa, for Petitioner.

Kenneth C. Pope, Senior Assistant County Attorney, Hillsborough County Attorney's Office, Tampa, for Respondent.

LUCAS, Chief Judge.

Maureen Donnelly seeks second-tier certiorari review of a circuit court opinion that upheld a Hillsborough County Code Enforcement Board order. For the reasons that follow, we grant the petition.

I.

The facts and legal issues here can be succinctly stated. Ms. Donnelly's home had an in-ground swimming pool in the backyard. At some point, she decided to convert it into a koi pond. In early 2022, a county code enforcement officer informed Ms. Donnelly that her property and her pond were in violation of the Hillsborough County Property Maintenance Code¹ and issued her a citation. Pertinent here, the officer noted that the pond's fencing and water clarity did not meet the requisite standards for swimming pools under section 8-117(f) of the Code.² That section states: "Every swimming pool shall be maintained and operated in a clean, safe and sanitary manner at all times." As is clear from its text, section 8-117(f)'s requirements extend to "swimming pools," a term that is defined in section 8-106 of the Code to be:

[A]ny structure, located in a residential area, that is intended for swimming or recreation bathing and contains or may contain water over 24 inches deep, including, but not limited to in-ground, aboveground, and on-ground swimming pools; hot tubs; and non-portable spas.

Ms. Donnelly maintained that her converted koi pond wasn't a swimming pool under the Code because she had no intention of using it for swimming or recreation bathing; she wanted to raise koi fish in it. The code enforcement officers apparently didn't accept that explanation. Over the ensuing months, there was some back-and-forth between the officers and Ms. Donnelly. In notes from an October 22, 2022, visit with Ms. Donnelly, one officer observed:

The pool remains stagnant and there is Koi fish in the pool. Owner is attempting to convert pool into pond. Owner is saving money to purchase a new filtration system in the future to clear up the water. Pool is secure.

The citation case went before the Hillsborough County Code Enforcement Board on October 28, 2022. During the hearing, counsel

pressed the point that the koi pond was not a swimming pool under the Code, arguing

But to put – to make someone in violation of a law that is not on the books, that she's maintained is a pond and Code is saying it's not a pond, lead us to that definition. Show us where that definition is, and we'll make sure she's in compliance with that.

The Code Enforcement Board's response to counsel's argument was rather dismissive:

BOARD MEMBER: My response to that is, this is a pool. It was designed to be a pool. It was built to be a pool. Should be maintained as a pool. A backyard pond of this size, I have seen. And I can tell you from my experiences from the few that I have seen that the water had a filtration system that kept it clear. . . . [O]ur homeowner wants to call it a pond, and we're not calling it a pond. And this is an unsanitary pool, and it needs to be treated like that. That's a violation.

The board member who later made the motion to find Ms. Donnelly's property in violation of the Property Maintenance Code began the motion with: "Stay consistent with what we've done in the past with pools and ponds, whatever, okay."

Pond, or pool, or whatever, on October 31, 2022, the Code Enforcement Board issued an Order Imposing Fine against Ms. Donnelly. There is no mention, much less discussion, of section 8-106 anywhere in that order. Nor is there any citation to any legal authority that would purport to apply the Code's swimming pool sections to ponds. Effectively, the Board ruled that Ms. Donnelly's koi pond violated code provisions applicable to swimming pools. It ordered Ms. Donnelly to correct those infractions by November⁴, 2022—four days after the order's issuance—failing which a fine of $500 per day could be imposed pursuant to section 162.09, Florida Statutes (2022).

Ms. Donnelly appealed the Board's Order to the Hillsborough County Circuit Court. The circuit court engaged with section 8-106's text and the definitional question of whether Ms. Donnelly's koi pond was a swimming pool subject to section 8-117(f). But ultimately, the court deferred to the Code Enforcement Board's interpretation of the Code. In its opinion, the circuit court held,

Appellant argues that her pool does not fall under [section 8-106's] definition because it is not intended for swimming or recreation. . . . Upon review of the record, there are photographs of the pool which support Appellant's assertion that her pool is not used for swimming or recreation. In one picture, koi fish can be seen swimming near the surface of green, opaque water in the pool. Nevertheless, the CESM found that the pool was a "swimming pool," as defined in Section 8-106 . . ..

"Florida courts defer to an agency's interpretation of statutes and rules the agency is charged with implementing and enforcing, unless they are clearly erroneous or contrary to law." [Hobbs v. Dep't] of Transp., 831 So. 2d 745, 747 (Fla. 5th DCA 2002). Here, it cannot be said that the CESM's interpretation of the Code of Ordinances definition of "swimming pool" is clearly erroneous. Reasonable minds could conclude that "intended for swimming" means the structure was originally designed and constructed for that purpose.

Ms. Donnelly now brings a second-tier certiorari petition before this court, seeking review of the circuit court's opinion.

II.

"[W]hen a district court considers a petition for second-tier certiorari review, the 'inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,' or, as otherwise stated, departed from the essential requirements of law." Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010) (quoting Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995)). As we recently summarized in Ybor Properties, LLC v. City of Tampa, 431 So. 3d 1079, 1084 (Fla. 2d DCA 2026),

The decision to grant or withhold relief by way of second-tier certiorari largely depends on our 'assessment of the gravity of the error and the adequacy of other relief.' Save Calusa, Inc. v. Miami-Dade County, 355 So. 3d 534, 541 (Fla. 3d DCA 2023) (quoting Custer Med. Ctr.[, 62 So. 3d at 1092]. Where the petitioner has been deprived "of the full scope of review to which it was entitled" a miscarriage of justice has occurred, warranting certiorari relief. See MGM of W. Fla., LLC v. Manatee County, 406 So. 3d 351, 355 (Fla. 2d DCA 2025).

(second alteration in original). Assessing the gravity of an error³ on second-tier review is inherently an exercise of an appellate court's discretionary judgment. We explained in State v. Jones, 283 So. 3d 1259, 1269 (Fla. 2d DCA 2019) that "[t]his standard is necessarily demanding but it also involves 'a degree of flexibility and discretion' that cannot be reduced to a 'catalog' of factors for courts to consider in every case." (Quoting Heggs, 658 So. 2d at 530–31.) Florida's appellate courts have granted second-tier certiorari relief to correct erroneous interpretations of local ordinances. See, e.g., Siegle v. Lee County, 198 So. 3d 773, 775 (Fla. 2d DCA 2016) ("Therefore, the circuit court's conclusion that the hearing examiner could extend the code language limiting equitable defenses to proceedings not specifically listed in

section 34-145(f) [of the Lee County Land Development Code], constitutes a departure from the essential requirements of the law."); Hayes v. Monroe County, 337 So. 3d 442, 446 (Fla. 3d DCA 2022) (granting petition where circuit court "veered away" from the "patent deficiency" of a special magistrate's code enforcement order); 14269 BT LLC v. Village of Wellington, 240 So. 3d 1, 2 (Fla. 4th DCA 2018) (granting second-tier certiorari to quash a circuit court's affirmance of an administrative order that had ordered removal of barns on property that was exempt from local regulation under section 604.50(1), Florida Statutes (2016)); Shamrock-Shamrock, Inc. v. City of Daytona Beach, 169 So. 3d 1253, 1256 (Fla. 5th DCA 2015) ("[B]ecause the Planning Board's interpretation of the LDC was clearly erroneous, the circuit court erred in upholding that interpretation. Therefore, we grant the instant petition . . . ."); City of Miami v. Cortes, 995 So. 2d 604, 605–06 (Fla. 3d DCA 2008) (granting city's petition where a circuit court had vacated an administrative enforcement order's assessment of a fine against a property owner who had work performed on residential property without a permit); Saadeh v. City of Jacksonville, 969 So. 2d 1079, 1080 (Fla. 1st DCA 2007) (concluding on review of challenge to city's rezoning of certain residential property, "[b]ecause we find Ordinance 2005-487-E is inconsistent with the City of Jacksonville's 2010 Comprehensive Plan, we grant certiorari, quash the circuit court's order, and remand with directions"); Orange County v. Lewis, 859 So. 2d 526, 529 (Fla. 5th DCA 2003) ("Our review of the matter reveals that in so ruling the circuit court incorrectly construed the Orange County Code and thus departed from the essential requirements of law because this conclusion totally ignored the plain language of conditions⁴ and⁵ as set forth in section 38-79 of the Code. . . .").

III.

In the case at bar, the Code Enforcement Board applied a provision of the Property Maintenance Code that had no application to Ms. Donnelly's koi pond. And the circuit court's opinion sustaining that error was premised on a deference that was abolished by a constitutional amendment.

A.

We'll start with the underlying code enforcement order. The Board's Order Imposing Fine did not attempt to apply the text of the Property Maintenance Code that the Board was purporting to enforce. Section 8-106, had it been applied, should have led the Board to conclude that Ms. Donnelly's koi pond, though formerly a swimming pool, was not currently a swimming pool subject to section 8-117(f), because at no pertinent point in time did Ms. Donnelly have any intention of using the koi pond for anything other than keeping fish. County ordinances, like state statutes, are construed by the plain meaning of their text. See Exec. Dir. v. Schwiep, 298 So. 3d 1169, 1172 (Fla. 3d DCA 2020) ("Municipal ordinances are subject to the same rules of construction as are state statutes." (quoting Rinker Materials Corp. v. City of North Miami, 286 So. 2d 552, 553 (Fla. 1973))); see also City of Miami v. AIRBNB, Inc., 260 So. 3d 478, 484 (Fla. 3d DCA 2018) (Lagoa, J., concurring in part and dissenting in part). Thus, an ordinance's "language should be given its plain and ordinary meaning." Somers v. United States, 355 So. 3d 887, 891 (Fla. 2022) (quoting Debaun v. State, 213 So. 3d 747, 751 (Fla. 2017)). The meaning of an ordinance's language "is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the [ordinance] as a whole." Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). The terms of an ordinance, like state statutes, "generally 'are to be given the meaning that proper grammar and usage would assign them.' " Brito v. Salas, 51 Fla. L. Weekly S12, S14 (Fla. Dec. 30, 2025) (quoting Imhof v. Walton County, 328 So. 3d 32, 41 n.8 (Fla. 1st DCA 2021)).

The county's authority to cite Ms. Donnelly's pond depended entirely on whether the pond fit within the definition of a "swimming pool" under section 8-106. According to that section, a swimming pool is "any structure, located in a residential area, that is intended for swimming or recreation bathing and contains or may contain water over 24 inches deep . . . ." (Emphasis added.) The word "is," in this context, indicates the present tense, third-person singular form of English's "to be" verb. See Gessner v. S. Co., No. SC2024-1835, 2026 WL 1488160, at *4 (Fla. May 28, 2026) (citing Is, Compact Oxford English Dictionary (2d ed. 2007)). In English, we distinguish "is" from "was," the past tense, third-person, singular form of the "to be" verb, and "were" the past tense, third-person plural (or sometimes subjunctive) form. When, as here, the "to be" verb is combined with a past participle ("intended"), the tense of the verb remains important. See, e.g., Charles Darling, Guide to Grammar and Writing (available online at www.guidetogrammar.org/grammar/to_be.htm) ("The 'To be' will also change to indicate the time of the action and the aspect of the verb."). To say, then, that a structure "is intended for swimming" or "is intended for recreation bathing" means just that: it is, now, the owner's present intent to use this structure for swimming or recreational bathing.

There was no evidence that Ms. Donnelly had a present intention to use her koi pond for swimming or recreational bathing. From the record before us and the arguments presented in this petition, that fact appears to be uncontroverted. That Ms. Donnelly's pond was originally designed to be a swimming pool doesn't change the language of section 8-106, because, as worded, section 8-106 does not define "swimming pools" by their originally intended use. Rather, the ordinance turns on what the structure currently "is intended" for.

As this case illustrates, that distinction matters. By ignoring the plain temporal meaning of "is intended for," the Board effectively amended a county ordinance to encompass something more than what the text of the ordinance defined. See Hillsborough Cnty. Aviation Auth. v. Henriquez, 370 So. 3d 334, 343 (Fla. 2d DCA 2023) (observing that courts "lack power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications" and "[t]o do so would be an abrogation of legislative power" (quoting State Farm Fire & Cas. Ins. v. Wilson, 330 So. 3d 67, 72 (Fla. 2d DCA 2021))); see also State v. Burris, 875 So. 2d 408, 413 (Fla. 2004) ("Attractive as this interpretation may be from a policy standpoint, we must resist the temptation to so expand the statute."). Indeed, the only way section 8-106 could apply to the facts of this case would be if the ordinance had defined "swimming pool" in the past tense, along the line of: Any structure, located in a residential area, that was designed or built for swimming or recreation bathing and contains or may contain water over 24 inches deep, including, but not limited to in-ground, aboveground, and on-ground swimming pools; hot tubs; and nonportable spas.

That's not what the ordinance says. Yet that was how the Code Enforcement Board ended up applying it at the hearing. The Board's misapplication of the county code, and its failure to even attempt to construe the definitional text of section 8-106, were plainly erroneous.

B.

We now turn to the circuit court's review of the Board's order. The court acknowledged the evidence that Ms. Donnelly's koi pond was, indeed, being used as a koi pond. The court nevertheless deferred to the Board's interpretation that the pond was a swimming pool, citing Hobbs v. Department of Transportation, 831 So. 2d 745, 747 (Fla. 5th DCA 2002), a case exemplifying a vein of Florida common law which holds that courts should generally defer to an agency's interpretation of the statutes and rules that agency is charged with enforcing. See also Palm Beach Cnty. Canvassing Bd. v. Harris, 772 So. 2d 1273, 1283 (Fla. 2000) (citing Donato v. Am. Tel. & Tel. Co., 767 So. 2d 1146, 1153 (Fla. 2000); Smith v. Crawford, 645 So. 2d 513, 521 (Fla. 1st DCA 1994)). The court gave this deference despite the fact that the Board's order never actually provided an interpretation or analysis of section 8-106.

More problematic, though, the deference the court gave is of a piece that the state constitution now prohibits. Effective January 8, 2019, article V, section 21 of the Florida Constitution was added, and it provides:

In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency's interpretation of such statute or rule, and must instead interpret such statute or rule de novo.

"With the passage of article V, section 21 of the Florida Constitution, the previously afforded deference to the agency's interpretation of the statutes it implements has been abolished ...." MB Doral, LLC v. Dept. of Bus. & Pro. Regul., 295 So. 3d 850, 853 (Fla. 1st DCA 2020); see also VMOB, LLC v. Dept. of Revenue, 292 So. 3d 23, 26 n.2 (Fla. 2d DCA 2020) ("While this appeal was pending, however, the people adopted article V, section 21 of the Florida Constitution, which requires that we give no deference to agency interpretations of statutes."). The circuit court's deference to the code enforcement board's interpretation in this case was unwarranted and unlawful.

C.

We close with a few words in response to the dissent. Our colleague reminds us about the narrow scope of second-tier review, a point we have already acknowledged. But as to the charge that our decision today is a "reweighing of evidence," we respectfully reply with a simple observation: the Board made no qualitative findings. None, whatsoever. There is literally nothing—no remarks about witness credibility, no findings about "putrescent" water, mosquitoes, or health hazards, and not a word, jot, or tittle about Ms. Donnelly's intent. All we have done is point out this rather conspicuous void in the order and in the evidence the parties have presented.

Our colleague, on the other hand, fails to heed his own warning. The dissent speculates at considerable length about the evidence the Board might have considered (but the parties failed to furnish us), the "stagnant, fetid condition" some photographs might have depicted, how the timeline of events might have undermined Ms. Donnelly's credibility, and conjecture about the popularity of koi fish and the usage of former swimming pools, which might have justified a credibility determination (had the Board actually made one). The dissent goes so far as to suggest an alternative zoning ordinance that might have served as a surrogate for the one the Board actually considered and ruled upon (and the circuit court improperly deferred to).

We respect our colleague's fidelity to the limits of second-tier review. Indeed, we share it. But digging through conjectured backfill in search of justifications for a code enforcement board's ruling is not an exercise of deference. Quite the opposite. To put a new turn on an old quotation, "Show me the property, and I'll find you the code violation" may be less chilling than the original formulary,⁴ but it's no less troubling.

IV.

Both the code enforcement board's order and the circuit court's opinion reflect errors of first principles. The Board failed to address a definitional section of its code; and the circuit court improperly deferred to that failure. Combined, those errors lead us to conclude that there has been a departure from the essential requirements of the law. This results in a miscarriage of justice. Cf. Duvall v. Fair Lane Acres, Inc., 50 So. 3d 668, 671 (Fla. 2d DCA 2010) ("Any infringement on the owner's full and free use of privately owned property, whether the result of physical limitations or governmentally enacted restrictions, is a direct limitation on, and diminution of, the value of the property and the value of its ownership and accordingly triggers constitutional protections." (quoting Snyder v. Bd. of Cnty. Comm'rs, 595 So. 2d 65, 70 (Fla. 5th DCA 1991), quashed on other grounds, 627 So. 2d 469 (Fla. 1993))).

Accordingly, we grant Ms. Donnelly's petition.

In so holding, we do not question any board member or code enforcement officer's sincere desire to preserve public safety. Nor do we gainsay the health threat that pools of standing water in Florida can pose. But the exercise of governmental power derives from the text of duly enacted laws, not individual perceptions or governmental misgivings about potential problems. As the Supreme Court famously observed in

Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886): "[B]ut in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power." (Emphasis added.)

Petition granted; order quashed.

VILLANTI, J., Concurs. GUARD, J., Dissents with opinion.

GUARD, J., Dissenting.

Our review in second-tier certiorari is extremely limited. Because I believe that the majority's decision goes beyond that limited scope and is tantamount to a second appeal, I dissent.

I.

In Custer Medical Center v. United Automobile Insurance Compапу, the Florida Supreme Court "observed that '[a]s a case travels up the judicial ladder, review should consistently become narrower, not broader.' " 62 So. 3d 1086, 1092 (Fla. 2010) (alteration in original) (quoting Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995)). Our review of a petition for second-tier certiorari review is limited to (1) whether the petitioner was afforded due process and (2) whether the court departed from the essential requirements of the law. Id. In Custer, the supreme court was clear that the departure from the essential requirements of the law necessary to grant a petition "is something more than a simple legal error." Id. (relying on Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003)). The court further quoted from its prior decision in Heggs that "[a] decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiorari." Id. (alteration in original) (quoting Heggs, 658 So. 2d at 525). Finally, the availability of a writ is further limited under these circumstances because it is only to be granted when it results in a "miscarriage of justice." Id. As the court explained, these limitations exist because to allow what in effect is a second appeal would "usurp[] the final appellate jurisdiction of the circuit court in contravention of the Florida Constitution." Id. at 1093 (citing Heggs, 658 So. 2d at 526 n.4).

II.

I do not quibble with the majority's interpretation of section 8- 117(f). If this were a direct appeal, I would join with many of its criticisms of the circuit court's order. The circuit court should not have deferred to the Code Enforcement Board/Special Magistrate's (CESM) interpretation of the Hillsborough County Property Management Code. Our constitution forbids it. Art. V, § 21, Fla. Const. (2018). But the majority's analysis and criticisms sound like a district court, at most, concluding that "simple legal error" occurred. Custer, 62 So. 3d at 1092. That is not our role in reviewing a ruling on a second-tier certiorari matter. Id. Even considering all the faults found by the majority, there is nothing in the circuit court's decision that is an "illegal or irregular act" and that absence should have doomed this petition. Id. (quoting Heggs, 658 So. 2d at 525). For those reasons alone, we should deny the petition.

But I have two more reasons that should have caused the majority to deny the petition. First, the majority's decision is nothing but an improper reweighing of evidence and, even if that were permissible (which it is not), substantial, competent evidence before the CESM supported the conclusion that there had not been a change of intent of the use of the swimming pool. Second, the decision in this case did not result in a miscarriage of justice because it is hard to see how this factspecific situation is anything but an isolated decision with little to no precedential value.

A.