28 Fla. L. Weekly Supp. 463c
Online Reference: FLWSUPP 2806CUTTMunicipal corporations — Code enforcement — Unsafe structures — Final order of city unsafe structures panel requiring demolition of property found to be 70% deteriorated and to present health, fire, and hazard problem is affirmed — No merit to claim that panel failed to consider valuation criteria contained in city code — Due process — Notice — Where property owner received notice that city building department was going to initiate demolition proceedings if he did not comply with requirement to obtain demolition or building permit within ten days and subsequent notices telling him to contact department for compliance information, but owner took no action in response to notices, owner cannot claim on appeal that he was surprised to learn of demolition recommendation at hearing before panel
CUTTING EDGE REAL ESTATE SOLUTIONS, LLC, Appellant, v. CITY OF MIAMI, BUILDING DEPARTMENT, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2019-131-AP-01. L.T. No. BB2019000684. August 11, 2020. Appeal from the City of Miami Building Department’s Unsafe Structures Panel. Counsel: Jorge Garcia-Menocal, Garcia-Menocal Irias & Pastori LLP, for Appellants. Victoria Mendez, City Attorney, and Eric J. Eves, Assistant City Attorney, for Appellees.
(TRAWICK, WALSH and SANTOVENIA, JJ.)
(TRAWICK, J.) The City of Miami issued several notices to Appellant regarding a structure the City’s Building Department (“the Department”) deemed to be in an extreme state of disrepair. The notices warned of possible demolition if the condition of the structure was not remedied. The Unsafe Structures Panel (“the Panel”) held an evidentiary hearing and adopted the Department’s recommendation that the structure be demolished. Appellant brings this appeal contesting that determination.
On January 14, 2019, the Department issued a notice to Appellant titled “Repair or Demolish — First Notice” pertaining to a structure owned by Appellant. The notice stated that the property was found to be unsafe, abandoned, and unsecured with advanced deterioration throughout. The notice required the Appellant to obtain a demolition permit or to begin repairs on the structure. The notice further warned that “[i]f either a demolition or building permit is not obtained or we do not hear from you by January 24, 2019, it will be necessary to move toward demolition of your building. . . .” The notice also provided contact information for the Department’s Unsafe Structures Section (“the Section”), including the mailing address, telephone number and email address. The record does not reflect that the Appellant made any effort to obtain a permit or contact the Section within the required time. Three weeks after the first notice, on March 4, 2019, the Department issued a second notice imposing a special assessment lien pursuant to Chapter 8-5 of the Miami-Dade County Code and Chapter 10, Article VI, Section 10-101 of the City of Miami Code. The notice also stated that Appellant should contact the Chief of the Section for lien and compliance information. Two days later the Department issued a notice of hearing to be held before the Panel, notifying Appellant of the hearing date and that Appellant could contact the appropriate representative of the Department regarding the alleged violations and compliance requirements. Prior to the hearing, the Section provided documents relevant to the valuation determination of the property as required by City of Miami Code Chapter 10, Article VI, Section 10-101. The only documents in the record were documents titled “Case Resume,” and “Calculation Sheet,” as well as photographs of the structure. The Case Resume included a determination that the structure was 70% deteriorated, that the current value of the property was $22,757, that the approximate cost of repair was $53,995 and that demolition was recommended. The Calculation Sheet included the property’s square footage and construction cost per square foot, as well as the estimated depreciation for the interior, windows, roof and the structure overall. The Calculation Sheet also indicated a replacement cost of $76,752, a repair cost of $53,995 and a present value of $22,757.
At the hearing before the Panel on April 12, 2019, the chief of the Section summarized the property issues, including roof damage, water penetration, water damage, termite damage, damage to the electrical and plumbing systems, and broken and malfunctioning fixtures. He also stated that the percentage of deterioration was 70% and that the structure presented a health, fire and hazard problem. All of this information was included in the Case Resume and the Calculation Sheet. Representatives of the Appellant testified that they understood the recommendation of the Department; that they had secured the property; that they had engaged an architect or an engineer (Appellant’s testimony appeared confused as to which) to have plans for the property drawn up; and that they were on their way to get the permits approved. At the conclusion of the testimony the Panel adopted the recommendations of the Department and issued a final order of demolition.
Appellant maintains that the Panel departed from the essential requirements of law when it failed to consider the valuation criteria contained in City of Miami Code, Chapter 10, Article VI, Section 10-101. They also argue that the Panel departed from the essential requirements of law because they did not receive proper notice of the City’s intent to demolish the property pursuant to the same City Code provision.
In an appeal of the decision of an administrative agency, this Court is required to consider whether procedural due process was accorded, whether the essential requirements of law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) [20 Fla. L. Weekly S318a], citing City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).
Chapter 10, Article VI, Section 10-101(d) describes the valuation criteria for a building or structure:
(d) Valuation criteria:
(1) If the cost of completion, alteration, repair and/or replacement of an unsafe building or structure or part thereof exceeds 50 percent of its value, such building shall be demolished and removed from the premises. If the cost of completion, alteration, repair and/or replacement of an unsafe building or structure or part thereof does not exceed 50 percent of its value, such building or structure may be repaired and made safe, as provided herein.
(2) For purposes of application of this formula, value shall be the estimated cost to replace the building in kind, excluding depreciation. The estimate shall be derived from multiplying the value of the square footage of the construction used by the building department to calculate the applicable permit fee. That estimate shall be broken down on a percentage basis into an estimate of the following critical elements of construction, as applicable: structural, roofing, electrical, plumbing and mechanical, and other building components. (“valuation of construction components”). The cost of completion, alteration, repair or replacement shall be estimated by application of the percentage of deterioration found on site for each of the critical elements of construction to the valuation of construction components for the structure, to arrive at an overall estimated cost to repair the affected structure. The appointing authority shall by administrative order provide a form for the application of the formula set forth above for the various types of construction.
Contrary to the arguments of Appellant, the Panel had before it the required valuation criteria under Chapter 10, Article VI, Section 10-101(d). The record includes the Case Resume and Calculation Sheet discussed above. These documents enabled both the Section when it made its recommendation of demolition, as well as the Panel in adopting that recommendation, to determine that the “cost of completion, alteration, repair and/or replacement” of the Appellant’s structure exceeded 50 percent of its value. The Panel thus observed the essential requirements of law.
The Appellant also contends that the first notice issued by the Section on January 14, 2019, failed to state the nature of the alleged structural infirmities. They also argue that the notice failed to say “that the specific details concerning violations can be obtained in writing from the building official on request,” language which Appellant argues is required by City of Miami Code Chapter 10, Article VI, Section 10-101(h). Further, Appellant says that the notice gave him ten days to obtain a building permit, a demolition permit or to contact the Department. Since the notice gave him the option to repair the property, Appellant contends that the City should have followed the procedures contained in Chapter 10, Article VI, Section 10-101(h) titled, “Unsafe Structures Not Meeting Valuation Criteria for Immediate Demolition.” Appellant argues that contrary to the prescribed procedure, the Department for the first time at the hearing sought immediate demolition rather than repair, following the procedures contained in Chapter 10, Article VI, Section 10-101(g) titled “Unsafe Structures Meeting Valuation Criteria for Immediate Demolition.” Appellant concludes that the City failed to observe the essential requirements of law due to this discrepancy between the notice and the process followed by the City. While not expressly stated, it also appears that Appellant is raising a procedural due process argument by contending that the notice he received was insufficient.
City of Miami Code Chapter 10, Article VI, Section 10-101(g), provides:
(g) Unsafe Structures Meeting Valuation Criteria for Immediate Demolition
(1) The provisions below shall apply to buildings or structures meeting the valuation criteria for demolition.
(2) The building official shall prepare a notice of violation. The notice shall state in summary form the nature of the defects which constitute a violation of this article and shall order the structure to be demolished within such time as is reasonable, subject to extension when requested in writing within the reasonable discretion of the building official. The notice shall state that the specific details concerning the violation can be obtained in writing from the building official upon request. In addition, the notice will explain the right of appeal of the decision of the building official to the unsafe structures panel, in its appellate capacity, and advise that unless the decision is appealed, the building or structure shall be demolished without further notice.
. . .
(8) The notices provided in this section are intended to serve as full and effective notice of the hearing and the violations related to the structure. Failure of one form of notice shall not invalidate or impair the full effectiveness of notice provided by other means pursuant to this section.
The January 14, 2019, notice gave the Appellant ten days to obtain a demolition or building permit or to contact the Section. The notice also provided contact information. The notice specifically warned the Appellant that if he failed to obtain the required permit or contact the Section, “it will be necessary to move toward demolition of your building . . . .” The Appellant was thus on notice of the Department’s intent to proceed toward demolition without immediate action by Appellant. Despite this admonition, the Appellant failed to act as required. Three weeks after the first notice was issued, on March 4, 2019, the Department issued a second notice imposing a special assessment lien, again advising the Appellant to contact the Section for “compliance information.” Again, there is nothing in the record to show that Appellant made contact with any authorized representative of the Section. Finally, the Appellant received a Notice of Hearing, once again advising the Appellant to contact the Section for compliance information. Yet again the Appellant failed to contact the Section.
The Appellant was provided the necessary notice to inform him that the Department was going to initiate demolition proceedings if he did not comply with the first notice’s requirements within ten days. He did not do so. He received subsequent notices telling him to contact the section for compliance information. Appellant did not respond. Appellant cannot sit on his hands, ignore the specific directions provided, and now be heard to say that he was surprised to learn for the first time at the hearing of the Department’s demolition recommendation. Indeed, at the hearing Appellant said he understood the Department’s recommendation. The Department correctly followed the procedure required by Chapter 10, Article VI, Section 10- 101(g), and in so doing observed the essential requirements of law. The Department also accorded Appellant procedural due process.
Appellant failed to make any argument that the Panel’s findings and judgment were not supported by competent substantial evidence, thus waiving this as an issue. Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) [44 Fla. L. Weekly D1686a]; Parker-Cyrus v. Justice Administrative Commission, 160 So. 3d 926, 928 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D582a]. However, on the record before us, we find that competent substantial evidence supports the Panel’s findings and judgment.
The final judgment of the Panel is AFFIRMED. (WALSH and SANTOVENIA, JJ., concur.)
