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HomeMy WebLinkAbout03-08-2004 Binford, Duncan v. The City of Winter Springs, et al. Case No: 03-CA-651-16-K 5th DCA Case # 5d03-3126- Al 41#4,4- Co/e� &A4014" BROWN, SALZMAN, WEISS & GARGANESE ,-V. A.:L. 200 Attorneys at Law �• �� 1 •, N� � L �-- lc: Nl Usher L. BrownOffices in Orlando, Kissimmee, ` Debra S. Babb-Nutcher Suzanne D'Agreste Cocoa & Viera Joseph E. Blitch Anthony A. Garganese° Jeffrey P. Buak' Gary S. Salzman* John U. Biedenharn, Jr. John H. Ward • Use Fletcher -Kemp Jeffrey S. Weiss Douglas Lambert — Katherine Latorre Michelle A. Reddin Kimberly F. Whitfield 'Board Certified Civil Trial Lawyer _ "Board Certified Business Litigation Lawyer °Board Certified City, County & Local Government Law March 8, 2004 VIA HAND DELIVERY Ronald McLemore City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708 Re: Binford, Duncan v. The City of Winter Springs, et al. Case No.: 03-CA-651-16-K 51h DCA Case No. 503-3126 Our File No.: 315-021 Dear Ron: Erin J. O'Leary Of Counsel Enclosed herewith for your review please find a copy of Appellee's Answer Brief filed today in the above -referenced matter. We will continue to keep you updated on the progress of this matter. AAy yours, Anthony A. Garganese City Attorney AAG/lyc Enclosure 225 East Robinson Street, Suite SW - P.O. Box 2873.Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9598 • Kissimmee (321) 402-0144 - Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: dbabboorlandolaw.net IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA THOMAS A. BINFORD, Appellant, V. FIFTH DISTRICT CITY OF WINTER SPRINGS, FLORIDA, a Florida municipality, JOHN BUSH, as Mayor, Appellees. CASE NO.: 5D03-3126 LOWER COURT CASE NO.: 03-CA-651-16K ANSWER BRIEF OF APPELLEE, THE CITY OF WINTER SPRINGS, FLORIDA ANTHONY A. GARGANESE CITY ATTORNEY FOR THE CITY OF WINTER SPRINGS Florida Bar No. 988294 ERIN J. O'LEARY Florida Bar No. 001510 BROWN, SALZMAN, WEISS & GARGANESE, P.A. Two Landmark Center 225 East Robinson Street, Suite 660 Orlando, Florida 32802-2813 Telephone: (407) 425-9566 Facsimile: (407) 425-9596 Attorneys for Appellee City of Winter Springs, Florida TABLE OF CONTENTS TABLE OF CITATIONS ........................................... ii PRELIMINARY STATEMENT ...................................... 1 STATEMENT OF THE CASE AND FACTS ............................ 2 SUNM4ARY OF THE ARGUMENT ................................. 4 ARGUMENT....................................................6 THE CIRCUIT COURT PROPERLY DENIED BINFORD' S PETITION FOR WRIT OF PROHIBITION ......................... 6 A. Prohibition was Not An Appropriate Remedy In This Case ... 6 B. Denial of the Petition for Writ of Prohibition Is Warranted Even If the Petition is Treated as a Petition for Writ of Certiorari or Notice of Appeal Because it Was Not Timely Filed............................................9 C. The City Acted Within Its Authority In Enacting the Sign Ordinance ................................ 12 D. Binford Has Inappropriately Inserted Reservations of Rights to Bring Causes of Action Under 42 U.S.C. § 1983 and the "Bert Harris Act" in His Initial Brief ............. 14 CONCLUSION...................................................15 -i- TABLE OF CITATIONS Cases Battaglia Fruit Co. v. City of Maitland, 530 So. 2d 940 (Fla. 5'' DCA 1988).................................. 10 Compo v. State, 617 So. 2d 362 (Fla. 2d DCA 1993).................................. 11 English v. McCrary, 348 So. 2d 293 (Fla. 1977)....................................... 6, 7, 8 First Nat. Bank in Fort Meyers v. Fla. Unemployment Appeals Comm 'n, 461 So. 2d 208 (Fla. I" DCA 1984).................................. 10 Florida Dept. of Transp. v. E. T. Legg & Co., 472 So. 2d 1336 (Fla. 4" DCA 1985) ........ 13 Hawks v. Walker, 409 So. 2d 524 (Fla. 5" DCA 1982) ............................... 10,11 Keech v. Yousef, 815 So. 2d 718 (Fla. 5' DCA 2002) .......... I ....................... 14 Kohn v. City of Miami Beach, 611 So. 2d 538 (Fla. 3d DCA 1992) ............................... 11 12 Lamar Advertising Assoc. of East Florida, Ltd. v. City of Daytona Beach, 450 So. 2d 1145 (Fla. 5" DCA 1984)................................. 13 Lamar -Orlando Outdoor Advertising V. City of Ormond Beach, 415 So. 2d 1312 (Fla. 5 h DCA 1982)................................. 13 Lusk v. Sweet, 841 So. 2d 546 (Fla. 5`h DCA 2003).................................. 10 Miami -Dade County v. Peart, 843 So. 2d 363 (Fla. 3d DCA 2003).................................. 10 O'Donnell 's Corp. v. Ambroise, 858 So. 2d 1138 (Fla. 5`' DCA 2003)................................ 6,8 Powers v. State, 714 So. 2d 1110 (Fla. 5" DCA 1998)................................. 11 Webster Outdoor Advertising Co. v. City of Miami, 256 So. 2d 556 (Fla. 31 DCA 1972).................................. 13 Florida Statutes § 125.0102, Fla. Stat.............................................. 12 § 162.11, Fla. Stat................................................. 8 § 166.021(1), Fla. Stat............................................. 12 § 166.0425, Fla. Stat.............................................. 12 § 454.18, Fla. Stat................................................ 12 Chapter 479, Florida Statutes ....................................... 13 § 479.155, Fla. Stat................................................ 12 Laws of Florida Chapter 78-8, Laws of Florida ........................................ 12 Federal Statutes 42 U.S.C.§ 1983.................................................14 -lll- Code of the City of Winter Springs, Florida Winter Springs, Fla., Code § 2-63..................................... 8 Winter Springs, Fla., Code § 20-486................................... 2 Winter Springs, Fla. Ord. No. 683................................... 2,3 Winter Springs, Fla. Ord. No. 2000-17................................. 3 Winter Springs, Fla., Code of Ordinances, Chapter 2, Art. III, Div. 2 .......... 2 Florida Rules of Appellate Procedure Fla. R. App. P. 9.040(c)............................................ 9 Fla. R. App. P. 9.100(c)......................................... 9,10 Fla. R. App, P. 9.210(a)(2)......................................... 16 -iv- PRELIMINARY STATEMENT References to the record on appeal will be referred to herein as "R" followed by the applicable page numbers. Page 1 of 16 STATEMENT OF THE CASE AND FACTS On January 10, 1997, the Winter Springs City Commission adopted Ordinance Number 683, creating the State Road 434 Redevelopment Overlay Zoning District, which included new standards for the size, type, and location of signs along State Road 434 in Winter Springs. (R 25, 47-57) As of that date, the new sign regulations were codified as Section 20-486 of the Winter Springs Code.' (R 25-26, 52-57) The Sign Ordinance provided a five year amortization period, and required all nonconforming signs to be removed or replaced with conforming signs by November 145 2002. (R 26, 56) See also Winter Springs, Fla., Code § 20-486(18)(b). Failure to comply with the provisions of § 20-486 results in code enforcement proceedings being brought against the violator. (R 26, 56-57, 58-67) See also Winter Springs, Fla., Code § 20-486(18)(c); Chapter 2, Article III, Division 2, Code Enforcement, City of Winter Springs Code of Ordinances. Appellant Thomas A. Binford's sign became nonconforming under the Sign Ordinance in November of 1997. (R 26) On or about September 6, 2002, Binford applied to the City of Winter Springs Board of Adjustment (hereinafter "BOA") for a variance from compliance with the Sign Ordinance based on "undue financial hardship ' Section 20-486 of the Winter Springs City Code shall hereinafter be referred to as "Sign Ordinance." Page 2 of 16 to change." (R 26, 2) At an October 23, 2002 BOA meeting, Binford's request for a variance was denied due to his inability to meet the criteria for a variance. (R 2, 26) The matter thereafter came before the City Commission on November 25, 2002; the City Commission affirmed the BOA's recommendation that Binford's request for a variance be denied, and Binford was given 90 additional days to bring his sign into compliance. (R 2, 26) Binford did not seek review of the City Commission's decision. (R 26) Ninety days from November 25, 2002 passed long ago, and Binford has still failed to bring his sign into compliance. (R 2, 26) Code Enforcement has not yet initiated code enforcement proceedings against Binford. (R 26) On March 11, 2003, Binford filed his Verified Petition for Writ of Prohibition seeking to "enjoin the City of Winter Springs, a Florida municipality, from enforcing its sign ordinances number 683 and 2000-17." (R 1-18) After considering the Petition and the City's response thereto, the circuit court denied Binford's Petition for Writ of Prohibition. (R 139-142) Binford now appeals. Page 3 of 16 SUMMARY OF THE ARGUMENT The circuit court correctly denied Binford's Petition for Writ of Prohibition because prohibition was not an appropriate remedy, and because the circuit court lacked jurisdiction to review the decisions about which Binford complained. Specifically, Binford did not allege the existence of an emergency and did not seek to prevent the Winter Springs City Commission from acting in excess of its jurisdiction. Further, if the Sign Ordinance is imposed against Binford, he will have the right to appeal from any adverse decision rendered against him. Therefore, the circuit court properly denied Binford's Petition for Writ of Prohibition. Additionally, the Petition for Writ of Prohibition could not be treated as a petition for writ of certiorari or notice of appeal because it was filed more than 30 days after rendition of the City Commission ordinance and decision which Binford sought to have reviewed. The circuit court simply did not have jurisdiction to conduct any sort of review of the adoption of the sign ordinance or the denial of Binford's request for a variance. Accordingly, the circuit court properly denied Binford's request for relief. Moreover, assuming arguendo that this Court reaches the merits of this matter, the Winter Springs City Commission acted within its lawful authority in adopting the Sign Ordinance. The Sign Ordinance remains valid and enforceable, and therefore, it may be lawfully imposed against Binford. Page 4 of 16 For the foregoing reasons, the circuit court properly denied Binford's Petition for Writ of Prohibition. Page 5 of 16 ARGUMENT THE CIRCUIT COURT PROPERLY DENIED BINFORD' S PETITION FOR WRIT OF PROHIBITION A. Prohibition Was Not an Appropriate Remedy in This Case Binford contends that the circuit court abused. its discretion in denying his Petition for Writ of Prohibition. Binford's understanding of the extraordinary remedy of the writ of prohibition and the manner in which it may be used is erroneous. Prohibition is not a form of appellate review; rather, prohibition is an extraordinary writ, "extremely narrow in scope and operation, by which a superior court, having appellate and supervisory jurisdiction over an inferior court or tribunal possessing judicial or quasi-judicial power, may prevent such inferior court or tribunal from exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction." English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977). It is meant to be employed with great caution and utilized only in emergencies. Id. "Its purpose is to prevent the doing of something, not to compel the undoing of something already done. It cannot be used to revoke an order already entered." Id. at 297. "Prohibition is also inappropriate if the parties have the right to remedy the wrong by direct appeal." O'Donnell's Corp. v. Ambroise, 858 So. 2d 1138,1140 (Fla. 5' DCA 2003) (Sawaya, C.J., concurring) (citations omitted). Page 6 of 16 An examination of Binford's Petition for Writ of Prohibition establishes the numerous reasons why the circuit court correctly ruled that prohibition is inappropriate here. To begin with, the arguments set forth in Binford's Petition for Writ of Prohibition are not appropriately raised in a prohibition proceeding. Binford used his Petition for Writ of Prohibition to attempt to attack the Winter Springs Sign Ordinance. Specifically, in paragraphs (E) and (G), Binford asserted that the City Commission discriminated against him in adopting the Sign Ordinance and that the Sign Ordinance imposes restrictive measures that result in an unconstitutional taking and tortious interference with a business relationship. (R 2, 4) Further, paragraph (M alleges that the Sign Ordinance is "arbitrary and capricious," that it does not "bear a substantial relation to the public health, safety, morals, or general welfare," and that it is "an invalid exercise of police power." (R 5) Such arguments are not properly raised in a prohibition proceeding. See English, 348 So. 2d at 296. Additionally, the Petition for Writ of Prohibition appears to be, in part, an attempt to appeal from the denial of Binford's request for a variance. For instance, in paragraph (F), Binford argues he was denied procedural due process at the hearing before the BOA, and that the BOA's findings supporting its decision to deny Binford's request for a variance "are strictly subjective and totally erroneous." (R 3-4) Further, in paragraphs (G), (I), and (J) Binford sets forth damages which he contends he will Page 7 of 16 suffer as a result of enforcement of the Sign Ordinance. (R 4-5) The foregoing arguments simply are not appropriately presented in a petition for writ of prohibition. They do not set forth an emergency, and do not establish or even allege that the Winter Springs City Commission was acting without jurisdiction or in excess of its jurisdiction. See English, 348 So. 2d 293. Accordingly, it is "abundantly clear that prohibition is not an appropriate remedy in the instant case." O'Donnell 's Corp., 858 So. 2d at 1140 (Sawaya, C.J., concurring). Moreover, if Binford does not correct his ongoing violation of the Winter Springs Code by removing his non -conforming sign, code enforcement proceedings will be initiated against him, and he will have the right to appeal from any code enforcement decision rendered against him. Winter Springs, Fla., Code § 2-63; § 162.11, Fla. Stat. Since Binford will have the right to remedy any wrong he may suffer from the code enforcement proceedings by timely filing a direct appeal, prohibition is inappropriate in this case. See id.; O'Donnell 's Corp., 858 So. 2d at 1140 (Sawaya, C.J., concurring). Based upon the foregoing, the circuit court properly denied Binford's Petition for Writ of Prohibition. Page 8 of 16 B. Denial of the Petition for Writ of Prohibition Is Warranted Even If the Petition Is Treated as a Petition for Writ of Certiorari or Notice of Appeal Because it Was Not Timely Filed Binford argues in his Initial Brief that the circuit court denied him his "day in court" because it ruled on the form of his "appeal" and not the substance. (Initial Brief, p. 4) With all due respect, it was Binford, himself, who caused the court to not hear his "appeal." Binford is correct in his assertion that courts are charged with the duty of ruling on the substance of issues presented to them and not just on the form. Under Florida Rule of Appellate Procedure 9.040(c), "[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy." However, in order for the appellate court to treat a matter as if the proper remedy had been sought, the jurisdiction of the appellate court must have been timely invoked. Certain decisions of city commissions or boards may be subject to appellate review or certiorari review. Under Florida Rule of Appellate Procedure 9.100(c), a party may file a petition for writ of certiorari seeking review of "quasi-judicial action of agencies, boards, and commissions of local government, which action is not directly appealable under any other provision of general law but may be subject to review by certiorari." Such a petition must be filed within 30 days of the order to be reviewed. Page 9 of 16 Id. Likewise, under Florida Rule of Appellate Procedure 9.100, notices of appeal from final administrative orders must be filed within 30 days of rendition of the order to be reviewed. Fla. R. App. P. 9.100(c). The requirement that said petitions for writ of certiorari and notices of appeal be filed within 30 days is jurisdictional; in other words, if a petition for writ of certiorari or notice of appeal is not filed within the requisite 30-day time frame, the appellate court lacks jurisdiction over the matter and may not hear it. See, e.g., Lusk v. Sweet, 841 So. 2d 546 (Fla. 5' DCA 2003) (court dismissed appeal that was filed by pro se individual beyond the jurisdictional time allowed); Hawks v. Walker, 409 So. 2d 524, 525 (Fla. 51 DCA 1982) (a notice of appeal filed two days late was untimely, and therefore, the appellate court lacked jurisdiction to review the matter); Battaglia Fruit Co. v. City of Maitland, 530 So. 2d 940 (Fla. 5" DCA 1988) (petition for writ of certiorari must be filed within 30 days of the date of rendition of the decision to be reviewed); Miami -Dade County v. Peart, 843 So. 2d 363 (Fla. 3d DCA 2003) (notice of appeal filed one day late by pro se litigants was untimely, and therefore, appellate court lacked jurisdiction to review the matter). Failure to file a petition for writ of certiorari or notice of appeal within the 30-day period "constitutes an irremediable jurisdictional defect." First Nat. Bank in Fort Meyers v. Fla. Unemployment Appeals Comm'n, 461 So. 2d 208, 208 (Fla. 1' DCA 1984). As this Court has stated, "late Page 10 of 16 filing is a defect no one can correct, not even the court." Hawks, 409 So. 2d at 525. Here, if Binford wished to seek review of the Sign Ordinance, which was adopted on November 10, 1997, he needed to do so by filing an appropriate action within 30 days of the date the Sign Ordinance was adopted. If Binford wished to seek review of the City Commission's November 25, 2002 decision to deny his request for a variance, he needed to do so by filing an appropriate action within 30 days of the date of the Commission's decision. Binford failed to do either. Instead, he waited until March 11, 2003 to file his Petition for Writ of Prohibition. By not timely seeking review of either decision, Binford abrogated any rights to "appeal" that he may have had. The circuit court simply lacked the requisite jurisdiction to consider his Petition for Writ of Prohibition as a petition for writ of certiorari or appeal, and therefore, denial of all relief requested therein was appropriate. Furthermore, Binford is not entitled to any reprieve from the requirements of the Florida Rules of Appellate Procedure simply because he is representing himself, or acting pro se, in this case. See, e.g., Powers v. State, 714 So. 2d 11103 1111 n. l (Fla. 5' DCA 1998) (citation omitted) (pro se party is required to comply with all of the procedural rules on appeal); Compo v. State, 617 So. 2d 362, 367 n.7 (Fla. 2d DCA 1993) ("Pro se litigants, no less than attorneys, must comply with the deadlines established by the rules of appellate procedure."); Kohn v. City ofMiami Beach, 611 Page 11 of 16 So. 2d 538, 539-40 (Fla. 3d DCA 1992) (pro se litigants should not be treated differently from litigants represented by counsel); see also § 454.18, Fla. Stat. ("[A]ny person... may conduct his own cause in any court of this state ... subject to the lawful rules and discipline of such court.... "). Accordingly, based upon the foregoing, the circuit court properly denied Binford's Petition for Writ of Prohibition. C. The City Acted Within Its Lawful Authority In Enacting the Sign Ordinance Since prohibition was an inappropriate remedy and therefore, since the circuit court properly denied Binford relief, this Court should decline to reach the merits of Binford's appeal. However, in the event this Court does reach the merits, the City asserts that it acted within its lawful authority in enacting the Sign Ordinance. Specifically, the City has the power to establish sign ordinances pursuant to its broad home rule powers and statutory and case law.' In addition, the City has the power to 'The City "may exercise any power for municipal p purposes, except when expressly prohibited by law." § 166.021(1), Fla. Stat. Additionally, Florida Statutes and case law specifically recognize a municipality's power to enact sign ordinances. See § 479.155, Fla. Stat. ("The provisions of this chapter shall not be deemed to supersede the rights and powers of counties and municipalities to enact outdoor advertising or sign ordinances."); § 166.0425, Fla. Stat. ("Nothing in Chapter 78-8, Laws of Florida, shall be deemed to supersede the rights of and powers of municipalities and counties to establish sign ordinances; however, such ordinances shall not conflict with any applicable state or federal laws."); § 125.0102, Fla. Stat. ("Nothing in Chapter 78-8, Laws of Florida, shall be deemed to supersede the rights of and powers of municipalities and counties to establish sign ordinances; however, Page 12 of 16 enact amortization provisions to require sign owners to bring signs into compliance. See Webster Outdoor Advertising Co. v. City ofMiami, 256 So. 2d 556 (Fla. 3`d DCA 1972); Lamar AdvertisingAssoc. of East Florida, Ltd. v. City of Daytona Beach, 450 So. 2d 1145 (Fla. 5`h DCA 1984). Chapter 479, Florida Statutes regulates outdoor advertising, but Chapter 479 "shall not be deemed to supersede the rights and powers of counties and municipalities to enact outdoor advertising or sign ordinances." § 479.155, Fla. Stat. The City's ordinance is more restrictive than the regulations in Chapter 479, Florida Statutes, but cities are permitted to enact more restrictive ordinances. See Florida Dept. of Transp. v. E. T. Legg & Co., 472 So. 2d 1336, 1337 (Fla. 4`h DCA 1985) ("[Municipalities can establish rules which are more stringent than those of Chapter 479, Florida Statutes."). The City's Sign Ordinance has not been vacated by a court of law, and therefore remains valid and enforceable. Because the City acted within its lawful authority in enacting the Sign Ordinance and because the Sign Ordinance remains valid and enforceable, the circuit court order denying Binford's request for relief must be affirmed. such ordinances shall not conflict with any applicable state or federal laws."); Lamar - Orlando Outdoor Advertising v. City of Ormond Beach, 415 So. 2d 1312 (Fla. 51h DCA 1982). Page 13 of 16 D. Binford Has Inappropriately Inserted Reservations of Rights to Bring Causes of Action Under 42 U.S.C. § 1983 and the "Bert Harris Act" in His Initial Brief At the end of his Initial Brief, Binford has attempted to reserve purported rights to bring causes of action against the City under 42 U.S.C. § 1983 and the "Bert Harris Act." These matters were not raised in any of the proceedings below and are not found anywhere within the record on appeal. Accordingly, they are not properly raised in Binford's Initial Brief. See Keech v. Yousef, 815 So. 2d 718, 719 (Fla. 5" DCA 2002) ("In the absence of fundamental error, an appellate court will not consider an issue that has been raised for the first time on appeal.") The City, therefore, respectfully requests that these purported reservations of rights be stricken, and that the Court order that said matters were not properly included in Binford's Initial Brief. Page 14 of 16 CONCLUSION WHEREFORE, based upon the foregoing, Appellee, the City of Winter Springs, Florida, respectfully requests that this Honorable Court affirm the circuit court's denial of relief to Binford. Respectfully submitted on this 8th day of March, 2004. C;T` "PATTORNEY FOR U THE CITY OF WINTER SPRINGS Florida Bar No. 988294 ERIN J. O'LEARY Florida Bar No. 001510 BROWN, SALZMAN, WEISS & GARGANESE, P.A. Two Landmark Center 225 East Robinson Street, Suite 660 Orlando, Florida 32802-2813 Telephone: (407) 425-9566 Facsimile: (407) 425-9596 Attorneys for Appellee City of Winter Springs, Florida Page 15 of 16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 8" day of March, 2004, a true and correct copy of the foregoing was fiunished via Facsimile Transmission and U.S. Mail to: Thomas A. Binford, 426 E. Highway 434, Winter Springs, Florida 32708. MAN, d Z�gWl jw� � M00% MEN CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief was prepared using Times New Roman 14-point font and that this brief complies with all requirements of Florida Rule of Appellate Procedure 9.210(a)(2). i ...rw =. Page 16 of 16