Code Enforcement Appeals: The Limited and Limiting Nature of Certiorari Review

“Show me the property, and I’ll find you the code violation” is a phrase^[1] used by Florida’s Second District Court of Appeal in a recent opinion to illustrate the importance of judicial review of code enforcement decisions. Donnelly v. Hillsborough Cnty. Code Enf't Bd., No. 2D2025-3092, 2026 WL 2651742, at *6 (Fla. 2d DCA Sept. 9, 2026).

On its face, the Donnelly case is about whether a homeowner can turn an old swimming pool into a koi pond. Id. at *1. But in a broader context, the case explains some important points about code enforcement appeals.

Nature of Certiorari Review

Generally speaking, certiorari^[2] (pronounced “ser-shee-or-RAHR-ee”) is a common-law writ which, in the absence of an adequate remedy by normal appeal or writ of error or other remedy at law, a court can review a judicial or quasi-judicial order or judgment. See Kilgore v. Bird, 6 So. 2d 541, 544 (Fla. 1942). Certiorari is available to review quasi-judicial orders of local agencies and boards not made subject to the Administrative Procedure Act, such as a code enforcement board (or special magistrate). Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). There are two levels of certiorari review: first-tier (or level) review in the Circuit Court and second-tier review in the District Court of Appeal. Id.

Certiorari review is not the same as a plenary (full review) appeal and the reviewing court is not permitted to reweigh evidence or substitute its judgment for that of the code enforcement board. Id. The Circuit Court on first-tier review is limited to considering whether the code enforcement board: (1) accorded procedural due process; (2) observed the essential requirements of law; and (3) supported its administrative findings and judgment with competent and substantial evidence. Id. The second-tier review by the District Court is further limited to considering only (1) whether the Circuit Court afforded procedural due process and (2) whether the Circuit Court applied the correct law. Id.

Correcting Erroneous Interpretations of Local Ordinances

Florida’s District Courts should grant second tier certiorari relief to correct erroneous interpretations of local ordinances. Donnelly, 2026 WL 2651742, at *3. County ordinances, just like state statutes, must be construed according to the plain meaning of their text. Id. The meaning of an ordinance or code provision should be determined by reference to the language itself, according to the meaning that proper grammar and usage would assign the terms, the specific context in which that language is used, and the broader context of the ordinance as a whole. Id.

An important point for code enforcement boards and special magistrates to keep in mind is that the old common law rule of deference in favor of the agency’s interpretation of code provisions and ordinances no longer applies. In January 2019, Article V, Section 21 was added to the Florida Constitution eliminating the old rule of deference. Under Florida’s Constitution, “[i]n 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.” Art. V, § 21, Fla. Const. See also Donnelly, 2026 WL 2651742, at *5 (“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[.]” (internal quotes omitted)). That constitutional provision is extended and applied to local ordinances. Id.

Practical Application

The District Court in Donnelly used these principles on second-tier certiorari review to overturn the code enforcement board’s violation order. Donnelly, 2026 WL 2651742, at *6. The Court determined that the ordinance at issue only applied to swimming pools actively being used as swimming pools or intended to be used as swimming pools in the future, regardless of whether the structure had initially been designed and built as a swimming pool. The evidence before the code enforcement board and the Circuit Court on first-tier review established that the property owner wanted to permanently convert a former swimming pool into a koi pond and had no intention of using the pond as a swimming pool in the future. The Court found that the code enforcement board “failed to address a definitional section of its code; and the circuit court improperly deferred to that failure. Combined, those errors led the Court to conclude that there had been a departure from the essential requirements of the law. This results in a miscarriage of justice.” Id.

Importantly, the Court was not doubting the sincere desire of any board member or the code enforcement officer to preserve public safety, nor was it downplaying the potential health threat of improperly maintained swimming pools. Id. But, the Court noted that “the exercise of governmental power derives from the text of duly enacted laws, not individual perceptions or governmental misgivings about potential problems.” Id. The majority opinion concluded with a quote from the United States Supreme Court taken from an 1886 opinion:

“[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.” Id. (emphasis in original) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)).

Takeaway

Upon receipt of a notice of violation, it is important for a respondent to carefully read and understand the basis for the alleged violation to determine whether it applies. The code enforcement officer must present evidence at the hearing establishing a violation of the code provision or ordinance referenced in the notice of violation. A respondent will have an opportunity to present evidence at the hearing showing why there was no violation of the code provision alleged in the notice.

And if, as unfortunate as it may be, the code enforcement board or special magistrate gets it wrong and misapplies the code provision or law, quick action is necessary to appeal. Whether through a petition for writ of certiorari, or other appeal, there is often a very short deadline to appeal, typically only 30 days. After that deadline, a respondent waives the ability to challenge a code enforcement decision, even if it was wrong. And depending on the nature of the appeal and facts at issue, any attorney will need sufficient time to prepare the appeal documents before the deadline.

If you have received a notice of violation, a notice of hearing, or are otherwise involved in a code enforcement proceeding, contact Joe Kovecses at joseph.kovecses@lowndes-law.com to discuss your options and how he can assist.

_{[1] The Court was referencing the boast: “show me the man and I’ll find you the crime.”}

_{[2] Certiorari, being even more difficult to say than it is to type, is often shortened to “cert” (pronounced “sert”) in everyday conversation.}