Legal Report, August 2022

General Counsel,
Davis & Associates, P.A.

1. Sheckler v. Monroe County, 355 So. 3d 1265 (3rd DCA 2022). Code enforcement; appeal.
In 2018, Nicholas Sheckler purchased property on Big Pine Key that had been damaged by Hurricane Irma. After inspection, Monroe County (“County”) issued several code enforcement violations, deeming it structurally unsound and ordering Sheckler to make repairs. The County’s Code Enforcement Special Magistrate imposed a $100/day fine for the violations. Sheckler then appealed the Special Magistrate decision to circuit court. During the pendency of the appeal, Sheckler paid off the accrued fines in the amount of $123,500.00. Coincidentally, later on the same day Sheckler paid the fine, the circuit court entered an order reversing the Special Magistrate’s order imposing the fines. Naturally, following the court’s ruling, Sheckler requested the County refund his payment. The County both refused to refund the money, and also filed a motion for re-hearing, arguing that Sheckler’s voluntary payment in full of the accrued fines prior to the circuit court’s decision rendered the entire appeal moot. Accepting the County’s argument, the circuit court vacated its order and dismissed the appeal as moot.

On second tier review, the 3rd DCA held that the circuit court applied the incorrect law in dismissing the appeal. The 3rd DCA relied on the “involuntary payment doctrine” and found that Sheckler made the payment to avoid the imposition of ‘a substantial burden (lien) on his property’.  The 3rd DCA also ruled that the fine was “illegally exacted” from Sheckler and was paid under coercion and duress (again to avoid a lien) sufficient to justify its recovery.  The 3rd DCA quashed the lower court’s order and required repayment to Sheckler of the fine. This case suggests that the involuntary payment doctrine may successfully be used as a defense to recover voluntarily paid code enforcement fines if paid during the pendency of an appeal.

2.  Vickery v. City of Pensacola, 47 Fla. L. Weekly D468 (1st DCA 2022). Tree removal permits; injunction.
Section 163.045(1), F.S., enacted in 2019, authorizes property owners to remove trees from their property without a local government permit if the owner obtains ‘documentation’ from a Certified Arborist indicating that the tree presents a danger to persons or property. Before the law’s enactment, the Vickery’s applied for a permit to remove an oak tree on their land which prevented construction. The City denied the permit. Following enactment of Section 163.045(1), F.S., the Vickery’s supplied a letter from a Certified Arborist. The city filed suit seeking a declaratory judgment that the City’s permit denial was proper and that Section 163.045(1), F.S. did not preclude the City’s tree removal permitting requirement. The City argued that; 1) a letter from an arborist alone was insufficient and that more substantial evidence was required; and 2) the language of 163.045(1), F.S. was ambiguous and did not pre-empt the city’s existing permitting structure. The 1st DCA denied both the assertions finding the statute unambiguous and that the Legislature did not intend to impose specific standards relating to the type of ‘documentation’ provided. The court also held that the City could not require a property owner to obtain a permit prior to removal if the property owner had complied with the state law and that conflicting language in the City’s code was unenforceable.

 In July of 2022, after the adjudication of this case, the Legislature amended Section 163.045(1), F.S. to require more substantial evidence requiring an onsite inspection by the Certified Arborist.