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HomeMy WebLinkAboutSubmittal-Ben Fernandez-Letter of Insufficient Appeal for 191 NE 45 St + 4510 NE 2 AveSUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 . ON 10/9/2014. CITY CLERK BGRCOW RADGLL & FERNAN DEZ ZONINCa, LANE> USE ANM ENVIRONMENTAL LAW Direct: 305-377-6235 E -Mail: BFernandezCcDBRZomncLaw.aom VIA HAND DELIVERY October 3, 2014 Victoria Mendez, Esq. Barnaby Min, Esq. City Attorney's Office City of Miami Riverside Center 444 SW 2nd Avenue, Suite 945 Miami, FL 33130 Re: Insufficient Appeal -191 NE 45 St & 4510 NE 2nd Avenue This law firm represents SLH Investments, LLC, in relation to the referenced matter. This letter is in furtherance of the verbal request to dismiss the appeal presented at the City Commission hearing on September 29, 2014. The appeal filed by Mr. Luis R. Gutierrez fails to sufficiently meet the minimum requirements of the City of Miami Code for the appeal of a Certificate of Appropriateness of the Historic Environmental Preservation Board (HEPB). Accordingly, the appeal should not have been accepted and must be dismissed. The City Code requires that the notice of appeal, "set forth concisely the decision appealed from and the reasons or grounds for the appeal". See Sec. 23- 6.2(e). This language creates a minimum requirement that is jurisdictional. See DiPietro v. Colletta, 512 So. 2d 1048, 1050 (Fla. 3d DCA 1987) (appellate filing requirements jurisdictional). The HEPB decision that Mr. Gutierrez attempted to appeal was rendered on June 3, 2014. His initial appeal was submitted on June 18t11 (Exhibit A) and did not set forth any reasons or grounds for the appeal. Contrary to the specific requirement of the Code, the letter promised to provide the reasons for the appeal, after the expiration of the time for appeal, at the public hearing on the matter. ISI --b 0421 ha - S �b rn t-GIn �tff\onftt- I G I N E 45 S+- q -r i p N P. 2 A -If, SOUTHEAST FINANCIAL CENTER • 200 SOUTH BISCAYNE BOULEVARD, SUITE 850 • MIAMI, FLORIDA 33131 PHONE. 305.374.5300 • FAX. 305.377.6222 • WWW.BRZONINGLAW.COM Vicky Mendez, Esq. Barnaby Min, Esq. Page 2 October 3, 2014 SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 10/9/2014. CITY CLERK In an apparent recognition of the mistake, a supplemental letter was delivered to the City, almost two weeks after the expiration of the time for appeal, on July 1, 2014. Accordingly, the appeal fails to invoke the de jure appellate jurisdiction of the City Commission, which has the exclusive authority to review the decisions of the HEPB under the Code. This failure to invoke the jurisdiction of the Commission cannot be cured by a supplemental filing after the deadline for appeal. See McCray v. County of Volusia, 400 So. 2d 511, 512-513 (Fla. 5th DCA 1981) (failure to comply with filing requirements justifies dismissal); Keene v. Nudera, 661 So. 2d 40, 42 (Fla. 2d DCA 1995) (same). The City Code also requires that a payment be submitted to the City with the appeal of a certificate of appropriateness from the HEPB. In the present case it is apparent that the initial letter of appeal was not accompanied by a payment within the requisite timeframe as required by the Code. The Code requires that, "Each appeal shall be accompanied by a fee of $525.00, plus $3.50 per mailed notice required..." See Sec.23-6.2(e). The appeal must also be dismissed on these grounds. As you know, no applications are deemed "complete" and therefore accepted by staff unless all required fees have been paid. See Sec.23-2. The same must hold for third parties seeking to challenge HEPB decisions. For the foregoing reasons we request that you confirm that the appeal is deficient and that the City Commission does not have jurisdiction to consider the appeal. At the hearing on September 29th, the City Commission specifically authorized the City Attorney's Office to consider and decide the request for dismissal of the appeal prior to the October 9, 2014 Commission hearing. Sincerely, i Ben Fernandez BF/bl Enclosures cc: Commissioner Keon Hardemon Amanda Quirke, Esq. BERCOW RADELL & FERNAN DEZ ZONING. LANA USE AND ENVIRONMENTAL LAW BUENA VISTA I. T H 1 SST 0 R I C NEIGHBORHOOD ASSOCIATION Dear, Department of Planning and Zoning RECEIVED PLANNING DEPAPTMEN 14 JUN 18 AM 11: 32 I! EXHIBIT r i My name is Luis R Gutierrez and my homestead property address is 151 NE 46 Street Miami, FL 33137. As a resident and property owner in Buena Vista East and member of the Buena Vista Historic Neighborhood Association, this letter serves as the following notice: 1, Luis R Gutierrez is appealing the decision by HEP Board on June 3, 2014 in regards to the following case and property address: HEPB.1:14-00421; Location -4510 NE 2nd Ave and 191 NW 45 Street. The decision by the HEPB Board is incorrect in many fronts of which BVEHNA and I will present at the hearing. Sincerely, Luis R. Gutierrez Resident and Board Member of Buena Vista East SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 10/9/2014. CITY CLERK LICM[-IC1Buena Vista East Historic Neighborhooa Association ♦ BVEHINA(WGIViAiL.001A 4 P.O. BOX 3-11067 Miami, FL 33137 RC.1..EI 7L; Dear, City of Miami Planning and Zoning PLANNING DET"kR THEW _. .1 2014 JUL -I AMID: 1611; Please treat this letter as official notice that I, Luis Gutierrez whose primary address is 151 NE 46 Street Miami, FI 33137 is appealing the following decision by the Historic Preservation and Environmental Board (HEPB) on June 3, 2014. -HEPB.1;14-00421: 4510 NE 2"d Ave and 191 NE 45 Street The decision by the HEPB violates the city of Miami charter and ordinance on many fronts. Based on the following violations, the decision by the HEPB Board should be repealed. Section 23-6.2(h)(i): Alterations of existing structures and new constructions (a) the proposed work shall not adversely affect the historic, architectural, or aesthetic character of the subject structure or the relationship and congruity between the subject structure and its neighboring structures and surroundings, *The proposed building does not meet the above guidelines as outlined in Chapter 23 of the city charter. (b) nor shall the proposed work adversely affect the special character or special historic, architectural or aesthetic interest or value of the overall historic site or historic district *The proposed building entryway and commercial space will create an adverse effect on congestion, traffic and reduce property value of abutting and nearby properties. Section 62-29(d): Proceedings -Quorum Voting (a) all actions on designations pursuant to chapter 23 of the City Code shall require a concurring vote of at least five members of the board, and tie votes shall be construed as a denial of the subject motion. *The HEPB board did not have a concurring vote of at least five members of the board approving the Certificate of Appropriateness. Section 54-47: Approval of location and construction of driveways (a) The director of public works is hereby authorized and empowered to approve the location and construction of driveways, drive-ins and any other means of vehicular ingress and egress to and from the public rights-of-way, prior to the issuance of permits for the construction of such facilities that will require such means of ingress and egress *The COA was approved without prior to review by the Director of Public Works as the subject property is built on a corner lot with entry way abutting the right of way. Sincerely, Luis Gutierrez SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 1019/2014. CITY CLERK City of Miami I V Op �L0R1 Transaction Statement Financial Transaction ID: 138580 Transaction Date: Jul 8 2014 10:24AM FEE SUMMARY SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 10/9/2014. CITY CLERK Buena Vista East Historic 133 NE 47th ST (786)837-6779 Fee Category Fee Fee Description Quantity Unit Type Amount Code 0 0 CR HEARING BOARDS - PUBLIC HEARING MS -228 PUBLIC HEARING - 1.0000 UNITS $1,500.00 U, gyri ori ADVERTISING U-) Ln 0 HEARING BOARDS - PUBLIC HEARING MS -226 PUBLIC HEARING - LU POLICY 14.0000 NGH X HRGS $63.00 cc � 4-j + (a �n C t0 } O LU M- U 1— O # # 1.5.4 HEARING BOARDS - PUBLIC HEARING MS -225 PUBLIC HEARING - MEETING 135.0000 NGH X HRGS $607.50 MAIL NOTICE - NEIGHBORS HEARING BOARDS - PUBLIC HEARING MS -241 PUBLIC HEARING - MEETING 1.0000 HEARINGS $4.50 MAIL NOTICE - APPLICANT/APPEALLANT Total: $2,175.00 Rev. 3ul/02/2012 Generated on Jul/08/2014 10:24 AM oCDo o coo 4( - 0 0 CR G O U, gyri ori ,n U-) Ln 0 � A t a 1,' �� lrJ Q cli C14 O -<E r�0� 4 CON (o a) o o U M }- .) N C O�U�� W - tb �t � a N co L a �-+ f1 � 0 (tv Z C:) f Q� - _ �� z N C:) Z� •• O �� Com~ C E E L E +�-� cn W H C14 a) .� �r U tG O cc � 4-j + (a �n C t0 } O LU M- U 1— O # # Rev. 3ul/02/2012 Generated on Jul/08/2014 10:24 AM SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ•3 ON 101912014. CITY CLERK Fee Breakdown SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 10/9/2014. CITY CLERK To: Schiller Jerome From: City of Miami, Planning and Zoning Department, Hearing Boards Section Date: July 1, 2014 Re: HEPB Appeal 4510 NE 2 Avenue Item HEPB Appeal Advertising Adjacent Property Owners Notice (135 x $4.50) Land Use Policy Notice (Little Haiti NET 14) Appellant/Applicant Notice (1) Sub -Total Due Total Paid Total Owe Please pay upon receipt. Remit payment to: "City of Miami" 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130 Fee $ 525.00 $ 1,500.00 $ 607.50 $ 63.00 $ 4.50 $ 2,700.00 1!175.00 Transaction Statement Financial Transaction ID: 134889 Transaction Date: Jun 19 2014 9:39AM Fee Category HEARING BOARDS - APPLICATION/APPEAL k 0t of w 16Cllf� APoU[► v of Miami The City of Miami... Cashiering Area 006 7095-1 06/19/2014 58 , Jun 19, 2014 10:00 AM eil Ref Nbr: 81417095-1/0017 TR�JNS - LM TRANSACTION n �ef Nbr: '1417095-1/0019 Ref 134889 unt: 1 C'' $525.00 m Subtotal: $525.00 m Total: $525.00 ITEM(S) TOTAL: $525.00 d (Chk# 0229) $525.00 'ase visit us at 4!u!6).mlam1g01'.C�m FEE SUMMARY SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 10/9/2014. CITY CLERK Manoucheka Thermitus/Schiller Jerome 24 NE 47 Street (786)837-6779 Fee fee Description Code MS -239 APPEAL - HISTORIC DESIGNATION/CERTIFICATE OF APPROPIATENESS Quantity I Unit Type I Amount 0.00001 N/A 1 $525.00 Total:) $525.00 Generated on Jun/19/2014 9:39 AM SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 101912014. CITY CLERK MANOUCHEKA THERMITUS 229 SCHILLER JEROME'� 63-643/670 24 NE 47 Street BRANCH 00539 Miami, FL 33137 DATE 1iERrOTHC, o$Q1OF n .—�...,,.. ,...w..,.,.�w.�. i -M � U'I \ L9 tt . WACHONaA Wachovia Bank, a division of Wells Fargo Bam. NA. ,:06?0064321:101030??332 __ Fee Breakdown SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) P _i0_1912-014 ON . CITY CLERK To: Schiller Jerome From: City of Miami, Planning and Zoning Department, Hearing Boards Section Date: June 16, 2014 Re: HEPB Appeal 4510 NE 2 Avenue Item HEPB Appeal Advertising Adjacent Property Owners Notice (-) Land Use Policy Notice (Little Haiti NET 14) Appellant/Applicant Notice (1) Sub -Total Due Total Paid Total Owe Please pay upon receipt. Remit payment to: "City of Miami" 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130 Fee $ 525.00 $ 1,500.00 $ 63.00 $ 4.50 $ 2,092.50 TBD DiPietro v. Coletta, 512 So.2d 1048 (1987) 512 S0.2d 1048 District Court of Appeal of Florida, Third District. James DiPIETRO, City Manager of the City of North Bay Village, Planning & Zoning Board of the City of North Bay Village, and City Commission of the City of North Bay Village, Petitioners, v. Al COLETTA, Respondent. No. 87-970. 1 Sept. 8, 1987. City rejected application for renewal of occupational license and applicant appealed denial to city commission. After hearing, city commission denied appeal, and applicant sought certiorari review from circuit court acting in its appellate capacity. The Circuit Court, Dade County, Moie J.L. Tendrich, Steven D. Robinson, and Philip Bloom, JJ., quashed city's administrative action denying renewal of license, and city petitioned for writ of certiorari. The District Court of Appeal held that although applicant was entitled as matter of right to seek review of agency's decision, circuit court could not review propriety of city's administrative action without record of proceedings. Certiorari granted, order of circuit court quashed. West I Ieadnotes (1) [1] Administrative Law and Procedure = Record Licenses A- Proceedings to Procwc License or Certificate Although applicant for renewal of his occupational license was entitled as matter of right to seek review of city's denial of license in appellate division of circuit court, circuit court improperly passed on merits of petition, which alleged that applicant's due process rights had been abridged; applicant failed to provide circuit court with record of administrative hearing. West's F.S.A. R.App.P.Rule 9,200(b)(3); West's F.S.A. Const. Art. 1, § 9. SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 10/9/2014. CITY CLERK Cases that cite this•headnotc Attorneys and Law Firms *1049 Dubbin, Berkman, Garber, Bloom & Moriber and Andrew H. Moriber, Miami, for petitioners. Ullman & Ullman, P.A., and Steven J. Glueck, North Miami Beach, for respondent. Before SCHWARTZ, C.J., and HUBBART and JORGENSON, JJ. Opinion PER CURIAM. This is a petition for writ of certiorari filed by the City of North Bay Village in response to an order of the appellate division of the circuit court quashing the city's administrative action denying Coletta's request for renewal of his occupational license. For the following reason, we grant the city the relief sought. Coletta had been granted an occupational license by the North Bay Village City Commission in 1982 to operate a late-night dining facility in three condominium units of the Bayshore Yacht and Tennis Club. The commission simultaneously granted Coletta variances from those provisions of the city's zoning code as were required for the operation of such a facility, e.g., authorization for after-hours sale of alcoholic beverages, minimum parking requirements, etc. Coletta successfully renewed his occupational license for 1982-83 and 1983-84. Coletta did not use the license for a two-year period. The penthouse where the facility was located had to be closed due to a defective roof, Coletta could not begin remodeling the premises until these repairs were completed. In 1984, Coletta sought to renew his license for 1984-85. The city manager rejected Coletta's application for renewal on the ground that Coletta's use of the premises as a late-night dining facility did not conform to the city's present zoning code. A city ordinance provided that "no license shall be issued except in conformity with the zoning regulations of the city." I The city manager advised Coletta that he had lost any nonconforming use variances he might have previously enjoyed since he had never actually opened his restaurant and lounge.2 The city manager also informed Coletta that his DiPietro v. Coletta, 512 So.2d 1048 (1987) 12 Fla. L.W _ _____.eekly . 2_.17 1 _ _------------ --�_ ._---__..__.._... .» application for renewal would be treated as a new application, and that zoning variances would have *1050 to be obtained prior to approval of his occupational license application. Coletta appealed the denial to the city commission on the following grounds: that the zoning code lapse provision was not intended to be applied retroactively; that the interruption in use of the premises as a restaurant -lounge was involuntary due to the failure of the condominium association to repair a defective roof, and that the city was estopped from raising the lapse provision of the current zoning code since it had previously renewed Coletta's license. Coletta was afforded a hearing, duly noticed and advertised, where he presented his argument and evidence to the city commission. No transcript was made of the hearing. The city commission denied Coletta's appeal, and Coletta. sought certiorari review from the circuit court acting in its appellate capacity. Coletta argued in the reviewing court that his occupational license could be "revoked" only upon a proper showing by the city in which the city bore the burden of proof. Coletta for the first time advanced the claim that his due process rights had been abridged by the city. The city responded to Coletta's petition for certiorari and moved to strike all matters argued by Coletta which were not supported by the record, including Coletta's due process claim. Coletta did not provide a transcript of the proceedings before the city commission where the alleged error had occurred nor did Coletta attempt to provide an alternative record pursuant to Fla.R.App.P. 9.200(b)(3). The circuit court in its appellate capacity granted Coletta the relief requested, quashing the city's rejection of Footnotes SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ -3 ON 101912014. CITY CLERK Coletta's application and directing the city to renew Coletta's license. We agree with the city that the court erred in passing on the merits of Coletta's petition without a proper record before it. While Coletta was entitled as a matter of right to seek review in the appellate division of the circuit court of the city's administrative action, the circuit court could not properly review the propriety of the city's administrative action without a record of the proceedings. See Patterson v. TFeathers, 476 So.2d 1294 (Fla. 5th DCA 1985); Altchiler v. State. Dept. of Professional Regulation, 442 So.2d 349 (Fla. 1st DCA 1983); Gordon v. Burke, 429 So.2d 36 (Fla. 2d DCA), rev. denied, 438 So.2d 832 (Fla. 1983). The crucial inquiry for a circuit court considering a petition for certiorari review of administrative action is "whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence." Citv of Deerfleld Beach v. l"aillunt, 419 So.2d 624, 626 (Fla. 1982). The foregoing analysis is not possible without a record upon which to predicate such a review. We conclude that the circuit court departed from the essential requirements of law in reaching the merits of Coletta's appeal where no record was provided. Certiorari is, therefore, granted, and the order of the circuit court is quashed. Parallel Citations 12 Fla. L. Weekly 2171 North Bay Village, Fla., Code (1984), provides: § 110.08 LICENSES SUBJECT TO ZONING REGULATIONS. No license shall be issued except in conformity with the zoning regulations of the city. North Bay Village, Fla., Code (1983), provides: 152.103 LAPSE OF SPECIAL EXCEPTION OR VARIANCE. After the City Commission has approved a special use exception or granted a variance, the special use exception or variance so approved or granted shall lapse after the expiration of one year, measured from the date of final Commission action, if no substantial construction or change of use has taken place in accordance with the plans for which the special use exception or variance was granted. End of Document C 2014 Thomson Reuters. No claim to original U.S. Government Works. McCray v. Volusia County, 400 So.2d 511 (1981) 400 So.2d 511 District Court of Appeal of Florida, Fifth District. Paul McCRAY, Appellant, V. COUNTY OF VOLUSIA and Dr. Thomas C. Kelly, County Manager, Appellees. No. 8o-1315. I June lo, 1981. County "auto service man" appealed from order entered by the Circuit Court, Volusia County, Robert P. Miller, J., denying petition for writ of certiorari by which he sought review of county manager's decision to discharge him from county's employment on ground that he was physically unable to perform normal tasks of his job. The District Court of Appeal, Cobb, J., held that by omitting from his appendix any testimony taken before personnel board relative to nature of his job and effect of his physical impairments, petitioner failed to present Circuit Court with portions of record that would indicate whether or not personnel board, and hence county manager, departed from essential requirements of law in discharging him, and thus denial of petition, for certiorari would be affirmed. Affirmed. West Headnotes (3) III Certiorari Score and F-acnt of Review, in General In considering by plenary appeal order of circuit court sitting in its certiorari review capacity, District Court of Appeal's review can be no broader than that of lower court. 3 Cases that cite this headnotc. [21 Officers and Public Employees ,„-,. In General; Questions or Matters Considered Circuit court's scope of review with respect to county manager's decision to terminate mechanic, before court on petition for writ of certiorari, was to detennine whether or not personnel board and county manager departed SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 10/9/2014. CITY CLERK from essential requirements of law and whether or not their decision was supported by substantial evidence. 2 Cases that cite this headnotc [3] Officers and Public Employees t-- Record By omitting from his appendix any testimony taken before personnel board relative to nature of his job and effect of his physical impairment, tenninated county mechanic failed to present circuit court with portions of record that would indicate whether personnel board, and hence county manager, departed from essential requirements of law in discharging him, and thus denial of his petition for certiorari would be affirmed. 32 West's F.S.A. Florida Rules of Appellate Procedure, Rules 9.100(e, g), 9.220. 1 Cases that cite this headnote Attorneys and Law Firms *511 David A. Vukelja of Coble, McKinnon, Rothert, Bohner, Barkin & Godbee, P.A., Daytona Beach, for appellant. Daniel R. Vaughen, Asst. County Atty., DeLand, for appellees. Opinion COBB, Judge. The appellant McCray was discharged from his employment with Volusia County on the ground that he was physically unable to perform the normal tasks of his job as "auto service man." This job basically entailed driving a tow truck and performing odd jobs around the county's paint and body shop. McCray appealed his discharge to the Volusia County Personnel Board where testimony was taken. No transcript of the personnel board hearing is before this court, *512 nor was it before the circuit court below. McCray contends on appeal that such transcript was not required in the absence of an order of the circuit court pursuant to Florida Rule of Appellate Procedure 9.100(g), which provides that a record shall not be transmitted to a circuit court unless ordered. McCray v. Volusia County, 400 So.2d 511 (1981) The personnel board, after the aforesaid hearing, unanimously found that McCray was physically unable to perform the duties of his position and unanimously recommended to the county manager that McCray's termination be upheld. The county manager followed the Personnel Board's recommendation, and did not reinstate McCray. Arguing that there was no competent substantial evidence to support the board's and the city manager's findings, McCray petitioned the Circuit Court of Volusia County for writ of certiorari to review the county manager's decision. Finding that McCray's petition failed to demonstrate a preliminary basis for relief or a departure from the essential requirements of the law by either the personnel board or the county manager, the circuit court denied McCray's petition. McCray now appeals that denial. [11 121 In considering by plenary appeal an order of the circuit court sitting in its certiorari review capacity, our review can be no broader than that of the lower court. Odham v. Petersen, 398 So.2d 875 (Fla. 5th DCA 1981). The circuit court's scope of review was to determine whether or not the appellees, the personnel board and the county manager, departed from essential requirements of law and whether or not their decision was supported by substantial evidence. DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957). We, therefore, must look at the petition filed below in the same manner and from the same perspective as did the circuit court. The record before the circuit court i. e., the petition and appendix included an equivocal medical report stipulated into evidence before the personnel board, but did not include any portions of the testimony presented before the personnel board. Nothing in the appendix indicated the specific physical activities required for McCray's job or the extent to which his existing physical impairment had previously interfered with his ability to perform those activities. The only "evidence" in regard to this point was Exhibits 7 and 8 of the appendix, a memo from the county's safety director to the county's public works director and a letter from the latter to McCray, respectively. End of Document SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 10/9/2014. CITY CLERK The memo indicated that McCray had completed an authorized employee physical examination and had been found to be medically acceptable for his present position, with the warning that he should "limit lifting, awkward." The letter to McCray from the public works director noted this warning and stated that in the past several months McCray had "advised your supervisor of your limited physical restrictions when requested to do certain jobs." Obviously, the medical report, the memo, and the letter are ambivalent and inconclusive on the key issue decided by the personnel board: Could McCray, given his physical problem, properly perform his job? Florida Rule of Appellate Procedure 9.100(c) provides that when a petition seeks an order directed to a lower tribunal, the petition shall be accompanied by an appendix as prescribed by Rule 9.220. That rule states: The purpose of an appendix is to permit the parties to prepare and transmit copies of such portions of the record deemed necessary to an understanding of the issues presented. 131 By omitting from his appendix any testimony taken before the personnel board relative to the nature of his job and the effect of his physical impairment, McCray failed to present the circuit court with the "portions of the record" that would indicate whether or not the personnel board, hence the county manager, departed from essential requirements of law in discharging him. *513 Accordingly, the denial of the petition for certiorari by the circuit court is affinned. AFFIRMED. FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur. 2014 Tham on Reuters, No aiairT to ori ina! J. . Government Works. SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 Keene v. Nudera, 661 So.2d 40 (1995) ON 10/9/2014. CITY CLERK 20 FIaL.'1Neekly D1232 'R"�� ���v requirement of completion of minimum of ten 661 So.2d 40 continuing legal education hours in appellate District Court of Appeal of Florida, practice or procedure, in addition to normally - Second District. required continuing legal education courses. West's F.S.A. R..App.P.Rules 9.040(h), 9.410. Marjorie KEENE, Petitioner, 1 Cases that cite this headnote V. Joseph NUDERA, Respondent. [3] Costs No. 94-044o6. I May 19, 1995. Statutory Provisions Rehearing Denied June 12, 1995• Courts Petition was filed requesting certiorari review of nonfinal Operation and Effect of Rules order of the Circuit Court, Hillsborough County, Edward Statute purporting to allow clerk of court to H. Ward, J., relating to discovery in automobile accident issue its certificate of indigency on attorney's case. The District Court of Appeal, Altenbernd, J., held that certification instead of party's affidavit, and that petition, which was facially insufficient, was required to be purportedly allows appeal of clerk's denial of dismissed on ground that it was not accompanied by either certification to "court having jurisdiction of the filing fee or order of indigency. The Court also set forth cause of action," conflicts with established rules procedures for filing appeals and original proceedings for of judicial procedure, as only Supreme Court has indigent clients in civil cases. constitutional power to adopt rules for practice and procedure in all courts. West's F.S.A. Const. Petition dismissed. Art. 2, § 3; Art. 5, § 2; West's F.S.A. § 57.081. Cases that cite this headnote West Headnotes (8) 141 Appeal and Error i Proceeding in Forma Pauperis 11 ] Certiorari Generally, District Court of Appeal does not a=— Quashing or Dismissal accept as sufficient a trial court's order of District Court of Appeal would dismiss petition indigency entered at inception of civil case requesting certiorari review of nonfinal order unless appellate proceeding is commenced relating to discovery, as petition, which was within six months of that order. facially insufficient, was not accompanied by either filing fee or order of indigency; District Cases that cite this headnote Court gave petitioner's counsel opportunity to prove his client's indigency status, but he failed [5] Appeal and Error to either obtain order from trial court or file Proceeding in Forma Pauperis sufficient motion and affidavit with District Attorney who plans to appeal order for indigent Court. West's F.S.A. § 57.081; West's F.S.A. client must timely file motion in trial court R.App.P.Rule 9.430. requesting order of indigency for purposes of I Cases that cite this headnote appeal, which order must be obtained either before filing of notice of appeal or shortly thereafter; if indigency order is not obtained 121 Attorney and Client prior to commencement of appeal, attorney Other Disposition should advise District Court of Appeal in writing Repeated failure to comply with Appellate concerning status of that order, as rules of Rule requiring payment of filing fee or timely appellate procedure do not require lower tribunal submission of order of indigency warrants SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 Keene v. Nudera, 661 So.2d 40 (1995) ON 10/9/2014. CITY CLERK -- ----- _ 20 Fla. L. Weekly D1232 �� to automatically send District Court copy of such order. West's F.S.A. R.App.P.Rule 9.430. Frank A. Miller of Stuart & Strickland, P.A., Tampa, for respondent. Cases that cite this headnote 161 Courts w;— Procedure in General Circuit court, as lower tribunal, is authorized to enter order of indigency for original proceeding, just as it must resolve that issue for direct appeal of final or nonfinal order. West's F.S.A. R.App.P.Rulc 9.430. Cases that cite this headnote 171 Courts .= Procedure in General To assure access to District Court of Appeal, it allows petitioners in original proceeding to file their motion for order of indigency, along with sufficient affidavit, in that court even when "lower tribunal" may exist. West's F.S.A. R.App.P.Rules 9.020(d), 9.100(b), 9.430. Cases that cite this headnote 181 Costs t-- Application and Proceedings Thereon Costs = Requisites and Sufficiency of Petition If motion for order of indigency is filed in District Court of Appeal in original proceeding, it should accompany petition; as with direct appeals, original proceeding will normally be dismissed after 30 days' notice if filing fee is not paid or sufficient motion and affidavit has not been filed with District Court. West's F.S.A. R.App.P.Rules 9.020(d), 9.1000), 9.430. 1 Cases that cite this headnote Attorneys and Law Firms *41 David Solomon, Clearwater, for petitioner. ALTENBERND, Judge. 11] Marjorie Keene filed a petition with this court requesting certiorari review of a nonfinal order relating to discovery. We dismiss this proceeding because the petition, which is facially insufficient, was not accompanied by either a filing fee or an order of indigency. This court gave petitioner's counsel an opportunity to prove his client's indigency status, and he has failed to either obtain an order from the trial court or file a sufficient motion and affidavit with this court. Under any interpretation of section 57,081. Florida Statutes (Stipp.]994), or Florida Rule of Appellate Procedure 9.430, petitioner's counsel has not established a basis for an order of indigency. Because the conflict between the procedure described in section 57.081 and the procedure required by rule 9,430 is sometimes confusing for appellants and petitioners, we take this opportunity to describe the established procedures for filing appeals and original proceedings for indigent clients in civil *42 cases. I As this case demonstrates, failure to follow these procedures may result in the dismissal of an appellate proceeding. I. MS. KEENE'S PETITION FOR CERTIORARI Ms. Keene is a plaintiff in a personal injury action. The petition filed in this court represents that she was injured in an automobile accident caused by Joseph Nudera's negligence. In discovery, the defendant allegedly sought information concerning Ms. Keene's prior medical treatment, including treatment relating to a mental or emotional condition. Ms. Keene filed a motion for protective order to prevent disclosure of "medical care unrelated to injuries claimed." The trial court entered an order requiring the plaintiff to answer interrogatories, respond to a request for production, and attend a deposition. The trial court's order requires the attorneys to maintain the privacy of information relating to any emotional or mental condition, as well as any unrelated physical condition, unless they are authorized to disclose the information by a future court order. The order further provides for in camera inspection of certain documents prior to discovery. Ms. Keene's petition asks this court to issue a writ of certiorari quashing the discovery order to the extent that it allows discovery of medical issues "beyond the Keene v. Nudera, 661 So.2d 40 (1995) -_..____a.._.__L. __W_ee__—kly _.__D1232_ ____ 20 Fl scope of the injuries claimed in the underlying automobile negligence action." If Ms. Keene's attorney had properly filed this petition with either a filing fee or an order of indigency, we would have summarily denied the petition without issuing an order to show cause. The two-page petition was not accompanied by an appendix as required by Florida Rule of Appellate Procedure 9.100(e). Instead, Ms. Keene's attorney attached to the petition: (1) a copy of a motion for protective order, (2) a discovery order entered within thirty days of the petition, and (3) another discovery order entered several months earlier. We could not enter an order narrowing the scope of discovery to injuries caused in the automobile accident because we have no pleadings or evidence from the trial court to establish that an automobile accident occurred, let alone to establish what, if any, injuries Ms. Keene sustained in that accident. Even accepting at face value the representations in the short petition, there is no reason to conclude that the trial court's order limiting discovery in favor of Ms. Keene departs from the essential requirements of the law. Our disposition of this matter has been delayed because Ms. Keene's attorney filed the petition without paying a filing fee or obtaining an order of indigency. The failure to pay a filing fee on time is not jurisdictional. Fla.R.App.P. 9.040(h). Thus, this court accepts a notice of appeal or a petition that commences an appellate proceeding, even if we receive no filing fee. We do not rule upon the merits of such an appeal or petition until the fee either has been paid or has been waived by an order of indigency. If the issue of the filing fee is not resolved by the appellant or petitioner after notice from this court, the proceeding is dismissed without a ruling on the merits. Most attorneys who file an appellate proceeding for an indigent client obtain an order of indigency from the trial court in the thirty days between rendition of the relevant order and the expiration of the time for the filing of an appellate proceeding. Occasionally, an attorney will submit a letter with the notice of appeal or with the petition in an original proceeding, explaining that the order has not yet been entered, but will be provided in the near future. By contrast, on at least ten prior occasions in the last twenty- five months, David Solomon, the attorney who represents Ms. Keene, has filed appellate proceedings in this court without a fee or an order of indigency. 2 *43 On each occasion, this court has ordered Mr. Solomon to either pay the filing fee, SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 10/9/2014. CITY CLERK or establish indigency. These orders have resulted in delay and confusion in several appeals. In addition to the possible harm to the litigants, this process has been time-consuming and expensive for this court. In Ms. Keene's case, Mr. Solomon moved for an extension of time to comply with the court's order on fees because his client had "recently not been easily available." When this court ordered him to appear to show cause why sanctions should not be imposed under rules 9.040(h) and 9.410, he filed a document entitled "affidavit" and signed by Ms. Keene, stating that she is "without gainful employment, any income, or any assets," and that she is `currently residing with family and/or friends, who do not charge [her] rent." 3 Significantly, this document contains no formal oath and does not employ the standard language of an affidavit. See § 92.525, Fla Stat. (1993). The format of the affidavit would not be acceptable, even if it had been prepared and submitted by a prisoner untrained in the law. State v..5heurer, 628 So.2d 1102 (F1a.1993); Fla.R.Crim.P. 3.987. It is apparent from Mr. Solomon's presentation at the hearing on the order to show cause that he is not willfully disobeying our orders, but he does not understand the basic procedures for establishing indigency status in an appellate proceeding. Because we have given Ms. Keene an opportunity to establish her right to an appellate proceeding without the payment of a filing fee, and because it is apparent that she would be entitled to no relief even if we gave her a greater opportunity to establish her indigency, we dismiss this proceeding. 121 This court has the power to fine David Solomon for his repeated failure to comply with rule 9.040(h). See Fla.R.App.P. 9.410; In re .Sanctions. 495 So.2d 187 (Fla. 2d DCA 1986). We conclude, however, that a fine is not the most productive solution to this problem. In lieu of a fine, Mr. Solomon is ordered to obtain a minimum of ten continuing legal education hours in appellate practice or procedure, in addition to the continuing legal education required by rule 6-10.3 of the Rules Regulating The Florida Bar, during the next twelve months, and provide proof of that education to the clerk of this court. Il. THE PROCEDURE FOR OBTAINING INDIGENCY STATUS IN A CIVIL APPELLATE PROCEEDING SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 Keene v. Nudera, 661 So.2d 40 (1995) ON 10/9/2014. CITY CLERK 20 Fla. L. Weekly D1232 Prior to 1980, a litigant did not have a substantive right to appeal an action without the payment of a filing fee. Millman v. Federal Nat'l Mortgage A.ss'n, 375 So.2d 336 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 758 (Fia.1980); Lee v. Cin- of J+'inter Haven. 386 So.2d 268 (Fla. 2d DCA 1980). In chapter 80-348, Laws of Florida, the legislature created a statutory right for an indigent person to gain such access to Florida's appellate courts. Kleinschmidt v. Estate q/ Kleinschmidt, 392 So.2d 66 (Fla. 3d DCA 1981); see also Fields v, Zinman, 394 So.2d 1133 (Fla. 4th DCA 1981) (Hurley, J. concurring), review dismissed, 417 'So.2d 329 (Fla. 1982). That right is codified in section 57.081(1), Florida Statutes (Supp.1994). 131 In addition to giving indigent litigants a substantive right to the waiver of appellate filing fees, section 57.081(1) describes a procedure for obtaining a certificate of indigency from the clerk of court. A 1994 amendment to the statute purports to allow the clerk to issue its certificate on an attorney's certification instead of a party's affidavit. Ch. 94- 348, Laws of Fla.; § 57.081, Fla.Stat. (Supp. 1994). *44 The statute allows an appeal of a clerk's denial of a certification to the "court having jurisdiction of the cause of action." The legislature's suggested procedure might be workable, but it conflicts with established rules of judicial procedure. Only the supreme court has the constitutional power to adopt rules for the practice and procedure in all courts. Art. 11. § 3, Art. V, § 2, Fla. Const. (1968); Markers v. Johnston, 367 So.2d 1003 (Fla. 1978). Florida. Rule of Appellate Procedure 9.430 states: A party who has the right to seek review without payment of costs shall file a motion in the lower tribunal, with an affidavit showing the party's inability either to pay fees and costs or to give security therefor. If the motion is granted, the party may proceed without further application to the court and without either the prepayment of fees or costs in the lower tribunal or court or the giving of security therefor. If the motion is denied, the lower tribunal shall state in writing the reasons therefor. Review shall be by motion filed in the court. Florida Rule of Judicial Administration 2.040(b)(3) states: (3) Filing Fee. In all cases filed in the court, the clerk shall require the payment of a fee as provided by law at the time the notice, petition, or other initial pleading is filed. The payment shall not be exacted in advance in appeals in which a party has been adjudicated insolvent for the purpose of an appeal or in appeals in which the state is the real party in interest as the moving party. The payment of the fee shall not be required in habeas corpus proceedings or appeals therefrom. It is well established that the statutory procedure of obtaining a clerk's certificate is not sufficient to comply with these rules of judicial procedure. Chappell v. Florida, Dept of Health cY Rehabilitative Servs., 391 So.2d 358 (Fla. 5th DCA 1980), rev'd on other grounds after remand, 419 So.2d 1051 (F1a.1982). The above -quoted rules of judicial procedure require an order based on an affidavit. If the lower tribunal denies the motion, it must state the reasons for denial in writing. That decision is then reviewable by the appellate court. The 1994 statutory amendment does not change these rules of judicial procedure. See Schwab v. Brevard Coun�v School Bd., 650 So.2d 1.099 (Fla. 5th DCA 1995). It is arguable that the 1994 statutory amendment alters the substantive requirements for an order of indigency. In lieu of a client's affidavit, the statute suggests that the clerk may issue its (invalid) certificate of indigency if the client's attorney certifies that he or she has made an investigation to ascertain the financial condition of the client and has found the client to be indigent; that the attorney has investigated the nature of the applicant's position and in the attorney's opinion it is meritorious as a matter of law; and that the attorney has not been paid or promised payment of any remuneration for services and intends to act as attorney for applicant without compensation. § 57.081(1), Fla.Stat. (Supp.1994). The question remains whether the court may or must issue an order of indigency Keene v. Nudera, 661 So.2d 40 (1995) 20 Fla L. Weekly D1232 based upon such a certificate when the evidence of indigency is entirely hearsay. In this case, we do not need to resolve whether the court must issue an order on the basis of such hearsay. Suffice it to say that a lawyer who performs the steps necessary to prepare such an onerous certificate will usually find it easier and safer to obtain an affidavit from the client. The suggested forms we append to this opinion do not rely upon an attorney's certificate. A. Direct Appeals of Final or Nonfina! Orders. 141 151 Ms. Keene did not file a direct appeal of a final or non -final order in this civil case. If she had, this court's standard procedure would have required that she obtain an order of indigency from the circuit court, as the "lower tribunal." Generally, this court does not accept as sufficient a trial court's order of indigency entered at the inception of a civil case unless the appellate proceeding is commenced within six months of that order. See *45 Fields r. Jack Eckerd Corp.. 439 So.2d 347 ( Fla. 2d DCA 1983). 4 An attorney who plans to appeal an order for an indigent client must timely file a motion in the trial court requesting an order of indigency for purposes of appeal. That order must be obtained either before filing the notice of appeal or shortly thereafter. If the indigency order is not obtained prior to the commencement of the appeal, the attorney should advise this court in writing concerning the status of that order. Attorneys should be aware the rules of appellate procedure do not require the lower tribunal to automatically send this court a copy of such an order. It is the appellant's responsibility to provide this court with a copy of the order of indigency. This court will normally dismiss an appeal after thirty days' notice if the filing fee is not paid or an order of indigency is not filed. B. Original Proceedings. Ms. Keene filed a petition for writ of certiorari, an "original" proceeding under Florida Rule of Appellate Procedure 9.100. SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 10/9/2014. CITY CLERK The procedure for obtaining an order of indigency in an original proceeding is slightly different. 161 The great majority of original proceedings seek review of orders entered by circuit courts, as "lower tribunals," and all parties in the lower tribunal become parties in the appellate proceeding. F1a.R.App.P. 9.100(b). In light of the language in rile 9.430, we conclude that a circuit court, as the lower tribunal, is authorized to enter an order of indigency for an original proceeding, just as it must resolve that issue for a direct appeal of a final or nonfinal order. 171 In some cases, an original proceeding is not filed to review a circuit court order, but to challenge the decision of another governmental entity that is defined as a "lower tribunal," but is not a typical judicial forum. See Fla.R.App.P. 9.020(d). In other cases, especially those involving petitions for mandamus or prohibition, it may not be feasible to obtain an order of indigency from the lower tribunal. To assure access to this court, we allow petitioners to file their motion for an order of indigency, along with a sufficient affidavit, in this court even when a "lower tribunal" may exist. [81 If the motion is filed in this court, it should accompany the petition. As with direct appeals, an original proceeding will normally be dismissed after thirty days' notice if the filing fee is not paid or a sufficient motion and affidavit has not been filed with this court. Neither the Florida Rules of Appellate Procedure nor the most frequently used Florida practice manuals contain forms useful in obtaining an order of indigency for appeal. To assist the trial courts with this process and to assist petitioners in this court, we append to this opinion a form affidavit and order that, while not mandated by this court, should be helpful in complying with section 57.081(1) and rile 9.430. Petition for writ of certiorari dismissed. RYDER, A.C.J., and LAZZARA, J., concur. *46 APPENDIX SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 Keene v. Nudera, 661 So.2d 40 (1995) ON 1019/2014. CITY CLERK 20 Fla. L. Weekly D1232 IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT, IN AND FOR COUNTY, FLORIDA Plaintiff, V. Defendant. Case No: ORDER DETERMINING INDIGENCY FOR PURPOSE OF APPEAL THIS CAUSE came on for hearing upon the plaintiff's motion for an order of indigency for purposes of appeal. This court having reviewed the motion and the attached affidavit, determines that: [ ) The plaintiff is currently indigent for the purposes of section 57.081(1),,Florida Statutes, and is entitled to proceed in the appellate court without further application to the court and without either the prepayment of fees or costs in this tribunal or the giving of security therefor. ( ] The plaintiff is not currently indigent for the purposes of section 57.081(1), Florida Statutes, and is not entitled to proceed in the appellate court without the payment of *47 SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 Keene v. Nudera, 661 5o.2d 40 (1995) ON 10/9/2014. CITY CLERK appellate fees and costs. This court denies the plaintiff's motion for the following reasons: (Provide written reasons as required by rule 9.430) ORDERED at , Florida, on , 199 cc: attorneys of record clerk, court of appeal *48 Judge Keene v. Nudera, 661 So.2d 40 (1995) 20 Fla. L. Weekly D1232�u�� ���� IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT, IN AND FOR COUNTY, FLORIDA Plaintiff, v. Defendant. Case No: Affidavit submitted pursuant to § 57.081(1), Fla. Stat. (Supp. 1994), & Fla. R. App. P. 9.430. AFFIDAVIT OF INDIGENCY SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 ON 10/9/2014. CITY CLERK STATE OF FLORIDA COUNTY OF BEFORE ME, the undersigned authority, this day personally appeared who being duly sworn, deposes and says: 1. I am over the age of 18 and am otherwise competent to testify. I have read this affidavit and have personal knowledge that the contents of this document are true and correct. 2. I am without funds, unable to pay the appellate filing fees and costs, and unable to give security therefor. 3. Age Date of Birth 4. My social security number is 5. I am married separated divorced single Number of , dependents 6. I am currantly omni --A Occupation: Employed by: Employer's address: Employer's telephone: Weekly Rate of pay: 7. I am currently unemployed: *49 SUBMITTED INTO THE PUBLIC Keene v. Nudera, 661 So.2d ao (1995) aRECORD FOR ITEM(S) PZ.3 � ON 10/9/2014. CITY CLERK 20 Fl. L. Weekly D123 — _- 8. My spouse, , is employed as follows Occupation: Employed by: Employer's address:_ Employer's telephone: Weekly Rate of pay:_ 9. own home: Yes ; No Monthly mortgage payments: $ Rent home: Yes ; No Monthly rental payments: $ Value of real estate owned: $ 10. own automobile: Yes ; No (Year: ) (Make: ) Monthly auto payments: $ Value of automobile(s): $ 11. Value of other personal property (appliances, boats, guns, jewelry, securities, cash value of insurance, etc.): 12. Checking, savings, money market or other similar accounts: $ 13. Cash on hand: $ 14. Approximate Total Debt: $ 15. Major Creditors: Creditor: Balance Due: $ Creditor: Balance Due: $ Creditor: Balance Due: $ Affiant Sworn to and subscribed before me this day of , 19 Notary Public, State of Florida My Commission Expires: Parallel Citations 20 Fla. L. Weekly D1232 Footnotes 1 The conflict between these procedures is not the reason for the dismissal or the sanctions in this case. Petitioner's counsel did not attempt to use the unauthorized procedure described in the statute. He failed to take reasonable steps to establish indigency in this court after he was ordered to do so. 2 Polk v. State, No. 93-1032 (filed March 26, 1993, fee waived on June 8, 1993); Calley v. State Farm Ins. Co., No. 93-1438 (filed April 30, 1993, fee paid on May 24, 1993); Poole v. CF Industries, No. 93-1862 (filed June 8, 1993, dismissed for failure to pay fee or obtain order of indigency); Finley v. Villanti, No. 93-3761 (filed November 8, 1993, voluntarily dismissed without payment of fee); Fernandes v. Boisvert, No. 93-4000 (filed December 1, 1993, indigency order finally obtained from trial court on August 18, 1994); Hurst v. Yamaha Motor Co., No. 94-938 (filed March 24, 1994, fee paid on May 20, 1994); Poole v. CF Industries, No. SUBMITTED INTO THE PUBLIC RECORD FOR ITEM(S) PZ.3 Keene v. Nudera, 661 So.2d 40 (1995) ON 10/9/2014. CITY CLERK 20 Fla. L. Weekiy D1232 ����� 94-1057 (filed April 13, 1994, fee paid on May 20, 1994); Motzne v. Clearwater Realty, No. 94-1694 (filed May 17, 1994, fee paid August 15, 1994); Breen v. Huntley Jiffy Stores, No. 94-2371 (filed July 12, 1994, fee never paid, but case dismissed due to untimely notice of appeal); Anthony v. Allstate Ins. Co., No. 94-2661 (filed August 3, 1994, fee paid November 3, 1994). 3 We note that the affidavit does not state whether she has been declared indigent for any purpose in the trial court. Based on our record, we assume that she paid a filing fee in the trial court. 4 If an appellant files in this court an order of indigency entered in the lower tribunal prior to the date of the order on appeal, the appellee may challenge the order by filing a motion in this court requesting a new determination of indigency in the lower tribunal. Such a motion should be based upon a substantial change in the appellant's financial condition after the entry of the earlier order. End of Document c'.,) 2014 Thomson Reuters. No claim to original U.S. Government Works.