Background
Maureen Donnelly converted the in-ground swimming pool behind her home into a koi pond. Hillsborough County cited her under a property-maintenance provision requiring every swimming pool to be maintained in a clean, safe, and sanitary manner. Donnelly argued that the structure no longer qualified as a “swimming pool” because the county code defined that term as a residential structure that “is intended for swimming or recreation bathing,” while she intended to use it only for keeping koi.
The Hillsborough County Code Enforcement Board treated the structure as a swimming pool because it had been designed and built as one, then ordered Donnelly to correct the violations within four days or face a potential $500 daily fine. Sitting in its appellate capacity, the circuit court upheld that decision after deferring to the board’s interpretation of the ordinance. Donnelly sought second-tier certiorari review in the Second District.
The Court’s Holding
The Second District granted the petition and quashed the circuit court’s order. The majority held that the ordinance’s use of the present-tense phrase “is intended” made the owner’s current intended use controlling. Because the record contained no evidence that Donnelly presently intended to use the koi pond for swimming or recreational bathing, the swimming-pool maintenance provision did not apply merely because the structure originally had been designed and built as a pool.
The court also held that the circuit court applied the wrong law by deferring to the code enforcement board’s interpretation. Article V, section 21 of the Florida Constitution abolished judicial deference to administrative agencies’ interpretations of statutes and rules and requires de novo interpretation. The board’s failure to apply the ordinance’s definition, combined with the circuit court’s improper deference, amounted to a departure from the essential requirements of law resulting in a miscarriage of justice. Judge Guard dissented, reasoning that the majority exceeded the narrow scope of second-tier certiorari review, improperly reweighed an incomplete record, and addressed an isolated factual dispute that did not produce the required miscarriage of justice.
Key Takeaways
- A structure falls within this ordinance’s definition of a swimming pool only when it is currently intended for swimming or recreational bathing; its original design and use are not dispositive.
- A code enforcement board may not expand an unambiguous ordinance beyond its text to address perceived health or safety concerns.
- Florida courts must interpret governing legal text independently rather than defer to an administrative body’s interpretation.
Why It Matters
The decision reinforces textual limits on local code enforcement and confirms that agencies cannot apply regulations based solely on a structure’s former use when the ordinance speaks in terms of present intent. If a local government wants converted pools or standing-water features regulated regardless of current use, the governing ordinance must say so.
The opinion also illustrates when erroneous ordinance interpretation can justify the extraordinary remedy of second-tier certiorari, particularly where an owner faces accumulating daily fines and possible foreclosure enforcement. The dissent, however, cautioned that the ruling risks turning narrowly confined certiorari review into a second appeal.