WHAT HELEN IS FIGHTING AND ARGUING AGAINST THE TOWN’S POSITION IN THE APPELLATE COURT

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA, FIRST DISTRICT
HELEN MILLER,
Case No.: 1D18-1679
Petitioner, L.T. No.: 2017-095-CA
v.
TOWN OF WHITE SPRINGS,
a Municipal Corporation Existing
Under the Laws of The State of Florida,
Respondent.
___________________________________/
RESPONDENT’S RESPONSE TO
PETITION FOR WRIT OF CERTIORARI
Respectfully submitted,
/s/ Darren J. Elkind_________
Darren J. Elkind, Esquire
Attorney for Respondent – TOWN OF
WHITE SPRINGS
PAUL, ELKIND, BRANZ & KELTON, P.A.
505 Deltona Blvd., Suite 105
Deltona, FL 32725
Telephone: (386) 574-5634
Fax: (386) 574-5665
E-mail: delkind@paulandelkind.com
kkomejan@paulandelkind.com
stobar@paulandelkind.com
Florida Bar No. 050954
RECEIVED, 6/15/2018 2:52 PM, Kristina Samuels, First District Court of Appeal
TABLE OF CONTENTS
TABLE OF CITATIONS p. 1
RESPONSE TO STATEMENT OF FACTS p. 2
ISSUE I p. 2
WHETHER THE CIRCUIT COURT APPLIED THE
CORRECT LAW?
ISSUE II p. 5
WHETHER THE TRIAL COURT DID NOT DEPART
FROM THE ESSENTIAL REQUIREMENTS OF LAW?
CONCLUSION p. 6
CERTIFICATE OF SERVICE p. 7
CERTIFICATE OF COMPLIANCE p. 8
1
TABLE OF CITATIONS
Educ. Dev. Ctr., Inc. v. W. Palm Beach Zoning Bd. Of Appeals,
541 So. 2d 106 (Fla. 1989) p. 3, 5
Haines City Cmty. Dev. V. Heggs, 658 So. 2d 523, 530
(Fla. 1995) p. 2, 3, 5
Nader v. Fla. Dep’t of High. Saf. & Motor Vehs,
87 So. 3d 712 (Fla. 2012) p. 5
Orange Cty. V. Lust, 602 So. 2d 568, 570
(Fla. 5th DCA 1992) p. 3
Sloban v. Fla. Bd. of Pharmacy, 982 So. 2d 26
(Fla. 1st DCA 2008) p. 3
Wiggins v. Fla. Dep’t of High. Saf. & Motor Vehs.,
209 So. 3d 1165 (Fla. 2017) p. 2

2

RESPONSE TO STATEMENT OF FACTS

In her Petition for second-tier certiorari review, Petitioner recites at length her
version of the facts adduced at the original hearing before the Town of White
Springs. This is much the same as the recitation of the facts from the original petition
for first tier certiorari review in the Circuit Court. While the Respondent certainly
has a supplemental set of facts which were, obviously, set forth by the Respondent
on first tier certiorari review in the Circuit Court, it does not do so here. It appears
that Petitioner is inviting this Court, on second-tier review, to review the facts.
However, “the standard of review for certiorari in the district court [on second tier
certiorari] effectively eliminates the substantial competent evidence component.”
Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). As such, a
recitation of the facts in this Court is unnecessary and any examination of the facts
irrelevant to the issues herein, as further explained below. Accordingly, Respondent
does not set forth any facts herein nor otherwise comment on the Petitioner’s
recitation of facts.
ISSUE I

THE CIRCUIT COURT APPLIED THE CORRECT LAW.

The Circuit Court in its order stated the proper standard of review on first tier
certiorari by citing Wiggins v. Fla. Dep’t of High. Saf. & Motor Vehs., 209 So. 3d
1165 (Fla. 2017). The Circuit, at paragraph three of its order, clearly stated that there
was competent substantial evidence to support the Town of White Springs’ decision
which is precisely what the Circuit Court was bound to search for. The Circuit’s
Court duty was to search the record to see if any competent substantial evidence
supported the Town of White Springs’ decision. Orange Cty. v. Lust, 602 So. 2d
568, 570 (Fla. 5th DCA 1992) citing Educ. Dev. Ctr., Inc. v. W. Palm Beach Zoning
Bd. of Appeals, 541 So. 2d 106 (Fla. 1989). The Circuit Court’s order states that this
is precisely what it did.
Petitioner’s argument in its petition for second-tier certiorari review is based
solely upon the Circuit Court’s citation to Sloban v. Fla. Bd. of Pharmacy, 982 So.
2d 26 (Fla. 1st DCA 2008). Sloban and its separation of powers analysis is
admittedly inapposite in the instant case. However, the ultimate rule of law for
which those cases were cited by the Circuit Court are applicable to the instant case,
to wit: that “it would be improper for the Circuit Court to substitute its judgment
for that of the Town Council of the Town of White Springs.” [emphasis added]
[Paragraph 5 of the Circuit Court’s Order Denying Certiorari]. On certiorari review
of agency action, as in this case, “the circuit court functions as an appellate court,
and, among other things, is not entitled to reweigh the evidence or substitute its
judgment for that of the agency.” [emphasis added] Haines City Cmty. Dev. v.
Heggs at 530 (Fla. 1995).
4
It is evident from the Circuit Court’s order that it evaluated whether there was
competent substantial evidence to support the ruling of the Town of White Springs.
The Circuit Court also evaluated and found that “[t]he Petitioner was accorded due
process and the opportunity to be heard at all stages of the proceedings.” [Paragraph
4 of the Circuit Court’s Order Denying Certiorari]. The Petitioner can not and does
not point out any way in which the Circuit Court APPLIED the incorrect law.
Petitioner’s sole argument is that Circuit Court cited the wrong cases for the correct
rule of law – that the Circuit Court was not allowed to substitute its judgment for
that of the Town Council of the Town of White Springs. The Petitioner therefore
posits that the Circuit Court must have refused to review the record and the decision
rendered by the Town of White Springs. This argument is belied by the fact that the
Circuit found that the “record of this case contains substantial, competent evidence
to support the decision of the Respondent to remove the Petitioner from her position
as Council Member.” [Paragraph 3 of the Circuit Court’s Order Denying Certiorari].
The Circuit Court stated that it conducted the proper review and made findings
in that regard. Accordingly, it cannot be said that the Circuit Court applied the
incorrect law.
5

ISSUE II     THE TRIAL COURT DID NOT DEPART

FROM THE ESSENTIAL REQUIREMENTS OF LAW.

Petitioner argues that the Circuit Court departed from the essential
requirements of law by applying the incorrect law. As explained above, the Circuit
Court applied the correct law, did the proper first-tier certiorari review of the record,
and therefore did not depart from the essential requirements of law. It is axiomatic
that second-tier certiorari is to be granted sparingly and is not simply a second
appeal. Nader v. Fla. Dep’t of High. Saf. & Motor Vehs., 87 So. 3d 712 (Fla. 2012);
Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995); Educ. Dev. Ctr., Inc.
v. W. Palm Beach Zoning Bd. of Appeals, 541 So. 2d 106 (Fla. 1989). Accordingly,
this Court should deny the Petition for second-tier certiorari review.
6

CONCLUSION

The Petitioner seeks to have this Court quash the decision of the Circuit Court
and in its quashal restore the Petitioner to the office to which she was elected. First,
if this Court found that the Circuit Court failed to review the record for competent
substantial evidence, which the Circuit Court stated that it did, then this Court would
presumably be required to quash the Circuit Court’s order with instructions for the
Circuit Court to conduct such a review. Second, the Petitioner cannot be restored to
the office to which she was elected because that term of office has expired. This is
the subject of a motion to dismiss this appeal for mootness which is currently
pending before this Court. In any event, for the reasons set forth above, this Court
should determine that the Circuit Court applied the correct law and therefore did not
depart from the essential requirements of law.
7

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served by
electronic mail to: Mark Herron, Esq. (mherron@lawfla.com; clowell@lawfla.com;
statecourtpleadings@lawfla.com) and J. Brennan Donnelly, Esq.
(bdonnelly@lawfla.com) on this 15th day of June, 2018.
/s/ Darren J. Elkind
Darren J. Elkind, Esquire
8

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing Respondent’s Response to Petition
for Writ of Certiorari has been prepared in Times New Roman 14-point font and
complies with the font requirements of Rule 9.210(a)(2), of the Florida Rules of
Appellate Procedure.
/s/ Darren J. Elkind
Darren J. Elkind, Esquire
Florida Bar No. 050954
PAUL, ELKIND, BRANZ & KELTON, P.A.
505 Deltona Blvd., Suite 105
Deltona, FL 32725
(386) 574-5634
Email: delkind@paulandelkind.com;
kkomejan@paulandelkind.com;
stobar@paulandelkind.com
Attorney for Respondent

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