        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT
                                July Term 2014

 TAXI USA OF PALM BEACH, LLC d/b/a TAXI TAXI, a Florida limited
                      liability company,
                          Petitioner,

                                       v.

 CITY OF BOCA RATON, FLORIDA, a Florida municipal corporation,
   METRO TAXI OF FLORIDA, LLC d/b/a METRO TAXI OF PALM
BEACH COUNTY, a Florida limited liability company, SOUTHEASTERN
FLORIDA TRANSPORTATION GROUP, LLC d/b/a YELLOW CAB, INC.,
               a Florida limited liability company,
                           Respondents.

                               No. 4D14-2397

                            [ November 12, 2014 ]

  Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Timothy McCarthy, Peter Blanc and
Edward Fine, Judges; L.T. Case No. 2013CA018014AY.

  Mitchell W. Berger and Paul S. Figg of Berger Singerman LLP, Fort
Lauderdale, for petitioner.

   Diana Grub Frieser, Boca Raton, and Jamie Cole, Matthew H. Mandel
and Laura K. Wendell of Weiss Serota Helfman Pastoriza Cole & Boniske,
P.L., Coral Gables, for Respondent-City of Boca Raton, Florida.

PER CURIAM.

   Petitioner Taxi USA of Palm Beach, LLC, (Taxi) seeks second-tier
certiorari review of a circuit court decision denying relief in a case involving
certification for taxicabs in the City of Boca Raton. We deny this petition
because Taxi has failed to demonstrate either a denial of procedural due
process or a failure to apply the correct law resulting in a miscarriage of
justice.

   This case commenced with Taxi submitting an application for a
certificate of public convenience and necessity with the City of Boca Raton,
seeking to operate thirty taxicabs within the city. After Taxi demonstrated
financial responsibility as required by the City Code for Boca Raton, its
application was set before a hearing officer. At this hearing, the applicant
must demonstrate by a preponderance of the evidence that it meets certain
mandatory criteria, including public demand for the additional taxicab
service, the inadequacy of existing service, the effect of additional service,
and so forth. See BOCA RATON, FLA., CODE OF ORDINANCES, § 18-48(2) (2013)
(hereafter “City Code”). Existing certificate holders are entitled to intervene
as parties to challenge issuance of the certificate. See City Code § 18-49
(1)(i).

   At the hearing, counsel for Transportation Service Systems, Inc. d/b/a
“Metro Taxi of Palm Beach County” (Metro Taxi) and Southeast Florida
Transportation Group, LLC, d/b/a “Yellow Cab” (Yellow Cab) argued
against the claim of inadequacy of existing taxicab and limousine service
in the city. Counsel argued that the application by Taxi was premature
and would saturate the existing market, since the City had recently
approved twenty new taxicab permits for Your Safe Drivers Taxi, LLC,
another provider in the city, and thirty new taxicab permits for Metro Taxi.

   After hearing the evidence and arguments, the hearing officer granted
Taxi a certificate to operate thirty taxis in the city, including three
wheelchair-accessible vehicles. He found “no empirical data presented” to
support the argument of prematurity of Taxi’s application or saturation of
the market. The hearing officer acknowledged that Taxi had presented a
standard based on the number of taxicabs needed per 1,000 city residents,
which he said reflected that the city should have approximately 253
taxicabs rather than the sixty-nine currently permitted. He found by a
preponderance of the evidence presented that:

      1. There is a demand of the public for the additional taxicab
      service.

      2. There is currently an inadequacy of existing taxicab
      service.

      3. There will be no adverse effect of the additional taxicabs
      upon traffic conditions and parking.

      4. The Applicant has the resources necessary to create,
      operate and maintain a financially stable operation.

      5. The Applicant has experience in, and the capability to
      successfully own, manage and operate a transportation
      business; and

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      6. There are no facts or circumstances which would render
      the Applicant unfit to operate such a business.

These are the criteria for issuance of a certificate which the hearing officer
must apply and which the applicant must demonstrate. City Code § 18-
48(2).

    The City Code allows either the applicant or an intervening party to
“appeal” a decision by the hearing officer. City Code § 18-49(1)(k)2. Metro
Taxi and Yellow Cab appealed. The Code provides that the City Council
sits in “open session” as the appeal board, and that it shall either affirm
the hearing officer’s actions, affirm with modification, reverse it or remand
for further consideration. Id. The appellant is allowed to present to the
City Council “such relevant material, evidence and statements” and others
may “present like information.” City Code § 2-27 (incorporating Rules of
Procedure).

    Rule 1.20(c)4. provides that a public hearing is open to public
participation. Rule 1.20(c)4.b. provides that “[t]he applicant, if any, shall
present such relevant material, evidence and statements as the applicant
deems would be of assistance to the board.” Subsection (c)4.c. provides:
“[a]ll other persons other than an applicant may then present like
information to the board.” Finally, subsection (c)4.h. provides that:

      The purpose of the public hearing is to inform the board of the
      relevant views of interested persons and the general public,
      and to present such factual information as is necessary for
      the board to make a decision or recommendation. Any action,
      conduct or statement not reasonably in accord with this
      purpose may be ruled out of order by the presiding officer,
      subject to appropriate point of order by the board.

   After hearing evidence and argument at the City Council’s appeal
hearing, the Council voted to reverse the hearing officer’s decision by its
approval of Resolution No. 154-2013. The Council first stated in its
“whereas” clauses that the “procedures and the standard of review utilized
in the hearing were consistent with the intent of the City Code of
Ordinances, and were consistent with the prior practice of the City Council
in similar proceedings . . . .” It concluded that the criteria of Section 18-
48(2), had not been satisfied.

   Taxi challenged that decision of the City Council by petition for writ of
certiorari filed in the circuit court (the first-tier certiorari proceeding). It

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argued that the record contained competent, substantial evidence to
support the hearing officer’s findings which led him to grant the
application. Therefore, the City Council must have failed to observe the
essential requirements of law in reversing the hearing officer. It argued
that the City Council had reweighed the evidence and that it was not
permitted to do so. Taxi cited City of Deland v. Benline Process Color Co.,
Inc., 493 So. 2d 26 (Fla. 5th DCA 1986), where the Fifth District Court of
Appeal held that the circuit court, sitting in appellate capacity from a city
code enforcement board, had no authority to reweigh the evidence found
by that board. Reliance on that case, however, is misplaced.

    In Benline, the city challenged the standard of review applied in the
circuit court’s first-tier appellate review.     In first-tier review, the
evidentiary challenge is limited to reviewing “whether the agency decision
is supported by competent substantial evidence.” Fla. Power & Light Co.
v. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000). Here, petitioner is
challenging the standard of review applied by the underlying
administrative board or council. The record does not support any claim
that the circuit court reweighed the evidence in the first-tier certiorari
proceeding in this case.

   Taxi’s main challenge was to the City Council’s use of what it termed a
“hybrid appeal process” in allowing new evidence to be introduced when
reviewing the hearing officer’s decision to approve Taxi’s application for
certificate. However, it did not address the specific provisions of the City
Code and its incorporated rules which allow for this procedure.

    Taxi also argued that the City Council denied it due process by applying
different standards for issuing certificates of public convenience and
necessity for different applicants, in particular Metro Taxi and Your Safe
Driver. For this claim, Taxi speculated that the City Council “must have
applied a standard other that [sic] the 3 taxis per 1,000 residents
standard.” However, the Council did not expressly articulate which
standard or formulation it decided to apply. The circuit court denied Taxi’s
petition for writ of certiorari without explanation in a per curiam opinion.
Taxi now seeks second-tier review in this court.

   Second-tier certiorari review is narrow, limited to determinations of
whether the circuit afforded procedural due process and applied the
correct law. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla.
1995). As to whether the circuit court applied the correct law, the district
court should grant a petition for second-tier certiorari “only when there
has been a violation of a clearly established principle of law resulting in a
miscarriage of justice.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d

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1086, 1092 (Fla. 2010) (citation and quotation marks omitted).

         Clearly established law can be derived not only from case
      law dealing with the same issue of law, but also from an
      interpretation or application of a statute, a procedural rule, or
      a constitution provision. When the established law provides
      no controlling precedent, however, certiorari relief cannot be
      granted because without such controlling precedent, a district
      court cannot conclude that a circuit court violated a clearly
      establish principle of law. Further, a misapplication or an
      erroneous interpretation of the correct law does not rise to the
      level of a violation of a clearly established principle of law.

Dep’t of Highway Safety & Motor Vehicles v. Edenfield, 58 So. 3d 904, 906
(Fla. 2d DCA 2011) (internal citations and quotations omitted).

   Taxi argues that the “hybrid appeal” process allowing the City Council
to hear the “appeal” and yet also allowing new evidence at the same
proceeding was “arbitrary and capricious, and not otherwise supported by
legal precedent.” However, Taxi has not identified any clearly established
law that prohibits this procedure.

   Further, even if allowing evidence to be admitted in the appeal to the
City Council was erroneous, Taxi has failed to demonstrate that the circuit
court’s denial of first-tier certiorari resulted in a miscarriage of justice.
This is particularly the case because petitioner admits having presented
evidence on its own behalf to the City Council.

    Respondent City of Boca Raton points out that nothing in the City Code
requires the City Council to adhere to a strict judicial standard of review
or confine its deliberation to the record which was before the hearing
officer. Although the Council sits as an “appeal board,” the term “appeal”
can encompass a de novo hearing in other administrative contexts, such
that the term “appeal” means a mere application to a higher authority. For
example, in Young v. Department of Community Affairs, 625 So. 2d 831,
833 (Fla. 1993), the Florida Supreme Court ruled that a proceeding before
the Land and Water Adjudicatory Commission to determine whether local
development orders were proper was a de novo hearing. The court
recognized instances in which statutes provide for “appeals” of
administrative decisions but observed that the term “appeal” would be
interpreted in its “broadest, non-technical sense . . . to mean merely an
application to a higher authority.” Transgulf Pipeline Co. v. Bd. of County
Comm’rs of Gadsden County, 438 So. 2d 876, 878 (Fla. 1st DCA 1983).
The City contends that “appeals” in which new evidence is presented are

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a “regular feature of local government.” In Dusseau v. Metro Dade County
Board of County Commissioners, 794 So. 2d 1270, 1276 (Fla. 2001), for
example, the County Commission heard testimony from both sides in an
“appeal” of a zoning appeals board decision.

    Whether called a “hybrid appeal” or “quasi-judicial procedure,” the City
Code does not contemplate a conventional or strict appellate standard
when a challenge to the hearing officer’s determination is sought in the
City Council. In Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3d DCA
1991), the Third District Court of Appeal explained that the quality of due
process required in a quasi-judicial zoning proceeding is not the same as
required in a full judicial hearing. “A quasi-judicial hearing generally
meets basic due process requirements if the parties are provided notice of
the hearing and an opportunity to be heard. In quasi-judicial . . .
proceedings, the parties must be able to present evidence, cross-examine
witnesses, and be informed of all the facts upon which the commission
acts.” Id. at 1340 (citing Coral Reef Nurseries, Inc. v. Babcock Co., 410 So.
2d 648, 652 (Fla. 3d DCA 1982)); accord Bush v. City of Mexico Beach, 71
So. 3d 147, 150 (Fla. 1st DCA 2011). Taxi has failed to demonstrate that
it was denied this due process.

   Taxi also argues that the City Council applied a different standard for
issuance of taxicab certificates to Taxi than it did to its existing certificate
holders. But the record does not support this claim. The City Code allows
applicants to demonstrate the criteria of “need” as they choose. The fact
that a hearing officer in an earlier case may have applied a particular
standard or ratio based on the number of taxicabs per one thousand city
residents did not preclude another hearing officer, or the City Council,
from assessing need based on different evidence or another measure in
conformance with the criteria of the Code and based on present market
conditions.

   We reject Taxi’s other arguments, and deny this petition.

   Denied.

GROSS, TAYLOR and LEVINE, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




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