Kirby v. City of Archer, 790 So. 2d 1214 (Fla. 1st DCA 2001). · Go Syfert
Search
Kirby v. City of Archer, 790 So. 2d 1214 (Fla. 1st DCA 2001). Cases Citing This Book View Copy Cite
“kirby's as applied constitutional challenge may not be raised for the first time in the foreclosure action.”
17 citation events (17 in the last 25 years) across 4 distinct courts.
Strongest positive: Mark H. Schofield v. Monroe County, Florida (fladistctapp, 2024-12-04)
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Mark H. Schofield v. Monroe County, Florida
Fla. Dist. Ct. App. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
kirby's as applied constitutional challenge may not be raised for the first time in the foreclosure action.
discussed Cited as authority (rule) Zenaida \Sandy\" Martinez v. City of Lantana (2×)
unknown court · 2025 · confidence medium
See Wilson v. Cnty. of Orange, 881 So. 2d 625, 632 (Fla. 5th DCA 2004) (observing that section 162.11 “provides for an appeal of [code enforcement board] final orders, which has been held to be the proper forum to address constitutional claims,” and holding that appellants “could have raised their constitutional challenges on appeal to the circuit court”); Kirby v. City of Archer, 790 So. 2d 1214, 1215 (Fla. 1st DCA 2001) (holding that a constitutional challenge to a code enforcement lien is “properly cognizable on an appeal to the circuit court from a final order of an enforcement b…
discussed Cited as authority (rule) James and Melanie Nipper v. Walton County, Florida, a political etc.
Fla. Dist. Ct. App. · 2017 · signal: cf. · confidence medium
Cf. Kirby v. City of Archer, 790 So.2d 1214, 1215 (Fla. 1st DCA 2001) (preventing a party who lost before the CEB from bringing a separate circuit court action).
discussed Cited as authority (rule) City of Venice v. Gwynn
Fla. Dist. Ct. App. · 2011 · confidence medium
Wilson v. Cnty. of Orange, 881 So.2d 625, 632 (Fla. 5th DCA 2004); Kirby v. City of Archer, 790 So.2d 1214, 1215 (Fla. 1st DCA 2001) (citing Holiday Isle Resort & Marina Assocs. v. Monroe Cnty., 582 So.2d 721, 721-22 (Fla. 3d DCA 1991)). .
discussed Cited as authority (rule) Sarasota County v. BOW POINT ON GULF CONDO.
Fla. Dist. Ct. App. · 2007 · confidence medium
See Richbon, Inc., 791 So.2d at 506 n. 2; Kirby v. City of Archer, 790 So.2d 1214, 1215 (Fla. 1st DCA 2001). [3] In at least two instances, the circuit court departed from its appellate role and improperly reweighed the evidence that had been presented to the special magistrate.
cited Cited as authority (rule) Beeline Entertainment Partners, Ltd. v. County of Orange
M.D. Fla. · 2003 · confidence medium
See Samoff v. Florida Dept. of Highway Safety and Motor Vehicles, 825 So.2d 351, 354 (Fla.2002); Kirby v. City of Archer, 790 So.2d 1214, 1215 (Fla. 1st DCA 2001).
cited Cited as authority (rule) Koziara v. City of Casselberry
M.D. Fla. · 2002 · confidence medium
See Sarnoff v. Florida Dept. of Highway Safety and Motor Vehicles, 825 So.2d 351, 354 (Fla.2002); Kirby v. City of Archer, 790 So.2d 1214, 1215 (Fla. 1st DCA 2001).
discussed Cited "see" Gainsburg v. The Florida Bar
S.D. Fla. · 2024 · signal: see · confidence high
See Ricketts v. Vill. of Miami Shores, 232 So. 3d 1095 , 1097–98 (Fla. 3d DCA 2017) (“Any attempt to present an ‘as-applied’ constitutional challenge to the statute, as opposed to a ‘facial’ constitutional challenge, is barred as a matter of res judicata . . . even to those matters which were not, but could properly have been, raised in a prior action between the parties[.]” (first citing Kirby v. City of Archer, 790 So. 2d 1214 (Fla. 1st DCA 2001); then citing Charles v. Citizens Prop.
discussed Cited "see" Innova Investment Group, LLC v. Village of Key Biscayne (2×)
11th Cir. · 2024 · signal: see · confidence high
See Kirby v. City of Archer, 790 So. 2d 1214, 1215 (Fla. Dist.
discussed Cited "see" Massey v. Charlotte County
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Kirby v. City of Archer, 790 So.2d 1214 (Fla. 1st DCA 2001). [3] For example, the Code Enforcement Board could mail the "order imposing penalty/lien" to the property owner with a notice that the owner could request a hearing to challenge the fine and the resulting lien within twenty days from the date of the order.
cited Cited "see, e.g." City of Lauderdale Lakes, Florida v. Tinisha Allen
Fla. Dist. Ct. App. · 2025 · signal: see also · confidence medium
Id.; see also Kirby v. City of Archer, 790 So. 2d 1214, 1215 (Fla. 1st DCA 2001).
discussed Cited "see, e.g." James Flicken v. City of Dunedin, Florida
11th Cir. · 2022 · signal: see also · confidence medium
Ct. App. 2019) (internal quotation marks omitted); see also Kirby v. City of Archer, 790 So. 2d 1214, 1215 (Fla. 1st Dist.
discussed Cited "see, e.g." Hardin v. Monroe County
Fla. Dist. Ct. App. · 2011 · signal: see also · confidence low
The notice of appeal to the circuit court was timely filed vis-a-vis the supplemental order of the Code Enforcement Board dated February 25, 1986, but that does not bring up for review the Board’s final order of October 22, 1985, which had by then in all respects become final.”); see also Kirby v. City of Archer, 790 So.2d 1214 (Fla. 1st DCA 2001).
Retrieving the full opinion text from the archive…
Rickey L. KIRBY, Appellant,
v.
CITY OF ARCHER, Florida and First Union, etc., Appellees.
1D00-2952.
District Court of Appeal of Florida, First District.
Aug 6, 2001.
790 So. 2d 1214
Per Curiam.
Cited by 14 opinions  |  Published

Milton H. Baxley, II, Gainesville, for Appellant.

Allan H. Kaye, Gainesville, for Appellee City of Archer, Florida.

Bertram A. Sapurstein, Miami, for Appellee First Union.

PER CURIAM.

Rickey L. Kirby appeals a summary final judgment of foreclosure authorizing[*1215] the sale of real property owned by him to satisfy a lien in favor of appellee, City of Archer, created pursuant to section 162.09(3), Florida Statutes (1997). For the reasons that follow, we affirm.

The City's lien arose from fines imposed pursuant to sections 162.06-162.11, Florida Statutes (1997), by the City's Code Enforcement Board. The fines levied against Kirby were based upon the Board's findings, following a hearing, that Kirby had violated section 10-21 of the Code of Ordinances of the City which prohibited the maintaining of "any abandoned vehicle partially dismantled, nonoperating, wrecked or junked vehicle or vehicle in a state of substantial disrepair" on any real property within the City. Kirby did not appeal the final order of the Code Enforcement Board which levied the fine and led to the filing of the lien under section 162.09(3).

In the foreclosure action below, Kirby filed an affidavit in opposition to the motion for summary judgment in which he stated that "all motor vehicles on [his] property were fully operable, and were capable of being started and driven." On appeal, Kirby argues that the trial court erred in granting summary judgment in the foreclosure action because, based on his affidavit, disputed issues of fact existed as to the findings of the Board. He also contends that section 10-21 of the City's Code of Ordinances was unconstitutionally applied against him.

Kirby makes his arguments too late. If he contested the facts raised by the Code Enforcement Board, he was obligated to present his evidence to the Board at that time. If he then disputed the final order of the Board, his remedy was to file an appeal in the circuit court pursuant to section 162.11, Florida Statutes (1997). Having failed to challenge the Board's action, Kirby cannot raise factual disputes with the Board's findings in the foreclosure action. "Matters determined in an order which has become final without appeal are not later subject to appellate review...." City of Plantation v. Vermut, 583 So.2d 393, 394 (Fla. 4th DCA 1991).

Further, Kirby's as applied constitutional challenge may not be raised for the first time in the foreclosure action. "[C]onstitutional claims ... are properly cognizable on an appeal to the circuit court from a final order of an enforcement board taken pursuant to section 162.11, Florida Statutes...." Holiday Isle Resort & Marina Assoc. v. Monroe County, 582 So.2d 721-722 (Fla. 3d DCA 1991); see also Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970)("Constitutional issues, other than those constituting fundamental error, are waived unless timely raised.").

Accordingly, the order on appeal is affirmed.

ALLEN, C.J., VAN NORTWICK and BROWNING, JJ., concur.