Galaxy Fireworks, Inc. v. City of Orlando

• Decision Date: 28 February 2003
• Docket Number: No. 5D02-822.,5D02-822.
• Citation: 842 So.2d 160
• Parties: GALAXY FIREWORKS, INC., Appellant, v. CITY OF ORLANDO, Florida, Appellee.
• Court: Florida District Court of Appeals

842 So.2d 160

GALAXY FIREWORKS, INC., Appellant, v. CITY OF ORLANDO, Florida, Appellee.

No. 5D02-822.

District Court of Appeal of Florida, Fifth District.

February 28, 2003.

Rehearing Denied April 15, 2003.

John W. MacKay of John W. MacKay, P.A., Tampa, and Steven G. Mason of Law Offices of Steven G. Mason, Orlando, for Appellant.

W. Scott Gabrielson, City Attorney, City of Orlando, Orlando, for Appellee.

SHARP, W., J.

Galaxy Fireworks, Inc. appeals from a final summary judgment rendered in favor of the City of Orlando. On June 21, 2001, Galaxy filed a lawsuit against the City seeking a temporary and permanent injunction to prevent the City from "interfering" with its business by enforcing and seeking to enforce the City Fire Code,¹ regarding Galaxy's proposed fireworks store within the City limits. The trial court denied Galaxy's request for an injunction but allowed Galaxy to amend its complaint to challenge the lawfulness of the Fire Code. Galaxy challenged the Fire Code for three reasons. First, that it is a land development regulation enacted without following the proper procedure. Second, that the City unlawfully delegated legislative authority to the National Fire Protection Association by adopting the Association's codes and standards as they are amended from time to time. And, third, that the Fire Code lacks sufficient, precise and objective criteria, making its application to Galaxy's store arbitrary and capricious. We affirm.

The City moved for summary judgment, arguing there was no merit to Galaxy's constitutional invalidity claims as to the City's Fire Code. In support of its motion, the City submitted an affidavit executed by the its Fire Marshal, Machen. The affidavit was not disputed by Galaxy. The affidavit established that Galaxy approached the City in June of 2001 about its plans to open a retail store in a downtown shopping center to sell fireworks to consumers. The proposal raised new fire and safety issues for the City because there were no other fireworks stores in the City and such enterprises can cause devastating damage.²

Machen required Galaxy to provide her with three items of information in order to evaluate the fire and safety issues presented by the store: 1) a determination by a certified professional that the sprinkler systems were adequate for the products to be contained in the store; 2) a list of the products to be sold and the Material Safety Data Sheet (MSDS)³ for each product; and 3) the quantity of fireworks in pounds, which would be contained in the store. Galaxy provided Machen with a list of 505 products it intended to sell at the store. However, Galaxy did not supply the other information requested. By letter dated June 20, 2001, Machen reminded Galaxy not to stock the store with fireworks until the store was approved. On or about June 20, 2001, without having complied with the Fire Marshal's request, Galaxy stocked the store with fireworks and opened it without City approval.

On July 9, 2001, Machen was notified by Galaxy's contractor that the sprinkler system did not meet the City's Fire Code and upgrades were needed. On October 30, 2001, Galaxy gave Machen a handwritten MSDS and a list of products and quantities which would be contained in the store. More than 16,000 pounds of fireworks were contemplated.

On December 17, 2001, Machen approved the opening of the store provided certain conditions were met. Galaxy was notified that if it disagreed with Machen's interpretation of the Code, it had the right to appeal to the Building and Fire Codes Board of Appeal. Further, if Galaxy was dissatisfied with the Board's decision, it could appeal to the City Council. Galaxy has not sought administrative review of Machen's decisions by pursuing any administrative remedies under the Code. Galaxy made no attempt to meet the Fire Marshal's conditions and brought this litigation instead.

The first issue to be resolved in this case is whether Galaxy was under an obligation to exhaust its administrative remedies rather than seek relief in the circuit court. As a general rule, parties must pursue administrative remedies before resorting to the courts to challenge agency action. Central Florida Investments, Inc. v. Orange County Code Enforcement Board, 790 So.2d 593 (Fla. 5th DCA 2001). This rule serves a number of good judicial policies. It permits full development of a factual record and technical issues and avoids unnecessary judicial decisions by allowing the agency to correct any errors and possibly moot the need for court action. It also allows the agency to exercise its discretion and expertise initially in an area of governance designed for its operation and administration.

It is not clear from this record that pursuit of Galaxy's administrative remedies would have proven to be futile. Galaxy admitted it did not provide all of the information requested by Machen specifically concerning certification of the sprinkler system and the MSDS information. It also admitted it had opened the store in June without the City's approval.

Here Galaxy only gave the Fire Marshal and officials two weeks to inspect and adjudge safe for operation a 5,000 square foot store containing 16,000 pounds of fireworks. Galaxy cannot legitimately claim it was inevitable the City would not approve the store when Galaxy failed to comply with the Fire Marshal's request for basic information needed to evaluate the fire and safety hazards presented by storage of this amount of dangerous, explosive material. Thus, we leave standing and refuse to review all of the Fire Marshal's specific requirements and requests for information made to Galaxy, pursuant to the Fire Code, because Galaxy failed to exhaust its administrative remedies.

However, we agree with Galaxy that it is not required to exhaust its administrative remedies concerning its allegations that the City's Fire Code is void ab initio. See State ex rel. Florida Dry Cleaning and Laundry Board v. Atkinson, 136 Fla. 528, 188 So. 834 (1938); City of Miami Beach v. Perell, 52 So.2d 906 (Fla. 1951); Florida Public Employees Council 79, AFSCME v. Department of Children and Families, 745 So.2d 487 (Fla. 1st DCA 1999); Mann v. City of Oakland Park, 581 So.2d 986 (Fla. 4th DCA 1991). The Board and/or City Council lack jurisdiction to declare the Fire Code void as improperly adopted, or that it unconstitutionally delegates legislative authority to the NFPA. Thus we turn to those issues as determinative of this appeal.

First, Galaxy argues the City's Fire Code is a land development regulation and as such it was improperly adopted because it was not reviewed prior to adoption by a local planning agency. In 1985, the Legislature passed the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, part II, which mandates local governments adopt comprehensive plans to guide and control future land development. Home Builders and Contractors Ass'n of Brevard, Inc. v. Department of Community Affairs, 585 So.2d 965 (Fla. 1st DCA 1991). The statute provides that after a comprehensive plan has been adopted, no land development regulation shall be adopted by the governing body until it has been referred to a local planning agency or to a separate land development regulation commission for review. § 163.3194(2), Fla. Stat. (2002).

This argument turns on what is meant by a "land development regulation." The statute contains two definitions:

(2)(b) `Land development regulation' means an ordinance enacted by a local governing body for the regulation of any aspect of development, including a subdivision, building construction, landscaping, tree protection, or sign regulation or any other regulation concerning the development of land. This term shall include a general zoning code, but shall not include a zoning map, an action which results in zoning or rezoning of land, or any building construction standard adopted pursuant to and in compliance with the provisions of chapter 553.

§ 163.3213(2)(b), Fla. Stat.

This particular provision is applicable to administrative review of land development regulations.

(23) `Land development regulations' means ordinances enacted by governing bodies for the regulation of any aspect of development and includes any local government zoning, rezoning, subdivision, building construction, or sign regulations or any other regulations controlling the development of land, except that this definition shall not apply in s. 163.3213.

§ 163.3164(23), Fla. Stat.

In addition, this statute provides that "development" has the meaning given it in section 380.04. § 163.3164(6), Fla. Stat. That provision defines development as "the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels."

In support of its claim that the Fire Code is a land development regulation, Galaxy relies on an affidavit from McLaughlin, a land use planning and local government consultant. He concludes the Fire Code is a land development regulation because it governs numerous aspects of building construction, including the ability to stop construction, the use of buildings, physical construction requirements such as fire walls, fire stops and fire-rated partitions and doors, egress requirements from buildings, construction materials, the installation of smoke detectors and in some cases, requirements for installation of sprinkler systems.

We disagree. The Fire Code does not regulate what can be built on land, in the sense of land development, but rather it mandates requirements for the structure of a building, if used for certain purposes, in order to safeguard the public from fire hazards. In this case, the Fire Code did not prevent the construction of this particular store in the shopping center nor would it have prevented the use of that store for conventional purposes. The conduct proposed...