Haver v. City of W. Palm Beach, Inc., No. 4D19-1537
| Decision Date | 10 June 2020 |
| Docket Number | No. 4D19-1537 |
| Citation | 298 So.3d 647 |
| Parties | Peter M. HAVER and Galina Haver, Appellants, v. The CITY OF WEST PALM BEACH, INC., Rick Greene, Aleandro Lopez and Miriam R. Galan, Appellees. |
| Court | Florida District Court of Appeals |
Peter M. Haver, West Palm Beach, for appellants.
K. Denise Haire, Assistant City Attorney, West Palm Beach, for appellee The City of West Palm Beach, Inc.
Peter and Galina Haver appeal the circuit court's final order dismissing with prejudice their five-count complaint in a zoning enforcement action. The Havers sued the City of West Palm Beach and two City employees, Rick Greene and Aleandro Lopez (collectively, "the City Employees"), for failure to enforce zoning codes. The Havers also sued their neighbor, Miriam Galan (the "Neighbor"), the owner of the property who was allegedly violating those codes.1
Our resolution of the case is complex. When the circuit court dismissed this case, the Third District had addressed the exact issue presented in Detournay v. City of Coral Gables , 127 So. 3d 869 (Fla. 3d DCA 2013). The circuit court was required to follow that decision. See Pardo v. State , 596 So. 2d 665, 666 (Fla. 1992) .
Unlike the circuit court, we are not bound by Detournay . The reasoning of the majority opinion in Detournay is compelling but, as Judge Lagoa recognized in her dissent, it failed to apply binding precedent from the Florida Supreme Court. See 127 So. 3d at 877-81 (Lagoa, J., dissenting) (discussing Boucher v. Novotny , 102 So. 2d 132 (Fla. 1958) ).
As a result, even though Detournay bound the circuit court, because Detournay failed to apply Boucher , we must reverse in part. We reverse the court's order dismissing counts I, II, and III of the Havers’ complaint. We affirm the court's dismissal of counts IV and V of the complaint. We also certify conflict with Detournay and Chapman v. Town of Reddington Beach , 282 So. 3d 979 (Fla. 2d DCA 2019).
The Havers’ and their Neighbor's residences are zoned by the City as single-family, low-density residential. The applicable zoning classification restricts the residences to occupancy by only one family. A City ordinance defines a "family," as no more than two unrelated persons. The Havers alleged that the Neighbor was installing plumbing without a permit and violating the single-family zoning classification by providing room and board at her residence to at least two individuals unrelated to her.
The Havers reported the purported violation to the City, and a City code enforcement officer investigated. The code enforcement officer reported that he spoke to an individual who claimed to reside at the Neighbor's residence but also claimed he did not pay rent. The code enforcement officer saw structural alterations to the residence, but his "report of that visit did not refer to any evidence supporting [the Havers’] allegations."
Next, the Havers contacted Florida's Agency for Health Care Administration. The Agency stated that the Neighbor did not have a license to operate an adult family-care home at the residence and scheduled an on-site inspection. After the Agency conducted the inspection, it notified the Havers that the Neighbor did, in fact, operate an adult family-care home at her residence and that it instructed the Neighbor "of the need for her to comply with local zoning and tax regulations." But the Agency informed the Havers that the Neighbor did not have to obtain a license because her operation of the adult family-care home was exempted by statute.
After the Havers did not obtain the result they sought from the City or the Agency, they filed a five-count complaint against the City, their Neighbor, and the City Employees in their individual capacities.
Count I of the Havers’ complaint requested declaratory and injunctive relief to enforce the single-family zoning classification. Count II sought a declaratory judgment stating that the Neighbor violated the City's zoning code and does not qualify for an exemption, and that the City's refusal to enforce the single-family zoning classification violates West Palm Beach Ordinance § 94-34(b)(2). In Count III, the Havers requested an injunction preventing their Neighbor from providing room and board to unrelated persons. In Count III, the Havers also asked the court to enter an injunction requiring the City to enforce the single-family zoning classification and requiring the City to take the enforcement measures provided for in West Palm Beach Ordinance § 94-34(b)(2).
In Count IV, the Havers sought a writ of mandamus compelling the City to determine whether the Neighbor violated the single-family zoning classification and to require the City officials to act in accordance with West Palm Beach Ordinance § 94-34(b)(2). Finally, in Count V, the Havers sought certiorari relief and asked the court to quash any actions taken by the City related to its refusal to enforce the single-family zoning classification.
The City and the City Employees filed two separate motions to dismiss the complaint.2 The City argued in its motion that all five counts failed to state a cause of action because, under the separation-of-powers doctrine set forth in Trianon Park Condominium Association v. City of Hialeah , 468 So. 2d 912 (Fla. 1985), courts cannot interfere with a municipality's discretionary function of enforcing its zoning code. Next, the City argued Detournay v. City of Coral Gables , 127 So. 3d 869 (Fla. 3d DCA 2013), held that a plaintiff cannot bring an equitable enforcement action against a city because a court cannot direct a government to enforce its zoning codes. The City also argued mandamus relief is not appropriate for a zoning enforcement action because zoning enforcement is a discretionary, not ministerial, act. Lastly, the City argued it did not issue any quasi-judicial order or action that could be reviewed by certiorari.
At the hearing, the court granted the City's motion on the certiorari count without reasoning and deferred ruling on the other counts. In a subsequent written order, the court granted the City's motion to dismiss without reasoning but with a citation to Detournay .
On appeal, the Havers argue the decision on which the circuit court relied, Detournay v. City of Coral Gables , 127 So. 3d 869 (Fla. 3d DCA 2013), ignored long-standing supreme court precedent. See, e.g. , Boucher v. Novotny , 102 So. 2d 132, 135 (Fla. 1958). They argue Boucher provides a remedy for zoning laws in the form of a claim for declaratory and injunctive relief against a municipality and a violator. We agree.
The circuit court relied on Detournay and dismissed the complaint. But before we address Detournay , we address the case on which the Detournay majority relied, Trianon Park Condominium Association v. City of Hialeah , 468 So. 2d 912 (Fla. 1985).
In Trianon , a tort suit, a plurality of the Florida Supreme Court answered the following certified question in the negative: "Whether a governmental entity may be liable in tort to individual property owners for the negligent actions of its building inspectors in enforcing provisions of a building code enacted pursuant to the police powers vested in that governmental entity." Id . at 914.
In that case, Trianon sued the City of Hialeah for alleged negligent inspection of a condominium building and certification for occupancy. Id . at 915. The city argued it could not be liable for damages for negligent enforcement of building codes. Id . at 916. The supreme court accepted the city's argument and rejected Trianon's argument "that the judiciary should interfere with how another branch of government chooses to enforce the law." Id . at 922.
The supreme court explained five basic principles to clarify the law on governmental tort liability, id . at 917–18, two of which are relevant to this appeal. First, "under the constitutional doctrine of separation of powers, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights." Id . at 918 ). Second, "certain discretionary functions of government are inherent in the act of governing and are immune from suit." Id . (citation omitted).
The supreme court held that Id . at 922.
But the supreme court cautioned that Trianon "addresse[d] only the narrow issue of exercising basic discretionary judgment in the enforcement of the police power, public safety functions by a state, county, or municipal governmental entity." Id. at 923.
Now we return to Detournay . In Detournay , a split panel of the Third District extended Trianon's discussion of separation of powers in the tort context to causes of action for injunctions and declaratory relief, under facts like those alleged in this case.
In Detournay , a commercial property owner violated the city's building and zoning code. 127 So. 3d at 871. The city issued three administrative citations against the owner, but the already-filed enforcement actions were held in abeyance while the parties tried to settle. Id . A neighbor sued the City of Coral Gables "to force the City to...
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