PETER M. HAVER and GALINA HAVER v. THE CITY OF WEST PALM BEACH, INC.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PETER M. HAVER and GALINA HAVER,
Appellants,
v.
THE CITY OF WEST PALM BEACH, INC., RICK GREENE,
ALEANDRO LOPEZ and MIRIAM R. GALAN,
Appellees.
No. 4D19-1537
[June 10, 2020]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard K. Coates, Jr., Judge; L.T. Case No.
502018CA015447XXXXMB.
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.
KUNTZ, J.
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) (“[I]n the event the only case on point on a
district level is from a district other than the one in which the trial court
1 The claims against the Neighbor were dismissed without prejudice.
is located, the trial court [is] required to follow that decision.” (quoting
State v. Hayes, 333 So. 2d 51, 53 (Fla. 4th DCA 1976))).
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).
Background
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.
2
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.
2The City Employees raised other separate arguments in their motion to dismiss.
The court granted the motion to dismiss, finding the Havers incorrectly named
the City Employees in their individual capacities. The court dismissed the
complaint against the City Employees with leave to amend to name them in their
official capacities, but the Havers declined to do so. We affirm the dismissal of
all counts with prejudice against the City Employees.
3
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.
Analysis
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.
i. The circuit court correctly followed the Third District’s decision
in Detournay v. City of Coral Gables, 127 So. 3d 869 (Fla. 3d
DCA 2013).
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
4
constitutional or statutory rights.” Id. at 918 (citing Commercial Carrier
Corp. v. Indian River Cty., 371 So. 2d 1010 (Fla. 1979); Askew v. Schuster,
331 So. 2d 297 (Fla. 1976); art. II, § 3, Fla. Const.). 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 “the enforcement of building codes and
ordinances is for the purpose of protecting the health and safety of the
public, not the personal or property interests of individual citizens. The
discretionary power to enforce compliance with the building code flows
from the police power of the state.” 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 pursue its enforcement actions,”
seeking declaratory relief in count I and an injunction in count II. Id.
In its motion to dismiss, the city “raised the holding” of Trianon to argue
that it had discretion “whether and how to prosecute” zoning violations.
Id. at 871–72. The circuit court dismissed count I for lack of standing and
found in the city’s favor on count II. Id. at 872.
On appeal, the majority held that the separation-of-powers analysis in
Trianon required dismissal of the neighbor’s complaint. Id. The majority
stated that although Trianon involved a tort suit, “its reasoning and
holding apply equally well to suits like the instant case, where private
parties seek a declaratory judgment and injunction against a city
regarding the failure of the city to enforce its building and zoning codes
against another private party.” Id. The majority therefore rested its
decision on separation of powers and held that the city’s discretion to file
or prosecute a zoning enforcement action was an “executive function that
5
cannot be supervised by the courts, absent the violation of a specific
constitutional provision or law.” Id. at 873.
Here, the circuit court relied on Detournay when it dismissed the
complaint. It did so even though the Havers argued Detournay failed to
apply long-standing supreme court precedent. In response to that
argument, the circuit court noted it had to follow Detournay—which was
“precisely on point”—because there was no controlling case from this
Court on the issue.
The circuit court’s reasoning was correct. Detournay was binding on
the circuit court. When this Court has not decided an issue, the circuit
and county courts are bound to follow the decisions of our sister districts.
See Pardo, 596 So. 2d at 666 (quoting Hayes, 333 So. 2d at 53).
ii. Boucher v. Novotny, 102 So. 2d 132 (Fla. 1958), controls this
case.
Although the circuit court was bound by Detournay, we are not. We
are free to treat Detournay as persuasive authority, or not, and reach our
own conclusion. See Pardo, 596 So. 2d at 667 (quoting Hayes, 333 So. 2d
at 53). But even though we are not bound by Detournay, we are still bound
by existing supreme court precedent. See id. at 666 (quoting Hayes, 333
So. 2d at 53).
We now turn to that existing supreme court precedent and Judge
Lagoa’s dissent in Detournay. Judge Lagoa noted that the Detournay
majority failed to discuss two seminal Florida Supreme Court’s opinions,
Boucher v. Novotny, 102 So. 2d 132 (Fla. 1958), and Renard v. Dade
County, 261 So. 2d 832 (Fla. 1972). Detournay, 127 So. 3d at 877. 3 These
cases set forth the standing requirement for equitable zoning enforcement
actions.
In Boucher, the Florida Supreme Court reaffirmed that “where
municipal officials threaten or commit a violation of municipal ordinances
which produces an injury to a particular citizen which is different in kind
from the injury suffered by the people of the community as a whole[,] then
such injured individual is entitled to injunctive relief in the absence of an
adequate legal remedy.” 102 So. 2d at 134. But a plaintiff “is without
redress in equity unless he can allege and prove special damages peculiar
3 All references to Detournay in this section are to Judge Lagoa’s dissenting
opinion.
6
to himself and differing in kind rather than in degree from the damages
suffered by the people as a whole.” Id. at 135 (citations omitted).
Boucher also specifically applied the rule to zoning actions and adopted
a bright-line rule
align[ing] [Florida] with the authorities which hold that one
seeking redress, either preventive or corrective, against an
alleged violation of a municipal zoning ordinance must allege
and prove special damages peculiar to himself differing in kind
as distinguished from damages differing in degree suffered by
the community as a whole.
Id.
As Judge Lagoa noted, Detournay, 127 So. 3d at 878-79, the supreme
court made the special-damages rule more lenient in Renard v. Dade
County, 261 So. 2d 832 (Fla. 1972). In Renard, the court held that “in the
twenty years since the Boucher decision, changed conditions, including
increased population growth and density, require a more lenient
application of that rule. The facts of the Boucher case, if presented today,
would probably be sufficient to show special damage.” Renard, 261 So. 2d
at 837-38.
Judge Lagoa believed that the Detournay majority erred when it applied
Trianon, a tort case, to the injunction and declaratory relief claims at issue
in the case. Id. at 879-80. She explained that Boucher specifically
permitted injunctive relief. Id. at 879 (citing Boucher, 102 So. 2d at 134).
Judge Lagoa further explained that supreme court precedent holds that
“if an individual can show some special damage from an alleged zoning
violation, he or she then has standing to maintain an action to enforce the
zoning ordinance in equity against both a municipality and a private
party.” Id. at 880 (citing Skaggs-Albertson’s v. ABC Liquors, Inc., 363 So.
2d 1082, 1088 (Fla. 1978); Renard, 261 So. 2d at 837; Boucher, 102 So.
2d at 135; Page v. Niagara Chem. Div. of Food Mach. & Chem. Corp., 68 So.
2d 382 (Fla. 1953); Bozeman v. City of St. Petersburg, 76 So. 894 (1917));
see also Fortunato v. City of Coral Gables, 47 So. 2d 321, 322, 323 (Fla.
1950) (holding that plaintiff’s allegations seeking to enjoin the defendant-
city from issuing a building permit to the defendant-neighbor to build an
apartment that violated the setback requirement were sufficient to require
the city and neighbor to answer the complaint and proceed in equity). In
other words, “once special damages are shown, enforcement of the zoning
7
ordinance is no longer an action purely within the discretion of the state.”
Detournay, 127 So. 3d at 880.
The majority, Judge Lagoa stated, interpreted Trianon as silently
overruling Fortunato. Id. at 880 n.10, 881. That, of course, the supreme
court often reminds us it does not do. See, e.g., Arsali v. Chase Home Fin.,
LLC, 121 So. 3d 511 (Fla. 2013).
We agree with Judge Lagoa. If the Florida Supreme Court determines
it best to overrule Boucher or any other case, or that it should otherwise
extend Trianon to claims for declaratory and injunctive relief, the court can
do so. We cannot.
iii. Summary.
Based on our conclusion that we are bound by existing supreme court
precedent, we are compelled to partially reverse the court’s order
dismissing the Havers’ complaint.
Counts I and III of the complaint sought injunctive relief against the
City. Because these claims were specifically permitted by Boucher, 102
So. 2d at 134, we reverse the circuit court’s order dismissing these claims
and remand for further proceedings. On remand, the court must
determine whether the Havers have adequately pleaded special injuries as
required by Boucher and Renard.
Count II of the complaint sought a declaratory judgment on the
Neighbor’s activities and that the City’s refusal to enforce its zoning
classification was itself an ordinance violation. We also reverse the court’s
order dismissing count II. On remand, the court should determine
whether the allegations are otherwise sufficient under chapter 86, Florida
Statutes, as we decline to address the issue in the first instance.
As Judge Lagoa noted in Detournay, even if the Havers could not obtain
relief against the City, they could obtain relief against the Neighbor.
Count IV of the complaint was pleaded in the alternative and sought
mandamus relief. We affirm the court’s dismissal of this claim. See, e.g.,
RHS Corp. v. City of Boynton Beach, 736 So. 2d 1211, 1212-13 (Fla. 4th
DCA 1999).
Count V sought certiorari relief. Because the City did not issue any
enforcement order or decision that could be challenged, certiorari was not
appropriate, and we affirm the court’s dismissal of count V of the
8
complaint. See, e.g., De Groot v. Sheffield, 95 So. 2d 912, 915-16 (Fla.
1957).
Finally, this opinion conflicts with the Third District’s opinion in
Detournay. We certify conflict with that decision and with the Second
District’s decision in Chapman v. Town of Reddington Beach, 282 So. 3d
979 (Fla. 2d DCA 2019). 4
Conclusion
As an inferior Court, we must comply with the Florida Supreme Court’s
decisions. Complying with that mandate, we reverse the circuit court’s
order dismissing counts I, II, and III of the complaint. We affirm the court’s
dismissal of counts IV and V of the complaint. We also certify conflict with
Detournay v. City of Coral Gables, 127 So. 3d 869 (Fla. 3d DCA 2013), and
Chapman v. Town of Reddington Beach, 282 So. 3d 979 (Fla. 2d DCA
2019).
Affirmed in part, reversed in part, and remanded for further proceedings;
conflict certified.
WARNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4 Chapman also involved the doctrine of separation of powers. In Chapman, the
plaintiffs filed a complaint against their neighbor and the town, seeking a
declaratory judgment that the neighbor was violating the town’s ordinances and
injunctive relief for the neighbor to remove the violations. 282 So. 3d at 981.
The town moved for summary judgment, arguing that it was not a proper party
to the suit because a court order compelling the town to enforce its ordinances
would violate separation of powers. Id. The circuit court agreed and granted
summary judgment. Id. On appeal, the Second District affirmed based on the
parties’ unspecified arguments. Id.
9