IN THE SUPREME COURT OF FLORIDA. Petitioner, CASE NO. v. DCA CASE NO. 3D Lower Tribunal Case No

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1 IN THE SUPREME COURT OF FLORIDA SANDRA CARTER, Petitioner, CASE NO. v. DCA CASE NO. 3D Lower Tribunal Case No MONROE COUNTY, Respondent. / PETITIONER CARTER S BRIEF ON JURISDICTION On Review from the District Court of Appeal, Third District State of Florida LEE ROBERT ROHE LEE ROBERT ROHE, P.A. Florida Bar No Post Office Box Summerland Key, Fl (305) (305) (Facsimile) Counsel for Petitioner

2 TABLE OF CONTENTS TABLE OF CITATIONS 3 INTRODUCTION.4 STATEMENT OF CASE AND FACTS...5 SUMMARY OF ARGUMENT.8 ARGUMENT.8 I. Carter expressly and directly conflicts with Town of Largo v. Imperial Homes Corporation, 309 So. 2d 571 (Fla. 2 nd DCA 1975); Town of Longboat Key v. Mezrah, 467 So. 2d 488,491 (Fla. 2 nd DCA 1985) and Charlotte County v. Vetter, 863 So. 2d 465, 469 (Fla. 2 nd DCA 2004) on the issue of whether a permit is a condition precedent to apply the doctrine of estoppel.8 CONCLUSION.10 CERTIFICATE OF SERVICE.10 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT..11 2

3 TABLE OF CITATIONS Page (s) Castro v. Miami-Dade Code Enforcement, 967 So. 2d 230 (Fla. 3 rd DCA 2007).8 Charlotte County v. Vetter, 863 So. 2d 465,469 (Fla. 2 nd DCA 2004) 4, 9 Coral Springs Street Systems, Inc. v. City of Sunrise, 371 F. 3d 1320 (11 th Cir. 2004)...9 Sarasota County v. City National Bank, 902 So. 2d 233, (Fla. 2 nd DCA 2005) 4, 7 Town of Largo v. Imperial Homes Corporation, 309 So. 2d 571 (Fla. 2 nd DCA 1975)...4, 9 Town of Longboat Key v. Mezrah, 467 So. 2d 488, 491 (Fla. 2 nd DCA 1985) 4, 9 OTHER AUTHORITIES Art. V, (3)(b)(3) Fla. Const.5 Fla. R. App (a)(2)(a)(iv)...5 Section (3)(c), Fla. Stat...7 Sections 6-140, 6-107, Monroe County Code..6 Section 122-4, Monroe County Code...5 Monroe County v. LaTorre, 16 th Judicial Circuit, Monroe County, Case No CA-25, (October 6, 2000) 2000 WL (Fla. Cir. Ct. 2000)..7 3

4 INTRODUCTION Petitioner seeks review of Monroe County v. Sandra Carter 1, which reversed the 16 th Judicial Circuit Court, sitting as an appellate court, in its first tier review, which held that the code enforcement special magistrate should have ruled in favor of Carter regarding the defenses of laches and estoppel. 2 It has already been held that the statute of limitations does not apply to code enforcement proceedings brought in an administrative forum. See Sarasota County v. National City Bank, 902 So.2d 233, (Fla. 2nd DCA 2005). However, the Sarasota County Court had misgivings about the disparity between Part I versus Part II of Chapter 162, i.e. if a code action is brought in county court, the statute of limitations would apply. 902 So. 2d at 235. The present decision of the Third DCA directly conflicts with decisions of the Second DCA; namely, Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2 nd DCA 1975); Town of Longboat Key v. Mezrah, 467 So.2d 488, 491 (Fla. 2 nd DCA 1985) and Charlotte County v. Vetter, 863 So.2d 465, 469 (Fla. 2 nd DCA 2004). 1 Monroe County v. Carter, 35 Fla. L. Weekly D 1638, 2010 Fla. App. LEXIS (July 21, 2010); see attached slip opinion as Appendix 3. 2 An earlier appeal dealt with a procedural matter. See, Monroe County v. Carter, 14 So. 3d 1019 (Fla. 3 rd DCA 2009). 4

5 Jurisdiction exists under Article V, s. 3 (b) (3), Fla. Const. and Fla. R. App. P (a) (2) (A) (iv). STATEMENT OF THE CASE AND FACTS The property which is the subject of these proceedings is a singlefamily home located in Koehn s Subdivision on Big Pine Key at Lot 18, Block 12 or at 2954 Central Avenue, Big Pine Key. Carter purchased the home from her uncle in August The house already had a downstairs enclosure when she purchased it. The house itself, built on stilts in , did receive a certificate of occupancy on June 2, 1976 and other permits were granted for various improvements down through the years. See page 4 of Circuit Court Opinion, Appendix 1. An Amended Notice of Violation cited Carter for having a habitable downstairs enclosure. Appendix 1. Section , renumbered later as section 122-4, Monroe Code, governs building permits in areas of special flood hazard and prohibits living quarters below base flood elevation. During cross exam of Code Inspector Kathleen Windsor, it was elicited that the County did not know the age of the downstairs enclosure and, therefore, could not refute the John Mundy Affidavit that the enclosure 5

6 was built simultaneously with the house itself in the mid- to late 1970s. Appendix 1, pages 3 and 10. Mundy also stated that no code enforcement action was ever taken against the original owner (Carter s deceased uncle) and that the Monroe County Building Department Official at that time, Howard Johnson, (deceased) was aware of the downstairs enclosure. A photo taken in the 1970s, revealed the house with a downstairs enclosure. Appendix 1, page 4. In the 1980s, Carter s uncle applied for various permits. The downstairs enclosure was in existence when other improvements to the property were made in the 1980s. The County was on notice of the downstairs enclosure in 1983 when it inspected upper porch work. Appendix 1, page 5. Monroe County has had ordinances since at least 1979 that prohibit the issuance of a permit if a property already has unpermitted improvements. See sections and 6-107, Monroe County Code. Such a requirement imposes a duty on the County to inspect a property before issuing a permit. The issuance of permits for work (other than the downstairs enclosure) over a period of 30 years led Carter to reasonably believe that the downstairs enclosure was not a code enforcement concern; otherwise, the County would not have issued permits for the later improvements in the 6

7 1980s. Inspections done in the 1980s should have detected the downstairs enclosure built before Sandra Carter purchased the home from her uncle in August 2001 during the reign of the decision in Monroe County v. LaTorre, 16 th Judicial Circuit, Monroe County, Case No CA-25 (October 6, 2000); 2000 WL (Fla. Cir. Ct. 2000). Judge Payne held that the four-year statute of limitations, section (3) (c), Fla. Stat., applied to bar the County s code case against a downstairs enclosure owned by LaTorre. See Appendix 2. In 2001, after the County deliberately decided not to appeal the LaTorre decision, Carter purchased the house in question. In 2005, the County Attorney decided that the case of Sarasota County v. National City Bank, supra, impliedly overruled the LaTorre decision. In 2006, Carter was cited for the downstairs enclosure. Ms. Carter testified as to how she never would have purchased the house if the downstairs unit could not have been rented. She also testified as to her investment in the property. 7

8 SUMMARY OF ARGUMENT The Carter holding requiring an original permit for estoppel purposes expressly and directly conflicts with three decisions of the Second DCA which hold that a permit is not a condition precedent for the application of estoppel. ARGUMENT I. Carter expressly and directly conflicts with Town of Largo v. Imperial Homes Corporation, 309 2d 571 (Fla. 2 nd DCA 1975); Town of Longboat Key v. Mezrah, 467 So. 2d 488, 491 (Fla. 2 nd DCA 1985) and Charlotte County v. Vetter, 863 So. 2d 465,469 (Fla. 2 nd DCA 2004) on the issue of whether a permit is a condition precedent to apply the doctrine of estoppel. At page 6 of the Third DCA s Slip Opinion, Appendix 3, it was held that in contrast to the application of estoppel in Castro, 3... Ms. Carter s ground-floor enclosure never received a permit or certificate of occupancy for the ground floor apartment. Therefore, reasoned the Court, Carter did not qualify for the defense of estoppel. Appendix 3, page 6. By distinguishing the Carter case from the Castro case on the above basis, it was held that Sandra Carter should have had a permit for the downstairs enclosure in order to assert estoppel. Yet in the Second DCA, 3 Castro v. Miami-Dade Code Enforcement, 967 So.2d 230 (Fla. 3 rd DCA 2007). 8

9 Carter would have qualified for the defense of estoppel without such a permit. Notwithstanding the Third DCA s requirement of an original permit for estoppel to be applicable, the Second DCA has held that such an original permit is not a condition precedent to the application of equitable estoppel. In Town of Largo, supra, at 573, it was held by the Second DCA: The Town asserts that before the doctrine of estoppel can be invoked to preclude a municipality from making a zoning change, the land owners must have either obtained a building permit or made physical changes in the land in reliance on the existing zoning. While it is likely that one or both circumstances will have occurred in most cases where the doctrine is applied, their existence cannot be deemed, as it were, a condition precedent. Accord, Town of Longboat Key, supra, at 491 and Charlotte County v. Vetter, supra, at 469. Although Carter is a code enforcement case while the above-cited Second DCA cases are zoning cases, such a difference should not be crucial when it comes to whether or not Florida Courts apply the doctrine of equitable estoppel. See, Coral Springs Street Systems, Inc. v. City of Sunrise, 371 F.3d 1320, footnote 11 (11 th Cir. 2004): A review of Florida's case law suggests little distinction among the rights enjoyed by applicants for construction permits, those enjoyed by applicants for sign permits, and those enjoyed by applicants for liquor licenses. The cases cite each other as if the relevant entitlements were more or less interchangeable, which suggests that the same case law as to vested rights applies equally to all. 9

10 CONCLUSION Accordingly, the two District Courts of Appeal conflict in their decisions as to when a property owner can utilize the defense of equitable estoppel. Under the Carter decision, it will now be nearly impossible to ever defend a code enforcement case under the defenses of laches and estoppel. As noted in the Sarasota County case, supra, if Chapter 95, the statute of limitations, does not apply to code enforcement administrative cases then there should be some alternative doctrine available to prevent long-delayed enforcement resulting in a miscarriage of justice. CERTIFICATE OF SERVICE. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail on September 9, 2010 to: Robert Shillinger, Esq., Chief Assistant Monroe County Attorney, th Street, Suite 408, Key West, Florida

11 LEE ROBERT ROHE, P.A. Attorney for Petitioner Carter P.O. Box Summerland Key, Florida Telephone: (305) Facsimile : (305) By: LEE ROBERT ROHE Florida Bar Number: CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT I HEREBY CERTIFY that this brief is in Times New Roman 14-point font, and complies with the font requirement of Fla. R. App. P By: LEE ROBERT ROHE 11

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