Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – Board had to determine whether there had been a change in occupancy and, if so, whether the Building was unsafe due to cited conditions – abundance of evidence showed there had been a change in occupancy from original use of building in 1963 to current use – competent substantial evidence supported Board’s finding that property was not code-compliant as determined by the City’s Building Official – Petitioner had already fixed 3 of the 5 cited problems and was working to resolved the remaining issues - Petition denied. Safety Harbor Complex, L.L.C.  v. City of Safety Harbor, Appeal No. 05-0100AP-88A (Fla. 6th Cir. App. Ct. Oct. 4, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

SAFETY HARBOR COMPLEX, L.L.C.,

a limited liability company,

                        Petitioner,

 

 

vs.                                                                                                Appeal No.05-0100AP-88A

                                                                                                    UCN522005AP000100XXXXCV

CITY OF SAFETY HARBOR,

a municipality, and SAFETY HARBOR

CODE ENFORCEMENT BOARD,

                        Respondents.

__________________________________________/

 

ORDER DENYING AMENDED PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Amended Petition for Writ of Certiorari, the Joint Response and the Reply.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Amended Petition must be denied as set forth below.

            The Petitioner, Safety Harbor Complex, L.L.C. (SHC), seeks review of the Order, entered November 16, 2005, by the Respondent, Safety Harbor Code Enforcement Board (Board) of the City of Safety Harbor (City), affirming the decision of the Building Authority who concluded that SHC’s property was unsafe.  In reviewing the administrative action taken below, the Court must consider whether SHC was afforded procedural due process, whether the essential requirements of law were observed and whether the Order is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action).

            The record shows that SHC is the owner of real property located off 10th Street South in Safety Harbor.  There are three buildings situated on the property.  The proceedings below involve only one building on the property, identified as 1600 10th Street South (Building).  Early in 2005, the City began receiving applications for occupational licenses for businesses operating out of the Building.  The occupational licenses were denied because the Building was in violation of the Florida Building Code.  In February 2005, Harold Harr, principle owner of SHC, contacted the City’s Building Official, Danny Sandlin, to request a meeting wherein Sandlin would “walk the building with him to see what [Mr. Harr] needed to do to come into compliance.” 

            Mr. Sandlin and Dave Pacheo, the acting Fire Marshall, conducted an inspection of the Building and determined that a change of occupancy had occurred.  The original occupancy of the Building was classified as manufacturing, with accessory offices in front.  The change of occupancy noted by the Mr. Sandlin and Mr. Pacheo classified the building into two different groups, storage and business, with multiple tenants.  Section 3401.2.2 of the Building Code provides that if occupancy classification or sub-classification of any existing building or structure is changed, the building, electrical, gas, mechanical and plumbing systems must be made to conform to the intent of the technical codes as mandated by the Building Official.

            Pursuant to Section 302.1.1 of the Standard Unsafe Building Abatement Code, Mr. Sandlin prepared and mailed to SHC a “notice of unsafe building,” in the form of a letter dated September 21, 2005, finding that the structure was unsafe and citing to the following conditions that needed to be corrected:  (1) inadequate egress, specifically that the front offices had only one exit where two were needed; (2) lack of required firewalls to provide separation between tenants and fire-related corridors in the front offices; (3) lack of minimum 2-hour separation to provide sufficient occupancy separation between businesses and storage occupancies; (4) rear storage facility exceeded the square footage allowed for an unsprinkled building; and, (5) no provisions had been made to accommodate a person with disabilities.  Mr. Sandlin deemed the structure “unsafe and dangerous” and required corrective measures be taken or the Building would be ordered vacated.  SHC appealed the Building Official decision to the Board.  After receiving testimony and evidence, the Board unanimously affirmed the decision of the Building Official.

            Before this Court, SHC argues that the Board departed from the essential requirements of law by failing to first establish that there had been a change of occupancy, by erroneously relying on zoning classifications in making its decision, and by considering the testimony of one of its own Board members.  SHC also argues that Mr. Sandlin’s testimony is not competent substantial evidence to support the Board’s Order and that SHC was denied due process by the Board’s outward bias against it.  Upon review of the record, particularly the transcript of the hearing before the Board held on November 16, 2005, the Court finds that certiorari relief must be denied.

            In addressing these issues, the Court finds that while the Board’s ultimate decision was to either affirm or reverse the Building Official, the Board had to first consider whether there had been a change of occupancy and, if so, whether the Building was unsafe due to the cited conditions.  The Court finds that the Board followed this two-part inquiry.  Initially, the Court finds that SHC does not dispute the authority of the Building Official to find that there has been a change of occupancy.  The record shows that there was an abundance of testimony regarding the change of occupancy from “factory/industrial with accessory front offices” to “storage and business, with multiple tenants” to support the Building Official’s decision.

            The Court finds that it was not seriously disputed during the hearing that there had been a change in the use of the building, originally designed and used for the production of citrus refinery towers by Gulf Machinery, the primary occupant from 1963 to 1988, and its current use.  After Gulf Machinery vacated the property in 1988, a number of businesses operated on the site, including a real estate company, a flea market and a casket company.  The current owner, Mr. Harr, testified that the building was “mixed use” and was no longer limited to manufacturing.

            Further, the undisputed testimony of the Fire Marshall, Richard Brock, who accompanied Mr. Sandlin on several occasions to inspect the Building, was that several of the companies that had occupied the premises in recent years were not issued occupational licenses due to the change in use and the need to upgrade the property to become code-compliant.  Mr. Brock testified that these tenants vacated the premises before any enforcement activity ensued.  While SHC attempted to present an estoppel argument to the Board, the Court finds that even if previous tenants had been erroneously issued occupational licenses, this would not preclude the City from enforcing the Building Code against the current owner, SHC.  See e.g. Ammons v. Okeechobee County, 710 So.2d 641, 644 (Fla. 4th DCA 1998)(holding that county properly revoked unlawfully issued occupational license); Crowell v. Monroe County, 578 So.2d 837, 838 (Fla. 3d DCA 1991)(concluding that 90-day extension letters issued by county official in violation of the county’s code were void and could not be used to prevent the county from revoking building permit). 

            Hence, in giving great weight to the Board’s interpretation of the Building Code as applied to the facts of this case, the Court concludes that the Board did consider the 2-part analysis in reaching its decision and that the change of occupancy is supported by competent substantial evidence in the record.   See Vanderbilt Shores Condominium Association, Inc. v. Collier County, 891 So.2d 583, 585 (Fla. 2d DCA 2004)(stating that great weight must be given to the construction of a statute by officials charged with its administration); see also Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001)(explaining that the certiorari standard of review requires this Court to defer to the City’s superior technical expertise and special vantage point in its policy determinations and factual findings).  In reaching this conclusion, the Court finds that to the extent the Board may have improperly relied upon testimony by one Board member and testimony regarding the property’s zoning classification, such consideration was harmless given the abundance of other testimony and evidence to support the Board’s ultimate decision.    

            The Court finds that SHC’s remaining issues lack merit.  There is nothing in the record to support SHC’s argument that the Board was biased or that SHC was denied due process.  Indeed, the Board asked many questions of both parties and was supportive of a satisfactory resolution.  The Board recognized that since Mr. Harr’s purchase of the property, the condition of the property has greatly improved.  Mr. Harr’s undisputed testimony was that he had spent substantial sums of money to repair the property and bring it up to code.  Mr. Harr also had already successfully worked with the City in approving the use of the other two buildings.  Mr. Harr testified that he had no problem with fixing the cited problems listed in (1), (3) and (5), as set forth in the September 21st letter.  Mr. Harr further stated he was working to resolve number (2).  The biggest issues presented by Mr. Harr were the necessity of having to install a sprinkler system, as required by number (5), as well as the City’s “piecemeal” approach to making the property code compliant.  While the Court defers to the City’s interpretation of the Building Code and finds that certiorari relief must be denied, the Court encourages the City and SHC to work toward an amicable solution on remand.[1]

           

            Therefore, it is,

            ORDERED AND ADJUDGED that the Amended Petition for Writ of Certiorari is denied.     

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of September 2006.

 

 

 

                                                ________________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

 

______________________________                        ______________________________

LAUREN LAUGHLIN                                              BRANDT C. DOWNEY, III

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

Copies furnished to:

Matthew C. Lucas, Esquire

Ethan J. Loeb, Esquire

500 East Kennedy Blvd., Suite 200

Tampa, FL  33602

 

Alan S. Zimmet, Esquire

Post Office Box 15309

Clearwater, FL  33766

 

Thomas Trask, Esquire

595 Main Street

Dunedin, FL  34698



 

 

[1] As stated by counsel for SHC, the parties were “extremely close” to a resolution and agreed with one Board member’s suggestion that the Board should hold off on making a decision.