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.
2

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.
3

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. 

2 The 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. 
4

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 
5

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 
6

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.
7

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 defendantcity 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 
8

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 
9

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.