### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA F OURTH D ISTRICT

PETER M. HAVER and GALINA HAVER , Appellant s ,

v.

THE CITY OF WEST PALM BEACH, INC. , RICK GREENE, ALEANDRO LOPEZ and MIRIAM R. GALAN , Appellee s

.

No. 4D 19

- 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

.

K UNTZ , 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 Pal m 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 n eighbor, Miriam Galan ( the “Neighbor”)
, the owner of the property who was allegedly viola ting those codes

. 1

Our resolution of the case is complex. When the circuit court dismissed th is 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

reco gnized in her dissent , it failed to apply binding precedent from the Florida Supreme Court. See 127 So. 3d at 87 7

- 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 c ounts I, II, and III of the Havers ’ complaint. We affirm the court’s dismissal of c ounts IV and V of the complaint. We also c ertify conflict with Detourna y 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 s ingle

- f a mily z oning c lassification 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 office r 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 l ocal 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 fr om the City or the Agency, they filed a five

- count complaint against the City, their N eighbor
, and the City Employees in their individual capacit ies

.

C ount I of the Haver s’ complaint requested declaratory and injunctive relief to enforce the s ingle

- f amily z oning c lassification

. 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 s ingle

- f amily z oning c lassification violates West Palm Beach Ordinance §94

- 34(b)(2). In Count III , the Havers requested an injunction preventing their N eighbor from providing room and board to unrelated
persons . In Count III, the Haver s also asked the court to enter an injunction requirin g the City to enforce the s ingle

- f amily z oning

c lassification 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 determin e whether the Neighbor violated the s ingle

- f amily z oning

c lassification and to require the City officials to act in accordance with West Palm Beach Ordinance §94

- 34(b)(2). Finally, i n Count V, the Havers sought certiorari relief and asked the court to qua sh any actions taken by the City related to its refusal to enforce the s ingle

- f amily z oning

c lassification

. 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 Ass ociation 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 becaus e 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 na med the City Employees in their individual capacit ies

. T he court dismissed the complaint against the City Employees with leave to amend to name them in their official capacit ies, but t he Havers declined to do so . We affirm the dismissal of all counts wit h prejudice against the City Employees.4 At the hearing, t he 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, t he 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) . The y 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 c ircuit c ourt c orrectly f ollowed the Third District’s d ecision 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 c ode 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. T he c ity a rgued it could not be liable for damages for negligent enforc ement 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

. ” I d . 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 of5 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

. (cit ation 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 t he supreme court cautioned that Trianon “addresse[d] only the narrow issue of exercising basic discretionary judgment in the enforcement of the police p ower, 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 S o. 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, t he 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 th e 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 that6 cannot be supervised by the courts, absent the violation of a specific constitutional provision or law.” Id. at 873.

Here, t he circuit court relied on Detournay when it dismissed the complaint. It did so even though the Havers argued Detou rnay 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 C ourt has not decided an issue, the circuit and count y court s are bound to follow the decisions of our sister districts. See Pardo , 596 So. 2d at 666 (quoting Hayes , 333 So. 2d at 53).

i i

. Boucher v. Novotny , 102 So. 2d 132 (Fla. 1958) , c ontrols t his

c ase . 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 exi sting 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 Fl orida 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 13 4

. But a p laintiff “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 specif ically 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 speci al

- 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 lenien t 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 injuncti ve relief

. Id

. at 879 (citing Boucher , 102 So. 2d at 134).

Judge Lagoa further explained that s upreme 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 zoning8 ordi nance 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 oft en 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 Tri anon to claims for declaratory and injunctive relief, the court can do so. We cannot.

i ii

. 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.

Count s I and III of the complaint sought injunctive relief against the City. Because these claims were specifically permitte d by Boucher , 102 So. 2d at 134, w e 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 ple a d ed special injuries as required by Boucher and Re nard

. Count II of the complaint sought a declaratory judgment on the N eighbor’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 c ount II. On remand
, the court should determine whether the allegations are otherwise sufficient under chapt er 86, Florida Statutes , as we decline to address the issue in the first instance.

A s 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 ple a d ed 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 re lief. 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 the9 complaint. See, e.g.
, De Groot v. Sheffield , 95 So. 2d 912, 91 5

- 1 6 (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

Conclusio n

As an inferior C ourt , we must comply with the Florida Supreme Court’s decisions. Complying with that mandate, we reverse the circuit court’s order dismissing c ounts I, II, and III of the complaint. We affirm the court’s dismissal of c ounts 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, r eversed in part, and remanded for further proceedings; conflict certified

.

W ARNER and K LINGENSMITH , 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 mov ed 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.