NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

RONALD K. SIEGLE, ) 

 ) 

 Petitioner, ) 

 ) 

v. ) Case No. 2D15-3293 

 ) 

LEE COUNTY, a political subdivision of ) 

the State of Florida, ) 

 ) 

 Respondent. ) 

 ) 

Opinion filed March 2, 2016. 

Petition for Writ of Certiorari to the Circuit 

Court for Lee County; John E. Duryea, 

Judge. 

Mark A. Ebelini of Knott Ebelini Hart, Fort 

Myers, for Petitioner. 

James L. Holloway, III, Assistant County 

Attorney, Fort Myers, for Respondent. 

VILLANTI, Chief Judge. 

 Ronald K. Siegle seeks second-tier certiorari review of a circuit court order 

affirming a hearing examiner's order that found that the presence of shipping containers 

on his commercial property violated the Lee County Land Development Code. In 

reaching her decision, the hearing examiner ruled that she did not have the authority to 
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consider Siegle's equitable defense of laches to a code enforcement proceeding. The 

circuit court affirmed, finding that the hearing examiner's authority was limited to 

determining only whether a violation existed and that the hearing examiner was 

prohibited from entering an order excusing a violation where one clearly existed. 

Alternatively, the circuit court found that laches could never be a defense to a code 

enforcement proceeding as a matter of law. Because the circuit court departed from the 

essential requirements of the law in each of these rulings, we grant the petition, quash 

the circuit court's order, and remand for further proceedings. 

 Siegle owns a piece of commercial property in Lee County, on which he 

runs a business that repairs large equipment and engines. Siegle took possession of 

the property in 2002, prior to which it had been used as a newspaper distribution facility. 

In furtherance of his business, Siegle placed twenty-seven large shipping containers on 

the property, in which he stores the parts he needs to have on hand to be able to make 

timely repairs for his customers. Siegle testified that the prior owner had similar 

shipping containers on the property before Siegle took possession of it. 

 In 2014, the County cited Siegle for violating section 34-3050 of the Lee 

County Land Development Code, which prohibits "[t]he use of trucks, truck trailers, or 

shipping containers for storage of merchandise, produce, or commodities for periods of 

48 hours or more." Siegle raised a number of defenses to the code enforcement action, 

including laches. Siegle contended that the shipping containers had been on the 

property for approximately twelve years, that they were open and obvious even to a 

casual passer-by on heavily traveled Highway 41, and that the County's failure to take 

some action to enforce the code during those twelve years should preclude 
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enforcement at this point. Additionally, Siegle presented evidence that County building 

officials had been on his property on at least three occasions during those twelve years, 

and he alleged that their failure to take any action to enforce the code provision at that 

point should be considered as part of his laches defense. 

 After hearing all the evidence and considering written briefs from the 

parties, the hearing examiner issued a written decision concluding that the defense of 

laches was "inapplicable" to the code enforcement proceeding because a hearing 

examiner "does not have equitable power or the authority to grant equitable relief" in 

code enforcement proceedings. The hearing examiner cited to section 34-145 of the 

Lee County Land Development Code as barring her consideration of Siegle's equitable 

defenses.1 After considering the County's evidence, the hearing examiner found Siegle 

in violation of the Code and imposed penalties. 

 Siegle appealed the hearing examiner's decision to the circuit court, 

specifically challenging the ruling that the hearing examiner did not have the authority to 

consider equitable defenses. After considering briefing and oral argument, the circuit 

court affirmed the hearing examiner's decision, concluding that the hearing examiner did 

not have authority under section 34-145 to consider a defense of laches to a code 

enforcement proceeding. The circuit court further held that even if such authority 

 1This section provides, in pertinent part: 

(f) Equitable jurisdiction. Unless specifically provided, the 

Hearing Examiner does not have the authority to render 

decisions based on equitable law in any proceeding under 

section 34-145(a) through (d). 

§ 34-145, Lee Cty. Land Dev. Code. 
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existed, the hearing officer's decision was proper because laches was not an available 

defense to a code enforcement proceeding as a matter of law. Siegle challenges both 

of these rulings in his petition to this court.2 

 On the threshold issue of whether the hearing examiner had the authority 

under section 34-145 to consider Siegle's equitable defenses to the code enforcement 

proceeding, we agree with Siegle that the circuit court departed from the essential 

requirements of the law. The hearing examiner and the circuit court both concluded that 

section 34-145(f) did not grant the hearing examiner the authority to render a decision 

based on equitable law. However, that interpretation ignores the final clause of the 

section. The full provision reads: 

(f) Equitable jurisdiction. Unless specifically provided, the 

Hearing Examiner does not have the authority to render 

decisions based on equitable law in any proceeding under 

section 34-145(a) through (d). 

§ 34-145(f), Lee Cty. Land Dev. Code (emphasis added). The identified subsections 

cover appeals from administrative actions (§ 34-145(a)), variances (§ 34-145(b)), 

"special exceptions" (§ 34-145(c)), and zoning matters (§ 34-145(d)). Under their plain 

language, none of these subsections deal with code enforcement proceedings. 

Therefore, the hearing examiner is not precluded by this section from considering any 

applicable equitable defenses in a code enforcement proceeding. 

 Our interpretation of the plain language of section 34-145(f) is reinforced 

by the canon of statutory construction expressio unius est exclusio alterius, under which 

 2Siegle raised several other defenses to this enforcement action before 

the hearing examiner; however, he does not address those defenses in his petition to 

this court. 
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"the mention of one thing implies the exclusion of another." State v. Hearns, 961 So. 2d 

211, 219 (Fla. 2007); see also Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 85 

(Fla. 2000). Pursuant to this canon, when a statute or code provision lists the areas to 

which it applies, it will be construed as excluding from its reach any areas not expressly 

listed. See Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976). Applying this canon here, 

the exclusion of code enforcement proceedings from section 34-145(f) means that the 

prohibition on consideration of equitable defenses simply does not apply to those 

proceedings. The County's decision to list the specific categories of proceedings to 

which equitable defenses do not apply indicates its intent to permit consideration of 

equitable defenses in all proceedings other than those listed. Therefore, the circuit 

court's conclusion that the hearing examiner could extend the code language limiting 

equitable defenses to proceedings not specifically listed in section 34-145(f) constitutes 

a departure from the essential requirements of the law. On this basis, we must grant 

Siegle's petition and quash the order on review. 

 As an alternative basis for affirming the hearing examiner's decision, the 

circuit court ruled that laches could not be a defense to a code enforcement proceeding 

as a matter of law. This ruling also constituted a departure from the essential 

requirements of the law because it contradicts binding precedent on this issue. 

 We recognize that courts in a number of states have held that laches is 

not an available defense in a code enforcement action, generally on the theory that 

code enforcement is a governmental function performed for the benefit of the general 

public and that laches should not be permitted to infringe on the performance of that 

type of function. See, e.g., Town of W. Hartford v. Rechel, 459 A.2d 1015, 1019 (Conn. 
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1983) (holding specifically that "[a] zoning commission 'is not estopped by laches from 

enforcing its zoning laws' " (quoting Bianco v. Darien, 254 A.2d 898, 902 (Conn. 

1969))); Lyublinskiy v. Srinivasan, 887 N.Y.S.2d 119, 120 (N.Y. App. Div. 2009) ("A 

municipality, it is settled, is not estopped from enforcing its zoning laws either by the 

issuance of a building permit or by laches." (quoting In re Parkview Assocs. v. City of 

New York, 519 N.E.2d 1372, 1374 (N.Y. 1988))); Baird v. City of Melissa, 170 S.W.3d 

921, 927 (Tex. App. 2005) ("The equitable doctrines of estoppel and laches are not 

available against a city when it is enforcing zoning ordinances, even if the facts might 

otherwise support their application, because the city is discharging a governmental 

function."); Salt Lake Cty. v. Kartchner, 552 P.2d 136, 138 (Utah 1976) ("Ordinarily a 

municipality is not precluded from enforcing its zoning regulations, when its officers 

have remained inactive in the face of such violations. The promulgation of zoning 

ordinances constitutes a governmental function. This governmental power usually may 

not be forfeited by the action of local officers in disregard of the ordinance."); Vill. of 

Hobart v. Brown Cty., 678 N.W.2d 402, 410 (Wis. Ct. App. 2004) ("[A] municipality 

cannot be estopped from seeking to enforce a zoning ordinance violation."). No Florida 

court has followed this line of reasoning. 

 In contrast, other states have concluded that laches may be asserted 

against zoning authorities in some cases—particularly when the municipality or zoning 

body has taken some affirmative action to permit the violating condition or to allow it to 

continue. For example, in City & County of San Francisco v. Pacello, 149 Cal. Rptr. 705 

(Cal. Ct. App. 1978), the court held that the city could not allow one city department to 

give the defendant permission to use his property in a certain manner and then turn 
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around eight and a half years later and have a different city department claim that such 

use was a zoning violation. Similarly, the court allowed the defense of laches to go 

forward in Springtime, Inc. v. Douglas County, 187 S.E.2d 874, 877 (Ga. 1972), when 

the county had notice of the defendant's intended construction plans, issued a building 

permit for the work, and allowed the work to go forward for four months before instituting 

a zoning violation action. See also City of Chicago v. Grendys Bldg. Corp., 281 N.E.2d 

708, 711 (Ill. App. Ct. 1972) (finding that doctrines of laches and estoppel would bar 

enforcement of zoning ordinance when there were affirmative acts by city officials that 

induced the actions of the defendant); Bd. of Zoning Appeals v. Beta Tau Hous. Corp., 

499 N.E.2d 780, 782 (Ind. Ct. App. 1986) (affirming the application of the doctrine of 

laches to preclude the city from enforcing a zoning ordinance against a fraternity house 

when it had prior notice that the property was to be used as a fraternity house and 

approved the use); Twp. of Yankee Springs v. Fox, 692 N.W.2d 728, 734 (Mich. Ct. 

App. 2004) ("Laches can be applied to bar an attempt to abate a zoning ordinance 

violation."). In these cases, it is generally not the governmental delay standing alone 

that permits relief, but instead the affirmative action of government officials together with 

the delay. 

 Florida law on the issue is sparse. Nevertheless, there are two cases that 

are instructive on the issue, one of which was binding on the circuit court. In Monroe 

County v. Carter, 41 So. 3d 954, 957 (Fla. 3d DCA 2010), the Third District recognized 

laches as an available defense to a code enforcement proceeding but reversed 

because the property owner had failed to prove the elements of the defense. It is clear 

from the opinion that the Third District would have permitted the defense of laches to 
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preclude the code enforcement proceeding had the defendant presented sufficient 

evidence of when the county gained knowledge of the violating condition. 

 In addition, this court discussed the issue of laches as a defense to code 

enforcement actions in Sarasota County v. National City Bank of Cleveland, 902 So. 2d 

233, 235 (Fla. 2d DCA 2005). There, this court held that the statute of limitations did 

not apply in administrative code enforcement proceedings, although it would apply in 

judicial code enforcement proceedings. This court then addressed laches and similar 

equitable defenses in dicta, stating: 

[W]e do not rule out the possibility that an administrative 

enforcement proceeding could be barred by some legal 

theory relating to delayed enforcement. The record in this 

proceeding does not allow us to determine whether some 

theory of laches, estoppel, or due process might bar an 

enforcement proceeding. 

Id. However, we declined to address the "difficult legal issue" of "under what 

circumstances . . . a local government [may] seek administrative enforcement for code 

violations of long-standing duration." Id. This language indicates that this court would 

be open to accepting laches as a defense to code enforcement actions in at least some 

types of circumstances. 

 Here, Siegle made the circuit court aware of the Third District's decision in 

Carter, which was clearly premised on laches being—upon proof of appropriate facts—a 

valid defense to a code enforcement proceeding. That decision was binding on the 

circuit court in the absence of authority to the contrary from this court or the supreme 

court. See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (noting that in the absence 

of interdistrict conflict, district court decisions bind all Florida trial courts). No such 

contrary binding authority exists, and what authority does exist, including this court's 
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dicta in National City Bank, indicates agreement with Carter that laches is an available 

defense in code enforcement proceedings upon proper proof. And while the circuit 

court attempted to distinguish Carter in its decision, it did so only by misreading the 

code provision relating to the hearing examiner's authority to consider equitable 

defenses. For these reasons, the circuit court's ruling that laches could not be a valid 

defense to a code enforcement proceeding constituted a departure from the essential 

requirements of the law. 

 The final question is the scope of proceedings to be had on remand in 

light of our quashal of the circuit court's decision. When considering a petition for a writ 

of second-tier certiorari, this court is limited to determining whether the circuit court 

departed from the essential requirements of the law. We cannot examine the record 

and determine in the first instance whether Siegle presented sufficient evidence to 

establish his asserted defense. See, e.g., Miami-Dade Cty. v. Omnipoint Holdings, Inc., 

863 So. 2d 195, 199 (Fla. 2003) (holding that on second-tier certiorari review, "[t]he 

district court may not review the record to determine whether the underlying agency 

decision is supported by competent, substantial evidence"); Broward Cty. v. G.B.V. Int'l, 

Ltd., 787 So. 2d 838, 844 (Fla. 2001) (noting that when reviewing a case on second-tier 

certiorari, the appellate court may only quash the order on review if it departs from the 

essential requirements of the law and "has no power in exercising its jurisdiction in 

certiorari to enter a judgment on the merits of the controversy . . . nor to direct the 

[circuit court] to enter any particular order or judgment" (quoting Tamiami Trail Tours, 

Inc. v. R.R. Comm'n, 174 So. 451, 454 (Fla. 1937))); Snyder v. Douglas, 647 So. 2d 

275, 279 (Fla. 2d DCA 1994) (same). 
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 Accordingly, we hold only that a Lee County hearing examiner has the 

authority to consider equitable defenses to a code enforcement proceeding and that 

laches may be—upon proper proof—a defense to a code enforcement action. On 

remand, the circuit court shall reconsider Siegle's appeal in light of the correct law. 

 Petition granted; order quashed; case remanded for reconsideration in 

light of this opinion. 

 

CASANUEVA and MORRIS, JJ., Concur.