On Petition for Writ of Certiorari fi'om the Miami-Dade County, Office of Code Enforcement, Susan L. Levin, Hearing Officer.

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1 NOT FINAL UNTIL TIME EIQIRES TO FILE RE-HEARING MOTION, AND IF FILED DISPOSED OF. IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA SUNDALE ASSOCIATES, LTD., Petitioner, APPELLATE DIVISION CASE NUMBER: AP LOWER CASE NO: B VS. MIAMI-DADE COUNTY, CODE ENFORCEMENT Respondent. Opinionfiled: J,2o12. \-\ ~._ (5 A S,. * Q(Q \ 3-at) 1.31 I 9' -ah I -1'\??. i%? 3 I',\\1 On Petition for Writ of Certiorari fi'om the Miami-Dade County, Office of Code Enforcement, Susan L. Levin, Hearing Officer.,< 1 J1U, _.n 5 /2/ Michael Rade = d Graham Penn, of Bercow Radell & Fernandez, P.A., for Petitioner. R.A. Cuev hami-dade Co ty A rncy, Andrew B. Boese, Bridgette N. Thomton and Annery Pulg U_ rinsin- ~ so Assi t ami- ade County Attomeys, for Respondent. BeforeYI}EBAN, C J I, and F CUETO, J., Petitioner undale Associates, Ltd., ( Sundale ) seeks eertiorari review of an administrative order rendered by a hearing oificer on January 17, The order affirmed fire code violations issued against the hotel for failure to protect vertical openings in accordance with section of the National Fire Protection Association's Life Safety Code ( NFPA 101 ). Based on the reasons discussed below, we deny Sundale s Petition for Writ of Certiorari.

2 I. PROCEDURAL HISTORY Sundale is the owner of a hotel in unincorporated Miami-Dade County. In 1999, Sundale requested a canvas awning permit from the County. The permit was issued on February 2, I999 and the awning was last inspected on September 3, The disposition ofthe final inspection states approved. The awning provided a covering over the courtyard area between two buildings ofthe hotel. In 2007, approximately seven years afier the final inspection, the Miami-Dade Fire Rescue Department issued a Notice of Violation to Sundale regarding the awnings. The violations charged Simdale with the (1) failure to properly protect vertical opening, (2) failure to provide fire rating of membrane, (3) failure to provide emergency lighting, and (4) failure to provide fire rated glazing. Following the issuance of the Notice of Violation, Stmdale began to resolve the alleged violations with the Fire Department. However, Sundale filed an appeal of the Civil Violation Notice regarding the awnings.~ Sundale disagreed with the Fire lnspector s conclusion that the installation ofthe awnings had turned each courtyard into an atrium. In 2008, a Miami-Dade County Hearing Officer heard the appeal. At the healing, Fire Inspector Marchi ( Inspector Marchi ) asserted that each canopy (awning) created an indoor space or vertical opening beneath it, which constituted an atrium. As such, Inspector Marchi testified that the citation issued to Sundalc was based on its failure to protect vertical openings as required by NFPA 101. The Hearing Officer rendered her findings of facts and conclusions of law, affirming the fire code violations against Sundale. Thereafter, Simdale filed this Petition for Writ of Ccrtiorari. II. STQQDARD OF REVIEW The standard of review to be applied by a circuit court reviewing an administrative 2

3 agency s decision is limited to determining (l) whether procedural due process has been accorded, (2) whether essential requirements of the law have been observed and (3) whether the decision is supported by substantial competent evidence. Haines City Camry. Dev. v. Heggs, 658 S0. 2d 523, 530 (Fla. 1995). The inquiry in this instance lies with the second prong of the standard delineated in Heggs. III. QISQUSSION A departure from the essential requirements of law is the same as applying the wrong law. Dusseau v. Metro. Dade County Bat of County Comm rs, 794 S0. 2d 1270, 1274 (Fla. 3d DCA 2001). At issue is whether the hearing officer erred by relying on and affirming Petitioner s violations based on the fire inspeetor s interpretation of section of NFPA I01. Section ofnfpa defines the term atrium as: [a] large-volume space created by a floor opening or series of floor openings connecting two or more stories that is covered at the top of the series of openings and is used for purposes other than an enclosed stairway; an elevator hoistway; an escalator opening; or as a utility shaft used for plumbing, electrical, airconditioning, or communications facilities. Petitioner Sundale contends that under the plain language of the regulation, covered implies that none of the area may be opened to the sky. Fire Inspector Manchi s testimony provided a different interpretation: [Inspector Marchi]: Atrium: A large volume of space created by a floor opening or series of floor openings connecting two or more stories that s covered at the top of the series of openings, and is used for a purpose other than an enclosed stairway, an elevator hoist way, an escalator opening, or as a utility shaft. [Hearing Ofiicer]: A larger volume ofspace created by a floor opening? [Inspector Marchi]: Yes, which is exactly what we have here. [Stmdale s counsel}: Continue, though. Or a series of floor openings connecting two or more stories that is covered at top. 3

4 [Inspector Marchi]: And that s exactly what you have here. [Sundale s cotmsel]: There are openings throughout this covering. It is a partial covering. [Inspector Marchi]: It doesn't say - - it doesn t say entirely covered. It says covered. This is covered. Your photograph shows that it is covered, your aerial photograph. (Trial Tr. $9: 1-25, Jan. 1'7, 2008). As such, Petitioner Sundale opines that because the hearing officer affirmed Inspector Marchi s definition that any partial covering" created an atrium, the wrong law was applied in upholding the fire code violation. We disagree. ' In the instant case, there are no words within section of NFPA that modify the term covered. It is unclear whether the plain meaning of covered means completely covered or encompasses the term partially covered. Based on this lack of clarity of what constitutes covered within the regulation, this Court follows the principle of statutory construction as explained in GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007): Thus, if the meaning of the statute is clear then this Court's task goes no further than applying the plain language of the statute. However, when a statutory term is subject to varying interpretations and that statute has been interpreted by the executive agency charged with enforcing the statute; this Court follows a deferential principle of statutory construction: An agency's interpretation of the statute that it is charged with enforcing is entitled to great deference. See BeIlSou!h Telecommunications, Inc. v. Johnson, 708 So.2d 594, 596 (Fla.l998). This Court will not depart from the contemporaneous construction of a statute by a state agency charged with its enforcement unless the construction is clearly unauthorized or erroneous. [Citations omitted]. in support of its position, Stmdale relied on State of Fla. Dep t of Envtl. Regulation v. C.P., Developers, Inc., 512 So. 2d 258, (Fla. lst DCA 1987), which notes that when the language of a statute is clear and unambiguous, the statute must be given its plain and obvious meaning. While this is true, C.P. Developers, Inc., also provides that it is well settled that courts should accord great deference to administrative interpretations of statutes which the administrative agency is required to enforce. Id. at

5 In affording great deference to the fire department when enforcing the safety code violations, the record evidence does not demonstrate that Inspector Marohi s interpretation of the definition of what constituted an atrium was unauthorized or erroneous. In light of the fact that there are no words preceding the word covered as it exists in section of NFPA which would provide clarification, the hearing officer s reliance on Inspector Marchi s interpretation that the awnings (canopies) created an atrium is a reasonable view of section of NFPA. Therefore, the hearing cfficer s reliance on the fire department's interpretation of the definition for the term atrium and the fact that an atrium was created by the installation of the awnings (canopies) do not demonstrate that she applied the incorrect law. In the alternative, Sundale contends that if the awnings (canopies) as installed constitute an atrium, then the hearing officer erred in affirming the finding that the property was developed in a manner inconsistent with the applicable regulations. In making this argument Sundale relies on the fact that it obtained the awning permit in As such, Sundale is of the view that the awnings (canopies) are exempt from providing a fire barrier as required under section of NFPA, because the awnings (canopies) should be considered previously approved atriums. In pertinent part, section ofthe NFPA provides: Atriums. Unless prohibited by Chapter 12 through Chapter 42, an atrium shall be permitted, provided that the following conditions are met: (1) The atrium is separated ii-om the adjacent spaces by fire barriers with not less than a 1-hour fire resistance rating with opening protectives for corridor walls, unless one ofthe following is met: [Emphasis supplied]. (a) The requirement of (1) shall not apply to existing previously approved atriums. We do not find merit in S1mdale s aitemative argtment. in Metropolitan Dade County, v. Fontainebleau Gas & Wash, Inc., 5'70 So. 2d 1006, I008 (Fla. 3d DCA 1990), developers 5

6 requested a zoning change for property zoned only for use as a bank or savings and loan. Alter fifteen years and several owners later, some purchasers sought all the necessary permits and constructed a gas station. Id. at Although building pemiits were issued by govermnent ofiicials, the Court determined that estoppel will not lie for prohibited acts. The Third District noted: [W]hile application of the rule may appear harsh, it would be inconceivable that public officials could issue a permit, either inadvertently, through error, or intentionally, by design, which would sanction a violation of an ordinance adopted by the legislative hand of the government. Only the duly constituted members of the Metropolitan Dade County Commission enjoy that prerogative and then only in accordance with established procedure. Id. at 1008 (citing Dade County v. Gayer, 388 So.2d 1292, 1294 (Fla. 3d DCA 1980)). Here, the prior issuance of the permit to install the awnings (canopies) cannot sanction a violation of the fire code. Accordingly, Sunda1e s Petition for Writ of Certiorari is DENIED. LEBAN and FAJARDO, JJ. concur. COPIES FURNISHED TO COUNSEL OF RECORD AND TO ANY PARTY NOT REPRESENTED BY COUNSEL 6