IN THE SUPREME COURT OF FLORIDA

Filing # 10750991 Electronically Filed 02/27/2014 10:29:07 AM RECEIVED, 2/27/2014 10:33:37, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA LISA M. DETOURNAY, ) BRENDA RANDOL, and ) THE RIVIERA NEIGHBORHOOD ) ASSOCIATION, INC., ) ) CASE NO. SC14-30 Petitioners, ) LTN: 3D11-2012; 07-29458 ) v. ) ) CITY OF CORAL GABLES, and ) AMACE PROPERTIES, INC., ) ) Respondents. ) ) RESPONDENT CITY OF CORAL GABLES' BRIEF ON JURISDICTION GERALD B. COPE, JR. (251364) gerald.cope@akerman.com ELIZABETH M. HERNANDEZ (378186) elizabeth.hernandez@akerman.com ROSS E. LINZER (73094) ross.linzer@akerman.com vanessa.berman@akerman.com AKERMAN LLP One Southeast Third Avenue Suite 2500 Miami, Florida 33131 Telephone: 305-374-5600 Telefax: 305-374-5095 Attorneys for Respondent City of Coral Gables {27875616;8}

TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...4 ARGUMENT...5 I. BECAUSE THE THIRD DISTRICT COURT OF APPEAL DECLINED TO REACH THE ISSUE OF STANDING, THE DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISIONS OF THIS COURT ON STANDING...5 A. No conflict exists...5 B. The decisions of this Court cited by Petitioners are inapplicable...6 II. THERE IS NO EXPRESS AND DIRECT CONFLICT WITH A DECISION OF THE SECOND DISTRICT COURT OF APPEAL...8 CONCLUSION...9 CERTIFICATE OF SERVICE...11 CERTIFICATE OF FONT COMPLIANCE...12 {27875616;8}

TABLE OF AUTHORITIES Page(s) Cases Boucher v. Novotny, 102 So. 2d 132 (Fla. 1958)...7 Combs v. City of Naples, 834 So. 2d 194 (Fla. 2d DCA 2002)...8, 9 Detournay v. City of Coral Gables, No. 3D11-2012 (Fla. 3d DCA Dec. 4, 2013), slip op...passim Fortunato v. City of Coral Gables, 47 So. 2d 321 (Fla. 1950)...6 Hardee v. State, 534 So. 2d 706 (Fla. 1988)...2 Persaud v. State, 838 So. 2d 529 (Fla. 2003)...8 Reaves v. State, 485 So. 2d 829 (Fla. 1986)...2 Renard v. Dade Cnty., 261 So. 2d 832 (Fla. 1972)...6 Skaggs-Albertson's v. ABC Liquors, Inc., 363 So. 2d 1082 (Fla. 1978)...6 Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So. 2d 912 (Fla. 1985)...passim Rules Fla. R. App. P. 9.030(a)(2)(A)(iv)...8 Florida Constitution Art. V, 3(b)(3)...6,8 {27875616;8} ii

STATEMENT OF THE CASE AND FACTS This Court should deny review because there is no conflict of decisions. The request for review rests on the erroneous premise that the Third District Court of Appeal held the Petitioners have no standing. Based on that premise, Petitioners claim the Third District's decision is in conflict with four decisions of this Court and a decision of the Second District Court of Appeal. But the premise is wrong. The Third District majority did not reach, or address, the issue of standing. Instead, the Third District applied this Court's decision in Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So. 2d 912 (Fla. 1985), and found that "[u]nder the doctrine of separation of powers, the City's discretion to file, prosecute, abate, settle, or voluntarily dismiss a building and zoning enforcement action is a purely executive function that cannot be supervised by the courts, absent the violation of a specific constitutional provision or law." Detournay v. City of Coral Gables, No. 3D11-2012 (Fla. 3d DCA Dec. 4, 2013), slip op. at 2. 1 Petitioners allege a conflict where none exists and rely on inapposite case law that addresses the issue of standing, which was not the basis for or even considered in the Third District's decision. 1 Citations to the Third District decision will be to the slip opinion contained in the Appendix to Petitioners' Jurisdictional Brief. {27875616;8} 1

The pertinent facts are as follows. 2 Amace Properties, Inc. ("Amace") owns commercial property on a canal in the City of Coral Gables (the "City"). Id. at 2. Petitioners Lisa Detournay and Brenda Randol (the "Neighbors"; and with the Riviera Neighborhood Association, Inc., collectively the "Homeowners") own homes in the City near the property owned by Amace. Id. "From its property, Amace operates what both the City and the Homeowners maintain is a private yacht basin that rents slips and moorings in a manner that violates various provisions of the City's building and zoning code." Id. "In April 2004, the City issued three administrative citations against Amace." Id. at 2-3. "After filing these enforcement actions, however, the City held them in abeyance for years while attempting to settle them as part of a proposed re-development of Amace's property." Id. at 3. The Homeowners filed suit to force the City to pursue its enforcement actions: Count One sought a declaratory judgment and Count Two sought an injunction. Id. 2 The Petitioners "adopt[ed] the facts and procedural history of the majority and dissent" from the Third District Court of Appeal opinion. See Petitioners' Jurisdictional Brief at 1 n.1 (emphasis added). However, "for purposes of determining conflict jurisdiction, this Court is limited to the facts which appear on the face of the opinion." Hardee v. State, 534 So. 2d 706, 708 n. * (Fla. 1988) (emphasis added); see also Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986) ("Conflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority decision. Neither a dissenting opinion nor the record itself can be used to establish jurisdiction."). Therefore, to the extent Petitioners' Jurisdictional Brief contains facts that go beyond the four corners of the majority opinion, they should be disregarded by this Court. {27875616;8} 2

Amace intervened in the lawsuit as a defendant. However, the Homeowners "filed no complaint and requested no relief against Amace." Id. at 9. At trial, the court entered an order and final judgment dismissing Count One for declaratory relief, ruling that the Homeowners lacked standing, and finding in favor of the City on Count Two for injunctive relief. Id. at 4. The Homeowners appealed to the Third District Court of Appeal. Id. The District Court of Appeal affirmed the decision of the trial court to dismiss the declaratory judgment count, but did so "on grounds different than that relied upon by the trial judge." Id. The majority expressly declined to address the issue of standing. Id. at 4-5. Instead, the District Court affirmed the dismissal of Count One on the "principles of separation of powers discussed in Trianon and its progeny." Id. Count Two, seeking injunctive relief, was "dismissed for the same reason." Id. at 5 (footnote omitted). 3 The District Court majority was careful to say that "[o]ur decision does not address the ability of the Homeowners to bring a direct action against Amace because the Homeowners have filed no complaint and requested no 3 The majority reasoned that the trial court should not have reached the merits of Count Two, and directed that Count Two "should also be dismissed." Id. at 10. {27875616;8} 3

relief against Amace; therefore, the issue of the validity of such a lawsuit is not before us." Id. at 9. 4 The Petitioners now seek review of the Third District's decision on the issue of standing, incorrectly asserting that the Detournay decision expressly and directly conflicts with four decisions of this Court and one decision of the Second District Court of Appeal. SUMMARY OF THE ARGUMENT No conflict exists. Petitioners state in Argument I that "[t]he decision of the Third District Court of Appeal expressly and directly conflicts with the decisions of this Court regarding standing to enforce a municipal zoning code." Petitioners' Jurisdictional Brief at 5 (emphasis added). But Petitioners fail to recognize that the Third District majority specifically declined to address the issue of standing. Because there is no ruling on standing within the four corners of the majority opinion, there is no conflict with the cited decisions of this Court (Petitioners' Argument I) or of the Second District Court of Appeal (Petitioners' Argument II). In addition, none of Petitioners' conflict cases address the issue presented here, which involves a municipality's discretion to file, prosecute, abate, settle, or voluntarily dismiss a building and zoning enforcement action. The District Court 4 The majority also pointed out that if the Homeowners oppose the City's entering into settlements of code enforcement actions, the Homeowners "need to knock on the doors of city hall, not the courthouse." Id. at 10. {27875616;8} 4

of Appeal simply applied Trianon to the specific facts of this case in making its decision. Because the Third District's decision does not expressly and directly conflict with a decision of this Court or a district court of appeal on the same question of law, this Court lacks jurisdiction and should deny review. ARGUMENT I. BECAUSE THE THIRD DISTRICT COURT OF APPEAL DECLINED TO REACH THE ISSUE OF STANDING, THE DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISIONS OF THIS COURT ON STANDING. A. No conflict exists. Petitioners incorrectly claim that that "[t]he decision of the Third District Court of Appeal expressly and directly conflicts with the decisions of this Court regarding standing to enforce a municipal zoning code." Petitioners' Jurisdictional Brief at 5 (emphasis added). But the Third District expressly declined to reach the issue of standing. Judge Logue, writing for the majority, said: We agree with the dismissal of count one, albeit on grounds different than that relied upon by the trial judge. Rather than basing the dismissal on standing, we think the simplest and most direct explanation of why dismissal is proper is provided by the principles of separation of powers discussed in Trianon and its progeny. Detournay, slip op. at 4-5 (emphasis added). Nowhere within the four corners of the majority opinion did the Third District address whether the Homeowners had standing. {27875616;8} 5

In order for a conflict to exist under Article V, section 3(b)(3) of the Florida Constitution, it must appear on the face of the written majority opinion. See supra note 2. There is no conflict because the Third District explicitly decided the case on other grounds not standing. B. The decisions of this Court cited by Petitioners are inapplicable. The cases cited by the Petitioners do not apply here for an additional reason. None of the alleged conflict cases involve a situation in which a property owner requested an injunction to require a municipality to prosecute a code enforcement action against another property owner. In three of the alleged conflict cases, a neighboring landowner challenged a zoning action which had been taken, or was about to be taken, by the local government. 5 In the fourth case, a property owner 5 In Skaggs-Albertson's v. ABC Liquors, Inc., 363 So. 2d 1082 (Fla. 1978), the question was whether Skaggs-Albertson's proposed liquor store complied with an Orange County ordinance requiring a package store to be at least 5,000 feet from an existing liquor store. Id. at 1084. In Renard v. Dade County, 261 So. 2d 832 (Fla. 1972), a property owner challenged the action of Dade County in rezoning an adjoining property from industrial to multiple family. Id. at 834. In Fortunato v. City of Coral Gables, 47 So. 2d 321 (Fla. 1950), a property owner sought to enjoin the issuance of a building permit pursuant to a variance allowing a fifteen-foot front yard setback, whereas the existing front yard setback on that street was thirtyfive feet. This Court held that the city had misinterpreted the applicable zoning ordinance. Id. at 323. In dictum, the Third District questioned whether Fortunato survived Trianon. Detournay, slip op. at 8. But in any event, there is no conflict on the issue of standing nor did Fortunato involve a request for an injunction to require a city to prosecute a building and zoning code notice of violation. {27875616;8} 6

sought an injunction against a neighboring property owner to enjoin a violation of setback requirements. 6 The present case is completely different. In this case, the Homeowners sought an injunction to compel the City to prosecute three notices of violation against Amace. None of the alleged conflict cases involved a request by a property owner for an injunction to require a municipality to prosecute pending notices of violation against another property owner. Thus, Petitioners erroneously assert that there is a conflict when there is none. The Third District said, correctly, that this case is controlled by another precedent of this Court: Trianon. Detournay, slip op. at 5-7. The Third District explained that enforcement of the building code is a discretionary function as to which the City has prosecutorial discretion: Id. at 7. 7 the City's discretion to file, prosecute, abate, settle, or voluntarily dismiss a building and zoning enforcement action is analogous to a prosecutor's discretion to file, prosecute, abate, settle, or dismiss a criminal or civil lawsuit. 6 In Boucher v. Novotny, 102 So. 2d 132 (Fla. 1958), a landowner on the northwest corner of an intersection sought an injunction against a landowner on the northeast corner, alleging that the latter's proposed motel would violate setback requirements. Id. at 133-34. 7 The Petitioners claim that "[t]he City did not raise the issue of 'separation of powers' either before the trial court or district court." Petitioners' Jurisdictional {27875616;8} 7

Petitioners argue that "Trianon was never intended to be connected with zoning law." Petitioners' Jurisdictional Brief at 3. That is not so. Category I of Trianon refers to "actions inherent in the act of governing," and makes a parenthetical reference to "enactment of zoning ordinance" as an example. 468 So. 2d at 919. The Third District quoted the portion of Trianon which specifically says that enforcing compliance with the building code flows from the police power of the state and is a discretionary function. Detournay, slip op. at 6. "[T]he 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." Id. (quoting Trianon). The Detournay majority opinion does not directly or expressly conflict with the cases advanced by Petitioners. Therefore, this Court lacks jurisdiction to review the Detournay decision and review should be denied. Art. V, 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv); Persaud v. State, 838 So. 2d 529, 532-33 (Fla. 2003). II. THERE IS NO EXPRESS AND DIRECT CONFLICT WITH A DECISION OF THE SECOND DISTRICT COURT OF APPEAL. In Argument II, the Petitioners claim that there is a conflict between the Third District majority decision and the decision of the Second District in Combs Brief at 9, n.3. The District Court's majority opinion squarely refutes this claim. Detournay, slip. op. at 5 n.1. {27875616;8} 8

v. City of Naples, 834 So. 2d 194 (Fla. 2d DCA 2002), on the issue of standing. Petitioners' Jurisdictional Brief at 9-10. The Petitioners cite Combs for the proposition that Florida's declaratory judgment statute "contains no requirement that a special injury be established." 834 So. 2d at 197. But once again, the Third District majority opinion did not reach, or address, standing. Since standing is not discussed in the majority opinion, it follows that there is no express and direct conflict between the Third District majority decision and the Second District's decision in Combs. 8 CONCLUSION No conflict exists. Even if there were a conflict (and there is not), the decision below simply involved the application of well-settled law to the facts of this case and review should be denied for that additional reason. The City respectfully requests that this Court deny review. Respectfully submitted, AKERMAN LLP One Southeast Third Avenue Suite 2500 Miami, Florida 33131 Telephone: 305-374-5600 Telefax: 305-374-5095 8 In Combs, the plaintiffs sought to challenge a development agreement between the City of Naples and a golf club. 834 So. 2d at 196. {27875616;8} 9

By: /s/ Gerald B. Cope, Jr. GERALD B. COPE, JR. (251364) gerald.cope@akerman.com ELIZABETH M. HERNANDEZ (378186) elizabeth.hernandez@akerman.com ROSS E. LINZER (73094) ross.linzer@akerman.com vanessa.berman@akerman.com Attorneys for Respondent City of Coral Gables {27875616;8} 10

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via Electronic Mail on this 27 th day of February, 2014 upon: Andrew W. J. Dickman, Esq. LAW OFFICES OF ANDREW DICKMAN, P.A. Counsel for Petitioners P.O. Box 771390 Naples, FL 34 107-1390 andrewdickman@comcast.net Santiago D. Echemendia, Esq. TEW CARDENAS LLP Four Seasons Tower, 15th Floor 1441 Brickell Avenue Miami, FL 33131-3407 sde@tewlaw.com Michael R. Josephs, Esq. THE JOSEPHS LAW FIRM 255 Alhambra Circle Suite 700 Coral Gables, FL 33134 mrj@florida-attorneys.com /s/ Gerald B. Cope, Jr. GERALD B. COPE, JR. {27875616;8} 11

CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the font used in this brief is Times New Roman 14-point font and that the brief complies with the font requirements of Rule 9.210(a)(2). /s/ Gerald B. Cope, Jr. GERALD B. COPE, JR. {27875616;8} 12