STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES RIVER LABORATORIES, INC., )

)

Appellant, )

)

vs. ) CASE NO. 96-6047VR

)

COUNTY OF MONROE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, oral argument was held in this case by telephone conference call on April 24, 1997, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Appellant: Robert A. Routa, Esquire

Post Office Box 6506 Tallahassee, Florida 32314-6506

For Appellee: Garth Coller, Esquire

Monroe County

Office of the Land Use Attorney 2798 Overseas Highway, Suite 440

Marathon, Florida 33050-2227

For Curtis Kruer: Richard Grosso, Esquire

E.L.U.L.C.

Civil Law Clinic

Nova Southeastern University 3305 College Avenue

Fort Lauderdale, Florida 33014

STATEMENT OF THE ISSUE

Whether Resolution No. P64-96 of the Monroe County Planning Commission should be affirmed, reversed or modified?

PRELIMINARY STATEMENT

Appellant has raised monkeys for commercial purposes on Key Lois and Raccoon Key in Monroe County since the 1970's.

Appellant's activities have resulted in the introduction of unconfined, free-ranging monkeys on these islands.

In 1988, Appellant and the Florida Department of Environmental Regulation (now the Department of Environmental Protection) entered into consent orders (1988 Consent Orders) to resolve a dispute they had concerning the effect of Appellant's monkey-breeding operations on mangrove vegetation on and around the islands. In the 1988 Consent Orders, Appellant agreed to erect fences on Key Lois and Raccoon Key as part of an effort to protect mangrove vegetation from the browsing and grazing habits of the free-ranging monkeys on the islands. Paragraphs 8 and 22 of the 1988 Consent Orders read as follows:

8. Respondent [Charles River Laboratories, Inc.] shall exercise due diligence to obtain all necessary governmental authorizations to effectuate the terms of this Consent Order. In the event authorization is withheld by any governmental agency, nothing herein shall be construed to limit the Department[']s ability to take future enforcement actions to remedy alleged violations of Chapter 403, Florida Statutes, and Respondent reserves all legal rights and remedies under Florida law.

22. Entry of this Consent Order does not relieve Respondent [Charles River Laboratories, Inc.] of the need to comply with the applicable federal, state or local laws, regulations, or ordinances.

In 1992, to settle a lawsuit that Appellant had filed against the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (Board) in Monroe County Circuit Court Case No. 86-190-CA-13, Appellant entered into a settlement agreement, which provided, in paragraph 1. thereof, as follows:

The Company [Charles River Laboratories, Inc.] has received consent orders from the Department of Environmental Regulation (DER) which are incorporated into this document (see Exhibits A and B), that have established management guidelines for activities on the two islands [Key Lois and Raccoon Key]. All activities on both islands will be specifically conducted as provided in the consent orders.

The settlement agreement was attached to and incorporated in the Consent Final Judgment that was entered in Monroe County Circuit Court Case No. 86-190-CA-13 on September 14, 1992 (1992 Consent Final Judgment).

After erecting the fences that, in the 1988 Consent Orders, it had agreed to erect, Appellant applied to Monroe County for an "after-the-fact" building permit authorizing the construction of the fences. By letter dated October 25, 1995, Monroe County's Director of Environmental Resources informed Appellant of the following:

Unfortunately, we are unable to permit the fencing at this time. Staff has a concern relative to the placement of electric grid

fencing over submerged lands and mangroves. Specifically, Monroe County Land Development Regulations Section 9.5-345(m)(1) states:

"Except as provided in paragraph (3), only piers, docks, utility pilings and walkways shall be permitted on submerged lands and mangroves."

A site visit by a County biologist verified that the fencing extends from 100' to 400' over submerged land as well as over mangrove habitat. Our primary concern is that the construction of the fencing, and the fencing itself, is generating a detrimental effect on the surrounding shallow marine environment.

Your options are to either 1) remove the fencing, 2) defend the unpermittable development before the Code Enforcement Department's hearing officer, or 3) appeal our decision to deny the permit for fencing.

Appellant chose the latter option. On November 9, 1995, it filed a Notice of Appeal and Petition for Variance requesting a "variance from the provisions of Section 9.5-345(M)(1) of the Monroe County Development Regulations, or in the alternative

. . . reversal of the decision of the planning official."

Appellant's appeal was heard by four of the five members of the Monroe County Planning Commission1 at the Commission's September 19, 1996, meeting. Curtis Kruer, who testified under oath that he was a resident of Monroe County and that he fished recreationally in the waters surrounding Key Lois and Raccoon Key and earned a portion of his living working as a fishing guide in these waters, was allowed, over Appellant's objection, to participate, through counsel, as a party in the hearing. Kruer was permitted to cross-examine Appellant's witnesses and to

present argument and his own expert2 testimony in opposition to the relief requested by Appellant.3

Following the presentation of evidence and argument, a vote was taken among the Planning Commission members present. Two of the four Planning Commission members present voted in favor of granting Appellant the relief it had requested. The remaining two Planning Commission members present voted against granting the requested relief.

On November 7, 1996, the Planning Commission voted to approve Resolution No. P64-96,4 which provides as follows:

RESOLUTION NO. P64-96

A RESOLUTION BY THE MONROE COUNTY PLANNING COMMISSION DENYING THE APPEAL FILED BY CHARLES RIVER LABORATORIES OF A BUILDING PERMIT FOR THE PLACEMENT OF 1,100 LINEAR FEET OF ELECTRIFIED FENCING OVER MANGROVES AND SUBMERGED LANDS ON KEY LOIS AND FOR 3,500 LINEAR FEET OF ELECTRIFIED FENCING OVER MANGROVES AND SUBMERGED LANDS ON RACCOON KEY.

WHEREAS, during a regular meeting held on the appeal filed by Charles River Laboratories of the denial of a building permit to place 1,100 linear feet of electrical fencing over mangroves and submerged lands on Key Lois and 3,500 linear feet of electrical fencing over mangroves and submerged lands on Raccoon Key; and

WHEREAS, the Planning Commission was presented with the following evidence, which by reference is hereby incorporated as a part of the record of said hearing:

1. The appeal application submitted by Charles River Laboratories; and

2. The staff report prepared by Dianna Stevenson, County Biologist, dated March 28, 1996;

   
   

3. The sworn testimony of Growth Management Staff; and

   
   

4. Presentations by Dr. Paul W. Schilling, Robert Routa, [C]urtis Kruer and Richard Grosso;5 and

WHEREAS, the Planning Commission has made the following Findings of Facts and Conclusions of Law based on the evidence presented:

1. Based on the site plan, we find that the proposed fences are located over mangroves and submerged lands. Therefore, we conclude that the proposed fences do not comply with Section 9.5-345(m)(1) of the Monroe County Code which allows only docks, piers, utility pilings and walkways on submerged lands and mangroves; and

   
   

2. Based on counsel's advice regarding Corona Properties vs. Monroe County and its legal impact, we conclude as a matter of law that we, the Planning Commission, do not have the authority to waive the requirements and standards of the Monroe County Code; NOW THEREFORE,

BE IT RESOLVED BY THE PLANNING COMMISSION OF

MONROE COUNTY, FLORIDA, that the preceding Findings of Fact and Conclusions of Law, support their decision to DENY the appeal of Charles River Laboratories of a building permit to place 1,100 linear [f]eet of electrical fencing over mangroves and submerged lands on Key Lois and 3,500 linear feet of electrical fencing over mangroves and submerged lands on Raccoon Key.

PASSED AND ADOPTED by the Planning Commission of Monroe County, Florida, at a regular meeting held on the 19th day of September, 1996.

On November 21, 1996, Appellant filed an Application for an Administrative Appeal of a Planning Commission Decision to a Hearing Officer pursuant to the Hearing Officer Appellate Article (Article XIV) of the Monroe County Code. On the application form Appellant indicated that the "decision being appealed" was "Resolution No. P64-96 of the Monroe County Planning Commission" and that the "bases for appeal include[d] but [we]re not limited to" the following:

Section 9.5-345(m)(1) when read in pari materia with other sections of the Monroe County Code, does not preclude the authorization sought by the applicant

Collateral Estoppel

There is no basis in fact or law to overturn the staff report6

The proceedings were prejudiced by the Commission allowing Curtis Kruer to cross examine witnesses and to participate as a party

Permits are not required for temporary structures

Section 9.5-540(c) is an unlawful delegation of authority

On December 23, 1996, Appellant's appeal was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to serve as a hearing officer to hear the appeal.

On January 10, 1997, Appellant filed its Initial Brief. In its Initial Brief, Appellant advances the following ten arguments:

ARGUMENT I. The denial of Charles River's request for variance and appeal by a tie vote is a denial of due process.

ARGUMENT II. Charles River's activities are not prohibited by Monroe County's Land Development Regulations, when these land development regulations are considered in pari materia.

ARGUMENT III. Monroe County should be precluded from relitigation based upon the doctrines of estoppel by judgment or verdict, res judicata and/or collateral attack.

ARGUMENT IV. The decision by the Planning Commission to overrule its own staff report and deny the request by Charles River was not supported by competent substantial evidence.

ARGUMENT V. A permit is not required for the fences constructed by Charles River Laboratories.

ARGUMENT VI. The ordinance upon which the subject permit was denied is unconstitutional on its face and as applied.

ARGUMENT VII. Monroe County Land Development Regulations, Section 9.5-535 and 9.5-540(c) are unlawful delegations of authority and are unconstitutional as drafted and as applied.

ARGUMENT VIII. The proceedings before the Planning Commission violated Charles River's right to due process.

ARGUMENT IX. Monroe County is barred by the doctrine of equitable estoppel from denying the permit for the fence.

ARGUMENT X. The Planning Commission erred in not granting the variance requested by Charles River.

Kruer and Monroe County filed Answer Briefs on February 7, 1997, and March 5, 1997, respectively.7 Appellant filed a Reply Brief on March 26, 1997.

Along with his Answer Brief, Kruer filed a Motion to Strike Portions of Appellant's Initial Brief and Motion for Attorney's Fees in which he alleged that: Appellant's Initial Brief "includes several statements of fact for which there is no citation to the record, or which are otherwise not part of the record, and, which therefore should be stricken;" and an award of attorney's fees against Appellant is appropriate due to the inclusion of these statements in its Initial Brief and because the "issues raised in this appeal are wholly without merit." On February 18, 1997, Appellant filed a response in opposition to Kruer's motion. It also filed, on that same date, a separate pleading challenging Kruer's standing to participate in the instant appellate proceeding. On March 19, 1997, Kruer filed a reply to this pleading, as well as a reply to Appellant's response to his motion to strike and for attorney's fees.

Through the issuance of a Notice of Oral Argument, the undersigned advised Appellant, Monroe County and Kruer that "oral argument in the instant case [would] be held by telephone conference call on April 24, 1997, commencing at 9:30 a.m." In the notice, the undersigned further advised:

Argument will be heard on the issues raised in the briefs filed in this case, as well as on all pending motions. Curtis Kruer will be permitted to participate in oral argument along with Appellant Charles River Laboratories, Inc., and Appellee Monroe County.

Oral argument was heard on April 24, 1997, as scheduled. On May 7, 1997, the undersigned received from Appellant a copy of an excerpt from written material disseminated at a recent "Annual Environmental and Land Use Law Update Seminar" (to which counsel for Appellant had referred during oral argument). The day before (May 6, 1997), Kruer (who had received his copy of the excerpted material on April 24, 1997), had filed a Response to Appellant's Supplemental Authority.

DISCUSSION

Appellant's Arguments

In Argument I, Appellant argues that, inasmuch as there was a tie vote on its application, no action was taken by the Planning Commission and therefore "the proper course of action is to bring the matter back before the Planning Commission for further hearing, or to grant reconsideration." In making this argument, Appellant relies on Dade County v. National Bulk Carriers, 450 So.2d 213 (Fla. 1984) and Battaglia Fruit Company v. City of Maitland, 530 So.2d 940 (Fla. 5th DCA 1988). In the former case, a motion before Dade County's zoning appeals board to approve an application for an unusual use permit "resulted in a tie vote" and "[i]n accordance with the procedural rules of the zoning appeals board" the matter was presented to the board for another vote at a subsequent meeting. In the latter case, there was "2-2 tie vote" on a motion before the Orange County Board of County Commissioners to approve an application for rezoning.

Another vote was taken at a subsequent meeting, and the application was approved by a "3-2 vote." The lower court held that the "due process rights [of those contesting the application] had been violated by the county commissioners' failure to abide by their initial tie vote. . ., which under proper parliamentary procedure would have defeated the motion to approve.” The appellate court disagreed, explaining as follows:

Turning first to the controversy surrounding the county commissioners initial tie vote, the Orange County Code does not contain a provision that a tie vote constitutes a final decision in a zoning matter. The circuit court stated that in the absence of a formal rule, a deliberative body must follow generally accepted rules of parliamentary procedure. We do not agree. Parliamentary rules not adopted as part of a governmental body's organic law may be waived or disregarded, and the courts will not enforce their observance. See Am.Jur.2d, Parliamentary Law, [Section] 4 (1987). The failure of the county commissioners to observe a general rule of parliamentary procedure did not violate any party's procedural due process rights.

Id. at 942.

Neither of these two cases support Appellant's position.

Appellant has not identified, nor has the undersigned found, any provision in the Monroe County Code which, like the "procedural rules of the zoning appeals board" in National Bulk Carriers, provides for reconsideration or rehearing following a tie vote of the Planning Commission. Section 9.5-22(g) of the Monroe County Code, which Appellant cites in its Initial Brief and which provides as follows, is not such a provision:

Quorum and Necessary Vote: No meeting of the planning commission may be called to order, nor may any business be transacted by the commission without a quorum consisting of at least three (3) members of the commission being present. The chairman shall be considered and counted as a member. The concurring vote of at least three (3) members shall be necessary for the commission to take action on major or minor conditional use applications, final plat approvals, amendments to the text of this chapter or to the official land use district map. All other actions shall require the concurring vote of a simple majority of the members of the commission then present and voting.

The motion to grant Appellant's administrative appeal and approve its application for a building permit for the construction of fences on Key Lois and Raccoon Key did not receive the "concurring vote of a simple majority of the members of the commission then present and voting" at the Planning Commission's September 19, 1996, meeting. While the Planning Commission, pursuant to the holding in Battaglia Fruit Company, may have been free to waive or disregard the rule of parliamentary law that "an affirmative resolution or action which is the subject of a tie vote fails of adoption"8 and to rehear or reconsider the matter, it was not required to do so. In deciding (as reflected in Resolution No. P64-969) to follow (as opposed to waive or disregard) this rule of parliamentary law and treat its tie vote as a denial of the affirmative relief Appellant was seeking, the Planning Commission was acting within the scope of its sound discretion and not in a manner that was in violation of due process requirements or otherwise contrary to law.10 Cf. In

re Rule 9.331, 416 So.2d 1127, 1129 (Fla. 1982)("[w]e conclude that an evenly split vote on the merits after an en banc hearing leaves the panel decision of the district court standing, and in the event that there is no panel decision, the trial court decision must be affirmed"); Spence v. Hughes, 485 So.2d 903, 905 (Fla. 5th DCA 1986)("[t]he en banc decision resulted in a 3 to 3 tie vote, hence the trial court decision is affirmed"); Holmes v. Blazer Financial Services, Inc., 369 So.2d 987, 988 n.2 (Fla. 4th DCA 1979)("[s]ix justices participated in the decision and the trial court's decision was affirmed by a tie vote of the justices on the principle that it took a majority to reverse"); City of Naples v. Central Plaza of Naples, Inc., 303 So.2d 423,

424 n.1 (Fla. 2d DCA 1974)(the validity of the Mayor's determination that "the motion for approval [of a special exception] had failed by virtue of [a] tie vote" was not questioned).

Contrary to the position taken by Appellant in Argument II, the construction of fences on mangroves and submerged lands in Monroe County is prohibited by the county's land development regulations. To hold otherwise the undersigned would have to ignore the plain, unambiguous and specific language of Section 9.5-345(m)(1) of the Monroe County Code (which provides, in pertinent part, that "only piers, docks, utility pilings and walkways shall be permitted on mangroves and submerged lands") and to effectively add to it language that there is no indication

was omitted inadvertently.11 This he cannot do. See Rinker Materials Corporation v. City of North Miami, 286 So.2d 552, 553-

54 (Fla. 1973)("courts generally may not insert words or phrases in municipal ordinances in order to express intentions which do not appear, unless it is clear that the omission was inadvertent, and must give to a statute (or ordinance) the plain and ordinary meaning of the words employed by the legislative body"); Christo v. Department of Banking and Finance, 649 So.2d 318, 320-21 (Fla. 1st DCA 1995)("[o]ne of the most fundamental tenets of statutory construction requires that the courts give statutory language its plain and ordinary meaning, unless the words are defined in the statute or by clear intent of the Legislature"); Lindsey v. Bill Arflin Bonding Agency, 645 So.2d 565, 568 (Fla. 1st DCA 1994)("[t]he plain language of the standards incorporated in section 900-605.8 [of the City of Jacksonville building code]

. . . should be given effect"); Killearn Properties, Inc. v. Department of Community Affairs, 623 So.2d 771, 775 (Fla. 1st DCA 1993)("[w]here the language of the D[evelopment] O[rder] is plain and unambiguous, there is no room for construction or interpretation, and the effect of the DO must be determined according to the literal meaning of the language therein;"

"[t]he DO must not be construed to contain omitted provisions"); Mandelstam v. City Commission of the City of South Miami, 539 So.2d 1139, 1140 (Fla. 3d DCA 1988)("[c]ourts and other governmental bodies are prohibited from inserting words or

phrases into municipal ordinances to express intentions that do not appear"); Rose v. Town of Hillsboro Beach, 216 So.2d 258,

259 (Fla. 4th DCA 1968)("[m]unicipal ordinances are subject to the same rules of construction as are state statutes;" "[h]ence, the general rule applies that the courts may not insert words or phrases into an enactment in order to express a speculative intention unless it clearly appears that the omission was inadvertent"); Jacksonville Coach Company v. Decker, 206 So.2d 476, 478 (Fla. 1st DCA 1968)("[n]either the trial court nor this court can read into an ordinance or act an intent of the legislating body adopting said ordinance or act contrary to that set out in unambiguous language as we find the ordinance in question did").

Appellant contends in Argument III that, in light of the entry of the 1988 Consent Orders and the 1992 Consent Final Judgment, Monroe County is estopped from denying Appellant's permit application "based upon the doctrines of estoppel by judgment or verdict, res judicata and/or collateral attack." The argument is without merit inasmuch as neither the administrative proceedings that culminated in the 1988 Consent Orders, nor the judicial proceeding that resulted in the 1992 Consent Final Judgment, resolved the issue of whether Appellant was entitled, pursuant to the provisions of the Monroe County Code, to a building permit for the construction of fences on Key Lois and Raccoon Key and, in any event, Monroe County was not a party, nor

in privity with any party, to these proceedings. See The Florida Bar v. Clement, 662 So.2d 690, 697 (Fla. 1995)("[c]ollateral estoppel is a judicial doctrine that prevents identical parties from relitigating issues that have been previously decided between them;" "[a]lthough federal courts and some other jurisdictions no longer require mutuality of parties as a prerequisite to asserting the doctrine of collateral estoppel, Florida courts have held that collateral estoppel can be asserted only when the identical issue has been litigated between the same parties"); Sogniew v. McQueen, 656 So.2d 917, 919-20 (Fla.

1995)("[c]ollateral estoppel, also known as estoppel by judgment, serves as a bar to relitigation of an issue which has already been determined by a valid judgment;" "Florida has traditionally required that there be a mutuality of parties in order for the doctrine to apply;" "[w]e reject Sogniew's contention that as a result of Zeidwig [v. Ward, 548 So.2d 209 (Fla. 1989)] there is no longer a requirement of mutuality for purposes of collateral estoppel;" "Zeidwig constituted a narrow exception in which collateral estoppel was permitted in a defensive context and then only under the compelling facts of that case;" "we are unwilling to follow the lead of certain other states and the federal courts in abandoning the requirements of mutuality in the application of collateral estoppel"); Trucking Employees of North Jersey Welfare Fund, Inc., v. Romano, 450 So.2d 843 (Fla. 1984)("the well established rule in Florida has been and continues to be

that collateral estoppel may be asserted only when the identical issue has been litigated between the same parties or their privies"); Khan v. Simkins Industries, Inc., 21 Fla. Law Weekly D2623 (Fla. 3d DCA December 11, 1996)("[m]utuality of parties means that those who were neither parties to the prior action nor in privity with a party are not bound by the results of that litigation"); Jones v. The Upjohn Company, 661 So.2d 356, 357-58 (Fla. 2d DCA 1995)("Upjohn asserts that the supreme court [in Zeidwig] intended to eliminate the requirement of mutuality of parties in all defensive uses of collateral estoppel;" "[w]e disagree and believe that Zeidwig is limited to ineffective assistance of counsel claims and subsequent legal malpractice claims"); Lopez v. Prager, 625 So.2d 1240, 1242 (Fla. 3d DCA 1993)("[a]ctions of the state may not be raised as an estoppel against the county"); Kermati v. Schackow, 553 So.2d 741, 744-45 (Fla. 5th DCA 1989)(neither the doctrine of res judicata nor the doctrine of collateral estoppel applied where there was not "identity of the parties or their privies" and the causes of action were not the same); Walley v. Florida Game and Fresh Water Fish Commission, 501 So.2d 671, 674 (Fla. 1st DCA 1987)(the Criminal Justice Standards and Training Commission's dismissal of charges against a Florida Game and Fresh Water Fish Commission wildlife officer accused of falsifying employment applications did not require the Career Service Commission to find that the termination of the officer's employment, based upon the same

alleged conduct, was not justified; "[t]here was neither the mutuality of issues nor parties in the two proceedings, as required under Florida law if collateral estoppel is to apply"). Moreover, even if the 1988 Consent Orders had decided (in Appellant's favor) the question of Appellant's entitlement to the permit under the then-existing provisions of the Monroe County Code and Monroe County had been a party to the administrative proceedings that culminated in the entry of these orders, the Planning Commission would still not have been foreclosed from declining to grant the permit because, as Appellant itself pointed out (on page 9 of its Initial Brief), "the Consent Orders were entered on June 13, 1988, and Section 9.5-345(m)(1), Monroe County Land Development Regulations, was not adopted until July 5, 1989." See Thompson v. Thompson, 93 So.2d 90, 92 (Fla.

1957)("it is well settled that res judicata is not a defense in a subsequent action where the law under which the first judgment was obtained is different from that applicable to the second action"); Wagner v. Baron, 64 So.2d 267 (Fla. 1953)("[t]he cases are legion which hold that res judicata is not a defense in a subsequent action where the law under which the first judgment was obtained is different than that applicable to the second action, or there has been an intervening decision, or a change in the law between the first and second judgment, creating an altered situation;" "'[t]he doctrine of res judicata . . is not meant to create vested rights in decisions that have become

obsolete or erroneous with time"); Krug v. Meros, 468 So.2d 299,

303 (Fla. 2d DCA 1985)("the doctrine of estoppel by judgment does not apply where unanticipated subsequent events create a new legal situation").

In Argument IV, Appellant claims that the Planning Commission's denial of its administrative appeal was not supported by competent substantial evidence. "Competent substantial evidence" has been described by the Florida Supreme Court as follows:

We have used the term "competent substantial evidence" advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion [Citations omitted.] In employing the adjective "competent" to modify the word "substantial," we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. [Citations omitted.] We are of the view, however, that the evidence relied upon to sustain the ultimate findings should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the "substantial" evidence should also be "competent."

DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957). The record in the instant case contains such "competent substantial evidence" supporting Resolution No. P64-96. It unequivocally establishes that the fences in question in the instant case, as the resolution declares, are "located over mangroves and

submerged lands" in violation of Section 9.5-345(m)(1) of the Monroe County Code. There is also "competent substantial [record] evidence" rebutting the view (expressed in the staff report authored by Dianna Stevenson) that the denial of the "after-the-fact" permit sought by Appellant would result in "greater damage to the habitat of the islands" than if the permit was denied." Appellant's Argument IV therefore must be rejected.

Appellant argues in Argument V that a building "permit is not required [under the Monroe County Code] for the fences [it has] constructed." It contends that: (1) since it is using "the property with its fencing for the raising of animals," the construction of the fences did not constitute "development" for which a permit was required pursuant to Section 9.5-111 of the Monroe County Code (which provides that "[n]o development shall occur except pursuant to a building permit") inasmuch as Section 380.04(3)(e), Florida Statutes, "excludes from the definition of development: 'The use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products, raising livestock, or for other agricultural purposes;'" and (2) permits are not required under the Monroe County Code for structures, like these fences, that are intended to be temporary in nature. If, as Appellant argues, its monkey- breeding activities on Key Lois and Raccoon Key constituted "raising livestock"12 and therefore did not amount to "development," as that term is used in Section 9.5-111 of the

Monroe County Code, it would not need a building permit to keep its monkeys on the islands, but it still would have to obtain permits for structures, such as the fences at issue in the instant case, erected on the islands. Building activity is not excluded from the definition of "development" (found in Section 380.04, Florida Statutes13) simply because it takes place on land that is being used primarily for agricultural purposes. See Section 380.04(4), Fla. Stat.("[r]eference to any specific operation is not intended to mean that the operation or activities, when part of other operations or activities, is not development"). With respect to Appellant's contention that permits are not required for the erection of temporary structures, Appellant has not cited, nor has the undersigned discovered, any code provision that can reasonably be construed to support such a position. In any event, the question of whether a building permit is required for Appellant's fences is beyond the scope of this hearing officer appeal proceeding.

Appellant applied for such a permit and the Planning Commission denied its application. At issue in this proceeding is whether that decision should be affirmed, reversed or modified, not whether there was a need for Appellant to apply for a permit in the first instance.

In Arguments VI and VII, Appellant challenges the constitutionality of Sections 9.5-345(m), 9.5-535 and 9.5-540(c) of the Monroe County Code. The undersigned is without authority

to, and therefore will not, pass upon these constitutional issues. Cf. Palm Harbor Special Fire Control District v. Kelly,

516 So.2d 249, 250 (Fla. 1987)("it is axiomatic that an administrative agency has no power to declare a statute void or otherwise unenforceable"); Myers v. Hawkins, 362 So.2d 926, 928

n.4 (Fla. 1978)("[g]enerally speaking, administrative agencies are not the appropriate forum in which to consider questions of constitutional import"); Dade County v. Overstreet, 59 So.2d 862, 865 (Fla. 1952)(the constitutionality of statutes, ordinances or resolutions "cannot be adjudicated by the Beverage Director, or any other Board or Bureau, as these are clearly judicial questions for determination by the Circuit Courts"); Holmes v. City of West Palm Beach, 627 So.2d 52, 53 (Fla. 4th DCA 1993)("appellee correctly contends that because it is an administrative agency, rather than a court, it cannot circumvent unambiguous statutory provisions in the interest of fairness and due process considerations;" "[i]t lacks the power to declare a statute void or otherwise unenforceable"); Long v. Department of Administration, Division of Retirement, 420 So.2d 688, 692-93 (Fla. 1st DCA 1983)("[t]he agency [Florida Division of Retirement] and hearing officer also lacked jurisdiction to hear appellant's constitutional argument").

In Argument VIII, Appellant contends that it was "denied due process of law" at the September 19, 1996, Planning Commission meeting as a result of the Planning "Commission's inclusion of

exhibits not properly tendered, and by allowing cross-examination by non-party Curtis Kruer," who, Appellant claims, "should have been barred from challenging the construction of the fences at issue by the doctrine of collateral estoppel as set forth in the case of Kruer v. Board of Trustees of the Internal Improvement Trust Fund, 647 So.2d 129 (Fla. 1st DCA 1994)" [wherein the First District Court of Appeal affirmed the Board's dismissal, on the ground of lack of standing, of a petition filed by Kruer requesting an administrative hearing on the Board's anticipated granting to Appellant, in accordance with the terms of the settlement agreement that was attached to and incorporated in the 1992 Consent Final Judgment, a lease of submerged lands abutting Key Lois and Raccoon Key.

Appellant's reliance on the doctrine of collateral estoppel is misplaced. The appellate court case to which it refers did not involve the same issue that was before the Planning Commission. The appellate court did not address the issue of Appellant's entitlement, under the Monroe County Code, to the requested "after-the-fact" building permit that is the subject of the instant proceeding; nor did it hold that Kruer would not have standing to participate in a hearing before the Planning Commission concerning such a requested permit.

As a resident of Monroe County, Kruer clearly was entitled, pursuant to Section 9.5-521 of the Monroe County Code, to "address" the Planning Commission at the September 19, 1996,

hearing on Appellant's permit application. See also Town of Palm Beach v. Gradison, 296 So.2d 473, 475 (Fla. 1974)("[e]every meeting of any board, commission, agency or authority of a municipality should be a marketplace of ideas, so that the governmental agency may have sufficient input from citizens who are going to be affected by the subsequent action of the municipality;" "[g]overnment, more so now than ever before, should be responsive to the wishes of the public;" "[t]hese wishes could never be known in nonpublic meetings, and the governmental agencies would be deprived of the benefit of suggestions and ideas which may be advanced by the knowledgeable public"). Even if the right (granted by Section 9.5-521 of the Monroe County Code) to "address" the Planning Commission does not include the right to ask questions of witnesses or to present documentary evidence, there is no legal impediment to the Planning Commission, in its discretion, in the interest of making the most informed decision possible, allowing interested citizens, such as Kruer, to engage in such activity at hearings on appeals from preliminary administrative action.

In the instant case, the Planning Commission permitted Kruer, at the September 19, 1996, hearing on Appellant's appeal, to cross-examine Appellant's witnesses, but it rejected and did not consider the documents that Kruer offered into evidence at the hearing because the proffered documents were not prefiled sufficiently in advance of the hearing. The information that

Kruer elicited from Appellant's witnesses on cross-examination did not add anything of significance to the other evidence received by the Planning Commission during the hearing.

Accordingly, assuming arguendo that the Planning Commission committed error in giving Kruer the opportunity to conduct such cross-examination (which appears not to be the case), any such error would be harmless and therefore not reversible error. See Kopko v. State, 577 So.2d 956, 961 n.10 (Fla. 5th DCA 1991)(the "overwhelming view [is] that cumulative or repetitive evidence cannot be harmful error;" "[c]ourts just do not find reversible error in the admission of cumulative evidence"); Salter v.

State, 500 So.2d 184, 186 (Fla. 1st DCA 1986)("[a]n error in admitting testimony is harmless when substantially the same evidence was presented to the jury through the testimony of other witnesses").

Appellant asserts in Argument IX that Monroe County is equitably estopped from denying Appellant's permit application. The record, however, is devoid of any competent substantial evidence indicating that Monroe County has made any factual representations to Appellant upon which Appellant has relied to its detriment that would justify the application of the doctrine of equitable estoppel against the County in the instant case.

See Department of Revenue v. Anderson, 403 So.2d 397, 400 (Fla. 1983) ("[a]s a general rule, equitable estoppel will be applied against the state only in rare instances and under exceptional

circumstances;" "[a]nother general rule is that the state cannot be estopped through mistaken statements of the law;" "[i]n order to demonstrate estoppel, the following elements must be shown:

1) a representation as to a material fact that is contrary to a later asserted position; 2) reliance on that representation; and 3) a change in position detrimental to the party claiming estoppel"); Sabina v. Dahlia Corporation, 650 So.2d 96, 99 (Fla. 2d DCA 1995)("this statement by Sabina's attorney does not constitute competent evidence before the trial court in this matter because it was an unsworn statement of a relevant fact in issue;" "[i]n the absence of a stipulation . . . 'a trial court cannot make a factual determination based on an attorney's unsworn statements' and 'is precluded from considering as fact unproven statements documented only by an attorney'"); 3299 N. Federal Highway, Inc., v. Board of County Commissioners of Broward County, 646 So.2d 215, 222 (Fla. 4th DCA 1994)("[a]s for its claim of estoppel, 3299 failed to demonstrate that it was

reasonable for it to rely upon a county attorney's interpretation of an existing ordinance as a guarantee that the County Commission would not change the law in the future"); Cordes v.

Department of Environmental Regulation, 582 So.2d 652, 654-53 (Fla. 1st DCA 1991)("even if such representation were made, it would have amounted to a mistaken statement of law that could not be used as a basis for applying the principle of equitable estoppel against the Department under the circumstances of this

case"); Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642, 647 (Fla. 1st DCA 1986)("[e]quitable estoppel will apply against a state agency, however, only upon a showing of exceptional circumstances;" "it is fundamental that the doctrine of estoppel will not apply to 'transactions that are forbidden by statute or that are contrary to public policy'"); Long v. Department of Administration, Division of Retirement, 428 So.2d 688, 693 (Fla. 1st DCA 1983)("the State cannot be estopped through mistaken statements of law"); Leon Shaffer Golnick Advertising v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982)("[i]t is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation;" "[t]rial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record;" "[i]f the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees").

In its final argument, Argument X, Appellant contends that the Planning Commission should have granted Appellant a "variance" from the requirements of Section 9.5-345(m) of the Monroe County Code. Absent a provision in the Monroe County Code authorizing such a "variance," the argument must be rejected.

Kruer's Motion to Strike Portions of Appellant's Initial Brief and Motion for Attorney's Fees

Appellant's Initial Brief substantially complies, in all respects, with the requirements of Section 9.5-539 of the Monroe County Code. Accordingly, Kruer's motion to strike is denied.

There is no provision in the Hearing Officer Appellate Article of the Monroe County Code, or elsewhere, specifically authorizing the undersigned to make an award of attorney's fees in this hearing officer appeal proceeding. Accordingly, Kruer's request that such an award be made is denied. See Dade County v. Pena, 664 So.2d 959, 960 (Fla. 1995)("[t]his Court follows the 'American Rule' that attorney's fees may only be awarded by a court pursuant to an entitling statute or an agreement of the parties"); Laborers' International Union of North America, Local 478 v. Burroughs, 541 So.2d 1160, 1163-64 (Fla.

1989)(Metropolitan Dade County Fair Housing and Employment Appeals Board improperly awarded attorney's fees to a prevailing complainant where such an award was not authorized by the Dade County Code); Hampton's Estate v. Fairchild-Florida Construction Company, 341 So.2d 759, 761 (Fla. 1977)("[i]n general, attorney's fees are not recoverable unless a statute or a contract specifically authorizes their recovery"); Cadenhead v. Gaetz, 677 So.2d 96, 97 (Fla. 1st DCA 1996)("[g]enerally, attorney's fees are not awarded unless authorized by statute or contract"); Paz v. Hernandez, 654 So.2d 1243, 1244 (Fla. 3d DCA 1995)("[i]t is well-settled law that attorneys' fees may be awarded by a court only when authorized by statute or by agreement of the

parties;" "[s]ince there is no statute or agreement which allowed for fees to be awarded in this case, it was error for the trial court to make such an award"); Florida Life Insurance Co. v. Fickes, 613 So.2d 501, 503 (Fla. 5th DCA 1993)("we are restricted by the well established rule and policy in Florida that attorney fees cannot be awarded to one party, and against another, unless there is an express statutory or contract right to such an award and that statutes awarding attorney's fees must be strictly construed"); Jory v. Department of Professional Regulation, 583 So.2d 1075, 1077 (Fla. 1st DCA 1991)("[a]n award of attorney's fees is in derogation of the common law, allowed only when provided for statutorily or contractually"); Citizens Federal Savings & Loan Association of St. Lucie County v. Loeb Rhoades Hornblower & Co., 473 So.2d 679, 681 (Fla. 4th DCA 1984)("[t]he general rule is that attorneys' fees are not taxable unless specifically provided by contract or statute").

DECISION ON APPELLANT'S APPEAL

In view of the foregoing, Resolution No. P64-96 of the Monroe County Planning Commission is hereby AFFIRMED.

Pursuant to Section 9.5-540(c) of the Monroe County Code, this Final Order is "the final administrative action of Monroe County." It is subject to judicial review by common law certiorari to the circuit court.

DONE AND ENTERED this 13th day of May, 1997, in Tallahassee, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1997.

ENDNOTES

1 Commissioner Hansley was absent from the meeting.

2 Kruer was accepted, without objection, as "an expert in marine biology and terrestrial biology."

3 Exhibits that Kruer sought to present at the hearing were rejected and not considered by the Planning Commission because they were not prefiled in advance of the hearing as required.

4 The minutes of the Planning Commission's November 7, 1996, meeting reflect that the vote was five to zero in favor of approval. The Planning Commission's voting log for that date, however, indicates that the vote was three to one in favor of approval, with one abstention.

5 Schilling and Kruer testified under oath at the hearing, as did Dr. Martin Roessler, who gave expert testimony on behalf of Appellant. Routa and Grosso are attorneys who provided legal representation at the September 19, 1996, Planning Commission meeting. Routa represented Appellant and Grosso represented Kruer.

6 The staff report, which was authored by Dianna Stevenson, a Monroe County biologist, contained the following recommendation:

Although the placement of fences over submerged lands and mangroves is clearly in conflict with Section 9.5-345(m)(1), staff believes that the purpose and intent of

County mangrove protection policy is met in this circumstance. Since the fencing and refoliation program are currently in place greater damage to the habitat of the islands would occur if the fences were removed.

Therefore, staff recommends approval of this administrative appeal with the condition that the fences will be removed within 90 days of the elimination of free ranging animals on the islands.

At the September 19, 1996, Planning Commission meeting, Antonia Gerli, Monroe County's Development Review Coordinator, clarified the staff's position as follows:

As the staff report said, it's not in compliance with the environmental design criteria or with the development regulations. So, I don't see how we could issue the permit. We originally denied it and would stand by that.

I think we-- staff thought that there were other extenuating circumstances or other issues that were involved and that's why it's before the Planning Commission.

7 Monroe County had previously been granted, without objection, an extension of time to file its Answer Brief.

8 See 59 Am.Jur.2d, Parliamentary Law, Section 14 (1987).

9 Both the minutes of the Planning Commission's November 7, 1996, meeting and the voting log for that meeting reflect that Resolution No. P64-96 passed by "the concurring vote of a simple majority of the members of the commission then present and voting," as required by Section 9.5-22(g) of the Monroe County Code.

10 Even if Appellant was correct that, in light of the tie vote at the September 19, 1996, meeting, the Planning Commission has yet to make any final decision on Appellant's administrative appeal, the undersigned would be without authority to take any action in the instant case other than issue an order of dismissal on the ground that Appellant's appeal pursuant to the Hearing Officer Appellate Article of the Monroe County Code is premature. Cf. Brooks v. School Board of Brevard County, 382 So.2d 422, 423 (Fla. 5th DCA 1980)("[it] appears that this appeal is premature because administrative action is not complete;" "[t]he aggrieved employee may not appeal to this court until the administrative appeal to the Department is concluded").

11 The provisions of Florida Statutes (Section 380.552(7), Florida Statutes), the Monroe County Code (Section 9.5-286) and

the Monroe County Comprehensive Plan (Volume II, Marine Resources Management Policy 4.2, Goal 203 and Objective 203.1) cited by Appellant contain not so much as a hint that the omission of "fences" from the list of structures in Section 9.5-345(m)(1) which may be placed on mangroves and submerged lands was inadvertent. (Indeed, if anything, the language of Section 9.5- 286(a) and (b) of the Monroe County Code, which specifically exempts "fences," along with "docks, utility pilings, walkways, nonenclosed gazebos and . . . similar structures," from the setback requirements these code provisions impose, strongly suggests otherwise.) See Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515, 516 (Fla.

1st DCA 1984)("[t]he legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended").

12 That Appellant's monkeys are "livestock," within the meaning of Section 380.04(3)(e), Florida Statutes, is not at all clear. Cf. St. Petersburg Kennel Club, Inc., v. Smith, 662 So.2d 1270, 1272 (Fla. 2d DCA 1985)("[w]e agree with the property appraiser's determination that the Kennel Club's greyhound racing dogs are not 'livestock'").

13 "Development," as defined in Section 380.04, Florida Statutes, includes "the carrying out of any building activity."

COPIES FURNISHED:

Robert A. Routa, Esquire Post Office Box 6506

Tallahassee, Florida 32314-6506

Garth Coller, Esquire Monroe County

Office of the Land Use Attorney 2798 Overseas Highway, Suite 440

Marathon, Florida 33050-2227

Richard Grosso, Esquire E.L.U.L.C.

Civil Law Clinic

Nova Southeastern University 3305 College Avenue

Fort Lauderdale, Florida 33014

Planning Commission Coordinator 2798 Overseas Highway, Suite 410

Marathon, Florida 33050-2227

Ralf G. Brookes, Esquire MORGAN & HENDRICK

Post Office Box 1117

Key West, Florida 33041

1 Commissioner Hansley was absent from the meeting.

2 Kruer was accepted, without objection, as "an expert in marine biology and terrestrial biology."

3 Exhibits that Kruer sought to present at the hearing were rejected and not considered by the Planning Commission because they were not prefiled in advance of the hearing as required.

4 The minutes of the Planning Commission's November 7, 1996, meeting reflect that the vote was five to zero in favor of approval. The Planning Commission's voting log for that date, however, indicates that the vote was three to one in favor of approval, with one abstention.

5 Schilling and Kruer testified under oath at the hearing, as did Dr. Martin Roessler, who gave expert testimony on behalf of Appellant. Routa and Grosso are attorneys who provided legal representation at the September 19, 1996, Planning Commission meeting. Routa represented Appellant and Grosso represented Kruer.

6 The staff report, which was authored by Dianna Stevenson, a Monroe County biologist, contained the following recommendation:

Although the placement of fences over submerged lands and mangroves is clearly in conflict with Section 9.5-345(m)(1), staff believes that the purpose and intent of County mangrove protection policy is met in this circumstance. Since the fencing and refoliation program are currently in place greater damage to the habitat of the islands would occur if the fences were removed.

Therefore, staff recommends approval of this administrative appeal with the condition that the fences will be removed within 90 days of the elimination of free ranging animals on the islands.

At the September 19, 1996, Planning Commission meeting, Antonia Gerli, Monroe County's Development Review Coordinator, clarified the staff's position as follows:

As the staff report said, it's not in compliance with the environmental design

criteria or with the development regulations. So, I don't see how we could issue the permit. We originally denied it and would stand by that.

I think we-- staff thought that there were other extenuating circumstances or other issues that were involved and that's why it's before the Planning Commission.

7 Monroe County had previously been granted, without objection, an extension of time to file its Answer Brief.

8 See 59 Am.Jur.2d, Parliamentary Law, Section 14 (1987).

9 Both the minutes of the Planning Commission's November 7, 1996, meeting and the voting log for that meeting reflect that Resolution No. P64-96 passed by "the concurring vote of a simple majority of the members of the commission then present and voting," as required by Section 9.5-22(g) of the Monroe County Code.

10 Even if Appellant was correct that, in light of the tie vote at the September 19, 1996, meeting, the Planning Commission has yet to make any final decision on Appellant's administrative appeal, the undersigned would be without authority to take any action in the instant case other than issue an order of dismissal on the ground that Appellant's appeal pursuant to the Hearing Officer Appellate Article of the Monroe County Code is premature. Cf. Brooks v. School Board of Brevard County, 382 So.2d 422, 423 (Fla. 5th DCA 1980)("[it] appears that this appeal is premature because administrative action is not complete;" "[t]he aggrieved employee may not appeal to this court until the administrative appeal to the Department is concluded").

11 The provisions of Florida Statutes (Section 380.552(7), Florida Statutes), the Monroe County Code (Section 9.5-286) and the Monroe County Comprehensive Plan (Volume II, Marine Resources Management Policy 4.2, Goal 203 and Objective 203.1) cited by Appellant contain not so much as a hint that the omission of "fences" from the list of structures in Section 9.5-345(m)(1) which may be placed on mangroves and submerged lands was inadvertent. (Indeed, if anything, the language of Section 9.5- 286(a) and (b) of the Monroe County Code, which specifically exempts "fences," along with "docks, utility pilings, walkways, nonenclosed gazebos and . . . similar structures," from the setback requirements these code provisions impose, strongly suggests otherwise.) See Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515, 516 (Fla. 1st DCA 1984)("[t]he legislative use of different terms in

different portions of the same statute is strong evidence that different meanings were intended").

12 That Appellant's monkeys are "livestock," within the meaning of Section 380.04(3)(e), Florida Statutes, is not at all clear. Cf. St. Petersburg Kennel Club, Inc., v. Smith, 662 So.2d 1270, 1272 (Fla. 2d DCA 1985)("[w]e agree with the property appraiser's determination that the Kennel Club's greyhound racing dogs are not 'livestock'").

13 "Development," as defined in Section 380.04, Florida Statutes, includes "the carrying out of any building activity."

Docket for Case No: 96-006047VR

Orders for Case No: 96-006047VR