STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PENINSULA AT KEY LARGO, INC., )

a Florida Corporation, )

)

Appellant, )

)

vs. ) CASE NO. 94-1653

)

MONROE COUNTY, a Political ) Subdivision of the State of ) Florida, )

)

Appellee. )

)

FINAL ORDER

This case came before Suzanne F. Hood, duly assigned Hearing Officer of the Division of Administrative Hearings pursuant to: Section 120.65(9), Florida Statutes (1991); Section 9.5-521 and Sections 9.5-535 et seq., Monroe County Code; and a contract between the Division of Administrative Hearings and Monroe County to provide Hearing Officer Appeals in accordance with the Monroe County Code. Appellant, Peninsula at Key Largo, seeks review of Monroe County Planning Commission Resolution PO2-95 which sustains a determination by the Director of the Monroe County Growth Management Division that Monroe County Building Permit No. 92-3- 6834 had expired. The issues to be decided are: (1) whether Permit No. 92-3-6834 expired due to the failure to receive an approved inspection within the required 120 days from the date of the last inspection; and (2) whether Permit No. 92-3-6834 expired because it was more than five years old.

For the reasons that follow, Resolution No. PO2-94 is affirmed.

1. On September 12, 1986, Appellee issued the original building permit, No. C20378, to one of Appellant's predecessors for the construction of twenty

   (20) residential units on the subject property. Ownership of the permit transferred several times until July 6, 1992, when Appellee issued Appellant Building Permit No. 92-3-6834 pursuant to a Monroe County circuit court order. At that time only one building in the complex was partially completed.

   
   

2. Appellant submitted a new site plan to the Building Department which was approved by Donna Bosold, County Planner, in November of 1992. On December 9, 1992, Paul Turick, County Inspector, approved the drilling of certain auger holes. Thereafter, work at the site was stopped because the Fire Marshall had not approved the new site plan. The Fire Marshall subsequently approved the site plan with revisions which required that the existing auger holes be filled in and new ones drilled.

   
   

3. By letter dated October 22, 1993, the Director of the Monroe County Division of Growth Management informed Appellant, that Permit No. 92-3-6834 had expired due to the failure to receive an approved inspection within the required

   120 days from the date of the last inspection and because the permit was more than five (5) years old. Appellant filed a timely administrative appeal of that

   decision which was heard and denied by the Monroe County Planning Commission (hereinafter the "Planning Commission") on January 26, 1994. The Planning Commission's decision to deny the appeal is memorialized in Resolution No. PO2-

   94 dated February 14, 1994.

   
   

4. On March 7, 1994, Appellant filed an appeal of the Planning Commission's decision with the Division of Administrative Hearings. The parties made oral arguments before the undersigned on September 8, 1994.

   
   

5. The parties agree that there is no dispute regarding the specific finding of facts adopted by the Planning Commission in Resolution No. PO2-94. The order does not delineate between findings of facts and conclusions of law. However, it is clear that the Planning Commission made the following factual findings: (1) The Building Department's records clearly show that the December 9, 1992, auger inspection performed by Paul Turick, Building Inspector, is the last inspection approved for Peninsula at Key Largo; (2) More than 120 calendar days passed since the project received said approved inspection; other visits to the site by the Building Inspector did not result in "approved required inspections"; and, (3) The subject property was issued a permit seven years ago.

   
   

6. It is apparent from the record that the Planning Commission applied Ordinance No. 31-1992 and Ordinance 32-1992 to the above referenced facts to conclude that the permit had expired. The Planning Commission correctly determined that the permit expired pursuant to Ordinance No. 31-1992 due to the failure to receive an approved inspection within the required one hundred twenty

   (120) days from the date of the last inspection. This determination is dispositive of the case and makes it unnecessary to consider whether the permit expired pursuant to Ordinance 32-1992 because it was more than five (5) years old.

   
   

7. Ordinance 31-1992 created Section 6-40, Monroe County Code, which reads in pertinent part as follows:

   
   

   1. Permit paid for, picked up and work started:

      1. Any valid permit, for which construction has commenced, as described in section

         9.5-4(C-10), with approved inspections pursuant to permit requirements, or by means of an approved temporary electric inspection, must be adhered to and any authorized work

         progressed in a timely fashion. The only method by which timely valid progress of authorized work may be shown is through the building department's

         having performed and approved a required inspection within one hundred twenty (120) days measured from either (1) the date work was required to begin,

         or (2) from the date of the last approved required inspection.

      2. A required inspection is any inspection which is highlighted in red print on the building permit display card, as amended from time to time, and which may include but shall not be limited to:

         any auger/auger cap; piling/piling cap; grade beam/slab; columns/tie beams; slab; roof trusses; sheathing; framing; insulation/drywall; final building; total rough plumbing; final rough

         plumbing; A/C ductwork; final mechanical; final cistern; total rough electrical, or final electrical inspection.

      3. Any permit whose progress fails to meet the "required inspection within one hundred twenty

         (120) days" requirement shall automatically expire and any future activity shall require a new application along with all appropriate fees. . . .

         
         

         Section 6-40(d), Monroe County Code.

         
         

         At the time Appellee transferred the subject permit to Appellant on July 6, 1992, expiration of building permits was controlled by Section 9.5-115, Monroe County Code, which provided in pertinent part as follows:

         (a) A building permit shall automatically expire and become null and void if work authorized by such permit is not commenced within sixty (60) days from the effective date of the permit, or if such work, when commenced, is suspended or abandoned at any time for a period of one hundred twenty (120) consecutive days. The effective date of a building permit authorizing land clearing or which authorizes development as defined in chapter 380, Florida Statutes, shall be as provided in rule 9J-1.03, Florida Administrative Code, as long as the parcel is located within an area of critical state concern.

         * * *

         (c) If the work covered by the permit has commenced, is in progress, but has not been completed and in

         the opinion of the building official and the director of planning, is being carried on progressively in a substantial manner, the permit shall remain in effect until completion of the job.

         * * *

         (f) Work shall be considered to have commenced and be in active progress when, in the opinion of the building official, a full complement of workers and equipment is present at the site to diligently incorporate materials and equipment into the structure throughout the day on each full working day, weather permitting. This provision shall not be applicable in case of civil commotion or strike or when the building work is halted due to legal action.

         
         

         Sections 9.5-115(a), 9.5-115(c), and 9.5-115(f), Monroe County Code.

         
         

8. Appellant conceded at oral argument that Ordinance 31-1992 (effective April 19, 1993) created no substantive change in the Monroe County Code regarding the expiration of permits. The propriety of the ordinance's retroactive application is not at issue here. Appellant also agrees that the facts adopted below are not disputed; no approved inspection was logged on the building permit display card for 120 days after December 9, 1994. The only question is whether equitable estoppel prohibits a determination that the permit

   automatically expired on April 9, 1993, for failure to receive an approved inspection within the required time frame.

   
   

9. The Florida Supreme Court has held that the doctrine of equitable estoppel will preclude a local government from exercising its zoning power where

   
   

   . . . a property owner (1) in good faith

   1. upon some act or omission of the government

   2. has made such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights he has acquired.

   
   

   Hollywood Beach Hotel Co. v. City of Hollywood, 329 So. 2d 10, 15- 16 (Fla. 1976), citing with approval from City of Hollywood v. Hollywood Beach Hotel Co., 283 So. 2d 867, 869 (Fla. 4th DCA 1973).

   
   

10. Appellant makes two arguments in support of its equitable estoppel claim. First, Appellant claims that the Planning Commission should have considered an inspection, which allegedly occurred on March 4, 1993, as an approved inspection. Second, Appellant asserts that the March 24, 1993, inspection should have been logged as an approved inspection.

    
    

11. In support of its first claim, Appellant's representative, Jose Garcia, testified that the building inspector visited the job on March 4, 1993, to perform a setback inspection of the revised building layout. According to Mr. Garcia, after verifying the setback, the inspector told him everything was okay. Mr. Garcia "believed" that the inspector had also performed the required auger inspection of the redrilled holes.

    
    

12. Appellee's inspector, Paul Turick, testified that he had no record of being at the job site on March 4, but that if he was there, it was to perform a setback inspection and not an auger inspection. 1/ Mr. Turick stated that he was called on March 11, 1993, to perform an auger inspection but when he arrived at the job site no one was there.

    
    

13. The record contains no evidence of any specific conduct by the inspector during the setback inspection which justified Appellant's reliance on the visit as a "required inspection." Any conversation that took place between the Appellant's representatives and Herb Rabin, County Building Official, in November of 1993 after expiration of the permit, does not change this result. "Timely valid progress" in this case required more than drilling a second set of auger holes; it required approval of a required inspection on or before April 9, 1993.

    
    

14. Appellant's second argument concerns the March 24, 1993 inspection. The inspector testified that he could not perform the required inspection at that time because Appellant could not produce a set of the approved plans at the job site upon request. The inspector also stated that even if he had been able to do the March 24 inspection, he could not have approved it because the contractor's state licence was invalid.

    
    

15. Robert Krieter, a subcontractor, testified that the plans were in his foreman's truck and that the inspector never asked to see them. Jose Garcia testified that because of problems with the contractor's license, he faxed a letter dated March 24, 1993, to the building inspector authorizing substitution

    of Robert Krieter as contractor of record. However, no county official remembered receiving the facsimile transmission.

    
    

16. At the time of the inspection, a deficiency in the contractor's licensure or the failure to have the plans at the job site would explain why the inspector was unable to perform and/or log an inspection on the permit display card. The record is unclear regarding the current procedures the inspector should follow upon discovering an invalid contractor's license but there is no question regarding that policy on March 4 or March 24, 1993. In any event, it has always been necessary to have the approved plans on site in order to perform a "required inspection." Once again the Appellant has not shown by uncontradicted evidence any affirmative act or omission by the building inspector justifying its reliance on the March 24, 1993 visit as a "required inspection."

A party asserting equitable estoppel has the burden of proving all facts necessary to support such a finding. Jarrard v. Associates Discount Corporation, 99 So. 2d 272, 277 (Fla. 1957). In the instant case, the Appellant has not met that burden. Though the evidence below is conflicting, there is competent substantial evidence to support the Planning Commission's determination that no "required inspection" was approved within one hundred twenty (120) days of December 9, 1992. The question of the weight and credibility of the evidence is the responsibility of the Planning Commission and not the hearing officer on review. Section 9.5- 540, Monroe County Code;. The record below does not show that Appellee acted or failed to take some action which would support Appellant's entitlement to equitable estoppel. The Planning Commission's decision is AFFIRMED.

Pursuant to section 9.5-540(c), 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 ORDERED this 13th day of October, 1994, in Tallahassee, Florida.

SUZANNE F. HOOD, Hearing Officer Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1994.

ENDNOTE

1/ A setback inspection is not the type of inspection which is logged on the building permit display card as a "required inspection" pursuant to Section 6- 40(d), Monroe County Code.

COPIES FURNISHED:

Andrew M. Tobin, Esquire Mattson & Tobin

Post Office Box 586

Key Largo, Florida 33037

Ralf G. Brooks, Esquire Morgan & Hendrick

Post Office Box 1117 Key West, Florida 33041

Garth C. Coller, Esquire 2798 Overseas Highway #440

Marathon, Florida 33050

Ms. Robin Carmichael Planning Department

2798 Overseas Highway, Suite 410

Marathon, Florida 33050

Docket for Case No: 94-001653VR

Orders for Case No: 94-001653VR