CASA DEL MAR CONDOMINIUM

v.

KEY BISCAYNE FIRE RESCUE

TRAWICK, J.

We grant Petitioner's Motion for Rehearing, withdraw our previous opinion, and issue the following in its place.

This is an appeal from a decision rendered by the Miami-Dade County Fire Prevention and Safety Appeals Board ("the Board") affirming the decision rendered by the Key Biscayne Fire Marshall ("the Fire Marshall"). The Fire Marshall denied an engineering life safety system and accompanying remedial action plan, an alternate method of attempting to ensure life safety in an existing building, in compliance with §633.202, Florida Statutes (2018) (Florida Fire Prevention Code).

Casa Del Mar is a combination high-rise condominium and townhouse property with accompanying parking structures located in Key Biscayne, Florida. The property is comprised of condominium and townhouse units, administered by the Casa Del Mar Association, Inc. The 27-story high-rise condominium tower contains eight residential units per floor on floors 3-27. The end units on each floor have three bedrooms. Two of these three bedroom have only one means of egress in the event of a fire, in violation of the current [*2] code which requires at least two means of egress. Also located on the property are 32 townhouses; a two-level open-air parking garage; a single level parking garage; and a covered driveway open on each end which separates the condominium tower from the townhouses.

The property was permitted, constructed, inspected and issued a certificate of use by Miami-Dade County in 1971. When it was constructed, the property was deemed compliant with all applicable building and fire-life safety codes in existence. Since 1971, the property has undergone and passed a 40-year recertification. At the time of the filing of this appeal, Casa Del Mar was 48 years old, and had been issued several certificates of compliance and construction permits without issue. The property passed all compliance measures even after the State Fire Marshall adopted the Florida Fire Prevention Code, which incorporates by reference all fire and safety laws and rules.

After a recent inspection by the Key Biscayne Fire Department ("the Department"), Casa Del Mar was determined to be fire-safety deficient. Among the deficiencies noted were:

(1) no fire sprinklers in the residences;
(2) a lack of secondary means of escape from the tower's end units;

N 1 In 1971, the Village of Key Biscayne was not incorporated, thus the task of permitting, inspecting, and issuing certificates of use and occupancy fell to Miami-Dade County. The Village incorporated in 1990. [*3] (3) no sprinklers on the catwalks2; (4) a lack of any secondary means of escape from the town houses' upstairs bedrooms; (5) the termination of the tower stairs in the garage, which, in the event of fire in the garage, would make the exit route impass able; (6) no smoke control in the elevator shafts; (7) interior trash chutes not enclosed in an intake room sealed by a fire-proof door, which in the event of fire, would cause heat and fire to enter residences.

In response to the findings of the Department, the Casa Del Mar Condominium Association ("the Association") voluntarily hired a licensed fire protection engineer, to bring the condominium property into compliance with §633.202, Florida Statutes. The fire protection engineer conducted an evaluation of the Casa Del Mar properties, including each individual condomin- N 2 This was of particular concern because if a fire broke out in one of the residential units with an east-facing window, prevailing east winds from the ocean could cause the fire to spread through the building toward the west side where the catwalks are located. If this were to occur, fleeing residents and firefighters would not be protected on those catwalks without sprinklers. N 3 In 2016, pursuant to §718.112(2)(1), Florida Statutes, a majority of the voting interests in the Association opted out of any obligation to retrofit the Association's common elements, Association property or units with a fire sprinkler system. Section 718.112(2)(1) states in pertinent part: Notwithstanding chapter 633 ["Fire Prevention and Control"] or of any other code, statute, ordinance, administrative rule, or regulation, or any interpretation of the foregoing, an association, residential condominium, or other unit owner is not obligated to retrofit the common elements, association property, or units of a residential condominium with a fire sprinkler system in a building that has been certified for occupancy by the applicable government entity if the unit owners have voted to forego such retrofitting by the affirmative vote of a majority of all voting interests in the affected condominium. [*4] ium and townhouse unit, pursuant to the instructions provided in NFPA (National Fire Prevention Association) 101A;4 the Guide on Alternative Association Approaches to Fire Safety; and the Fire Safety Evaluation System for Board and Care Facilities (2016), §633.208(5), Florida Statutes (2017) (Minimum Fire Safety Standards). Pursuant to the evaluation, both an engineered life safety system and remedial action plan ("ELSS/RAP") were developed to improve the life safety systems to in the Association's condo unit tower and townhouse units. The ELSS/RAP was also created for the purpose of achieving compliance with NFPA 101: section 31.3.5.12.35 (Existing residential high-rise buildings), and §633.202, Florida Statutes.

Once completed, the Association's ELSS/RAP was submitted to the Department in April 2018 for review. After this review the Department met with the directors, manager, and attorney of the Association to discuss the Department's concerns with the proposed ELSS/RAP. After failing to satisfactorily resolve these concerns, the Fire Marshall formally rejected the Association's ELSS/RAP in a letter dated March 1, 2019.

N 4 The NFPA Standard 1 (Fire Prevention Code) and Standard 101 (Life Safety Code) have been adopted by the State Fire Marshall as the Florida Fire Prevention Code, §633.202(2), Fla. Stat. (2018) which applies to all of Miami-Dade County, including the Village of Key Biscayne. N 5 "An automatic sprinkler system shall not be required in buildings having an approved, engineered life safety system in accordance with 31.3.5.12.4." NFPA 101 (Edition 2015). [*5] The Association filed a Notice of Appeal/Letter of Intent and Application for Public Hearing with the Secretary of the Miami-Dade County Fire Safety Appeals Board ("the Board"). The hearing on the appeal was convened by the Board, after which the Board voted unanimously to deny the appeal and affirm the Key Biscayne Fire Department/Fire Marshall's decision rejecting the Association's ELSS/RAP, issuing an order to this effect dated June 21, 2019. As a result, the Association filed its Petition before this Court.

A party is entitled as a matter of right to seek review of an administrative decision of a code compliance board in the circuit court. The circuit court must determine whether: 1) procedural due process was accorded; 2) the essential requirements of the law have been observed; and 3) the findings and judgment of the administrative authority are supported by competent substantial evidence. Dusseau v. Miami Dade County, 794 So. 2d 1270, 1274 (Fla. 2001); Florida Power and Light Co. v. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000).

Section 633.208(5), Florida Statutes, provides that if a fire official determines that a threat to life safety or property appears in an existing building, the fire official shall apply the applicable fire safety code to the extent practical to ensure a reasonable degree of life safety and safety of property. How- [*6] ever, §633.208(5) also provides that if the application of the code to an existing building is not possible, the evaluating fire official is required to fashion a reasonable alternative that affords an equivalent degree of life and property safety for the building.

In an attempt to fashion a reasonable fire safety alternative, the Association took the initiative and, with the help of its fire protection engineer, evaluated the condo tower and townhouses utilizing NFPA 101A: Guide on Alternative Approaches to Life Safety to determine the complex's existing compliance shortfalls. After identifying the condo complex's inadequacies pursuant to the 101A evaluation systems, the fire protection engineer created an engineering life safety system and remedial action plan (ELSS/RAP) to address the existing life and property safety deficiencies. This plan included minimal use of partial sprinkling.

After reviewing both the Association's use of the 101A evaluation system and its ELSS/RAP, the Fire Marshall rejected the ELSS/RAP as an alternative method of obtaining compliance with section 633.202 due to the building's age and existing fire safety classification. The Fire Marshall concluded that among the most glaring concerns that had to be addressed to alleviate the N 6 The NFPA 101A evaluation systems have been adopted by the State Fire Marshal as an acceptable means to identify reasonable low-cost alternatives to achieve compliance. §633.208(5), Fla. Stat. (2017). [*7] complex's serious life and property safety issues was the need to install sprinklers in limited areas of the complex, including within the catwalks, kitchen areas of the tower units and the parking garage. The Association disputes the Fire Marshall's conclusions, arguing that its ELSS/RAP provides a reasonable alternative that significantly elevates the level of life and property safety for the condo complex. In particular, as to the Fire Marshall's proposals regarding partial sprinkling, the Association deemed such a retrofit unnecessary and unwarranted.

While the Association made a conscientious and admirable effort to fashion its own engineering life safety system and remedial action plan (as it was required to do under NFPA 101 §31.3.5.12.4 after opting out of any obligation to retrofit the building with a fire sprinkler system), the Fire Marshall was under no obligation to accept the Association's proposal. The responsi- N 7 Section 633.208(5), Florida Statutes (2016) states in pertinent part: The local fire official may consider the fire safety evaluation systems found in NFPA 101A: Guide on Alternative Approaches to Life Safety, adopted by the State Fire Marshal, as acceptable systems for the identification of low-cost, reasonable alternatives. It is acceptable to use the Fire Safety Evaluation System for Board and Care Facilities using prompt evacuation capabilities parameter values on existing residential high-rise buildings (emphasis added). The use of the words "may" and "it is acceptable" in this provision indicate that the Fire Marshall is granted discretion to use or decline to use Alternative Approaches to Life Safety and the Fire Safety Evaluation System for Board and Care Facilities [*8] bility for approving or rejecting such a plan rests with the Fire Marshall. Section 69A-60.007(2), Florida Administrative Code (2020) specifies that it is the fire authority, in this case the Key Biscayne Fire Marshall, who has jurisdiction over fire safety and who is thus responsible for enforcing the Florida Fire Prevention Code. In exercising this jurisdiction, §633.208(5), Florida Statutes, affords the Fire Marshall wide latitude in approving or rejecting an engineered life safety system or fashioning a reasonable alternative. Thus, we believe it is appropriate to afford the Fire Marshall's determinations and use of his professional judgment great deference in exercising his statutory discretion.

We think it appropriate to specifically address the fire sprinkler system at issue here. The Association contends that the Fire Marshall cannot require that a partial sprinkler system more extensive than that included in the Association's proposed ELSS/RAP be part of any life safety system. They argue N 8 The preamble and opening sentences of §633.208(5) state: With regard to existing buildings, the Legislature recognizes that it is not always practical to apply any or all of the provisions of the Florida Fire Prevention Code and that physical limitations may require disproportionate effort or expense with little increase in fire or life safety. Before applying the minimum firesafety code to an existing building, the local fire official shall determine whether a threat to lifesafety or property exists. If a threat to lifesafety or property exists, the fire official shall apply the applicable firesafety code for existing buildings to the extent practical to ensure a reasonable degree of lifesafety and safety of property or shall fashion a reasonable alternative that affords an equivalent degree of lifesafety and safety of property. . (emphasis added). [*9] that the condominium is exempt from such a mandate. Florida Statutes Section 718.112(2)(1) prevents a "retrofit of the common elements, association property or units of a residential condominium with a fire sprinkler system" if there is a vote against such a retrofit by majority of the unit owners. Such a vote by Casa Del Mar owners occurred in 2016. Thus, the provisions of Section 718.112(2)(1) supersede any other "code, statute, ordinance, administrative rule, or regulation." This would appear to lead to the conclusion that the Fire Marshall was not authorized to direct a retrofit of the complex that included a complete fire sprinkler system or even a "more robust 'partial sprinkler system' However, 718.112(2)(1) must be read in conjunction with NFPA 101 §31.3.5.12, which states in relevant part:

Section 31.3.12.1. All high-rise buildings that are condominiums shall be protected throughout by an approved, supervised automatic sprinkler system....

Section 31.3.15.3. An automatic sprinkler system shall not be required in buildings having an approved, engineered life safety system in accordance with 31.3.5.12.4.

Section 31.3.15.4. When required by 31.3.5.12.3, an engineered life system shall be developed by a registered professional engineer experienced in fire and life safety system design, shall be approved by the authority having jurisdiction, and shall include any or all of the following:

(1) Partial automatic sprinkler protection (2) Smoke detection systems (3) Smoke control systems [*10] (4) Compartmentation (5) Other approved systems.

Section 31.3.5.12.4.1. When used to satisfy the requirements of 31.3.5.12.3, the term "Engineered Life Safety System" shall only Apply as an alternate to complete "automatic fire sprinkler protection in existing high-rise buildings.

Thus, while the Fire Marshall cannot require a complete retrofit of the fire sprinkler system, the opt-out provision of NFPA 101(A) which is applicable here does give him the discretion to both require and determine the extent of partial automatic sprinkler protection.

We thus find that the Fire Marshall and the Board followed the essential requirements of law in reaching their respective determinations. Additionally, while the parties may disagree with the methods and means to address the life and property safety issues in the complex, this does not mean that the remedial measures required by the Fire Marshall's lack adequate evidentiary support. Quite the contrary - the record before the Court is replete with testimony and documentary evidence to support the Fire Marshall's determination. It is evident that the decisions of both the Fire Marshall and the Board were supported by substantial competent evidence.

The Association additionally contends that they were denied due process because the Board failed to examine each reason given by the Fire Marshall for the rejection of the Association's ELSS/RAP. We find this argument [*11] to be without merit. Section 633.208(5) gives the Fire Marshall the discretion to devise an ELSS/RAP. Simply because the Association voluntarily created an ELSS/RAP did not impose any obligation on the part of the Fire Marshall to accept it. He was free to reject it en toto. Likewise, the Board was not required to specifically address each, and every reason given by the Fire Marshall for rejecting the ELSS/RAP. We disagree with the assertion of the Association that by deferring to the Fire Marshall's exercise of discretion, the Board acted as a "rubber stamp" of the Fire Marshall's decision.

The Association has also argued that both the Department and the Board are equitably estopped from enforcing the Florida Fire Prevention Code against the Association. They contend that both the design and construction of the Association property were accomplished after receiving the required permits from the County 48 years ago, and that the property was constructed in reliance on those permits. In response, the Respondents contend that this issue was not raised before the Board nor could it have been since the Board lacks the authority to decide this type of legal issue. We agree with the Association that this issue was fairly raised before the Board when the Association argued that it would be unfair for the Fire Department to impose requirements that were not obligatory in 1971 when the County issued the necessary permits for construction. However, we do not believe that applying the doctrine of [*12] equitable estoppel is appropriate on these facts. The determinations of the Fire Marshall were meant to address the lives and safety of residents, guests and firefighters, not to mention the protection of property. The interest of government authorities under these circumstances outweigh the asserted equitable claims of the Association. See Hollywood Beach Hotel Co. v. City of Hollywood, 329 So. 2d 10, 16 (Fla. 1976) (Court posed but did not address the question of whether municipality's interest in addressing a new peril to health and safety between granting of building permit and subsequent change in zoning law may outweigh good faith reliance by landowner on the zoning law); City of Lauderdale Lakes v. Corn, 427 So. 2d 239, 244 (Fla. 4th DCA 1983) (claim of estoppel against city government precluded when the public health or safety is placed in jeopardy); Board of County Commissioners of the County of Adams v. Isaac, 18 F. 3d 1492, 1498 (10th Cir. 1994); Westinghouse Elec. Corp. v. U.S. Dept. of the Navy, 894 F.Supp. 204, 210 (W.D. Pa. 1995);

We reject without further comment the Association's contention that certain determinations made by the Fire Marshall (fire sprinkling retrofitting and the installation of elevator pressurization) amounted to a taking under the Florida and U.S. Constitutions.

NIED.

Accordingly, the Association's Petition for Writ of Certiorari is DE- [*13] WALSH AND SANTOVENIA, JJ., concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND ANY PARTY NOT

REPRESENTED BY AN ATTORENY.