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Home My Public Portal AboutO'Hare vs Town of Gulf Stream - Petition for Writ of Certiorari IPM.Note O'Hare vs Town of Gulf Stream - Petition for Writ of Certiorari Bill Thrasher Randolph, John C. Bill Thrasher SMTP JRandolph@jonesfoster.com O'Hare vs Town of Gulf Stream - Petition for Writ of Certiorari EX /O=GULFSTREAMTH/OU=FIRST ADMINISTRATIVE GROUP/CN=RECIPIENTS/CN=BTHRASHER EX /O=GULFSTREAMTH/OU=FIRST ADMINISTRATIVE GROUP/CN=RECIPIENTS/CN=BTHRASHER X-Vipre-Scanned: 1009FF4101363C100A008E Microsoft Mail Internet Headers Version 2.0 Received: from barracuda.jones-foster.com ([216.119.226.125]) by mail.gulf-stream.org with Microsoft SMTPSVC(6.0.3790.4675); Thu, 4 Oct 2012 16:36:50 -0400 X-ASG-Debug-ID: 1349383007-048c990dd0268e70001-OA1nEr Received: from jfjsexch1.jones-foster.com (jfjsexch1.jones-foster.com [192.168.100.59]) by barracuda.jones-foster.com with ESMTP id DFfe3IBVgrRbm8p1; Thu, 04 Oct 2012 16:36:47 -0400 (EDT) X-Barracuda-Envelope-From: JRandolph@jonesfoster.com Received: from JFJSEXCH1.jones-foster.com ([192.168.100.59]) by JFJSEXCH1 ([192.168.100.59]) with mapi; Thu, 4 Oct 2012 16:36:44 -0400 From: "Randolph, John C." <JRandolph@jonesfoster.com> To: "'Bill Thrasher' (bthrasher@gulf-stream.org)" <bthrasher@gulf-stream.org>, 'Rita Taylor' <RTaylor@gulf-stream.org> Date: Thu, 4 Oct 2012 16:36:43 -0400 Subject: O'Hare vs Town of Gulf Stream - Petition for Writ of Certiorari Thread-Topic: O'Hare vs Town of Gulf Stream - Petition for Writ of Certiorari X-ASG-Orig-Subj: O'Hare vs Town of Gulf Stream - Petition for Writ of Certiorari Thread-Index: Ac2ib/oAXr3jP9r9Q8K2WDx88IppIw== Message-ID: <E0EB384772FA234798483476C7823BC50483F7C13D@JFJSEXCH1> Accept-Language: en-US Content-Language: en-US X-MS-Has-Attach: yes X-MS-TNEF-Correlator: acceptlanguage: en-US Content-Type: multipart/mixed; boundary="_006_E0EB384772FA234798483476C7823BC50483F7C13DJFJSEXCH1_" MIME-Version: 1.0 X-Barracuda-Connect: jfjsexch1.jones-foster.com[192.168.100.59] X-Barracuda-Start-Time: 1349383007 X-Barracuda-URL: http://192.168.100.250:8000/cgi-mod/mark.cgi X-Virus-Scanned: by bsmtpd at jones-foster.com X-Barracuda-Spam-Score: -1001.00 X-Barracuda-Spam-Status: No, SCORE=-1001.00 using global scores of TAG_LEVEL=1000.0 QUARANTINE_LEVEL=9.0 KILL_LEVEL=1000.0 Return-Path: btv1==6243217ea97==JRandolph@jonesfoster.com X-OriginalArrivalTime: 04 Oct 2012 20:36:51.0031 (UTC) FILETIME=[FBA0EE70:01CDA26F] --_006_E0EB384772FA234798483476C7823BC50483F7C13DJFJSEXCH1_ Content-Type: multipart/related; boundary="_005_E0EB384772FA234798483476C7823BC50483F7C13DJFJSEXCH1_"; type="multipart/alternative" --_005_E0EB384772FA234798483476C7823BC50483F7C13DJFJSEXCH1_ Content-Type: multipart/alternative; boundary="_000_E0EB384772FA234798483476C7823BC50483F7C13DJFJSEXCH1_" --_000_E0EB384772FA234798483476C7823BC50483F7C13DJFJSEXCH1_ Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable --_000_E0EB384772FA234798483476C7823BC50483F7C13DJFJSEXCH1_ Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable --_000_E0EB384772FA234798483476C7823BC50483F7C13DJFJSEXCH1_-- --_005_E0EB384772FA234798483476C7823BC50483F7C13DJFJSEXCH1_ Content-Type: image/jpeg; name="image001.jpg" Content-Description: image001.jpg Content-Disposition: inline; filename="image001.jpg"; size=3318; creation-date="Thu, 04 Oct 2012 16:36:43 GMT"; modification-date="Thu, 04 Oct 2012 16:36:43 GMT" Content-ID: <image001.jpg@01CDA24E.80F8A4E0> Content-Transfer-Encoding: base64 --_005_E0EB384772FA234798483476C7823BC50483F7C13DJFJSEXCH1_-- --_006_E0EB384772FA234798483476C7823BC50483F7C13DJFJSEXCH1_ Content-Type: application/pdf; name="1EK2377.pdf" Content-Description: 1EK2377.pdf Content-Disposition: attachment; filename="1EK2377.pdf"; size=149355; creation-date="Thu, 04 Oct 2012 16:35:10 GMT"; modification-date="Thu, 04 Oct 2012 16:35:10 GMT" Content-Transfer-Encoding: base64 --_006_E0EB384772FA234798483476C7823BC50483F7C13DJFJSEXCH1_-- Randolph, John C. SMTP JRandolph@jonesfoster.com Bill Thrasher; Rita Taylor OHARE RECEIVED O'Hare vs Town of Gulf Stream - Petition for Writ of Certiorari Bill and Rita, Please see attached our draft Response to Amended Petition for Writ of Certiorari. I wanted to forward this to you to make sure you do not see any errors. Thank you. JOHN C. RANDOLPH John C. Randolph Attorney Direct Dial: 561.650.0458 | Fax: 561.650.5300 | jrandolph@jonesfoster.com <mailto:jrandolph@jonesfoster.com> Jones, Foster, Johnston & Stubbs, P.A. Flagler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401 561-659-3000 | www.jonesfoster.com <http://www.jonesfoster.com/> U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. <E0EB384772FA234798483476C7823BC50483F7C13D@JFJSEXCH1> Bill and Rita, Please see attached our draft Response to Amended Petition for Writ of Certiorari. I wanted to forward this to you to make sure you do not see any errors. Thank you. JOHN C. RANDOLPH John C. Randolph Attorney Direct Dia Bill Thrasher Bill Thrasher EX /O=GULFSTREAMTH/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=CC9578126D55499EA8C1E79B43F844AE-BILL THRASH EX /O=GULFSTREAMTH/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=CC9578126D55499EA8C1E79B43F844AE-BILL THRASH Randolph, John C. Randolph, John C. BTHRASHER BTHRASHER Bill Thrasher Bill Thrasher II=0101CEF9E030E4F96FB2DEC6D14698D705B66BDB4482;Version=Version 15.0 (Build 775.0), Stage=H4 en 1009FF4101363C100A008E Bill Thrasher EX /O=GULFSTREAMTH/OU=FIRST ADMINISTRATIVE GROUP/CN=RECIPIENTS/CN=BTHRASHER bthrasher@gulf-stream.org bthrasher Bill Thrasher SMTP bthrasher@gulf-stream.org Bill Thrasher Rita Taylor EX /o=GULFSTREAMTH/ou=first administrative group/cn=Recipients/cn=RTaylor RTaylor@gulf-stream.org RTaylor Rita Taylor SMTP RTaylor@gulf-stream.org Rita Taylor image001.jpg .jpg image001.jpg image001.jpg image/jpeg image001.jpg@01CDA24E.80F8A4E0 inline EnUs 1EK2377.pdf 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR PALM BEACH COUNTY APPELLATE DIVISION (CIVIL) CASE NO.: 502012CA011078XXXXMB DIVISION: AY CHRISTOPHER O’HARE, Petitioner, v. TOWN OF GULF STREAM, Respondent. _____________________________/ RESPONSE TO AMENDED PETITION FOR CERTIORARI Respondent, TOWN OF GULF STREAM (the “Town”), responds to the amended petition for writ of certiorari filed by petitioner, CHRISTOPHER O’HARE (“Mr. O’Hare”), as directed by the order to show cause this Court issued on September 10, 2012. The amended petition should be denied for the following reasons:1 1 The following symbols are used: (A-__) = the appendix attached to Mr. O’Hare’s amended petition for writ of certiorari; (AA-__) = the appendix to this response. All emphasis is supplied unless otherwise indicated. 2 I. JURISDICTION This Court has certiorari jurisdiction to review the Town’s decision that Mr. O’Hare may not install a metal roof on his home until a variance to permit such material has been applied for and approved. See Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 843 (Fla. 2001) (explaining that circuit courts have certiorari jurisdiction to review quasi-judicial actions of local government agencies); Fla. R. App. P. 9.030(c)(3). On certiorari review, this Court cannot reweigh the evidence. Id. at 846. Rather, the Court is limited to determining: (1) whether the Town accorded procedural due process; (2) whether the Town observed the essential requirements of the law; and (3) whether competent substantial evidence supports the Town’s administrative findings and judgment. See, e.g., Broward County, 787 So. 2d at 843; Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Mr. O’Hare failed to establish any of these requirements for this Court to issue a writ of certiorari. I. STATEMENT OF THE CASE AND FACTS Mr. O’Hare owns residential real property located at 2520 Avenue Au Soleil, Gulf Stream, Florida 33483 (the “Property) (A-3). This case concerns Mr. O’Hare’s request to replace the existing roof on the Property with a metal roof. The Town of Gulf Stream Municipal Code of Ordinances (the “Code”) generally 3 prohibits metal roofs, but provides that “certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only in instances of re-roofing of existing structures based upon an engineer’s certification that the existing structure will not support a tile roof” (A-2). There has been a concrete tile roof on the Property for forty (40) years (A-6:6, 7, 8). The Property was built in 1972 with a concrete roof, it was re-roofed in 1999 with similar concrete material, and it has been able to support a concrete roof to date (A-6:5). On August 29, 2011, Mr. O’Hare submitted a re-roof permit application (“Permit Application”) to the City of Delray Beach requesting a permit for a flat, white, concrete tile roof (A-1). The Permit Application was approved on the same day (A-1). At some point between August 29, 2011 and November 15, 2011, Mr. O’Hare decided he wanted a metal roof instead of a concrete tile roof. On November 15, 2011, Mr. O’Hare’s re-roofing contractor, Rooftec Corporation, submitted a revision request to the Permit Application which states, “Customer wants to change to metal roof” (AA-1). Approximately one month after Mr. O’Hare submitted the revision to the Permit Application, he retained Terrence E. Lunn, an engineer, to inspect the 4 Property and provide a certification that the Property could not support a concrete tile roof (Am. Pet. at 5). On December 14, 2011, Mr. Lunn executed a letter stating, “I certify to the best of my knowledge, belief, and professional judgment that the referenced roof framing will not support a tile roof” (A-3). The letter also states, “If I can be of further service please call.” (Id.) On February 21, 2012, Mr. O’Hare provided William Thrasher, the Town Manager (“Mr. Thrasher”), with a copy of Mr. Lunn’s certification (Am. Pet. at 5). On March 6, 2012, Mr. Thrasher, acting as administrator, issued an administrative decision informing Mr. O’Hare that in order to receive approval to install a metal roof, he would have to obtain a variance as provided in the Town’s Land Use Code. (Id.) On March 31, 2012, Mr. O’Hare appealed this administrative decision to the Board of Adjustment (the “Board”) (A-5). The Town commenced a public hearing on the appeal on April 13, 2012 which was continued on May 11, 2012 (Am. Pet. at 6). The Town took steps to verify the engineer’s report, but Mr. O’Hare refused to provide backup for Mr. Lunn’s certification and did not allow the Town to inspect the Property. Specifically, at the April 13, 2012 hearing, the Town Clerk testified that she requested three dates and times that Mr. O’Hare would permit the 5 Town’s engineer to enter his Property to conduct an independent inspection (A6:6). She also requested backup information to support Mr. Lunn’s certification. (Id.) Mr. O’Hare refused both requests. (Id.) Counsel for Mr. O’Hare acknowledged at the hearing that it is possible to get a variety of interpretations from engineers regarding the ability of a structure to support a particular type of roof (A-6:8). At the April 13, 2012 hearing, a motion was made that if Mr. O’Hare allowed the Town’s engineer to inspect the Property and there was a conflict between the certifications of Mr. Lunn and the Town’s engineer, then the two engineers would select a third engineer for a resolution (A-6:9; A-7:2). Again, Mr. O’Hare’s counsel communicated that Mr. O’Hare would not allow another engineer to inspect the Property (A-7:2). The April 13, 2012 hearing was continued on May 11, 2012 (A-7:2). Neither Mr. O’Hare nor Mr. Lunn were made available at the May 11, 2012 hearing (A-7:6). The Town was given no opportunity to question them regarding Mr. Lunn’s certification or to test the accuracy of the statements being made by Mr. O’Hare’s counsel on Mr. O’Hare’s behalf (Id.). The Board orally denied Mr. O’Hare’s appeal at the May 11, 2012 hearing (A-7:8). 6 On May 20, 2012, the Board issued its Notice of Final Action denying Mr. O’Hare’s appeal and sustaining “the opinion of the Building Official that a variance is required in that the applicant has not satisfied that portion of the Code which provides an exception to allow a metal roof because you have not allowed the Town to verify the engineering report you submitted, with regard to the strength of the structure” (A-8). Mr. O’Hare filed a petition for certiorari seeking review and amended his petition to include an appendix. II. ARGUMENT CERTIORARI MUST BE DENIED WHERE THE TOWN ACCORDED DUE PROCESS AND THE ESSENTIAL REQUIREMENTS OF LAW, AND ITS FINDING THAT MR. O’HARE DID NOT FALL WITHIN THE EXCEPTION TO ALLOW A METAL ROOF IS SUPPORTED BY COMPETENT, SUBSTANTIAL EVIDENCE BECAUSE THE RECORD REFLECTS MR. O’HARE REFUSED THE TOWN AN OPPORTUNITY TO VERIFY HIS ENGINEER’S CERTIFICATION. This Court has no jurisdiction to issue a writ of certiorari because the Town afforded Mr. O’Hare due process, observed the essential requirements of law, and its judgment that Mr. O’Hare did not satisfy an exception in the Code to allow a metal roof because Mr. O’Hare refused the Town the opportunity to verify his engineering certification was supported by competent, substantial evidence. See, e.g., Broward County, 787 So. 2d at 843; Haines City, 658 So. 2d at 530. 7 A. The Town Properly Exercised its Discretion in Finding Mr. O’Hare Did Not Fall within the Exception to Allow Metal Roofs and Is Entitled to Deference. The Town’s interpretation of its own ordinance is entitled to deference. See Donovan v. Okaloosa County, 82 So. 3d 801, 807 (Fla. 2012) (citing Verizon Fla., Inc. v. Jacobs, 810 So. 2d 906, 908 (Fla. 2002) (stating that courts ordinarily defer to a governmental body’s interpretation of a statute or rule unless the interpretation conflicts with the plain and ordinary meaning of the provision); Colonade Medical Center, Inc. v. State Agency for Health Care Admin., 847 So. 2d 540, 542 (Fla. 4th DCA 2003) (“It is a well-established maxim that an agency’s interpretation of its own rules and regulations is entitled to considerable deference.”). Here, the plain language of the ordinance supports the Town’s exercise of its discretion to deny Mr. O’Hare’s request to install a metal roof. The parties agree that the controlling ordinance is § 70-187(2) of the Code (A-2). The Code generally prohibits metal roofs. However, footnote 1 of § 70187(2) contains the following language: Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only in instances of re-roofing of existing structures based upon an engineer’s certification that the existing structure will not support a tile roof. 8 The word “may” is crucial to the analysis of this case. A basic rule in constructing statutes or ordinances is that words are to be given their plain meaning. Canal Ins. Co. v. Giesenschlag, 454 So. 2d 88, 89 (Fla. 2d DCA 1984). The plain meaning of the ordinance grants the Town discretion to approve or not approve a metal roof. The ordinance’s permissive language places the Town under no obligation to approve a metal roof, even if the homeowner provides an engineer’s certification. And even in instances of approval, the Town reserves the right to determine the type of metal roof to be installed by the homeowner. Here, Mr. O’Hare initially requested a permit for a concrete tile roof (A-1). Three months later, Mr. O’Hare’s contractor requested a change to the permit application, this time to apply for a metal roof (AA-1). Mr. O’Hare’s engineer, Mr. Lunn, then provided a certification stating, “I certify to the best of my knowledge, belief, and professional judgment that the referenced roof framing will not support a tile roof” (A-3). The subject Property has supported a concrete tile roof for forty (40) years (A-6:6, 7, 8). Given the Property’s history of being supported by a concrete tile roof and the certification’s language leaving room for a different opinion, the Town decided it wanted its engineer to inspect the Property before exercising its discretion in 9 favor of allowing the metal roof (A-6:5, 6; A-7:6). If the opinion of the Town’s engineer conflicted with that of Mr. Lunn, the Town proposed that the two engineers could choose a third engineer for resolution (A-6:9; A-7:2). The Town also requested backup for Mr. O’Hare’s certification (A-6:6). Not only did Mr. O’Hare refuse to allow the Town’s engineer to inspect the Property, he also refused to produce backup information for the certification (Id.) No one disputes that Mr. O’Hare was given ample notice of the hearings. He voluntarily chose not to appear and testify at either hearing and decided not to produce his engineer for questioning (A-7:6). The Town observed the essential requirements of the law in exercising its discretion within the plain meaning of its ordinance. Lastly, competent substantial evidence supports the Town’s denial of Mr. O’Hare’s request because the only evidence Mr. O’Hare presented to the Town for its consideration of approval of a metal roof was a letter from Mr. Lunn stating that to the best of his knowledge, belief, and professional judgment, the Property could not support a metal roof. Mr. O’Hare provided no supporting documentation for the letter, failed to produce his engineer for questioning, and refused to allow the Town’s engineer to inspect the Property. On the record, the Town Attorney verified Mr. O’Hare’s repeated refusals through questioning Mr. O’Hare’s counsel at the May 11, 2012 hearing (A-7:3–7). Under these 10 circumstances, it was entirely reasonable for the Town to exercise its discretion under § 70-187(2) of the Code and deny Mr. O’Hare’s request to install a metal roof. Assuming, arguendo, that Mr. O’Hare’s interpretation of the ordinance is permissible (which it is not), that is, the Town must accept Mr. Lunn’s certification at face value and allow Mr. O’Hare to install a metal roof, the Court should still find in favor of the Town because its interpretation is certainly permissible and reasonable. In State v. Sun Gardens Citrus, LLP, 780 So. 2d 922, 925 (Fla. 2d DCA 2001), the Florida appellate court examined a United States Supreme Court decision which addressed a court’s review of an agency’s interpretation of a statute where more than one permissible interpretation existed. The court explained: [I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute . . . The court need not conclude that the agency construction was the only one it permissively could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Sun Gardens Citrus, 780 So. 2d at 925 (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45 (1984). Under Chevron, once a court determines that the legislature has not directly addressed the issue, the 11 only question is whether the agency’s interpretation of its own rule is a reasonable one. Id. “If an agency’s interpretation of its own regulation is merely one of several reasonable alternatives, it must stand even though it may not appear as reasonable as some other alternative.” Id. The rules of construction used to interpret state statutes are also used to interpret local ordinances. Smith v. State, 75 So. 3d 800, 802 (Fla. 5th DCA 2011). Here, the ordinance’s key word—“may”—justifies the Town’s reasonable denial of Mr. O’Hare’s request to install a metal roof under the circumstances. The ordinance placed no obligation on the Town one way or the other to approve Mr. O’Hare’s request for a metal roof. The Town should ensure that a metal roof is absolutely necessary to support the Property because metal roofs are generally prohibited by the Code. Indeed, Mr. O’Hare concedes “Gulf Stream’s right to be biased against metal roofs” (Am. Pet. at 13). In his amended petition, Mr. O’Hare argues that Woodley presents facts similar to the instant case (Am. Pet. at 9). However, Woodley is clearly distinguishable because the rule in Woodley imposed a mandatory obligation on the Department of Health and Rehabilitative Services (“Department”) to take an 12 action which it failed to take. By contrast, the instant ordinance imposes no mandatory obligations on the Town. In the case O’Hare relies upon, Woodley applied for Aid to Families with Dependent Children (“AFDC”) benefits. Woodley v. Dept. of Health and Rehab. Servs., 505 So. 2d 676, 677 (Fla. 1st DCA 1987). At an initial interview, Woodley was asked to provide verification that she had applied for workers’ compensation benefits by a certain date. Id. Despite multiple efforts to speak with her employer, the employer failed to provide this verification. Id. Woodley contacted the Department eligibility specialist on more than one occasion to inform her that Woodley was unable to obtain verification from her employer. Id. The eligibility specialist told Woodley to keep trying and to request an extension of time if she could not obtain the verification. Id. Woodley did not furnish the employer verification or request an extension of time, and the Department denied her application. Id. A Department rule provided as follows: If documentation or verification is not provided within the time limits allowed, the assistance group must be determined ineligible for assistance. However, if the employed person reports to the eligibility specialist prior to the deadline date that he/she is unable to secure required documentation or verification, a policy 13 exemption request will be submitted to the District Economic Services Program offices for a decision. Id. at 678. The eligibility specialist never requested a policy exception. The Woodley court explained that the rule “unequivocally requires” the eligibility specialist to request a policy exception under the circumstances presented. Id. Accordingly, it reversed the denial of AFDC benefits. Id. Here, the ordinance provides that certain metal roofs “may” be approved by the Town. It is devoid of mandatory language. Therefore, Woodley is distinguishable and the Town properly exercised its discretion under the circumstances. Mr. O’Hare also contends that “questions of reliability and/or verification of the Certification were not issues to be considered in the Appeal” (Am. Pet. at 10). This statement ignores the plain meaning of the ordinance granting the Town discretion to approve or not approve a metal roof—an exception to the Town’s general prohibition against metal roofs. Because the Town has discretion, it is entirely reasonable for the Town to verify Mr. O’Hare’s engineer certification, especially given that the Property has supported a metal roof for forty (40) years (A-6:6, 7, 8). In other words, the Town’s reasonable request to verify the certification emanates from the discretion the ordinance grants it. The two go hand 14 in hand. It follows logically that the issue of verifying the certification was discussed at both hearings (A-6:5-0; A-7:2-8). To say that verification of the certification was not an issue before the Board is simply incorrect. The Town accorded procedural due process to Mr. O’Hare at both hearings at which he chose not to appear personally, but to send his counsel only, and not to produce his engineer. The Town observed the essential requirements of the law in exercising its judgment and discretion within the plain, permissive meaning of the ordinance. The Town Attorney questioned Mr. O’Hare’s counsel on the record and confirmed the following refusals by Mr. O’Hare: (1) to produce backup information for his engineer’s report; (2) to appear personally at the hearings; (3) to produce his engineer at the hearings; and (4) to allow the Town’s engineer to inspect the Property, with the Town’s engineer and Mr. Lunn selecting a third engineer to inspect the Property and render an opinion for resolution in case of conflict. Therefore, substantial, competent evidence supports the Town’s exercise of its discretion in finding that Mr. O’Hare did not fall within the exception in footnote 1 of § 70-187(2) and requiring him to apply for a variance to install a metal roof. This Court should deny certiorari. 15 III. CONCLUSION This Court should deny Mr. O’Hare’s amended petition for writ of certiorari. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by email and United States mail to JOHN E. CARTER, Esquire, 102 N.E. 2nd Street, Suite 179, Boca Raton, Florida 33432-3908 (john@carterlawfirm.us); and to LOUIS ROEDER, Esquire, 7414 Sparkling Lake Road, Orlando, Florida 32819 (lou@louroeder.com), this _____ day of October, 2012. Jones, Foster, Johnston & Stubbs, P.A. Attorneys for Town of Gulf Stream 505 South Flagler Drive, Suite 1100 Post Office Box 3475 West Palm Beach, FL 33402-3475 Telephone: (561) 659-3000 Facsimile: (561) 650-5300 By: ________________________________ John C. Randolph Florida Bar No. 129000 jrandolph@jonesfoster.com Stephanie Eassa Rapp Florida Bar No. 0060319 srapp@jonesfoster.com CERTIFICATE OF FONT Respondent’s Response to Amended Petition for Writ of Certiorari has been typed using 14-point Times New Roman font. By:_________________________________ Stephanie Eassa Rapp Florida Bar No. 0060319 P:\DOCS\13147\00009\PLD\1EK2377.DOCX .pdf 1EK2377.pdf 1EK2377.pdf application/pdf attachment EnUsBill and Rita, Please see attached our draft Response to Amended Petition for Writ of Certiorari. I wanted to forward this to you to make sure you do not see any errors. Thank you. JOHN C. RANDOLPH John C. Randolph Attorney Direct Dial: 561.650.0458 | Fax: 561.650.5300 | HYPERLINK "mailto:jrandolph@jonesfoster.com"jrandolph@jonesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Flagler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401 561-659-3000 | HYPERLINK "http://www.jonesfoster.com/"www.jonesfoster.com U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.