LTC 490-2019 Third District Court of Appeal Ruling in City of Miami Beach v. Beach Blitz, Co. (Fla. 3d DCA Case No. 3D19-0816) MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
LTC No. # 490-2019
LETTER TO COMMISSION
TO: Mayor Dan Gelber and Me of the C. y Commission
FROM: Raul J. Aguila, City Attorn f
cc: Jimmy L. Morales, City Manager
Rafael E. Granado, City Clerk
DATE: • September 12, 2019 •
SUBJECT: Third District Court of Appeal Ruling in City of Miami Beach v. Beach Blitz,
Co. (Fla. 3d DCA Case No. 3D19-0816)
The purpose of this Letter to Commission ("LTC") is to provide formal notification to the Mayor
and City Commission regarding the opinion issued by the Third District Court of Appeal (the"Third
District")in City of Miami Beach v. Beach Blitz, Co. The City challenged the Board of Adjustment's
("BOA") reversal of the Planning Director's determination concerning the allegedly unlicensed
operation of the respondent's ("Beach Blitz's") package liquor store. A copy of the complete
opinion, in which the Third District ruled for the City and granted its petition, is attached hereto as
Exhibit "A".
Historical Background
The litigation stemmed directly from Beach Blitz's allegations that its liquor store was a "legally
established nonconforming use" under the City's Code of Laws and Ordinances ("City Code"). In
2017, Beach Blitz filed a Federal court action against the City, as well as former Mayor Levine,
City Manager Morales, six (6) current or former City Commissioners, and members of the City
Attorney's Office. The complaint alleged that the City violated Beach Blitz's due process rights
by closing its package liquor store for operating without a duly issued Business Tax Receipt
("BTR"). Beach Blitz sought a preliminary injunction, which was rejected by the Federal
Magistrate Judge, and was subsequently rejected again on review by the Federal District Court
Judge. The Federal Court ultimately dismissed the lawsuit, in its entirety, for failure to state a
claim against the City. The District Court noted, among other things, that the City of Miami Beach
had an adequate procedural process surrounding the issuance of a BTR, and on March 11, 2019,
the District Court awarded the City its attorneys' fees in the amount of $132,758.85 based upon
Plaintiff's improper commencement of the federal litigation.
Following the dismissal of the Federal action, Beach Blitz applied for a new BTR from the City.
This request for the issuance of a BTR sought authorization to operate a package liquor store in
the MXE Zoning District, which was properly denied because the City's Land Development
Regulations prohibited package liquor stores within the MXE District. Subsequently, on May
2018, Beach Blitz requested a nonconforming use determination from the Planning Director. The
Planning Director determined that the property does not fulfill the necessary criteria for a legal
nonconforming use under the City Code. Beach Blitz sought an appeal determination from the
September 12, 2019
3rd DCA Ruling in CMB v. Beach Blitz, Co.
Page 2 of 2
Board of Adjustment ("BOA") and, following an evidentiary hearing, the BOA reversed the
Planning Director's determination.
In response to the BOA's reversal, the City sought certiorari review in the Circuit Court Appellate
Division, arguing that the BOA "departed from the essential requirements of the law by reversing
the Planning Director's determination that Beach Blitz was not a lawful nonconforming use." The
Circuit Court Appellate Division inappropriately issued an Order granting Beach Blitz's motion to
dismiss the City's petition, and the City sought its Certiorari Petition before the Third District Court
of Appeal.
Third District Court's Opinion in Favor of the City
In its petition for writ of certiorari, the City advanced two arguments:
(1) that "the Florida Rules of Appellate Procedure do not authorize the dismissal of a petition
on the merits on the motion of a respondent"; and
(2) that "the Planning Director correctly applied the applicable law in determining that Beach
Blitz was not a legal nonconforming use."
The Third District held that the Circuit Court Appellate Division DID NOT properly address the
claims raised in the City's Certiorari Petition pursuant to the three-prong analysis required by the
Florida Supreme Court, and that the Circuit Court departed from the essential requirements of the
law. The Third District determined that the Circuit Court Appellate Division improperly dismissed
the City's Certiorari Petition in violation of those requirements promulgated by the Florida
Supreme Court. Therefore, the City's Petition was granted, and the Circuit Court Appellate
Division's dismissal Order was summarily quashed by the Third District Court of Appeal.
If you have any questions regarding this matter, please do not hesitate to contact Aleksandr
Boksner, Chief Deputy City Attorney.
RA/AB/sp
tijirb District Court of appear
State of Florida
Opinion filed September 11, 2019.
Not final until disposition of timely filed motion for rehearing.
No. 3D19-0816
Lower Tribunal No. 19-22
City of Miami Beach,
Petitioner,
vs.
Beach Blitz, Co.,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Ivonne Cuesta, Carlos Guzman, and Oscar Rodriguez-Fonts, Judges.
Carlton Fields, P.A., and Richard J. Ovelmen, Enrique D. Arana, Todd M.
Fuller and Scott E. Byers, for petitioner.
Saul Ewing Arnstein& Lehr LLP and Phillip M. Hudson, III and Hilda Piloto,
for respondent.
Before SALTER, FERNANDEZ and LINDSEY, JJ.
SALTER, J.
EXHIBIT
" A'`
The City of Miami Beach ("City") petitions for a writ of (second-tier)
certiorari quashing an unelaborated order of dismissal by the appellate division of
the circuit court of Miami-Dade County. That order dismissed the City's petition
for a writ of (first-tier) certiorari taken from the City's Board of Adjustment's
(`BOA's") decision reversing the City Planning Director's determination regarding
the allegedly unlicensed operation of the respondent's ("Beach Blitz's") package
liquor store. We grant the petition and quash the order, concluding that the appellate
division panel's summary dismissal was a departure from the essential requirements
of law.
Procedural Background
The underlying dispute is whether Beach Blitz's liquor store is a "legally
established nonconforming use"under the City's Code of Ordinances("City Code").
In May 2018, Beach Blitz formally requested from the Planning Director a
determination that the store was a legal nonconforming use. Shortly thereafter, the
Planning Director determined the property does not fulfill the necessary criteria for
a legal nonconforming use under the City Code. Beach Blitz appealed that
determination to the BOA.
Following an evidentiary hearing, the BOA reversed the Planning Director's
determination. In its final administrative order, the BOA explained:
The [BOA] . . . finds, based on the information and documentation
presented to the [BOA], and based on the argument of counsel and
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testimony of the parties, that with regard to the request to reverse the
decision of the Planning Director regarding the legal non-conforming
status of the package liquor store, [Beach Blitz's] appeal is hereby
GRANTED, and the decision of the Planning Director is hereby
REVERSED.
As a result of the BOA's reversal, the City sought certiorari review in the
circuit court appellate division, complaining the BOA "departed from the essential
requirements of the law in reversing the Planning Director's determination that
Beach Blitz was not a lawful nonconforming use." In response, Beach Blitz filed a
motion to dismiss, seeking "a summar[y] deni[al] as [the City] fail[ed] to establish
a departure from the essential requirements of law." Following these submissions,
the circuit court appellate division issued an unelaborated order granting Beach
Blitz's motion to dismiss the City's petition.'
The City's second-tier certiorari petition was then timely filed in this Court.
Analysis
In its present petition, the City advances two arguments: (1) "[T]he Florida
Rules of Appellate Procedure do not authorize the dismissal of a petition on the
Beach Blitz's motion sought, in the alternative, to expedite briefing and resolution
of the circuit court certiorari proceeding. The circuit court appellate division initially
granted that motion without specifying whether it was dismissing or expediting the
petition case. The following day, the appellate division issued an order to show
cause and directed the filing of a response and reply. The order to show cause was
docketed, however, as a dismissal closing the case. The City filed a motion for
clarification; on June 3, 2019, the appellate division entered the form order
challenged now, purporting to grant the City's motion for clarification, but granting
Beach Blitz's motion to dismiss without further elaboration.
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merits on the motion of a respondent"; and (2) "[T]he Planning Director correctly
applied the applicable law in determining that Beach Blitz was not a legal
nonconforming use." The City's first argument has merit, but for the reasons which
follow, we decline to consider the City's second argument.
The BOA's review of determinations made by an administrative official
charged with the enforcement of zoning ordinances is quasi-judicial in nature. When
the BOA rules on an application, the parties may twice seek review in the court
system, as explained in Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.
2d 195, 198-99 (Fla. 2003). See also City of Deerfield Beach v. Vaillant, 419 So.
2d 624 (Fla. 1982).
"First-tier" review requires the circuit court to determine "(1) whether
procedural due process is accorded, (2) whether the essential requirements of the
law have been observed, and (3) whether the administrative findings and judgment
are supported by competent substantial evidence." Miami-Dade Cty., 863 So. 2d at
199 (citations omitted). In other words, petitioners are "entitled to consideration of
whether the administrative agency followed its laws and regulations, and whether
the agency's findings are supported by competent substantial evidence." Osborn v.
Bd. of Cty. Comm'rs, 937 So. 2d 1119, 1120 (Fla. 3d DCA 2006).
"Second-tier"certiorari review may then be pursued in this Court. See Miami-
Dade Cty., 863 So. 2d at 199. This Court's review, however, is much more limited
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in such a case: we consider only whether the circuit court "(1) afforded procedural
due process, and (2) applied the correct law." Id.
Applying these principles to the circuit court appellate division's order
granting Beach Blitz's motion to dismiss, we have already noted that the order did
not address any of the claims raised by the City in its first-tier petition. Instead of
determining whether the City was afforded procedural due process, whether the
essential requirements of law were observed, and whether the BOA's findings were
supported by substantial competent evidence, the appellate division simply
dismissed the petition. This ruling amounted to "a violation of a clearly established
principle of law resulting in a miscarriage of justice" and thus, constituted a
departure from the essential requirements of law. Id. (citations omitted).
We.also find persuasive our sibling district courts' decisions in Bush v. City
of Mexico Beach, 71 So. 3d 147 (Fla. 1st DCA 2011), and Brasota Mortgage Co. v.
Town of Longboat Key, 865 So. 2d 638 (Fla. 2d DCA 2004).
In Bush, the petitioners sought second-tier review of the circuit court's order
dismissing their first-tier petition, in which they challenged the City of Mexico
Beach's denial of their lot-splitting application. 71 So. 3d at 148-49. The First
District granted certiorari relief because the circuit court "did not address the
substantial due process issues raised" in the petition and thus, "did not engage in the
three-prong review required" by the Florida Supreme Court. Id. at 148. According
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to the First District, the circuit court's failure to engage in the three-prong review
"constituted a violation of a clearly established principle of law resulting in a
miscarriage of justice and, therefore, a departure from the essential requirements of
law." Id. (internal quotation marks and citations omitted).
Similarly, in Brasota Mortgage, the petitioner sought second-tier review of
• the circuit court's order dismissing its first-tier petition, in which the petitioner •
sought review of the planning and zoning board's denial of its request for approval
of a subdivision plat. 865 So. 2d at 639-40. In its dismissal order, the circuit court
concluded that "the Petitioner has failed to demonstrate a preliminary basis for
relief," citing to Florida Rule of Appellate Procedure 9.100(h) and two decisions that
set forth the standard of review in second-tier certiorari proceedings. Id. at 640.
Because the circuit court order did not set forth reason for the dismissal, other than
a conclusory sentence and citations to inapplicable authority, the Second District
granted the second-tier petition. Id. The Second District held the circuit court "did
not apply the correct law"when it failed to analyze the petition under the three-prong
standard of review set forth by the Florida Supreme Court. Id.
In the present case, because the circuit court appellate division did not address
the claims raised in the City's petition under the three-prong review required by the
Florida Supreme Court, the circuit court departed from the essential requirements of
the law and the dismissal order must be quashed.
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That said, however, the parties have expended considerable effort here
arguing the merits of whether Beach Blitz's liquor store is a"lawful nonconforming
use" under the City Code. The parties fail to discern the difference between the
standard of review applicable to the circuit court and this Court. More specifically,
"[o]nce the district court determine[s]—from the face of the circuit court order—
that the circuit court ha[s] applied the wrong law, the job of the district court [h]as
ended." Fla. Power&Light Co. v. City of Dania, 761 So. 2d 1089, 1093 (Fla. 2000).
If this Court were to address the merits of the petition, including those arguments
pertaining to the Planning Director and the BOA, it would "usurp the first-tier
certiorari jurisdiction of the circuit court." Id. Instead, this Court quashes the
unelaborated dismissal order, so that the circuit court appellate division can apply
the three-prong standard of review as directed by the Florida Supreme Court.
The City's petition is granted and the order quashed.'
2 As is our normal practice in such cases, we withhold the formal issuance of a writ,
trusting that the appellate division will comply with the required first-tier review of
the City's circuit court petition.
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