Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Village of North Palm Beach v. S & H Foster's, Inc.

Florida Court of Appeal, Fourth District

February 22, 2012

VILLAGE OF NORTH PALM BEACH, FLORIDA, Appellant,
v.
S & H FOSTER'S, INC., d/b/a Foster's Pub, Appellee.

Page 434

Leonard G. Rubin of Leonard G. Rubin, P.A., West Palm Beach, for appellant.

Tiffany L. Barry and David L. Gorman of David L. Gorman, P.A., North Palm Beach, for appellee.

Trela J. White and Jennifer G. Ashton of Corbett and White, P.A., Lantana, for Amicus Curiae Palm Beach County League of Cities, Inc.

HAZOURI, J.

This appeal arises out of a petition for voluntary annexation filed with the Village of North Palm Beach (" Village" ) by Live Oak Plaza, LLC (" Live Oak" ), the owner of a 2.62 acre parcel of property located on the west side of Alternate AIA (" Property" ), contiguous with the then-existing corporate limits of the Village. Through the adoption of Ordinance No. 2008-10 on September 11, 2008, the Village Council granted the voluntary annexation petition pursuant to section 171.044, Florida Statutes, and annexed the property into the Village.

At the time of the annexation, S & H Foster's, Inc. d/b/a Foster's Pub (" Pub" ) operated an establishment through a lease with Live Oak. For many years prior to the annexation, the Pub was considered an " after hours bar" serving alcoholic beverages until 5:00 a.m.

The Pub sought and obtained a declaratory judgment preventing the Village from enforcing Section 3-2 of the Village Code of Ordinances which prohibits the sale or on-premise consumption of alcoholic beverages between the hours of 2:00 a.m. and 7:00 a.m. The trial court ruled that the Pub had a leasehold agreement with Live Oak which permitted the Pub to sell alcoholic beverages between the hours of 2:00 a.m. and 5:00 a.m. and thereby created a vested right which could not be restricted by the voluntary annexation for the duration of the lease. We reverse.

The lease between the Pub and Live Oak specifically requires that the Pub " comply with all laws, ordinances, rules and regulations of governmental authority respecting [its] use, operation and activities" on the Property. The lease term in existence at the time of annexation expired on December 31, 2010. [1]

As of 2008, the Pub had been operating on the Property for approximately sixteen years, selling alcohol for on-premises consumption for twenty-two hours per day, from 7:00 a.m. to 5:00 a.m. The regulations in effect for unincorporated Palm Beach County permitted such hours of operation.

For at least twelve years prior to the Village's voluntary annexation of the Property, Section 3-2 of the Village Code of Ordinances prohibited the sale or on-premise consumption of alcoholic beverages between 2:00 a.m. and 7:00 a.m. every day of the year, including Sunday, with the exception of January 1.

Page 435

Following the annexation the Pub requested the court to enter an order allowing it to continue operating " under its grandfather status" and sought a temporary injunction from enforcement of the Village Code. The Village filed a motion to dismiss the complaint, which stated that Section 3-2 prohibits the sale or service of intoxicating beverages on premises between 2:00 a.m. and 7:00 a.m. There was no dispute that once the property the Pub is on was annexed into the Village, the Village's ordinances applied to the Pub. The Village also argued that the Pub did not establish the criteria necessary for a temporary injunction, including a clear legal right.

At a hearing on the request for a temporary injunction, the attorneys presented arguments regarding applicable statutes and whether the Pub had a property interest. Sherry Foster, the president of the Pub, testified regarding how long she had owned the Pub, the time left on her lease, and how she tracks profits. She stated that aside from profits lost between 2:00 a.m. and 5:00 a.m., she would lose business from customers in the hours leading up to 2:00 a.m., as those customers would choose to go to a bar with a later closing time. She further testified about the impact on her employees. The court entered a temporary injunction preventing the Village from enforcing Section 3-2 against the Pub. The Village appealed the non-final order, and this court affirmed per curiam. See Village of N. Palm Beach v. S & H Foster's, Inc., 5 So.3d 686 (Fla. 4th DCA 2009).

Following the non-jury trial on the complaint for declaratory relief the court entered an order which ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.