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Beach v. Beach Blitz, Co.

Florida Court of Appeals, Third District

September 11, 2019

City of Miami Beach, Petitioner,
v.
Beach Blitz, Co., Respondent.

         Not final until disposition of timely filed motion for rehearing.

          Lower Tribunal No. 19-22

          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.

         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 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 ...


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