HASAM REALTY CORP., A DELAWARE CORPORATION, APPELLANT,
v.
CITY OF HALLANDALE, A FLORIDA MUNICIPAL CORPORATION, ART CANON, AS MAYOR OF THE CITY OF HALLANDALE; ARTHUR ROSENBERG, AS VICE-MAYOR OF THE CITY OF HALLANDALE; MILTON WEINKLE, AS CITY COMMISSIONER; SAM WATERMAN, AS CITY COMMISSIONER; JACK SPIEGEL, AS CITY COMMISSIONER, APPELLEES
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Hasam Realty Corp. sought mandamus to compel the City of Hallandale to approve its application for extended operating hours at a nightclub. The court affirmed the trial court's dismissal of the mandamus petition, holding that the city commission's denial of the application was a valid discretionary decision not subject to mandamus review.
Mandamus is not appropriate because the city commission's denial was a valid exercise of discretionary authority under the city ordinance. Abuse of discretion arises only when there is no conceivable basis for the decision, and here the commission had substantive testimony supporting its denial and was granted legislative authority to weigh all relevant factors.
[1] A court may dismiss a petition for writ of mandamus without issuing an order to show cause if the petition and attached exhibits conclusively establish that mandamus is n…
[2] The issuance of an order to show cause in a petition for writ of mandamus is a discretionary act.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Mandamus lies to compel action of a mandatory or ministerial nature, Permenter v. Younan, 159 Fla. 226, 31 So. 2d 387 (1947), but applies to discretionary actions only when a clear abuse of discretion is shown.”
Establishes the fundamental requirement that mandamus applies to discretionary actions only upon showing clear abuse of discretion.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHasam Realty Corp. owns the Diplomat Country Club in Hallandale with a 4COP alcoholic beverage license allowing operation until 2:00 A.M. In July 1979…
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HURLEY, Judge.
This is an appeal from the dismissal with prejudice of a petition for writ of mandamus. The trial court found that the allegations of the petition coupled with the attached exhibits conclusively established that mandamus was not an appropriate remedy. Thus, the court dismissed the petition without first issuing an order to show cause. We affirm for the reasons set forth below.
Appellant, Hasam Realty Corp., owns and operates the Diplomat Country Club in Hal-landale. At present, the club has what is called a “4COP” alcoholic beverage license which allows the consumption of alcoholic beverages on its premises until 2:00 A.M. In July of 1979, pursuant to a city ordinance, Hasam filed an application with the city of Hallandale for an extension of operating hours, seeking to remain open until 4:00 A.M. Following review, the city’s planning department recommended approval while the planning and zoning board recommended denial.
Ultimately, the issue was brought before the city commission, the legislative body with final authority to approve or reject such applications. A public hearing was held at which Hasam presented testimony indicating that extension of the club’s operating hours would have a negligible impact on traffic, noise, safety and similar factors affecting the neighborhood. On the other hand, several concerned residents testified that such an extension would have an adverse effect on the quality of life in the adjoining residential area.
The city commission denied Hasam’s application and Hasam filed a petition for writ of mandamus in the Circuit Court of the Seventeenth Judicial Circuit of Florida. The petition contained comprehensive factual allegations and was accompanied by numerous exhibits, one of which was a verbatim transcript of the December 18, 1979, city commission meeting at which Hasam’s application was considered and denied.
On appeal, Hasam questions the trial court’s action of ruling on the petition without first issuing an order to show cause. In this respect, we initially note that under Rule 9.100(f), Fla.R.App.P., the issuance of an order to show cause is a discretionary act:
If the petition demonstrates a preliminary basis for relief, a departure from the essential requirements of law, or that review of final administrative action would not provide an adequate remedy, the court may issue an order directing the respondent to show cause, within the time set by the court, why relief should not be granted. (Emphasis supplied).
More fundamental, however, is the rule of logic that courts are not required to perform useless gestures. In the case at bar, all relevant material was supplied by Ha- sam, either in its petition or in the attached exhibits. Taken together, they irrefutably demonstrate that an appropriate legislative body reached a valid determination on a discretionary matter and consequently mandamus is inappropriate.
Mandamus lies to compel action of a mandatory or ministerial nature, Permenter v. Younan, 159 Fla. 226, 31 So. 2d 387 (1947), but applies to discretionary actions only when a clear abuse of discretion is shown. State ex rel. Moody v. Barnes, 25 Fla. 298, 5 So. 722 (Fla. 1889). The term “abuse of discretion” does not encompass unwise or mistaken decisions as long as there are grounds on which the decision could be made. Id. at 726. Abuse of discretion arises when there is no conceivable basis for the decision. Such is not the situation here.
By Ordinance 78-22 of the City of Hal-landale, Florida, the city commission is given non-exclusive criteria with which to analyze an application for extended operating hours. The commission is not required to confine itself to the enumerated items or to weigh them equally so that compliance with a majority would mandate approval of the application. Rather, the commission is given legislative authority to weigh all relevant factors and make a discretionary, not to say arbitrary, decision. Having before it substantive testimony both for and against the extension of appellant’s operating hours, the commission’s denial of Hasam’s application was within its discretion, for which this court may not substitute its own judgment.
AFFIRMED.
DOWNEY, J., and SHARP, G. KENDALL, Associate Judge, concur.
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Woods v. Nova Cos. Belize Ltd., 739 So. 2d 617 (Fla. 4th DCA 1999)…tion “does not encompass unwise or mistaken decisions so long as there are grounds on which the decision could be made. Abuse of discretion arises when there is no conceivable basis for the [*624] decision.” Hasam Realty Corp. v. City of Hallandale, 393 So. 2d 561, 563 (Fla. 4th DCA 1981) (citation omitted). The backdrop against which cases involving Rule 1.061(a) should be analyzed is the Florida Supreme Court’s decision in Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla.1996). In Kinne…
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Coral Springs Tower Club II Condo. Ass'n, Inc. v. Dizefalo, 667 So. 2d 966 (Fla. 4th DCA 1996)…vailable to mandate the doing or undoing of a discretionary act or a merely erroneous decision. See Migliore v. City of Lauderhill, 415 So. 2d 62, 63 (Fla. 4th DCA 1982), approved, 431 So. 2d 986 (Fla.1983); Hasam Realty Corp. v. City of Hallandale, 393 So. 2d 561, 563 (Fla. 4th DCA 1981). However, as stated in Flagship National Bank v. Testa, 429 So. 2d 69, 70 (Fla. 3d DCA 1983), mandamus is available “[i]f a lower court, without sufficient reason, neglects or refuses to act on a matter within its jurisdicti…
Authorities Cited
- Fermenter v. Younan, 159 Fla. 226 (Fla. 1947)
- State v. Barnes, 25 Fla. 298 (Fla. 1889)