PUBLIX SUPER MARKET

v.

MIAMI DADE COUNTY

Before: MUIR, B. ARECES and WALSH¹, JJ.

PER CURIAM.

Filing # 111611485 E-Filed 08/11/2020 02:35:01 PM [*2] [*2] Publix Supermarkets, Inc. (“Publix”) sought a non-use variance from Miami- Dade County Community Zoning Appeals Board (“CZAB”) to open a liquor store adjacent to one of its existing small grocery stores in a commercial location. To permit the proposed liquor store would violate two Miami-Dade County Code provisions. Miami-Dade County Code section 33-150(A) requires that liquor stores may not be spaced within¹,500 feet, and section 33-311(A)(3) bans Sunday sales of alcohol. A neighbor, T-Rexx Colonial Liquors (“T-Rexx”), objected to granting Publix a non-use variance. T-Rexx is located within 415 feet of the proposed liquor store. Following a public hearing, although the CZAB staff recommended granting the non-use variance, the CZAB voted to deny the application. A panel of this Court granted Publix’s first-tier petition for writ of certiorari, finding that the objector failed to produce competent, substantial evidence to support its objection to the variance.

Miami-Dade County petitioned for writ of second-tier certiorari in the Third District Court of Appeal. Miami-Dade County v. Publix Supermarkets, Inc., 2020 WL 2176653 (Fla. 3d DCA May 6, 2020). The district court found that in granting certiorari, this court applied the wrong standard of review. The district court explained that the standard of review is not, as this Court found, whether the opponent of an application for special use variance brought forth competent, substantial evidence to invalidate an agency determination, but rather, whether [*3] [*3] “’[t]he record as a whole contain[ed] substantial competent evidence to support a denial.’” Id. at *2 (quoting Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1091 (Fla. 2000)). In combing the record for evidence supporting the opponent’s position, this Court erroneously applied the standard applicable at the municipal level under Irvine v. Duval County Planning Commission, 495 So. 2d 167 (Fla. 1986), rather than the correct standard of review for first-tier petitions for writ of certiorari. As the district court explained, our review is limited to: “‘[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.’” City of Dania, 761 So. 2d at 1092 (quoting City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla.1982)).

Accordingly, the district court has remanded the case for us to determine whether there was competent, substantial evidence to support the CZAB’s denial of Publix’s application for special use exception.

The following evidence supports the CZAB decision. The objector before the CZAB, T-Rexx Colonial Liquors (“T-Rexx”), is located within 415 feet of Publix’s proposed site. A liquor survey submitted by Publix to the CZAB shows that eight other businesses selling alcoholic beverages for on and off-site consumption are also located within 1500 feet. Four more are located within 2500 feet. T-Rexx also submitted evidence of eight liquor stores on a 4.51-mile section of US-1 from where [*4] [*4] the Publix liquor store would be located, 10 stores within 7.65 square miles of the Publix store and 14 more selling liquor for off-premises consumption. T-Rexx also presented a petition signed by multiple neighbors objecting to the additional liquor store.

The regulation of the concentration of liquor stores is a legislative function which is “‘well founded in the protection of health and morals of the general public.’” Orange County v. Costco Wholesale Corp., 823 So. 2d 732 (Fla. 2002) (quoting Glackman v. City of Miami Beach, 51 So. 2d 294, 296 (Fla. 1951)). The CZAB had competent, substantial evidence before it of eight liquor stores within 1500 feet of the proposed liquor store, not to mention multiple businesses which sell alcohol located within a several-mile radius of the proposed store. Because the order denying the special use variance was supported by competent, substantial evidence, the petition for writ of certiorari is hereby denied. MUIR and B. ARECES, JJ., CONCUR. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL