CITY OF MIAMI BEACH

v.

BEACH BLITZ OCEAN 9 LIQUOR

[*2] TRAWICK, J.

Petitioner, City of Miami Beach, Florida (the "City"), seeks to quash an Order of its Board of Adjustment (the "BOA"), which reversed the City Planning Director's determination that the operation of a package liquor store by Beach Blitz, Co., d/b/a Ocean 9 Liquor ("Blitz"), was not an established legal nonconforming use under the Code of the City of Miami Beach, Florida (the "Code"). The sole issue before this Court is whether the BOA complied with the essential requirements of the law in reversing the Planning Director's decision.² It maintained a current Business Tax Receipt ("BTR") until the 2016-2017 fiscal year when it failed to renew the BTR.³ Vaillant, 419 So. 2d 624, 626 (Fla. 1982). N² No argument has been raised that the City was not accorded procedural due process or that the decision of the BOA was not supported by competent substantial evidence. Instead, the Petition focuses only on the second prong of the standard. N³ A fiscal year runs from October 1 through September 30 of the following year. Code section 102-360. Accordingly, Blitz' BTR expired September 30, 2016.

[*3] ordinance, Blitz was issued two citations for failing to obtain a BTR, the first being issued on June 25, 2017 and the second on October 6, 2017. Upon the issuance of the second citation, Blitz was ordered closed by a City Code Enforcement Officer accompanied by two police officers. With this show of force Blitz closed its package liquor store.

On October 11, 2017, Blitz' owner submitted payment to renew the BTR for its package liquor store. The payment was rejected because the BTR was not renewed during the fiscal year and had been placed in closed status. The City maintained that pursuant to Code section 102-371, it was necessary to apply for a "new" BTR rather than a "renewed" BTR.⁴ Beach Blitz Co. v. City of Miami Beach, Florida, et. al., Case No. 1:17-cv-23958-UU (S.D. Fla.). The district court denied the motion for temporary injunction and dismissed the complaint for failure to state a claim.

[*4] BOA refused to entertain the issue because it was not raised before the Planning Department. The BOA found that the Planning Department properly denied Blitz's request for a BTR to operate a package liquor store in the MXE District since package liquor stores were prohibited in the MXE District by the Ordinance. As a result, the BOA denied the appeal.

On May 18, 2018, Blitz requested a determination from the Planning Director that its package liquor store was a legal nonconforming use. That determination was made on June 12, 2018, when the Planning Director found that Blitz was not a legally established nonconforming use based upon the Ordinance. Blitz appealed this determination. The BOA subsequently voted 5-2 to reverse the Planning Director's decision. This Petition for Writ of Certiorari followed.

It is uncontested that Blitz's package store was a legal existing use which conformed to the Code when it was legally established in 2012. This petition raises the question of whether the package store's legal existing use became a legally established nonconforming use upon enactment of the Ordinance and maintained that status at the time of the Planning Director's determination to the contrary.

Code section 118-393(a) provides, in part, that "[e]xcept as otherwise provided in these land development regulations, the lawful use of a building [*5] existing at the effective date of these land development regulations may be continued, although such use does not conform to the provisions hereof."

Code section 114-1 (Definitions) defines a nonconforming use as: a use which exists lawfully prior to the effective date of these land development regulations and is maintained at the time of and after the effective date of these land development regulations, although it does not conform to the use restrictions of these land development regulations.

Code section 118-390(b) defines the term "nonconformity" as "a use, building, or lot that does not comply with the regulations of this article. Only legally established nonconformities shall have rights under this section." (emphasis added). Code section 118-390(d)(3) defines "legally established" to include, "[a]n existing use which conformed to the code at the time it was established." (emphasis added).

Conforming and nonconforming "uses" are defined and governed by Code sections 114-1 and 118-390. These sections are found in, Subpart B, of the Code pertaining to Land Development Regulations. The City argues that Blitz's package liquor store was operating unlawfully because it did not have a current BTR for the 2016-2017 fiscal year when the Ordinance prohibiting package liquor store uses in the district was enacted in October 19, 2016. Code sections 102-356, 102-357, and 102-360 require a current BTR for the privilege of engaging in a business, profession or occupation within the City's jurisdiction. These sections are found in [*6] a separate and distinct part of the Code, Subpart A of the Code's General Ordinances under Chapter 102, governing "Taxation." We find that the lack of a current BTR under the General Ordinances governing Taxation in Code Subpart A, does not necessarily terminate the "use" status under the Land Development Regulations in Code Subpart B.

Chapter 102 does not provide for termination of a "use" for failing to maintain a current BTR, nor has the City pointed to any case supporting such a conclusion. Rather, remedies for failing to have a current BTR include monetary penalties, enjoining business operations, and even imprisonment. See Code section 102-377. The only provision for termination of a nonconforming use is found in the Land Development Regulations in Section 118-394(b), which provides, in part, for the discontinuance of a nonconforming use if there is an "intentional and voluntary abandonment of the nonconforming use." "An intentional and voluntary abandonment of use includes, but is not limited to, vacancy of the building or structure in which the nonconforming use was conducted, or discontinuance of the activities consistent with or required for the operation of such nonconforming use." Id.

Abandonment occurs when the landowner intentionally and voluntarily foregoes further nonconforming use of the property. (citation omitted). Neither attrition nor abandonment occurs where a nonconforming use is interrupted or discontinued involuntarily by compulsion of governmental action. (citation omitted). Temporary cessation of a nonconforming use or the temporary vacancy of [*7] buildings used for the nonconforming use does not operate to effect abandonment of the nonconforming use. (citation omitted). Accordingly, an involuntary cessation of the nonconforming use of a premises for the sale of alcoholic beverages due to the loss of a beverage license in administrative disciplinary proceedings does not constitute abandonment and terminate the grandfathered status of such nonconforming use of such premises.

Lewis v. City of Atlantic Beach, 467 So. 2d 751, 755 (Fla. 1st DCA 1985).

While Blitz may have allowed its BTR to lapse, this did not, in and of itself, constitute an abandonment of its nonconforming use. Instead, it is one factor that may be considered in determining whether Blitz' package store maintained its nonconforming status. "In order for a nonconforming use to retain a nonconforming status, the evidence, collectively, shall at a minimum demonstrate at least one of the following: (1) Continual operation of the use; (2) Continual possession of any necessary and valid state and local permits, building permits, licenses, or active/pending application(s) for approval related to prolonging the existence of the use." Section 118-394(c).

It is the Planning Director's or his designee's duty to "evaluate the evidence of an intentional and voluntary abandonment of a nonconforming use and determine the status of the nonconforming use." Section 118-394(c.).5 While the N 5 "Evidence of an intentional and voluntary abandonment of a nonconforming use may include, but shall not be limited to: (1) Public records, including those available through applicable City of Miami Beach, Miami-Dade County, and State of Florida agencies; (2) Utility records, including water/sewer accounts, solid waste accounts, and electrical service accounts; (3) Property records, including executed lease or sales contracts." Code section 118-394(d).

[*8] Planning Director had clear evidence that Blitz did not have a BTR for the fiscal year 2016-2017, evidence available to the Planning Director also shows that Blitz' package liquor store was in continuous operation from 2011 until the City forced it to close on October 6, 2017. Additionally, Blitz retained professional assistance to remedy purported violations and to rectify the lapse in its BTR. As a result, the record does not support a conclusion that Blitz intended to abandon its nonconforming use.

In reaching our conclusions, we have considered the record before us and the applicable Code provisions in light of the axiom that "[z]oning laws are in derogation of the common law and, as a general rule, are subject to strict construction in favor of the right of a property owner to the unrestricted use of his property." Mandelstam v. City Comm'n of City of S. Miami, 539 So. 2d 1139, 1140 (Fla. 3d DCA 1983). Further, [s]ince zoning regulations are in derogation of private rights of ownership, words used in a zoning ordinance should be given their broadest meaning when there is no definition or clear intent to the contrary and the ordinance should be interpreted in favor of the property owner. N 6 A member of the BOA noted that: the concept of that he [Blitz' owner] intentionally abandoned his property and intentionally didn't pay, I seem to believe is refuted directly by the amount of money, as an attorney myself, that he's probably being [sic] incurred from now going forward in fighting this. It doesn't seem like he's someone who wants to abandon his business. (Tr. 78).

[*9] Rinker Materials Corp. v. City of North Miami, 286 So. 2d 552, 553 (Fla.1973). Interpreting the language used in the Code by giving it its broadest meaning and which inures in favor of the property owner Blitz, we find that the BOA correctly ruled that the Planning Director erred in finding that Blitz' package liquor store was not an established legal nonconforming use under the Code. Further, the nonconforming use was not abandoned by the store owner. Based upon the above analysis, the Petition for Writ of Certiorari is hereby

DENIED.

WALSH and SANTOVENIA, J.J. concur.