CITY OF MIAMI BEACH, FLORIDA, A MUNICIPALITY CREATED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, KENNETH OKA, AS MAYOR, AND MALVIN ENGLANDER, MARCIE LIEBERMAN, BERNARD FRANK, MELVIN RICHARD, D. LEE POWELL AND WOLFIE COHEN, AS COUNCILMEN, CONSTITUTING THE CITY COUNCIL OF THE CITY OF MIAMI BEACH, FLORIDA, AND R. WM. L. JOHNSON, CITY CLERK OF THE CITY OF MIAMI BEACH, FLORIDA, APPELLANTS,
v.
MORRIS BRACA, APPELLEE
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The City of Miami Beach appealed a writ of mandamus requiring it to issue a linen shop license to Morris Braca. The court reversed, holding that Braca failed to exhaust administrative remedies by appealing to the city council before filing for judicial mandamus relief.
The petition for mandamus was prematurely filed because the appellee failed to exhaust the administrative remedy provided in the Code of Miami Beach, which required an appeal to the city council before court action could be instituted. Even if the city clerk's failure to act could be treated as a rejection, the appellee did not comply with the code's terms regarding such rejection.
“under the doctrine of exhaustion of remedies, appellee must first appeal to the city council before any court action may be instituted”
Establishes the controlling legal principle that administrative remedies must be exhausted before judicial relief can be sought
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Join FLexlaw to unlock all legal intelligenceBraca applied to the city clerk of Miami Beach on February 27, 1963, for a license to operate a linen shop and complied with § 17.15.1 of the Code of …
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This is an appeal from the entry of a peremptory writ of mandamus ordering the city of Miami Beach to issue to the appel-lee a license to operate a “linen shop”. The writ was issued pursuant to a petition filed by the appellee wherein he alleged, inter alia, that he had, on February 27, 1963, applied to the city clerk for a license to operate a “linen shop” in Miami Beach and had duly complied with the provisions of § 17.15.1, Code of Miami Beach; that the appellants have continuously refused to issue the license; that said refusal is without justification. Appellants filed a motion to quash the alternative writ which was denied. After hearing on the merits, the trial court granted a peremptory writ.
The appellants have assigned numerous errors as grounds for reversal. The principal question involved is whether or not the petition for mandamus was prematurely filed.
It is appellants’ contention that, under the doctrine of exhaustion of remedies, appellee must first appeal to the city council before any court action may be instituted. We find that this contention has merit. The code of Miami Beach (§ 17.15.1) provides for an appeal to the city council of the city of Miami Beach by any individual aggrieved by any action of the city clerk in refusing to issue any license.
*670The appellee contends here as he did before the trial court that the actions of the city clerk in failing to issue the license or reject the application were tantamount to rejection. It is apparent that the trial court also treated the city clerk’s failure to act as a rejection and upon that premise, issued the peremptory writ. Assuming without deciding that such conclusion on the part of the trial court was correct, the appellee has nevertheless failed to demonstrate his compliance with the terms of the city Code applicable in the event of a rejection. Since there has been no exhaustion of the administrative remedy provided,1 the petition was prematurely filed.
In view of our holding, we deem it unnecessary to pass upon the other questions raised.
Accordingly, the peremptory writ is quashed and the cause is remanded with directions to dismiss the petition.
Reversed and remanded with directions.
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City OF Miami Beach v. The Atheneum, Inc., 254 So. 2d 41 (Fla. 3d DCA 1971)…ot [*43] lie to compel the issuance of the license, application to the city clerk for which had been denied, without the applicant having exhausted its administrative remedies, citing as authority therefor City of Miami Beach v. Braca, Fla.App.1963, 151 So. 2d 669. Administrative remedies referred to by appellant were an appeal to the city council as authorized in such instance, and an application to the proper board for- a variance or a special use permit if the desired use was not permitted by the applicabl…
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Bd. OF Cnty. Comm'rs v. Hendry, 301 So. 2d 483 (Fla. 2d DCA 1974)…remedy. State ex rel. Long v. Carey, 121 Fla. 515, 164 So. 199 (1935). This principal applies to administrative remedies which must be exhausted. City of Miami Beach v. Atheneum, Inc., 254 So. 2d 41 (Fla.App. 3rd 1971). City of Miami Beach v. Braca, 151 So. 2d 669 (Fla.App. 3rd 1963). It is to be noted that the request by the Sheriff was not a demand for the Board to pay specific amounts as required in F.S.A. 23.078. The request was for an increase over and above previously budgeted funds. It is to be furthe…
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