Petition for Writ of Certiorari to Review Quasi-Judicial Action - Agencies, Boards, and Commissions of Local Government:  ZONING - special exception – petitioner met its initial burden of showing that its application met the statutory criteria for granting such exceptions – staff reports are strong evidence supporting approval – City did not meet its burden that petitioner did not meet code criteria and that approval of the application would be adverse to the public interest – lay opinions, unsupported by competent facts, do not constitute competent substantial evidence.  Petition granted.  Jones v. City of Tarpon Springs, No. 02-9757CI-88A (Fla. 6th Cir. App. Ct. Jan. 15, 2004).












vs.                                                                                            Appeal No. 02-9757-CI-88A









            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, filed by Janet S. Jones and John J. Dallman, d/b/a Oxford House Tea Room (Oxford House), the Response, filed by the City of Tarpon Springs (City), and the Petitioners’ Reply thereto.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            Oxford House filed its Petition following the City’s decision to deny the Conditional Use Application sought by Oxford House to serve beer and wine at its dining establishment.1   In reviewing the administrative action taken by the City, this Court must consider whether Oxford House was afforded procedural due process, whether the essential requirements of law were observed and whether the City’s action is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action).  Accordingly, in reviewing the appellate record, the Court concludes that the City’s decision is not supported by competent substantial evidence.

            Oxford House has been a dining establishment in the City for over thirteen years and is zoned General Business/Commercial General.  Pursuant to the City’s Land Development Code (Code), Oxford House requested a 2-COP license for on premise consumption of beer and wine.  In response to the Oxford House Application, the City’s Planning and Zoning Department conducted an in-depth review of the request, which included addressing the compatibility of the proposed use with existing uses and determining whether the request met the necessary criteria of the Code.  The Planning Department also measured the distance between Oxford House and the adjacent auxiliary building, owned and operated by the Greek Orthodox Church, several times.  In each of its four Staff Reports, the Planning Department concluded that Oxford House’s request for a 2-COP license conformed to the Code and recommended approval of the Application.

            In reviewing the record, the Court finds that Oxford House met its initial burden of showing that its Application met the statutory criteria for granting such exceptions.  See Florida Power & Light Company v. City of Dania, 761 So.2d 1089, 1091-92 (Fla. 2000)(explaining the allocation of burdens in a special exception proceeding)(citing Irvine v. Duval County Planning Commission, 495 So.2d 167 (Fla. 1986).  As stated above, the City’s own Planning Department, in its assigned authority, thoroughly reviewed the Oxford House Application based on the criteria set forth in the Code upon which it then recommended approval.  Staff Reports can be considered in determining whether Oxford House met its initial burden.  See e.g. Miami-Dade County v. Omnipoint Holdings, Inc., 2003 WL 22900487 (Fla. 3d DCA Dec. 10, 2003)(stating that quasi-judicial boards cannot make decisions based on anything but the local criteria enacted to govern their actions).  Indeed, the Staff Reports were strong evidence supporting approval of the application.  See ABG Real Estate Development Company of Florida, Inc. v. St. Johns County, 608 So.2d 59 (Fla. 5th DCA 1992)(finding that the staff report’s positive recommendation was strong evidence supporting approval of property owner’s application).  

            The burden then shifted to the City to demonstrate by competent substantial evidence 2 that Oxford House did not meet the criteria for approval and, further, that approval of the Application would be adverse to the public interest.  See Florida Power & Light Company, 761 So.2d at 1091-92.  The Court finds that the City did not meet its burden. 

            The Court recognizes that the City heard opposition to the application as expressed by the members of the neighboring Greek Orthodox Church. 3   As evidenced by the testimony of several members of the Church at the hearing before the Board of Commissioners on October 1, 2002, and again on November 12, 2002, the Church’s main concern was the impact of potentially alcohol-impaired drivers on the safety of the children using Church facilities.  Although citizen testimony in a zoning matter is perfectly permissible, 4 lay opinions, unsupported by competent facts, do not constitute competent substantial evidence.  See City of Apopka v. Orange County, 299 So.2d 657, 660 (Fla. 4th DCA 1974); see also Pollard v. Palm Beach County, 560 So.2d 1358 (Fla. 4th DCA 1990); Flowers Baking Co. v. City of Melbourne, 537 So.2d 1040 (Fla. 5th DCA 1989)(concluding that objections of local residents to the conditional use permit based on fears as to increased traffic do not constitute competent substantial evidence).  Additionally, speculation that Oxford House intends some other use than that applied for, does not constitute competent substantial evidence.  In this case, there were no facts or evidence submitted to the Board for the City to meet its burden.

            Accordingly, the Court finds that the Decision of the Board must be quashed and this cause remanded.  This Court is fully aware that it cannot direct the City to take any specific action. 5  In a review of the record, the Court notes that during the application process the parties had made attempts to reach an agreement amicable to all which included, for example, restricting the license to Oxford House. 6   The Court encourages the parties to once again attempt to reach an agreeable solution.  Lastly, the Court observes that Oxford House, by all accounts, has been a long-standing, reputable business in the community, whose property interests must be recognized in accordance with the law, along with the interests of the Church, whose history and importance to the community is without refute.

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby granted.  The Decision of the Board is quashed and this cause is remanded for action consistent with this order and opinion.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of January 2004.





                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

Copies furnished to:


Stephen O. Cole, Esquire

Post Office Box 1669

Clearwater, FL  33757


Herbert Elliot, Esquire

35 West Lemon Street

Tarpon Springs, FL  34689


John Hubbard, Esquire

595 Main Street

Dunedin, FL  34698-4998

1 The City, Board of Commissioners, orally denied the Application at the close of its meeting on November 12, 2002.  In response to the Court’s Order Relinquishing Jurisdiction, entered March 12, 2003, the Board entered a written order April 2, 2003.

2 See DeGroot v. Sheffied, 95 So.2d 912, 916 (Fla. 1957)(defining competent substantial evidence as “such relevant evidence as a reasonable mind would accept as adequate to support a conclusion”).

3 The Church’s auxiliary building is closest to the Oxford House property, but is separated from Oxford House by a high wall.

4 See Metropolitan Dade County v. Section 11 Property Corp., 719 So.2d 1204 (Fla. 3d DCA 1998), rev. denied, 735 So.2d 1287 (Fla. 1999)(finding that citizen testimony in a zoning matter is perfectly permissible and can constitute substantial competent evidence).

5 See Broward County v. G.B.V. International, LTD., 787 So.2d 838,844 (Fla. 2001)(stating that on certiorari review an appellate court can only deny the writ or quash the order under review; it has no authority to take any action resulting in the entry of a judgment or orders on the merits or to direct that any particular judgment or order be entered).
6 The Court notes that there is obviously a distinction between a tea house serving wine and beer to high-end clientele versus, for example, a sports bar.