Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Estoppel – storage facility unlawfully converted in outdoor bar - City was not estopped from enforcing provisions of the Code to issue cease and desist order although outdoor bar had been used continuously for 10 years – Petitioners not precluded from seeking the appropriate site plan approval to resume operation of the outdoor bar  – Petition denied.  William Rodrigues v. City of St. Pete Beach, No. 03-5032AP-88A (Fla. 6th Cir. App. Ct. Jan. 25, 2005). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

WILLIAM RODRIGUES and

DIANE RODRIGUES,

                        Petitioners,

 

vs.                                                                                                Appeal No. 03-5032AP-88A

                                                                                                    UCN522003AP005032XXXXCV

 

CITY OF ST. PETE BEACH, FLORIDA,

                        Respondents.

________________________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response and the Reply.  The Court has jurisdiction to review the Petition, as the Notice of Appeal was timely filed within 30 days of the order sought to be reviewed.[1]  Upon consideration of the briefs, the record and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The Petitioners, William Rodrigues and Diane Rodrigues (Petitioners), seek review of the Findings of Fact and Order (Order), entered July 15, 2003, in which a Special Master for the Respondent, City of St. Pete Beach, Florida (City), found the Petitioners in violation of Section 134-35[2] of the City’s Code by using an area designated as a storage facility on the Certificate of Occupancy issued March 1994, as an outside service area or Tiki  Bar.  The Order required the Petitioners to take whatever steps necessary to comply with the provisions of Section 134-35 should they desire to continue to use the area previously designated as a storage facility as an outdoor bar.  In reviewing the administrative action taken by the City, the Court must consider whether the Rodrigues were afforded procedural due process, whether the essential requirements of law were observed and whether the Order 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).  As the Petitioners do not argue that they were denied due process, the Court need not address that prong. 

            The undisputed facts are that the Petitioners purchased property, in October 2002, located at 2001 Pass-A-Grille Way, St. Pete Beach, Florida, known as “The Wharf.”  A Certificate of Occupancy was first issued on March 8, 1994, for a 72-seat lounge.  The schematic attached to the Certificate of Occupancy shows the subject outdoor structure as an “Existing Utility Building.”  Occupational licenses were issued continuously for the 72-seat lounge from March 1994 to October 2003.  In March 1994, the previous owner of The Wharf submitted an Application to the Division of Alcoholic Beverages and Tobacco seeking a permit to sell alcohol.  The Application included a sketch of the premises depicting the existing utility building as a “Beverage Service” area.  The Application contained the signature of an Occupational License Officer for the City indicating that The Wharf complied with the zoning requirements for the sale of alcoholic beverages.  In March 1994, the existing utility building was converted into an outdoor, open-air bar with 37 seats, without the issuance of a new Certificate of Occupancy reflecting this change. 

            The pre-existing utility building, or storage facility, was continuously used as an outdoor bar between March 1994 and April 2003.  Prior to the Petitioners purchase of the property, in April 1997, the City denied a proposal to construct a dock/deck consisting of 400 square feet on the north side of The Wharf property.  In November 1999, the City approved an application to allow The Wharf to sell tickets “at bar” for deep sea fishing trips.  The Petitioners continued to operate the outdoor bar after purchasing the property in 2002.  On February 21, 2003, the City issued a Notice of Violation to the Petitioners advising them that they were in violation of the City’s Code for failing to obtain a valid building permit to do construction/repair work on the outdoor bar.  The City ordered the Petitioners to cease and desist any further construction work and to cease and desist using the outdoor bar for any reason until approved by the City.  On April 15, 2003, the City denied the Petitioners’ application for a permit to fix the roof of the outdoor bar due to an unlawful change of use.  The City sent the Petitioners a second Notice of Violation, on April 29, 2003, ordering the Petitioners to permanently discontinue use of the outdoor bar, to which the Petitioners complied. 

            A hearing on the code violations was scheduled before the Special Master for the City.  After considering the evidence and testimony presented, the Special Master concluded that the doctrine of equitable estoppel did not apply to prevent to City from enforcing the provisions of Section 134-35.  The Special Master found that the City “took no positive affirmative action upon which the Respondents [Petitioners] legitimately relied and the Respondents [Petitioners] made no substantial change in position or incurred any excessive obligations or expenses in reliance upon an action of the City of St. Pete Beach nor was there a sufficient governmental omission.” 

            Before this Court, the Petitioners argue that, as a matter of law, the City granted approval to The Wharf to convert the storage facility into an outdoor bar when an official for the City signed the Application to the Division of Alcoholic Beverages and Tobacco in 1994.  The Petitioners further argue that the City should have been barred under the doctrines of equitable estoppel and laches from enforcing the provisions of Section 134-35 to prevent the Petitioners from operating the outdoor bar.  Under the facts of this case, the Court finds that the Special Master applied the correct law in concluding that the City could enforce the provisions of Section 134-35 and that the Petitioners had violated this section by converting the storage facility into an outdoor bar without having the change of use approved. 

            As stated in the Order, the Court finds that the City Official’s signature on the 1994 Application to the Division of Alcohol and Tobacco simply indicates that The Wharf was located in a zoning district that allowed for the sale and consumption of alcohol.  Contrary to the Petitioners’ argument, the signature does not grant approval to The Wharf to use the existing utility building, or storage facility, as an outdoor bar.  Further, assuming arguendo, that the signature did act as approval, such approval was invalid under Section 134-35 and could not be used to prevent the City from enforcing its Code.  See Ammons v. Okeechobee County, 710 So.2d 641 (Fla. 4th DCA 1998)(holding that county properly revoked unlawfully issued occupational license); see also Crowell v. Monroe County, 578 So.2d 837 (Fla. 3d DCA 1991)(concluding that 90-day extension letters issued by county official in violation of the county’s code were void and could not be used to prevent the county from revoking building permit); Corona Properties of Florida, Inc. v. Monroe County, 485 So.2d 1314 (Fla. 3d DCA 1986)(finding that county was not estopped, either by letter of zoning official advising owner that it had vested right to construct 58-unit building on property, or by permit illegally issued pursuant to letter, from enforcing 24-unit zoning limitation against property owner). 

            Additionally, for the same reasons cited to above, the Court finds that the City’s action on the proposals submitted by The Wharf in 1997 and 1999, which were unrelated to the outdoor bar, was not an act or omission that would support the application of either the doctrine of equitable estoppel or laches.  As pointed out by the Special Master, the facts of this case fall far short of what must be shown by a developer/property owner to prevent a municipality from enforcing its code.  See e.g. Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2d DCA 1975)(finding that town was estopped from rezoning land to bar high-rise development when the town approved developer’s request to rezone land to permit the high-rise development and developer had expended over $379,000 for land and development); A.H. Sakolsky v. City of Coral Gables, 151 So.2d 433 (Fla. 1963)(holding that municipality was equitably estopped from rescinding lawfully issued permit when holder of permit materially changed his position and incurred substantial expense in reliance on permit).  However, in finding that the Petitioners’ request for certiorari relief must be denied, the Court notes that the Petitioners have an economic interest in the business generated by the operation of the outdoor bar and that the City only discovered the unlawful use after the Petitioners were observed fixing the roof of the outdoor bar without a proper permit.  As set forth in the Order, The Wharf is not precluded from seeking the appropriate site plan approval by the City to resume operation of the outdoor bar.     

            It is therefore,  

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of January 2005.

 

 

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

John Schaefer, Esquire

650 Main Street

Safety Harbor, FL  34695

 

Timothy P. Driscoll, Esquire

100 First Ave. South, Suite 340

St. Petersburg, FL  33701


 

[1] See e.g. R.S. Johnson v. Citizens State Bank, 537 So.2d 96, 97-98 (Fla. 1989)(stating that the district court shall not dismiss a timely filed notice of appeal if relief would be warranted under a petition).

[2] Section 134-35(a) states: “No land or building erected shall be used and no land or building shall be changed in use until a certificate of occupancy shall have been issued by the director of planning and development, stating that the proposed use of the building or land conforms to the requirements of the chapter and any conditions imposed by the appropriate board of authority.”