Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances - City erred in finding that subject property was a “nightclub”, a non-permitted use, instead of a permitted “bar” – to interpret the meaning of “bar” to exclude those establishments that hold a 4-COP license would render useless, contrary to Florida law, the expressly permitted use of the sale of alcoholic beverages – Petition granted.  Nicklaus Investment Enterprises, Inc.  v. City of St. Pete Beach, No. 04-0065AP-88B (Fla. 6th Cir. App. Ct. July 8, 2005). 










vs.                                                                                            Appeal No. 04-0065AP-88B



Florida municipal corporation,






            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response, and the Reply.  Upon consideration of the briefs, the record and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The Petitioner, Nicklaus Investment Enterprises, Inc. (Nicklaus), seeks review of Development Order #20040019, entered August 10, 2004, in which the Respondent, City of St. Pete Beach (City), denied Nicklaus’ request for a site plan review for the construction of a shade structure.  Nicklaus has standing to bring this action.  In reviewing the administrative action taken by the City, the Court must consider whether Nicklaus was afforded procedural due process, whether the essential requirements of law were observed and whether the Development 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 Nicklaus does not argue that it was denied due process, the Court need not address that prong. 

            The record shows that Nicklaus is the owner of real property located at 3850 Gulf Boulevard in St. Pete Beach, Pinellas County, Florida, known as “The Undertow.”  Florida Shade Sails, Inc., on behalf of Nicklaus, filed an application with the City for a site plan review of a proposal to erect a shade structure over the outside deck area to protect patrons from the sun and to eliminate umbrellas.  After a noticed hearing on the matter, the City Commission, in a 4 to 1 vote, denied the application without prejudice for Nicklaus to seek a variance.  The Development Order incorporated by reference all comments made by the City Attorney.

            Before this Court, Nicklaus’ primary argument is that the City’s decision departs from the essential requirements of law in relying on the City Attorney’s position that The Undertow is not a “bar” or “cocktail lounge”, a permitted use under the City’s Code in an RFM (Resort Facilities Medium) District, but rather a “nightclub”, which is not permitted.  Prior to changes to the City’s  Land Development Code, the subject property was zoned C-2 in which cocktail lounges were expressly permitted uses.  Under the revised Code, enacted June 1, 2003, the property is now zoned RFM and bars or cocktail lounges are still expressly permitted, but nightclubs are not.  At the time the revised Code was enacted, The Undertow was approved and licensed by the City as a “lounge/restaurant.” 

            As presented by both parties, zoning regulations are subject to the same rules of construction as statutes.  See Rinker Materials Corp. v. City of North Miami Beach, 286 So.2d 552, 553 (Fla. 1973). A court’s function is to interpret statutes to give effect to each word and avoid interpretations that would render portions of it useless.  See Florida Dept. of Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 324 (Fla. 2001); see also Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273 (Fla. 2000).  When two statutory provisions conflict, the specific statute controls over the general statute.  See Palm Beach, 772 So.2d at 1287.  A court must defer to an agency’s interpretation of a statute it is charged with enforcing unless it is contrary to law.  See id. at 1283; see also Florida Dept. of Revenue, 789 So.2d at 323.

            In applying this law to the facts of this case, the Court finds that the City’s classification of The Undertow as a nightclub is erroneous.  The Code provides the following definitions:

Bar (cocktail lounge, saloon) means any establishment which is devoted primarily to the retailing and on-premises drinking of malt, vinous, or other alcoholic beverages and which is licensed by the State of Florida to dispense or sell alcoholic beverages. 


Nightclub means any restaurant, dining room, bar or similar establishment providing food or refreshments, which holds a 4-COP license from the State of Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco.  Provided, however, any restaurant, dining room or similar establishment which holds a 4-COP liquor license with the “S”, “SR” or “SRX” designation, shall be deemed an accessory use to the principal use and not a nightclub.


            There is no dispute that The Undertow holds a 4-COP license, a license which permits the sale of beer (malt), wine (vinous), and liquor (other alcoholic beverages), and that its business is devoted primarily to the sale, and on-premises drinking, of beer, wine, and liquor.[1]  The City Attorney argued that “The Undertow” is a nightclub because it holds a 4-COP license as referred to in the definition of nightclub.  However, while the definition of bar does not specifically reference a 4-COP license, a bar must hold a 4-COP license in order to sell “other alcoholic beverages.”  The Court finds that interpreting the meaning of bar (cocktail lounge, saloon) to exclude those establishments that hold a 4-COP license would render useless, contrary to Florida law, the expressly permitted use of the sale of “other alcoholic beverages” in the RFM District. 

            Further, to the extent that the definition of bar and nightclub conflict, the more specific definition controls.  See id.  While a bar is an establishment that is devoted primarily to the sale of beer, wine or liquor,[2] a nightclub more broadly encompasses “any restaurant, dining room, bar or similar establishment providing food or refreshments” that is authorized to sell beer, wine and liquor pursuant to the 4-COP license.  A plain reading of the definitions shows that bar is the more specific term.  Further, any doubts involving the application of a permitted use should be resolved in favor of The Undertow.  See Mandelstam v. City Commission of the City of South Miami, 539 So.2d 1139, 1140 (Fla. 3d DCA 1988)(citing with approval that “permitted uses must be interpreted broadly, prohibited uses strictly, so that doubts are resolved in a property owner’s favor”).    

            Accordingly, the City departed from the essential requirements of law in concluding that The Undertow is a nightclub and, therefore, as a nonconforming use, would need to file a request for a variance instead of the less stringent site plan review.  In so finding, the Court notes that the City’s label of The Undertow as a nightclub not only impacts this specific action but affects any future development and use of the property.  See Land Development Code, Sec. 3.10(b),(c).  The Court declines to address the remaining issue.  It is therefore,    

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby granted and Development Order #20040019 is quashed.

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




                                                DAVID A. DEMERS

                                                Circuit Judge, Appellate Division





_____________________________                                      _____________________________

PETER RAMSBERGER                                                      ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Divison


Copies furnished to:


Gregory T. Elliot, Esquire                                                         

7310 Gulf Boulevard                                                   

St. Pete Beach, FL  33706                  


Timothy P. Driscoll, Esquire

100 First Avenue South, Suite 340

St. Petersburg, FL  33701

[1] The Court notes the transcript reflects that The Undertow’s 4-COP license does not have the “S”, “SR” or “SRX” designation which are restrictions placed on the sale of beer, wine and liquor in connection with the primary operation of a motel, hotel or restaurant.  This was not an issue in the proceedings below. 

[2] The Court notes that while the code uses the term “or” within its definition of bar, there is no dispute that a bar that holds a 4-COP license can sell beer, wine “and” liquor.  A 2-COP license is for the sale of beer and wine only.