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
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
ENTERPRISES, INC., a
vs. Appeal No. 04-0065AP-88B
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.
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 (
record shows that Nicklaus is the owner of real property located at
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.”
presented by both parties, zoning regulations are subject to the same rules of
construction as statutes. See Rinker
Materials Corp. v. City of
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. 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.
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, 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
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
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby granted and Development Order #20040019 is quashed.
AND ORDERED in Chambers, at
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
Timothy P. Driscoll, Esquire
 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.
 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.