Bennett M. Lifter, Inc. v. Metropolitan Dade County

• Decision Date: 21 January 1986
• Docket Number: No. 85-642,85-642
• Citation: 11 Fla. L. Weekly 231,482 So.2d 479
• Parties: 11 Fla. L. Weekly 231 BENNETT M. LIFTER, INC., d/b/a the Marco Polo Hotel; Lifter, Inc. d/b/a the Waikiki Hotel, Appellants, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 479

482 So.2d 479

11 Fla. L. Weekly 231

BENNETT M. LIFTER, INC., d/b/a the Marco Polo Hotel; Lifter, Inc. d/b/a the Waikiki Hotel, Appellants, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.

No. 85-642.

District Court of Appeal of Florida Third District.

Jan. 21, 1986.

Appeal from the Circuit Court for Dade County; James Henderson, judge.

Smith & Mandler and Patricia M. Silver, Miami Beach, for appellants.

Robert A. Ginsburg, Co. Atty. and Robert L. Krawcheck, Asst. Co. Atty., for appellee.

Before BARKDULL, HUBBART and FERGUSON, JJ.

BARKDULL, Judge.

This appeal involves the validity of a Dade County zoning regulation pertinent to a hotel/motel use district as it relates to condominium conversions. The trial judge, upon a constitutional attack, found the ordinance to be constitutional. His final judgment reads as follows:

"THIS CAUSE is before the Court upon a Complaint for Declaratory and Injunctive Relief challenging the validity of Dade County Ordinance 84-46, § 33-222.1.1 (hereinafter 'the Ordinance') of the Code of Metropolitan Dade County, Florida (hereinafter 'County Code'). The Court has jurisdiction pursuant to Chapter 86, Fla.Stat.

"This matter originally came on for hearing upon the Plaintiff's Motion for Temporary Injunction prohibiting Dade County from enforcing the Ordinance. The Court conducted extensive evidentiary hearings, after which it was advised, through stipulation of counsel, that both sides have rested with regard to presenting any further evidence on the entire complaint, without prejudice to present evidence upon the County's counterclaim. Based upon the considerable record before the Court, legal memoranda, argument of counsel, and being otherwise duly advised in the premises, the Court finds as follows.

"Ordinance 84-46 was enacted by the County Commission as an addition to the RU-4A zoning district regulations, in response to a proliferation of changes in use of former hotel and motel properties located in that district. The RU-4A district is unique in Dade County in that it permits essentially two kinds of residential uses: 1) hotel and motel uses, and 2) apartment and apartment-hotel and apartment-motel uses.

"In the RU-4A district, hotels and motels developed for exclusive transient use receive a 50% density advantage compared to other uses. Hotels and motels also receive a minimum benefit of 50% in the amount of off-street parking required to be provided.

"The rationale behind the parking and density advantages allowed exclusively transient uses is that such uses involve tourist and other temporary occupants. It is assumed that, in general, such transients will have neither as many family members residing in, nor as many guests visiting, each unit as would be expected with a more permanent use.

"Prior to the enactment of Ordinance 84-46, the Board of County Commissioners was presented with a substantial body of information indicating, among other things, the following: 1) numerous hotels and motels in the RU-4A zoning district had either undergone, or were in the process of undergoing, a fragmentation of possession and ownership patterns through long-term leases, subleases, or condominium ownership; 2) this fragmentation was often accompanied by a change in use from the exclusive hotel and motel uses; and 3) many of these properties were in violation of the County's zoning code and in particular the higher density and parking requirements applicable to apartment-type uses. The County Commission studied the matter extensively through a number of hearings and other fact-finding activities, after which it adopted Ordinance 84-46.

"The Ordinance does not enact new substantive requirements for the RU-4A zone, nor does it prohibit the fragmentation of ownership and possessory interests or any use previously permitted in the RU-4A zoning district. Instead, it creates an administrative procedure for assuring that the pre-existing substantive provisions of the County Code are not violated by former hotels and motels undergoing 'subdivision.' ¹ The Ordinance is designed to enable the County to prevent Code Violations early in the subdivision process so that it will be unnecessary at a later time, to bring litigation against a multitude of individual purchasers who may, unwittingly, be using their units unlawfully.

"The ordinance requires subdividers of hotels and motels to give written notice of subdivision to the building and zoning director. Before a subdivided property may receive any new permits or approvals from the County, the owner must demonstrate continued compliance with the pre-existing Code provisions. Pursuant to the ordinance, the administrative mechanism for demonstrating compliance was promulgated by the Director of the Building and Zoning Department and approved by the Board of County Commissioners. Resolution R-1003-84.

"The ordinance further provides that a subdivided hotel or motel is presumed to have undergone a change of use to non-hotel or non-motel use, however, this presumption is rebuttable through an administrative hearing proceeding which is subject to judicial review. The ordinance contains liberal 'grandfather' provisions for subdivision operations in progress prior to its enactment, however, these provisions are not in issue. Finally, the Ordinance contains a standard severability provision.

"The Plaintiffs in effect contend that the validity of the ordinance may only be measured by the 'record' before the County Commission which must include formal studies of the matter. Although this is not the correct test for the validity of police powers legislation, the Court finds that the County Commission did extensively study the matter, and that the ordinance is substantiated both on the record before the County Commission and by the totality of the evidence presented to the Court to date.

"Rather than requiring the prior completion of a formal study or the establishment of a particular record as in judicial proceedings, the courts have judged the findings and actions of the legislative arm of government by the following standards:

Such legislative ascertainments and determinations of facts, unless plainly contrary to those matters of common knowledge of which the courts may take judicial notice, are entitled to such weight as to require clear allegation and proof showing the contrary before the courts would be justified in overturning them, thus casting the burden of allegation and proof upon the party attacking such legislative determinations; it being the general rule that all reasonable presumptions will be indulged in favor of the constitutionality of a legislative act.

Miami Home Milk Producers Assoc. v. Milk Control Board, 169 So. 541, 542 (Fla.1936).

Extrinsic evidence necessary to overturn the presumption of legislative validity 'must be clear, cogent and conclusive.' Rosche v. City of Hollywood, 55 So.2d 909, 913 (Fla.1952).

"In a 1983 decision upholding the validity of a Dade County ordinance imposing stringent regulations upon second-hand dealers in precious metals, the third district court of appeal recognized the following applicable legal standards:

Courts employ certain well-settled tests to determine the validity of legislation enacted for the protection of the public health, safety, welfare, or morals. All legislation will be presumed constitutional if there is any reasonable theory to that end, Hamilton v. State, 366 So.2d 8 (Fla.1978); Golden v. McCarty, 337 So.2d 388 (Fla.1976); Bonvento v. Board of Public Instruction of Palm Beach County, 194 So.2d 605 (Fla.1967) legislation is valid if it may be reasonably construed as expedient for the protection of the public health, safety, welfare or morals, Newman v. Carson, 280 So.2d 426 (Fla.1973); where the police power is exercised in the area of economic regulation, it is valid if the 'means utilized bear a rational or reasonable relationship to a legitimate state objective,' Belk-James, Inc. v. Nuzum, 358 So.2d 174, 175 (Fla.1978); and a court may not substitute its judgment as to the wisdom and policy of the law for that of the legislative body, Holley v. Adams, 238 So.2d 401 (Fla.1970); State v. Reese, 222 So.2d 732 (Fla.1969). The tests employed to determine the validity of an ordinance and a statute are nearly identical. See City of Miami v. Keyfetz, 92 So.2d 798 (Fla.1957); State v. Sawyer, 346 So.2d 1071 (Fla. 3d DCA 1977).

Jones and Metropolitan Dade County v. Gray and Sons, 430 So.2d 8 at 10.

"Regarding zoning ordinances adopted by legislative bodies such as the Board of County Commissioners, if the enactment 'is fairly debatable it should be upheld.' Oka v. Cole, 145 So.2d 233, 235 (Fla.1962). The 'fairly debatable test' has been articulated as follows:

An ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.

City of Miami Beach v. Lachman, 71 So.2d 148 at 152 (Fla.1954).

"The information gathered by the County Commission was that a number of the former hotel and motel properties in the RU-4A district had changed from transient to non-transient use and were in violation of the parking and density requirements of the County Code. This information before the County Commission is corroborated by extensive evidence presented to the Court and had also been verified in large part by the County's Building and Zoning Department which, as a result, supported the drafting and adoption of Ordinance 84-46. Commission hearings also revealed that purchasers of long-term interests in hotels and motels were being misinformed that they could permanently reside in former hotel and motel units.

"The representative of Plaintiff BOP, Inc. testified that the La Playa de la Varadero Motel is an example of its 'conversion' activities. In fact, even before that property was...