City of Miami Beach v. Sunset Islands 3 & 4 Property Owners Ass'n

• Decision Date: 03 December 1968
• Docket Number: Nos. 68--330,68--331,s. 68--330
• Citation: 216 So.2d 509
• Parties: CITY OF MIAMI BEACH, a municipal corporation under the laws of the State of Florida, and Meyer Z. Reuben, Appellants, v. SUNSET ISLANDS 3 & 4 PROPERTY OWNERS ASSOCIATION, Inc., a non-profit corporation, Appellee.
• Court: Florida District Court of Appeals

Page 509

216 So.2d 509

CITY OF MIAMI BEACH, a municipal corporation under the laws of the State of Florida, and Meyer Z. Reuben, Appellants, v. SUNSET ISLANDS 3 & 4 PROPERTY OWNERS ASSOCIATION, Inc., a non-profit corporation, Appellee.

Nos. 68--330, 68--331.

District Court of Appeal of Florida, Third District.

Dec. 3, 1968.

Rehearing Denied Jan. 9, 1969.

Joseph A. Wanick, City Atty., Irving Cypen, Miami Beach, for appellants.

Pallot, Silver, Pallot, Stern & Proby, Miami, for appellee.

Before PEARSON, BARKDULL and HENDRY, JJ.

BARKDULL, Judge.

Involved in these appeals is the propriety of a peremptory writ of mandamus, directing the Chief Building Inspector of the City of Miami Beach to enforce the provision of the zoning code of said City in reference to certain property located therein.

From the record on appeal, the following is revealed: Lots 22 to 35 (inclusive), Block 15A, ISLAND VIEW ADDITION, Plat Book 9, page 44, of the Public Records of Dade County, Florida, were located in a use district known as 'BD' which, among other things, permitted 'boat or yacht storage * * *'. Following necessary procedural steps in holding a public hearing, the City of Miami Beach amended its comprehensive zoning ordinance (by its duly constituted authority) and moved this property from a 'BD' business district to a 'BB' business district. Thereafter, the 6 lots involved in this litigation (being lots 28 through 33 inclusive) were sold and disposed of and came into the control and use of the Miami Beach Yacht Corporation, which owned adjacent property to the west whereon, among other things, they conducted a boat manufacturing business. Subsequent to the property being placed in a 'BB' business district, boats belonging to the Miami Beach Yacht Corporation were stored on these properties. Counsel for the appellee-relator requested the Chief Building Inspector (appellant, Reuben) to cause this unauthorized use of these lots for boat storage to be halted, he being the responsible authority in the City of Miami Beach charged with this duty pursuant to the City's comprehensive zoning ordinance, as follows: 'It shall be the duty of the building inspector to enforce this ordinance.'

When it became apparent that the building inspector was not going to discharge his duty and was not going to attempt to halt the unauthorized use in this 'BB' business district, the appellee (as relator in the trial court) filed a petition for alternative writ of mandamus, which petition was granted and the alternative writ issued. Following service of the alternative writ and a copy of the petition upon the respondents ¹ (the appellants herein), they duly filed a motion to quash (which was denied) and a response to the alternative writ. Subsequently, the matter came on for final hearing in the trial court, which entered the peremptory writ here under review directing the appellant, Reuben, to require the removal of the boats being stored on the property involved, and requiring him to enforce the cessation of the use of these properties for the purpose of storing boats thereon. This appeal ensued, and the appellants have preserved two points for review: (1) Whether the court erred in denying the motion to quash and (2) Whether the court erred in entering the peremptory writ. We affirm.

Mandamus is a recognized remedy to require a public official, who is clothed with the authority, to discharge his duty. State ex rel. Boucher v. Foley, 128 Fla. 800, 175 So. 900; State ex rel. Miller v. Doss, 141 Fla. 233, 192 So. 870; 21 Fla.Jur., Mandamus, § 47. There is no requirement that a relator exhaust his administrative remedies prior to seeking the issuance of an alternative writ of mandamus, when it is apparent that either such a gesture would be a futile one or that there is no discretion to be exercised by the official involved under the clear wording of either a statute or an ordinance designating him as the authoritative person to respond thereunder. City of Miami Beach v. State ex rel. Parkway Company, Inc., 128 Fla. 118, 174 So. 443; Cook v. DiDomenico, Fla.App.1961, 135 So.2d 245.

As to the second point, the record brought to us (which was presented to the trial court) was certainly ample to support his decision. The comprehensive zoning ordinance of the City of Miami Beach recognized that certain property could be used for boat storage if it was located in a 'BD' business district or one more liberal than 'BB' business district. Certainly, as this is the first mention of boat storage in...