City of Miami Beach v. State Ex Rel. Parkway Co. Inc.

• Decision Date: 27 April 1937
• Citation: 128 Fla. 118,174 So. 443
• Parties: CITY OF MIAMI BEACH et al. v. STATE ex rel. PARKWAY CO., Inc.
• Court: Florida Supreme Court

174 So. 443

128 Fla. 118

CITY OF MIAMI BEACH et al. v. STATE ex rel. PARKWAY CO., Inc.

Florida Supreme Court, Division A.

April 27, 1937

Rehearing Denied May 28, 1937.

Error to Circuit Court, Dade County; Jefferson B. Browne, Judge.

Mandamus proceeding by the State, on the relation of the Parkway Company, Inc., trading and doing business as Seiden's Sandwich Shop, against the City of Miami Beach, a municipal corporation in Dade County, and others. To review a judgment granting a peremptory writ of mandamus, defendants bring error.

Affirmed.

COUNSEL J. Harvey Robillard, of Miami Beach, for plaintiffs in error.

Benjamin Cohen and E. L. Lustgarten, both of Miami, for defendant in error.

OPINION

BUFORD Justice.

Parkway Company, Inc., procured issuance of alternative writ of mandamus, the command of which was as follows:

'Now therefore, we being willing that full and speedy justice be done in the premises, Do Command You, City of Miami Beach a municipal corporation, in Dade County, Florida; Louis F Snedigar, as Mayor of the City of Miami Beach, Florida; John H. Levi as President and as member of the Miami Beach City Council and Baron DeHirsch Meyer, R. W. Ralston, William Burbridge, Harry M. Hice, Arthur Childers, and Val C. Cleary, composing and as members of the City Council of the City of Miami Beach, in Dade County, Florida; J. J. Farrey, as Building Inspector of the City of Miami Beach, Florida; and C. W. Tomlinson as City Clerk of the City of Miami Beach, Florida; a municipal corporation in Dade County, Florida, to forthwith issue to said Parkway Company, Inc., a permit to place one hundred and fifty chairs on said premises, or in default thereof that you appear before this Court on the 3rd day of February at 10:30 o'clock A. D. 1936, in Chambers at Miami, Florida, and then and there show cause why you refuse so to do.'

The petition was made a part of the writ by express terms. The pertinent allegations of the petition which was made a part of the writ are as follows:

'The petitioner is now and was on October 2nd, 1934, and at all times between then and now and for some time prior to said date, the absolute owner of the lease of the following described property, lying within the corporate limits of the City of Miami Beach, Florida:

'960 Ocean Drive, City of Miami Beach, Florida.

'As such owner of the lease, the petitioner has the legal right to employ said premises for the purpose of serving sandwiches and meals, soft drinks and other such incidentals as is necessary to serve in the course of conducting a business of such nature and to serve such meals in the patio of the aforesaid premises, having a seating capacity of one hundred and fifty chairs. That your petitioner had the place of business improved last year and previous to that time had a permit for one hundred chairs and since your petitioner had the aforesaid premises improved, he was issued a permit for only fifty chairs, but desires and requests a permit for one hundred and fifty chairs, so long as it is not contrary to law and valid ordinance of the City of Miami Beach, Florida. There exists no restrictions against or limitations upon the use of said premises in that the patio in part and parcel of same premises such as would prevent or deny the petitioner the right to have one hundred and fifty chairs for purpose of serving meals in the patio which is part of same premises as aforesaid.'

The petition then alleges that the relator applied to the building inspector for a permit to place 150 chairs on the above-described property to be used as stated. The permit was not approved, but was refused on the ground that Ordinance No. 289 prohibited the use of the property as contemplated by the application for permit. It is then alleged that there is no ordinance prohibiting such permit.

Motion to quash was made and denied. Thereupon answer was filed. The pertinent part of the answer was as follows:

'They further deny that the petitioner is entitled to the relief prayed for and would further show unto the Court that before the passage of Ordinance No. 289 of the City of Miami Beach Florida, which is commonly known as Zoning Ordinance of the City of Miami Beach, Florida, there existed on the premises known as 960 Ocean Drive of the City of Miami Beach, Florida, a small restaurant occupying a small portion in the center part of said premises facing on Ocean Drive. That upon the passage of the Zoning Ordinance of Miami Beach Florida, in 1930, this small restaurant constituted under said Ordinance a non-conforming use under said Ordinance as then passed. The petitioner then claimed possession of said premises under a lease and thereafter the petitioner without authorization and in direct violation of said Zoning Ordinance of the City of Miami Beach, Florida, built a concrete floor extending from the north side of said restaurant to the lot line on Tenth Street, enclosing said floor with a trellis and placed tables and chairs thereon and served meals in said patio, all in direct violation of said Ordinance No. 289 of Miami Beach, Florida, said extension being an illegal extension of a non-conforming use under said Ordinance. That thereafter the owners of the fee simple title to the property upon which said restaurant and patio were located, or their assigns, constructed a hotel building upon said property, said construction being made in such a manner as to entirely surround, cover and make an integral part of the hotel the premises known as No. 960 Ocean Drive, Miami Beach, Florida. The defendants further say that all of the aforesaid actions of the petitioner were done by the petitioner with full knowledge of the restrictions and provisions of said Zoning Ordinance, as applicable to the premises involved in this cause and that the above described...