City of Miami Beach v. Mr. Samuel's, Inc., 75--816

• Decision Date: 06 April 1976
• Docket Number: No. 75--816,75--816
• Citation: 334 So.2d 47
• Parties: CITY OF MIAMI BEACH, a Florida Municipal Corporation, and Elaine Matthews, City Clerk, City of Miami Beach, Florida, Appellants, v. MR. SAMUEL'S, INC., a Florida Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 47

334 So.2d 47

CITY OF MIAMI BEACH, a Florida Municipal Corporation, and Elaine Matthews, City Clerk, City of Miami Beach, Florida, Appellants, v. MR. SAMUEL'S, INC., a Florida Corporation, Appellee.

No. 75--816.

District Court of Appeal of Florida, Third District.

April 6, 1976.

Rehearing Denied July 6, 1976.

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

Moran & Gold, Miami, for appellee.

Before BARKDULL, C.J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.

PEARSON, Judge.

The City of Miami Beach was the respondent to a petition for mandamus brought by Mr. Samuel's Inc., seeking an order requiring the City to issue to the petitioner a pawnbroker's license for the pawning of jewelry. The City appeals a final judgment issuing the peremptory writ. We affirm.

The City provides for pawnbrokers' licenses and sets the fee for such licenses. The zoning ordinance does not, by its expressed terms, mention pawnbrokers in any zoning classification. Mr. Samuel's, Inc., applied for the license in a 'C--4' zone which is described in the ordinance: 'A. DISTRICT PURPOSE. This District is designed to accommodate a highly concentrated business core, in which businesses serving all residents and visitors of the City are located.' It is also provided that all businesses permitted in C--1, C--2 or C--3 are allowed in C--4. The only remaining business classifications are C--5 and C--6. C--5 permits 'high density residential, retail, and light and heavy service commercial development.' C--6 is entitled 'Intensive Commerical District.'

The trial court found that 'it affirmatively appears that (1) the Respondents' refusal to issue Petitioner the aforesaid license is arbitrary, unreasonable and unjust, and (2) the Petitioner has no other plain, speedy and adequate remedy at law . . .' It, thereupon, ordered the issuance of the preemptory writ.

The appellant argues that the issuance of the writ was error for two reasons: First, the City says that because the merchant, upon advice of the City Attorney, applied for and received a hearing before the City Council on his application, he should be limited to a review of the City Council's action by certiorari. Second, the City says that because pawnbrokers are not specifically listed by its zoning ordinance in any business district, the City has the discretion of where to put pawnbrokers and, therefore, that the issuance of a pawnbrokers' license is a discretionary act for which mandamus...