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

• Decision Date: 27 October 1977
• Docket Number: No. 49889,49889
• Citation: 351 So.2d 719
• Parties: CITY OF MIAMI BEACH, Florida, a Florida Municipal Corporation, and Elaine Matthews, City Clerk, City of Miami Beach, Florida, Petitioners, v. MR. SAMUEL'S, INC., a Florida Corporation, Respondent.
• Court: Florida Supreme Court

Page 719

351 So.2d 719

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

No. 49889.

Supreme Court of Florida.

Oct. 27, 1977.

Joseph A. Wanick, Miami Beach, and Lee H. Schillinger of Reichenthal & Weinstein, Miami, for petitioners.

George D. Gold of Moran & Gold, Miami, for respondent.

SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Third District, reported at 334 So.2d 47, because of its conflict with City of Miami Beach v. Atheneum, Inc., 254 So.2d 41 (Fla. 3d DCA 1971), holding that mandamus was an inappropriate remedy to test the action of city officials in denying a license. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. The issue for determination is whether the petitioners had a clear legal duty to issue an occupational license for a specified use when the zoning ordinance does not by its express terms mention that use in any zoning classification, or whether discretion must necessarily be exercised by them in such situation thereby precluding the use of mandamus as an appropriate remedy to compel the issuance of the license. We find that the exercise of discretion by petitioners was involved in determining whether to issue the license, and consequently, quash the decision of the District Court of Appeal, Third District, which court in the instant case held that the City was under an administrative duty to issue the license upon request.

Since June, 1974, respondent has operated a jewelry store at 756 Arthur Godfrey Road, Miami Beach, in a business district zoned C-4 under City of Miami Beach Zoning Ordinance No. 1891. Zoning Ordinance 1891 of the City of Miami Beach describes the "C-4" classification as a "Business District" which is "designed to accommodate a highly concentrated business core, in which businesses serving all residents and visitors of the City are located." The uses permitted in this district include any use permitted in C-1, C-2, or C-3 classifications, cabaret and nightclub. In addition, filling stations and "(u)ses not listed above which are similar in character to one or more permitted uses, and which would not be inappropriate in this District" are permitted as a Conditional Use, upon obtaining approval from the City of Miami Beach Planning Board and the City Council.

The "C-1 Neighborhood Business District" classification permits nineteen specifically authorized uses, including "(p)ersonal service uses, conducted entirely within completely enclosed buildings. Such uses include barber shops, beauty parlors, photographic or artists studios, photographic developing or printing establishment, picture framing shop, shoe repair shop, tailor shop, travel bureau, ticket office, messenger service, taxicab office, newsstand, telephone exchange or telegraphic service stations, dry cleaning or laundry receiving stations, hat cleaning and blocking, self-service or coin operated laundry or dry cleaning establishment and other personal service uses of a similar character." Pawnbrokerage is not a specifically enumerated use. The "C-2 General Office District" classification permits any use permitted in the C-1 District, except conditional uses, automatic ice vending machines and bicycle stores or repair shops. Clinics and health clubs are specifically permitted, but pawn shops are not. The "C-3 Central Business District" classification presently applies solely to the Lincoln Road Mall area. This classification permits fifteen enumerated uses, including the same personal service uses described in the C-1 District. Conditional uses are allowed in this District only for uses "similar in character" and for public or governmental buildings, public parks, public utilities or services, sidewalk cafes and temporary uses, but pawn shops are not mentioned.

Pursuant to Section 7-1 of the Zoning Ordinance, an application for conditional use is first considered by the Planning Board, which forwards its recommendation to the City Council.

In July, 1974, respondent applied for an occupational license as a pawnbroker limited to jewelry. After being informed that under the Miami Beach Zoning Ordinance a pawnbrokerage business could not be operated at its present location without a conditional use permit, respondent applied for such a permit. The application of Mr. Samuel's Inc. was considered by the Planning Board of the City of Miami Beach, which, after holding several public hearings on the matter, recommended denial. The Planning Board's recommendation was submitted to the City Council of the City of Miami Beach which denied the application at its regular meeting of November 6, 1974. Upon respondent's request, the City Council reconsidered the matter at its meeting of December 18, 1974, and after hearing from counsel for respondent voted not to reconsider its previous action.

On April 28, 1975, four months and ten days after the City Council heard respondent's request for a reconsideration of its decision denying the conditional use application, respondent filed a petition for writ of mandamus in the Circuit Court of the Eleventh Judicial Circuit for Dade County, Florida. The circuit court issued its alternative writ of mandamus requiring respondent to show cause why an occupational license for pawnbrokerage should not be issued to respondent immediately upon his payment of $500 to the city clerk. After preliminary pleadings by petitioners and response to the alternative writ, upon respondent's motion for issuance of the writ notwithstanding the return, the trial court entered its final judgment...