Halifax Area Council on Alcoholism v. City of Daytona Beach, 79-21

• Citation: 385 So.2d 184
• Decision Date: 09 July 1980
• Docket Number: No. 79-21,79-21
• Parties: HALIFAX AREA COUNCIL ON ALCOHOLISM, and Serenity House, Inc., a Florida Corporation, Appellants/Cross Appellees, v. CITY OF DAYTONA BEACH, a political subdivision of the State of Florida, Appellee/Cross Appellant.
• Court: Court of Appeal of Florida (US)

Page 184

385 So.2d 184

HALIFAX AREA COUNCIL ON ALCOHOLISM, and Serenity House, Inc., a Florida Corporation, Appellants/Cross Appellees, v. CITY OF DAYTONA BEACH, a political subdivision of the State of Florida, Appellee/Cross Appellant.

No. 79-21.

District Court of Appeal of Florida, Fifth District.

July 9, 1980.

Fred S. Disselkoen, Jr., Ormond Beach, for appellants/cross-appellees.

Gregory J. McDole, Daytona Beach, for appellee/cross-appellant.

FRANK D. UPCHURCH, Judge.

This is an appeal from an order of the Circuit Court for Volusia County which denied appellant's petition for a permanent injunction and writ of mandamus.

Appellant, Serenity House, is a non-profit corporation involved in the rehabilitation of sober alcoholics. It operates out of a house located at 547 High Street in the City of Daytona Beach. The property is zoned "B-P" (Business-Professional).

In August, 1978, the Director of Serenity House applied to the City for a certificate of occupancy. This application was denied, with the City's Chief Building Official contending the use was improper in the particular zone unless limited to daylight hours, with sleeping on the premises prohibited, and certain parking requirements satisfied. The director was referred to the City Planning Board and City Commission and advised to apply for a semi-public use permit. This application was made and denied by the Board and City Commission. Serenity House was then ordered to vacate the premises.

Serenity House then brought the instant action. The trial court denied relief finding that Serenity House's operation is not a permitted use, nor a "similar use" permitted in a "B-P" zone. The court found that Serenity House failed to exhaust its administrative remedies, but held it was nevertheless properly before the court. It also found that the zoning restrictions placed upon Serenity House were not arbitrary or unreasonable. The City has cross appealed on the question of exhaustion and this issue merits our initial consideration.

While the trial court held that Serenity House did not exhaust its administrative remedies it stated that no useful purpose would be served by remanding the case to the City's Board of Adjustment. ¹ As a general proposition, where an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the court will act. 1 Fla.Jur.2d Administrative Law § 147 (1977). See also De Carlo v. Tower of West Miami, 49 So.2d 596 (Fla.1950); Brooks v. School Board of Brevard County, 382 So.2d 422 (Fla. 5th DCA 1980); Hennessy v. City of Fort Lauderdale, 101 So.2d 176 (Fla.2d DCA 1958). In the instant case, the City relies upon Skaggs-Albertson's P., Inc. v. Michels Belle. Bl. P., Inc., 332 So.2d 113 (Fla.2d DCA 1976). This case involved a suit by nearby property owners to enjoin construction of a drugstore alleged to be in violation of a zoning ordinance. Appellees had filed written objections with the city and after five days of inaction, sued for injunctive relief. The court held that appellee's failure to wait for the city's Board of Adjustment to act required the suit be dismissed without prejudice. The court declared that the assertion that the Board would have rubber-stamped the decision did not obviate the need to exhaust administrative remedies. Unlike in Skaggs, Serenity House went through a two step administrative process and the City Commission, the ultimate administrative arbiter, accepted and ruled upon its appeal without requiring Board disposition.

In City of Miami v. Sunset Island, 216 So.2d 509 (Fla.3d DCA 1969), the Third District recognized there is no requirement that one exhaust his administrative remedies prior to seeking mandamus where it is apparent that such a gesture would be futile. In the instant case, the trial court recognized this principle and specifically found that no useful purpose would be served by allowing the Board of Adjustment to consider the matter because the Planning Board and the City Commission had already ruled adversely to appellant. See also Town of Orange Park v. Kager, 351 So.2d 402 (Fla. 1st DCA 1977). We also note that not only did the ultimate administrative body, the City Commission, rule on the matter without requiring a Board determination, but appellant received a potentially misleading letter from the City Building Official. The letter advised appellant that the contemplated use was a "special use" under the ordinance and that it would be necessary for appellant to apply to the "Planning Board and City Commission" for approval. We therefore agree with the trial court that no useful purpose would have been served by visiting an inferior administrative body after the ultimate administrative body, the City Commission, had ruled.

The next question is whether the "Serenity House" operation is a "professional service" or a "similar use" permitted in the "B-P" zoning classification. ² We have concluded that it is and reverse.

Appellant contends that Serenity House is a "professional service" ³ as a "consultant in a related field." As a broad proposition, since zoning regulations are in derogation of private rights of ownership, they should be interpreted in favor of the property owner. Rinker Materials Corp. v. City of North Miami, 286 So.2d 552 (Fla.1973). In addition, they are subject to the same rules of construction as are state statutes. Id.

The principle of ejusdem generis may be applied to aid in the construction of the ordinance. Under this rule, where the enumeration of specific things is followed by a more general word or phrase, the general phrase is construed to refer to a thing of the same kind or species as included within the preceding and more confining terms. However, the rule does not necessarily require that the general provision be limited in its scope to the identical things specifically named, otherwise it would render the subsequent general phrase entirely inoperative. 30 Fla.Jur. Statutes § 92 (1974); Childrens Bootery v. Sutker, 91 Fla. 60, 107 So. 345 (1926). Consideration must therefore be given to the details of the Serenity House operation.

Under the rehabilitation program, four to ten people reside on the property at any given time and stay for varying periods of up to six months. Meetings are held periodically on the premises and counseling service is available twenty-four hours a day with services provided without cost to those unable to pay. The director holds an occupational...