02-000477 Edwin Handte vs. Monroe County Planning Commission, Bill Brucato, And Key Largo Produce Status: Closed DOAH Final Order on Tuesday, October 8, 2002.

Summary: There was competent substantial evidence to support Monroe County Planning Commission`s decision that non-conforming use was not abandoned and that successive use of property was not a change in use.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWIN HANDTE, )

)

Appellant, )

)

vs. ) Case No. 02 - 0477

)

MONROE COUNTY PLANNING )

COMMISSION, BILL BRUCATO, and )

KEY LARGO PRODUCE, )

)

Appellees. )

)

FINAL ORDER

On or about July 27, 2001, the Monroe County Building

Department (Department) issued Permit No. 01 - 3 - 2249, based on an

application filed by William I. Brucato (Brucato), d/b/a Key

Largo Produce (Brucato or Key Largo Produce) to construct a

walk - in cooler and interior remodeling for an existing structure

of 2,700 square feet, legally described as Block 11, Lots 13 and

14, located in Largo Sound Park, 103375 Overseas Highway, Key

Largo, Monroe County, Florida, hereinafter referred to as the

property.

Appellant, Edwin Handte (Handte), perfected his appeal of

the Department's decision to the Monroe County Planning

Commission (Commission). Commission staff recommended denial of

Handte's appeal.

The Commission denied Handte's appeal after a he aring on

the merits. The Commission decision is memorialized in

Resolution No. P81 - 01, adopted by the Commission on November 28,

2001. Handte seeks review of the Commission's decision to deny

his appeal. This appeal was timely filed.

Handte filed a Se cond Amended Brief and a Reply Brief, and

the Commission filed an Answer Brief. Oral argument was held on

August 19, 2002, and supplemented on August 26, 2002. 1

The Division of Administrative Hearings, by contract, and

pursuant to Article XIV, Section 9.5 - 535, Monroe County Code

(M.C.C. or Code), has jurisdiction to consider this appeal.

I.

Issues on Appeal

Handte raises three basic issues on appeal: (1) whether

there is competent substantial evidence to support the

Commission's Findings of Fact that Bru cato's use of the property

and structure, i.e. , as a retail/wholesale produce facility, is

not a change of the prior nonconforming use of the property by

Brucato's predecessor, Julio and Donna Guzman (Guzman), d/b/a

All About Beauty and A Touch of Class; ( 2) whether there is

competent substantial evidence to support the Commission's

Findings of Fact that the Guzmans did not abandon or discontinue

their nonconforming use of the property and structure for six

consecutive months; and (3) whether the Commission misapplied

the Code.

II.

Facts

The following facts are gathered from the evidence

presented to the Commission, which are contained in the Record. 2

On December 12, 1985, the Building and Zoning Department of

Monroe County, Florida, issued a building perm it to Bill Lloyd,

the owner of the subject property at the time, for a sewing

center, land clearing, and fill. On March 7, 1986, the Monroe

County Building Department issued a Certificate of Occupancy for

the building located on the property to be used as a sewing

center.

The building is 2,700 square feet and metal in composition.

The property is located in an Improved Subdivision District (IS -

M) land use district.

The building was originally used as a sewing center, which

began operation on the propert y from March 1986 until in or

around 1993 when the Guzmans (Julio and Donna) began the

operation of a beauty salon, known as All About Beauty, in or

around 1993. 3 The name, "A Touch of Class," also appears in the

Record, and was created in 1993, at or aro und the same time as

All About Beauty. Retail and wholesale beauty supplies were

sold by All About Beauty.

Monroe County issued occupational licenses to Donna Guzman

and All About Beauty, Inc., for the business address of the

property, to expire on Septe mber 30, 2001.

Donna and Julio Guzman executed a sworn affidavit 4 on

April 20, 2001, stating in part:

1. THAT they are the owners of real

property located at 103375 Overseas Highway,

Key Largo, Florida 33037.

2. THAT until April 13, 2001,

inventory was being stored and goods were

being wholesaled and retailed by Carmen

Martel, agent for All About Beauty.

3. THAT as of this date, All About

Beauty maintains a current business license,

bank account with First State Bank and full -

time yard service and par king agreements.

In or around June of 2000, Mr. Guzman placed the property

and the building on the market for sale or lease. The building

remained on the market and was actively shown by real estate

agent Misty Pace until April 2001, when it was purchase d by

Brucato. Mr. Guzman placed hurricane shutters on the property

at or around the time he listed the property for sale. One door

was not boarded up in order to provide access to the building.

Whether the Guzmans abandoned or discontinued the use of

the property from June of 2000 until April of 2001 was the

subject of much debate before the Commission and is an issue

which will be resolved in this appeal. (The Commission found

that the Guzmans did not abandon or discontinue their use of the

property dur ing this time.)

As noted, the Guzmans stated that they continued to store

inventory in the building until April 13, 2001. Ms. Pace

confirmed this statement. During cross - examination, Ms. Pace

stated that "[t]he building was never abandoned." She also

st ated that she had been in the building during this time and

that

. . . [h]is [Mr. Guzman] daughter continued

to sell beauty supplies. There was also

Mr. Guzman's furniture in there from his

house that he had been selling. There was

also a full canvas ope ration in there that

included machinery. There was [sic] a lot

of boxes. When we showed the property we

actually had to weed through some of the

stuff. The building was full of his stuff.

His daughter sold the stuff. I actually

opened up the door to l et people in to pick

up some supplies that they had paid her for

from her. She called me many times.

Ms. Pace stated that "[t]here was a full canvas shop," with

"rolls and rolls of canvas. There was [sic] beauty supply

stations with the sinks and the sh ampoo stuff, and all the

equipment to go with beauty supplies." Customers bought beauty

supplies there, but she was unaware whether "the canvas stuff"

was sold. However, Ms. Pace opened "the door for a couple of

people who called. [Mr. Guzman's] daughte r called and said

would you -- this lady is going to pick up her stuff. It was in

boxes like this. He sold everything in big boxes," i.e. , beauty

supplies were sold either in boxes or sold individually.

Ms. Pace "bought 15 bottles of shampoo." This was when Mr.

Guzman "was selling everything out." (Prior to becoming a

realtor, Ms. Pace was a hairdresser and bought supplies from

Mrs. Guzman.)

Ms. Pace also bought a dresser after Mr. Guzman left. (Mr.

Guzman left the furnishings and "all of his stuff," i.e. , beds,

mattresses, living room sets, and refrigerators, from his house

in the building, which "were continuously being sold by his

daughter.")

During the time the property was for sale, Ms. Pace recalls

three incidents when she opened the door to let them pick up

beauty supplies.

The electricity to the building was terminated on or around

April or June 2000. But according to Ms. Pace, the sales

continued.

The Record also contains two receipts, July 10, 2000, and

December 4, 2000, for beauty supplies, such as shampoo, curlers,

combs, etc. It appears these products were sold out of the

property. These receipts indicated that sales tax were

calculated for each sale.

These facts are contrasted with other evidence of non - use.

A Department of Revenue fac simile to Handte's counsel dated

November 27, 2001, stated that the sales tax accounts for All

About Beauty, Inc., and A Touch of Class were closed on June 30,

2000.

All About Beauty, Inc., with the same principal address as

the property, was a Florida cor poration, but voluntarily

dissolved on August 14, 2000. The State of Florida, Department

of Revenue reported that the sales tax accounts for All About

Beauty, Inc., and A Touch of Class were closed on June 30, 2000.

The electricity was terminated on or ar ound April or June 2000.

Handte provided an affidavit and also testified that he has

been a resident of Key Largo, Florida, for 19 years; that his

office is located at 103365 Overseas Highway, Block 11, Lot 15

[the property in question includes Lots 13 and 14]; and further,

that the Guzman building

was boarded up with the exception of the

front door. The power was turned off, the

water was turned off, there was no business

use of this property since the owner left.

On April 27, 2001 power was restored to this

building. . . .

Handte elaborated on his affidavit during the hearing.

Handte is building a house adjacent to the rear of the property.

His office building is zoned IS - M, the same as the property.

Handte confirms that the building (or structure) wa s not

abandoned, only the use. There was a for sale sign on the

property before Mr. Guzman left, until April 2001. According to

Handte, only the front door was not boarded up to give access to

the realtors to show the property. Handte says there was no

business conducted on the property from June 2000 until April

2001.

Several neighbors offered letters and testimony to support

Handte's position that the property was not being used after

June 2000.

Ross Bloodworth, living within 300 feet of the Brucato' s

business, was a friend of Mr. Guzman and helped "him pack up all

of the supplies that he had from the beauty salon business so he

could return those. And the only items that were kept in that

business were of his personal property from his house." Mr.

Bloodworth confirmed that the electricity was disconnected in

April 2000. He clarified that he assisted Mr. Guzman in

"packing up some of the beauty supplies that he had in the

building, but he took care of relinquishing the supplies," i.e. ,

"[Mr. Guzman] apparently probably sent them back to the people

he had purchased it for credit." But, "pretty much all the

beauty supplies was [sic] gone." Mr. Bloodworth also recalled

Mr. Guzman had "some things in there for a boat canvas top

repair shop that he had in there."

Richard Holt rents an office from Handte next to the

property. He last saw Mr. Guzman at the dumpster around

June 16, 2000. He did not see anyone else occupying the

building on the property until the new owner improved the

property.

Also, se veral neighbors objected to a produce store being

located in the neighborhood and raised concerns regarding, e.g. ,

the rot and stench which will result - a health hazard, and

increases in traffic. Several others signed petitions opposing

the produce store .

Brucato purchased the property from the Guzmans in April

2001. Brucato's business on the property will be the retail

sale of fruits and vegetables to the public. He also offers a

delivery service off premises. He also intends to actively

engage in a w holesale business at the property, but it is his

intention to essentially engage in retail sales on the property.

Brucato has not expanded the property since the purchase.

Brucato built an air - conditioned dumpster inside the

building where it is enclose d. The garbage remains there until

it is emptied (trash picked - up) when it is returned inside.

Brucato expects there will be normal traffic, although he

does not know how many cars will visit the property because he

"just got in." He picks up his produce from Miami.

Prior to purchasing the property, Brucato received a letter

dated April 6, 2001, from Martin Schultz, Senior Planner, for

Monroe County, which states:

This letter is in response to your inquiry

about operating a wholesale/retail produce

facili ty at this site. According to the

official Land Use District Map, this

property is zoned Improved Subdivision (IS).

The commercial building is greater than

2,500 square feet, which makes this building

a non - conforming use. However, after

consultation wi th the Sixth Edition of Trip

Generation, published by the Institute of

Traffic Engineers, staff had determined that

both the current use and your proposed use

are low - intensity commercial retail uses.

Therefore, this does not constitute a

disallowed chang e in use.

It is not necessary for you to receive any

approval from the Planning Department.

However, please remember than [sic] anything

you pursue for the site that is considered

"development" (including signage) will

require you to submit a site plan ( and

associated building permit applications) and

bring the site into conformity to the

maximum extent possible. In addition, since

the use is non - conforming, only ordinary

repair and maintenance is allowed. No

enlargement of the use as an addition or

occ upancy of additional lands is allowed.

Marlene Conaway, planning director, opined that Brucato's

intended use of the property is not a change in use of the

property because his use is in the same classification of

intensity (retail/wholesale) of use as h is predecessor. Ms.

Conaway also advised that a prior use would continue as long as

the property was for sale. According to Ms. Conaway, this issue

"has come up a number of times" and resolved in this manner.

In Resolution No. P81 - 01, the Commission mad e the following

Findings of Fact and Conclusions of Law:

1. Bill Brucatto [sic], owner of Key Largo

Produce, received permit # 01 - 3 - 2249, issued

by the Monroe County Building Department on

July 27, 2001.

2. Based on the application submitted, we

find tha t Edwin Handte, a nearby neighbor in

Largo Sound Park, appealed the issuance of

the building permit on September 4, 2001.

3. Based on the evidence and testimony

submitted, we find that the IS - M land use

district permits commercial retail of low -

and medium intensity and office uses or any

combination thereof less than 2,500 square

feet of floor area as a major conditional

use and that the IS - M sub - district indicator

refers strictly to detached dwellings of

masonry construction, not commercial

buildings. Th erefore we find that the

building, with 2,700 square feet of floor

area, in the IS - M land use district is a

lawful non - conforming structure due to its

size.

4. Based on the evidence and testimony

submitted, we find that the building permit

was issued for an interior remodel and walk -

in cooler. The interior remodel and walk - in

cooler does not constitute a change of

footprint to the structure thus there is no

enlargement to the lawful non - conforming use

and therefore we find that the structure

does not have to come into further

compliance in the IS - M land use district.

5. Based on testimony and evidence

submitted, we find that The Sewing Center,

All About Beauty and now Key Largo Produce,

all retail/wholesale establishments, have

held occupational licenses in this building

since 1986. Section 9.5 - 144 of the Land

District Regulations states that "a

nonconforming use devoted to a use permitted

in the land use district in which it is

located may be continued in accordance with

the provisions of this section. We find

that an organic produce retail/wholesale

establishment is of the same land use

intensity as the Sewing Center and All About

Beauty retail/wholesale establishments.

Therefore we find that Key Largo Produce as

a retail/wholesale establishment can

co ntinue in this building as no change of

use has occurred.

6. Based on evidence and testimony

submitted, we find that the owner was old

and or ill and chose to sell the property

and go out of business and had no intent to

abandon the property or its existi ng uses.

We conclude that testimony confirmed that

the property had been listed for sale on the

real estate market at the time the owner had

the power disconnected. Therefore, we

conclude that the non - conforming use was not

abandoned per Section 9.5 - 144( e)(1) of the

Monroe County Code; and

7. Based on sworn testimony and evidence,

we find that the Growth Management staff

acted reasonably in their interpretation of

the Monroe County Code in accordance with

past practices and previous applicants in

making the determination that the use had

not changed and that the use had not been

abandoned since the use was either in full

operation as a retail/wholesale operation or

on the real estate market for sale

throughout June 2000; and

8. Based on the sworn testi mony and

evidence submitted, we find that the

applicant acted in reliance on Growth

Managements staff's understanding that the a

[sic] wholesale/retail low - medium intensity

use would be permitted to continue at the

former location of All About Beauty; NOW

THEREFORE,

BE IT RESOLVED BY THE PLANNING COMMISSION OF

MONROE COUNTY, FLORIDA, that the preceding

Findings of Fact and Conclusions of Law

support it's [sic] decision to DENY the

appeal of Edwin Handte for the Planning

Department approval of building permi t

# 01 - 3 - 2249 for interior remodel and walk - in

cooler.

III.

Legal Discussion

The Division of Administrative Hearings has jurisdiction

over the subject matter of this proceeding and of the parties

pursuant to Article XIV, Section 9.5 - 535, M.C.C. The hear ing

officer "may affirm, reverse or modify the order of the planning

commission." Article XIV, Section 9.5 - 540(b), M.C.C. The scope

of the hearing officer's review under Article XIV is:

The hearing officer's order may reject or

modify any conclusion of l aw or

interpretation of the Monroe County land

development regulations or comprehensive

plan in the planning commission's order,

whether stated in the order or necessarily

implicit in the planning commission's

determination, but he may not reject or

modify any findings of fact unless he first

determines from a review of the complete

record, and states with particularity in his

order, that the findings of fact were not

based upon competent substantial evidence or

that the proceeding before the planning

commi ssion on which the findings were based

did not comply with the essential

requirements of law.

Id. "The hearing officer's final order shall be the final

administrative action of Monroe County." Article XIV, Section

9.5 - 540(c), M.C.C.

In DeGroot v. S heffield , 95 So. 2d 912 (Fla. 1957), the

Court discussed the meaning of "competent substantial evidence"

and stated:

We have used the term "competent substantial

evidence" advisedly. Substantial evidence

has been described as such evidence as will

establi sh a substantial basis of fact from

which the fact at issue can be reasonably

inferred. We have stated it to be such

relevant evidence as a reasonable mind would

accept as adequate to support a conclusion.

. . . In employing the adjective "competent"

to modify the word "substantial" we are

aware of the familiar rule that in

administrative proceedings the formalities

and the introduction of testimony common to

the courts of justice are not strictly

employed. . . . We are of the view,

however, that the evi dence relied upon to

sustain the ultimate findings should be

sufficiently relevant and material that a

reasonable mind would accept it as adequate

to support the conclusion reached. To this

extent, the "substantial" evidence should

also be "competent."

Id. at 916 (citations omitted.)

A hearing officer (Administrative Law Judge) acting in his

or her appellate review capacity is without authority to reweigh

conflicting testimony presented to the Commission or to

substitute his or her judgment for that o f the Commission on the

issue of the credibility of witnesses. See Haines City

Community Development v. Heggs , 658 So. 2d 523, 530 (Fla. 1995).

The question before the undersigned is not whether the

record contains competent substantial evidence supporti ng the

view of Handte; rather, the question is whether competent

substantial evidence supports the findings made by the

Commission. See generally Collier Medical Center, Inc. v.

State, Department of Health and Rehabilitative Services , 462 So.

2d 83, 85 ( Fla. 1st DCA 1985).

The issue of whether the Commission "complied with the

essential requirements of law" is synonymous with whether the

Commission "applied the correct law." Haines City Community

Development , 658 So. 2d at 530.

All of these concepts a re particularly relevant here

because there are conflicts in the evidence and the Commission

resolved these conflicts contrary to Handte's position.

IV.

Article V of the Code regulates nonconforming uses. "The

purpose of this article is to regulate and li mit the continued

existence of uses and structures established prior to the

enactment of this chapter that do not conform to the provisions

of this chapter. Many nonconformities may continue, but the

provisions of this article are designed to curtail subs tantial

investment in nonconformities and to bring about their eventual

elimination in order to preserve the integrity of this chapter."

Article V, Section 9.5 - 141, M.C.C. See also JPM Investment

Group, Inc. v. Brevard County Board of County Commissioner s , 818

So. 2d 595, 598 (Fla. 5th DCA 2002).

The Code expressly provides that "[n]onconforming uses of

land or structures may continue in accordance with the

provisions of this section." Article V, Section 9.5 - 143(a),

M.C.C. (The Commission mistakenly cit es Section 9.5 - 144, which

pertains to "nonconforming structures" and is not applicable

here. Handte does not suggest that the structure on the

property was abandoned. Rather, he claims that the

"nonconforming use" was abandoned. Section 9.5 - 143, pertain ing

to "nonconforming uses," is applicable here.)

"Normal maintenance and repair to permit continuation of

registered nonconforming uses may be performed." Article V,

Section 9.5 - 143(b), M.C.C. "Nonconforming uses shall not be

extended" and "[t]his prohi bition shall be construed so as to

prevent. . . [e]nlargement of nonconforming uses by additions to

the structure in which such nonconforming uses are located" or

". . .[o]ccupancy of additional lands." Article V, Section 9.5 -

143(c)(1)(2), M.C.C.

Further , "[a] nonconforming use shall not be changed to any

other use unless the new use conforms to the provisions of the

land use district in which it is located." Article V, Section

9.5.143(e), M.C.C.

Finally, "[w]here a nonconforming use of land or structur e

is discontinued or abandoned for six (6) consecutive

months. . . , then such use may not be reestablished or resumed,

and any subsequent use must conform to the provisions of this

chapter. . . ." Article V, Section 9.5 - 143(f)(1), M.C.C.

It appears tha t these land use regulations should be

strictly construed. See , e.g. , County Council of Prince

George's County v. E.L. Gardner, Inc. , 293 Md. 259, 443 A. 2d

114 (1982). See also Lee v. City of Jacksonville , 793 So. 2d

62, 67 (Fla. 1st DCA 2001)(Browning, J., dissenting)("An

ordinance is construed according to the enacting body's intent,

and as the ordinance affects real property, strict construction

is required." (citation omitted.))

Further, it is a fundamental rule of statutory construction

that statuto ry provisions which are part of the same act, here

the Code, should be read in pari materia . Florida Jai Alai,

Inc. v. Lake Howell Water & Reclamation District , 274 So. 2d 522

(Fla. 1973); Hernandez Investment Group, Inc. v. Monroe County,

Florida , Case N o. 97 - 4581 (DOAH Final Order June 5, 1998).

V.

The first issue to resolve is whether there is competent

substantial evidence to support the Commission's findings that

Brucato's intended use of the property is a continuing

nonconforming use of his predeces sors use.

What is a change in a nonconforming use has been the

subject of debate. See , e.g. , 7 Fla. Jur. 2d, Building,

Zoning, and Land Controls , Section 207, (1997); 83 Am. Jur. 2d

Zoning and Planning , Sections 660 - 690 (1992).

Article VII of the Code p rovides for "land use districts."

Section 9.5.231 provides for "permitted uses" and states in

part: "No structure or land in Monroe County shall hereinafter

be developed, used or occupied unless expressly authorized in a

land use district in this divisio n." Article VII, Section 9.5 -

231(a), M.C.C.

The property is located in the Improved Subdivision (IS - M)

land use district. (A "land use" includes "[a] use that is

permitted or permissible on the land under the plan, or element

or portion thereof, of lan d development regulations. Article I,

Section 9.5 - 4(L - 3(c), M.C.C.) This land use district authorizes

commercial retail of low and medium intensity and office uses or

any combination thereof of less than 2,500 square feet of floor

area as a major conditi onal use. Article VII, Section 9.5 -

242(d)(1), M.C.C. Subsection 9.5 - 242(d)(1) provides for a

general classification of land uses (commercial retail/office

uses or any combination thereof) within the land use district,

based on the level of intensity and square footage, not

specifically on type or kind of use. 5

The Guzmans' previous use of the property was nonconforming

because the building is 2,700 square feet, or 200 feet in excess

of the allowable limit. (Brucato does not intend to extend or

add to t he size of the building.)

While the details of the prior use of the property are

limited, there is evidence that All About Beauty and the Sewing

Center operated in the building (on the property) as retail and

wholesale commercial businesses since 1986, and that these uses

are categorized as low - intensity commercial retail pursuant to

Section 9.5 - 4(C - 14(a)) of the Monroe County Code. There is also

evidence from Brucato that his business will be the retail sale

of fruits and vegetables to the public, with sa les also at

wholesale.

Planning staff, including Ms. Conaway, concluded that

Brucato's intended use did not constitute a change in use

because the prior and subsequent uses of the property were sales

at retail and wholesale. Ms. Conaway also explained t hat there

is no change in use because both uses maintained the same level

of intensity.

With respect to traffic, again the evidence is limited and

in dispute, but Brucato did not believe Key Largo Produce would

increase customer traffic beyond the "norma l use," although he

was unsure. Brucato also stated that he would not add new

parking spaces nor add to the building. Further, Senior Planner

Schultz advised Brucato that "after consultation with the Sixth

Edition of Trip Generation, published by the Ins titute of

Traffic Engineers, staff has determined that both the current

use and [Brucato's] use are low - intensity commercial retail

uses. Therefore, this does not constitute a disallowed change

in use." (" Commercial retail low - intensity means commercial

retail uses that generate less than fifty (50) average daily

trips per one thousand (1,000) square feet." Article I, Section

9.5 - 4(C - 14(a)), M.C.C. (emphasis added.)) Handte produced

evidence that traffic would increase, especially around the

neighborhoo d.

It is the intent of the Code to limit the continuation of

nonconforming uses under narrow circumstances. This is

consistent with extant law.

Nevertheless, the Commission had the prerogative to

consider and weigh all of the evidence on this issue an d did so.

It appears that the Commission and staff used a class of use

analysis when comparing the prior uses of the property with

Brucato's intended use. It does not appear that the

Commission's (and staff) class of use approach is inconsistent

with Subs ection 9.5 - 143(e), where the Code provides for

"permitted uses" by enumerated classifications within specified

land uses districts, and specifically here regarding uses within

Subsection 9.5 - 242(d)(1). But see Beyer v. Mayor and City

Council of Baltimore City , 182 Md. 444, 34 A. 2d 765, 769

(1943)(rejecting class of use analysis where use was abandoned).

There is competent substantial evidence to support the

Commission's Findings of Fact that Brucato's proposed use of the

property is not a change in use. The Commission's Conclusion of

Law on this issue is also supported by the record.

The next issue is whether there is competent substantial

evidence to support the Commission's Findings of Fact that the

Guzmans did not discontinue or abandon their use of the property

after June 2000.

There is no definition of abandonment or discontinuance in

the Code. However, whether property or a use of property has

been abandoned or discontinued has also been the subject of

debate. See , e.g. , 7 Fla. Jur. 2d, Building, Zoning and Land

Controls , Section 206 (1997); 83 Am. Jur. 2d, Zoning and

Planning , Sections 682 - 690 (1992).

As a general rule, "[a]bandonment occurs when the landowner

intentionally and voluntarily foregoes further nonconforming use

of the property." Lew is v. City of Atlantic Beach , 467 So. 2d

751, 755 (Fla. 1st DCA 1985)(citations omitted). "Abandonment

is a question of intent and he who asserts it has the burden of

proving it." J.C. Vereen & Sons, Inc. v. City of Miami , 397 So.

2d 979, 981 (Fla. 3d DC A 1981)(citation omitted). Further, as

noted by one court: "Discontinuance or abandonment involves

more than mere cessation. It results from the concurrence of

two factors: (1) an intent to abandon and (2) some overt act or

failure to act which carries the implication that the owner

neither claims nor retains any interest in the subject matter of

the abandonment." Quinnelly v. City of Prichard , 292 Ala. 178,

291 So. 2d 295, 299 (1974)(citations omitted).

Again, the evidence is in dispute. Ultimately, the

Commission determined that the Guzmans did not abandon their

nonconforming use, based on the Commission's findings that

Mr. Guzman "chose to sell the property and go out of business

and had no intent to abandon the property or its existing uses."

The Commission accepted the evidence which indicated that "the

use was either in full operation as a retail/wholesale operation

or on the real estate market for sale throughout June 2000."

The Commission also accepted the sworn testimony from Growth

Managemen t Staff, namely Ms. Conaway, that past practices had

allowed for the continuation of nonconforming uses during the

sale of a building or structure, where a nonconforming use

transpired.

When the evidence is viewed in the light most favorable to

the Commiss ion's findings, there is competent substantial

evidence to support the Commission's findings that the Guzmans

continued their nonconforming, retail/wholesale operation from

June 2000 through April 2001. As a result, the Commission's

ultimate finding, that the Guzmans did not abandon or

discontinue their nonconforming use, is supported by the record.

The Commission's Conclusion of Law regarding this issue is

also supported by the record.

DECISION

Based upon the foregoing, the Commission's decision to deny

Handte's appeal is AFFIRMED.

DONE AND ORDERED this 8th day of October, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1 230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of October, 2002.

ENDNOTES

1 / During oral argument, the parties were advised that three

documents referred to in the Commission Resolution were missing

from the Record on Appeal (Record), page 90; items 1, 4, and 5,

i.e. , the building application permit, a memorandu m of the

Monroe County Code Enforcement Inspector Yoli Krauss; and a

memorandum from Raj Shanmugam of URS referencing land intensity

and change of use. The parties coordinated their efforts to

locate these documents. The Commission filed a Motion to

Supp lement the record with these documents, which were attached

to the Motion. Handte objects only to the third item, which he

says was not introduced during the hearing. The Commission has

not filed a response. Based on the objection and a review of

the Re cord, the Record is supplemented only with the first two

documents and not the memorandum from Raj Shanmugam.

2 / See Article XIV, Section 9.5 - 538, M.C.C. for the contents of

the Record, which includes "[a]ll applications, memoranda, or

data submitted to the [C]omission" and "[e]vidence received or

considered by the" Commission.

3 / The Guzmans' use of the building/structure was a

nonconforming use because the floor area was (and continues to

be) 2,700 square feet, which exceeds the 2,500 square foot

max imum floor area for property designated as commercial retail

of low and medium intensity. See Article VII, Section 9.5 -

242(d)(1), M.C.C. Handte argues that Brucato has changed the

use of the property and, as a result, such use is a major

conditional use subject to conformity with other, more stringent

criteria in the Monroe County Code.

4 / There was some discussion during the Commission hearing

regarding whether the affidavit was before the Commission.

Handte's counsel had a copy and the staff report o f November 2,

2001, reflects consideration of the affidavit. Chair David C.

Ritz announced that the Commission had one copy of the affidavit

and it would appear that the affidavit was considered by the

Commission in reaching its decision. (Record, pages 8 and 119).

5 / Contrary to Handte's position, the Commission properly

applied the current provisions of the Code in this case. See

generally Dowd v. Monroe County , 557 So. 2d 63 (Fla. 3d DCA

1990), cause dismissed , 564 So. 2d 488 (Fla. 1990).

COPIES F URNISHED :

Karen K. Cabanas, Esquire

Morgan & Hendrick

Post Office Box 1117

Key West, Florida 33041

David George Hutchison, Esquire

Post Office Box 1262

Key Largo, Florida 33037 - 1262

Nicholas W. Mulick, Esquire

Hershoff, Lupino & Mulick

90130 Old Highw ay

Tavernier, Florida 33070

Nicole Petrick, Staff Assistant

Monroe County Planning Department

2798 Overseas Highway, Suite 400

Marathon, Florida 33050

NOTICE OF RIGHTS

Pursuant to Article XIV, Section 9.5 - 540(c), M.C.C., this

Final Order is "the fi nal administrative action of Monroe

County." It is subject to judicial review by common law

petition for writ of certiorari to the circuit court in the

appropriate judicial circuit.