11-004994
Rock Harbor Marina, Inc. vs.
Monroe County Planning Commission
Status: Closed
DOAH Final Order on Friday, May 4, 2012.
DOAH Final Order on Friday, May 4, 2012.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ROCK HARBOR MARINA, INC., ) )
14Appellant, ) )
17vs. ) Case No. 11-4994
22)
23MONROE COUNTY PLANNING )
27COMMISSION, )
29)
30Appellee, )
32)
33and )
35)
36FLORIDA KEYS QUALITY FOODS, )
41INC., d/b/a MANDALAY OCEANFRONT )
46GRILL & TIKI AND MORGAN OCEAN )
53SUNRISE, LLC, )
56)
57Intervenors. )
59________________________________)
60FINAL ORDER
62Appellant, Rock Harbor Marina, Inc. (Rock Harbor or
70Appellant), seeks review of Monroe County Planning Commission
78(Commission) Resolution No. P17-11 (Resolution) dated August 4,
862011, which approved the application of Intervenor, Florida Keys
95Quality Foods, Inc., d/b/a Mandalay Oceanfront Grill & Tiki
104(Florida Keys), for a 5SRX Alcoholic Beverage Special Use Permit.
114A two-volume record of the underlying proceeding was filed on
124October 20, 2011. In support of its appeal, on December 2, 2011,
136Appellant submitted an Initial Brief. The Commission, joined by
145Florida Keys, submitted an Answer Brief on February 17, 2012.
155Appellant submitted a Reply Brief on March 14, 2012. Intervenor,
165Morgan Ocean Sunrise, LLC (Morgan), the owner of the subject
175property, was authorized to intervene on February 24, 2012, but
185did not file a brief. Oral argument was heard by video
196teleconferencing at facilities in Marathon and Tallahassee on
204April 16, 2012.
207ISSUES
208Appellant raises three issues on appeal: (1) whether the
217findings in the Resolution are supported by competent substantial
226evidence; (2) whether the Commission departed from the essential
235requirements of the law by failing to apply the correct law in
247evaluating the application; and (3) whether due process
255violations occurred during the staff review and Commission
263hearing process.
265BACKGROUND
266On January 8, 2008, Monroe County (County) approved an
275application by Ocean Sunrise Associates, LLC, for a major
284conditional use permit (MCU) for a single-phase development on a
2943.29-acre parcel situated on parts of Blocks 2, 3, and 4,
305Mandalay Subdivision, Key Largo. When fully developed, the
313development will consist of 22 permanent residential dwelling
321units, three transient dwelling units, 3,782 square feet of
331commercial retail floor space, and 12 boat slips, and it will be
343located on the Atlantic Ocean side of U.S. Highway 1, also known
355as the Overseas Highway. (In November 2007, the County approved
365a development agreement giving conceptual approval of a site plan
375to redevelop the parcel.) Under the terms of the MCU, the owner
387has four years to apply for its first building permit, and up to
400ten years to obtain its first certificate of occupancy. To date,
411much of the property remains vacant. There is no evidence that
422Appellant contested the MCU or development agreement.
429Since the late 1940s, a retail restaurant (operating under
438different names and with different owners) has occupied a part of
449the property. The most recent restaurant went out of business
459around 2009, leaving vacant the building in which it was located.
470From 1997 until it closed, the former restaurant had a 2COP
481alcoholic beverage license, which allowed beer and wine sales on
491premises, and "to-go" package sales. According to the Commission
500staff's examination of state records, the beer and wine license
510was "closed" in March 2010. The restaurant site sits just
520southeast of the intersection of Second Avenue, which runs from
530U.S. Highway 1 to the Atlantic Ocean, and Second Street, which
541runs in an east-west direction just north of the site. Besides
552the vacant building, a diving shop and another unit with several
563residents are located in another building facing Second Street
572just northeast of the restaurant. A condominium resort,
580Mariner's Club Key Largo, lies on the south side of the property
592(across Second Avenue) and within walking distance of the
601restaurant, a boat rental business is located across from the
611site on the property to the east, and a vacant lot (once occupied
624by a mobile home park) which is part of the larger parcel is
637across the roadway (Second Street) to the north. Although he did
648not give a precise location, Appellant's owner, Sam Stoia
657(incorrectly spelled as Stoya in the Transcript), stated that he
667is the adjacent property owner to the larger parcel and owns
678other properties within the area.
683After the MCU permit was issued, in August 2009 ownership of
694the property was acquired by Morgan. The new owner has an
705agreement to lease to Florida Keys the property on which the
716former restaurant was located, which intends to renovate the
725building and operate a new restaurant on the premises. The
735leased property consists of approximately 39,900 square feet of
745the 3.29-acre parcel, or around 0.92 acres, and is located on
756Lots 1 and 2, Block 4, at mile marker 97.6, 80 East Second
769Street, Key Largo. Excluding the portion of the leased property
779that is "bay bottom," the actual size of the restaurant site is
79118,265 square feet, or around 0.41 acres. All restaurant
801improvements must be consistent with the development agreement
809approved in 2007, the MCU permit issued in 2008, and current
820County codes. The restaurant building and outdoor seating areas
829lie within the Suburban Commercial zoning district and the Mixed
839Use/Commercial land use category, which are appropriate for that
848type of use.
851With the consent of Morgan, on April 25, 2011, Florida Keys
862filed with the Commission an application for a 5SRX Alcoholic
872Beverage Special Use Permit to be used in conjunction with its
883restaurant. Approval of the application simply means that
891Florida Keys may then file an application with the Florida
901Department of Business and Professional Regulation, which
908actually issues the license. The license will allow the sale of
919alcoholic drinks (hard liquor) to diners on premises after the
929new restaurant opens, but unlike the beer and wine license held
940by the former restaurant, package sales will be prohibited. The
950application also included a list of all property owners within a
961500-foot radius of the restaurant property, as required by the
971Monroe County Code (M.C.C.).
975After evaluating the application, on May 23, 2011, the staff
985submitted a report to the Commission for its meeting on June 8,
9972011, when the application would be considered. The report
1006recommended that the application be approved with the following
1015five conditions:
1017A. Alcoholic Beverage Special Use Permits
1023issued by virtue of the Monroe County Code
1031shall be deemed to be a privilege running
1039with the land. The sale of the real property
1048which has been granted an Alcoholic Beverage
1055Special Use Permit shall automatically vest
1061the purchaser thereof with all rights and
1068obligations granted or imposed to or on the
1076applicant. Such privilege may not be
1082separated from the fee simple interest in the
1090realty. B. In the event that the holder's license by
1100the Department of Business and Professional
1106Regulation of the State of Florida expires
1113and lapses, this Alcoholic Beverage Special
1119Use Permit approval shall be null and void as
1128of the date of that expiration. Additional
1135approval by the Planning Commission shall be
1142required to renew the Alcoholic Beverage
1148Special Use Permit. C. All alcohol sales and consumption shall
1158occur only within seating areas approved by
1165the Monroe County Planning & Environmental
1171Resources Department. D. Prior to the issuance of a resolution
1181approving any Alcoholic Beverage Special Use
1187Permit, the property owner shall resolve the
1194code compliance issues associated with open
1200code case CE11040046 and be in complaint
1207[sic] to the satisfaction of the Director of
1215Planning & Environmental Resources and the
1221Director of Code Compliance. E. Prior to opening the restaurant, with or
1233without an alcoholic beverage permit, the
1239Planning & Environmental Resources Department
1244shall require that the applicant apply for
1251and receive a building permit to install the
1259parking as shown on the approved site plan by
1268Professional Design Associates, Inc. and Hill
1274Glazier Architects dated October 29, 2007,
1280which includes 12 parallel parking spaces
1286along the rights-of-way of 2nd Avenue and
12939 angled parking spaces (one of which is to
1302be ADA compliant). Parking lot landscaping
1308associated with the parking spaces shall also
1315be required. The applicant cannot deviate
1321from the approved site plan without an
1328approved minor deviation, major deviation or
1334amendment to the major conditional use
1340permit. The level of review is based on the
1349scope of work to be revised. In addition,
1357any modifications must be in compliance with
1364the provisions of the major use permit and
1372development agreement.
1374Section 3-6(e), M.C.C., requires that the Commission give
"1382due consideration" to the following factors, where applicable,
1390before rendering a decision to grant or deny a liquor permit:
1401(1) The effect of such use upon surrounding
1409properties and the immediate neighborhood as
1415represented by property owners within 500
1421feet of the premises. For the purposes of
1429this section, "premises" means the entire
1435project site of a shopping center; (2) The suitability of the premises in
1448regard to its location, site characteristics
1454and intended purpose. Lighting on the
1460permitted premises shall be shuttered and
1466shielded from surrounding properties, and
1471construction of such permitted properties
1476shall be soundproofed. In the event music
1483and entertainment are permitted, the premises
1489shall be air conditioned; (3) Access, traffic generation, road
1498capacities, and parking requirements; (4) Demands upon utilities, community
1507facilities and public services; and (5) Compliance with the county's
1517restrictions or requirements and any valid
1523regulations.
1524In its report, the staff noted that each factor had been
1535considered and concluded that all requirements had been met.
1544Among other comments, the report stated that "[c]ommercial retail
1553uses, which include restaurants, are permitted" on the property
1562and that no other businesses in the vicinity hold an alcoholic
1573special use permit; that if "additional or replacement lighting
1582is installed, [the building] shall be required to be shuttered
1592and shielded from surrounding properties"; that "the building
1600shall be air-conditioned" to buffer event music and
1608entertainment; that although the applicant did not submit a
1617traffic impact study with its application, the "traffic impact
1626was approved under the previous [MCU] permit application"; that
"1635based on [traffic] studies generated for similar applications,"
1643the staff "does not anticipate that an approved 5SRX alcoholic
1653beverage special use permit will significantly or notably
1661increase traffic to the site," which is already approved for
1671commercial retail/restaurant use; that before the restaurant can
1679open, the applicant must "apply for and receive a building permit
1690to install the parking as shown on the approved site plan"; that
1702any deviations from the site plan with respect to parking "must
1713be in compliance with the provisions of the development
1722agreement"; and that the applicant "cannot deviate from the
1731approved site plan without an approved minor deviation, major
1740deviation or amendment to the [MCU] permit."
1747On June 8, 2011, the Commission continued the matter to the
1758next Commission meeting on June 22, 2011. At that meeting, the
1769staff again recommended that the application be approved subject,
1778however, to two additional conditions, identified in the report
1787as paragraphs F and G, which read as follows:
1796F. Prior to the application for the
1803alcoholic beverage license with the
1808Department of Business and Professional
1813Regulation, the applicant shall have an
1819assignment of lease or sublease approved by
1826the Board of County Commissioners in
1832accordance with the lease between BOCC and
1839the Pinellas Holding Corporation dated the
184512th of November 1997, recorded in the Book
18531736 at Page 1428 of the official records of
1862Monroe County.
1864G. No package retail sales on site.
1871The staff also submitted into the record an email dated
1881June 21, 2011, from its traffic consultant, Rajendran Shanmugan,
1890a professional engineer who had previously discussed the
1898application with staff and opined that there would be no
1908difference in trip generation based on the serving of alcoholic
1918beverages or the type of alcoholic beverages. He based this
1928opinion on the fact that the ITE [Institute of Transportation
1938Engineers] Trip Generation manual, which is used to develop
1947traffic studies for restaurants, "has trip generation rates for
1956types of restaurants (Quality, Sit-down, or High Turnover), but
1965not based on serving of alcoholic beverages OR types of alcoholic
1976beverages." He added that he knew of no literature or data that
1988indicate the difference in trip generation rates depending on the
1998type of alcoholic beverage served in the restaurant.
2006After hearing testimony from staff, the applicant and its
2015expert and attorney, Rock Harbor's principal (Mr. Stoia), agent,
2024and attorney, and nine members of the public, and after
2034considering the evidence and argument of counsel, by a 4-0 vote
2045the Commission approved the application, subject to the six
2054conditions recommended by staff. Its decision is memorialized in
2063the Resolution dated August 4, 2011, which made the following
2073findings of fact:
20761. The subject property is divided within
2083three Land Use Districts: a Mixed Use (MU)
2091district (RE 00554420.000000), an Urban
2096Residential (UR) district (RE
210000554670.000000, RE 00554740.000000 and
2104RE 00554730.000000) and a Suburban Commercial
2110(SC) district (RE 00554740.000000); and 2. Consistent with the boundary lines of the
2123Land Use Districts, the subject property is
2130divided within two Future Land Use Map (FLUM)
2138categories: Mixed Use Commercial (MC)
2143(RE 00554420.000000 and RE 00554740.000000)
2148and Residential High (RH)(RE 00554670.000000,
2153RE 00554700.000000 and RE 00554730.000000);
2158and 3. The restaurant building and seating areas
2166are located on the parcel identified as RE
217400554740.000000, which is within the Suburban
2180Commercial (SC) district and the Mixed
2186Use/Commercial (MC) FLUM category; and 4. In 2006, a Letter of Understanding and
2199Development Rights Determination established
2203that 22 permanent market-rate residential
2208units, 11 transient residential units, 5,138
2215SF [square feet] of non-residential floor
2221area and 12 boat slips had been lawfully-
2229established on the subject property; and 5. In 2007, Monroe County entered into a
2243development agreement with Ocean Sunrise
2248Associates LLC which, in part, provided
2254conceptual approval of a site plan to
2261redevelop the subject property. Approval of
2267the development agreement was memorialized by
2273Monroe County Board of County Commissioners
2279Resolution #493-2007; and 6. In 2008, the Planning Commission approved
2289a request by Ocean Sunrise Associates LLC for
2297a major conditional use permit in order to
2305develop the subject property into a resort
2312area, consisting of 22 permanent, market-rate
2318dwelling units, 3 transient dwelling units,
23243,782 SF of commercial retail non-residential
2331floor area, 12 boat slips and associated
2338amenities. The approval and conditions were
2344memorialized in Planning Commission
2348Resolution #P69-07. This approval applied to
2354the redevelopment of the entire subject
2360property and was reliant on the additional
2367approval of the 2007 development agreement
2373and the concurrently filed variance
2378application; and 7. As of the date of this resolution, the
2389redevelopment agreement and 2008 major
2394conditional use permit has not been
2400completed; and 8. Resolution #493-2007 was passed and
2408adopted on November 14, 2007. The resolution
2415and corresponding development agreement were
2420filed and recorded on January 18, 2008. Per
2428the development agreement, the effective date
2434was 30 days after the recorded agreement was
2442received by the state land-planning agency.
2448The State of Florida Department of Community
2455Affairs received the recorded document on
2461February 5, 2008; therefore the effective
2467date is March 6, 2008. Per item 2 of page 7
2478of the development agreement, the agreement
2484shall remain in effect for an initial period
2492of 10 years, commencing on the effective
2499date, and per item 12 of pages 17 through 18,
2509the owner shall have up to 4 years to obtain
2519the first building permit and up to 10 years
2528to obtain the first Certificate of Occupancy;
2535and 9. §3-6(e) of the Monroe County Code states
2544that the Planning Commission shall give due
2551consideration to the following factors as
2557they may apply to the particular application
2564prior to rendering its decision to grant or
2572deny the requested permit: (1) The effect of such use upon surrounding
2584properties and the immediate neighborhood as
2590represented by property owners within 500
2596feet of the premises. For the purposes of
2604this section, "premises" shall mean the
2610entire project site of a shopping center; and
2618(2) The suitability of the premises in
2625regard to its location, site characteristics
2631and intended purpose. Lighting on the
2637permitted premises shall be shuttered and
2643shielded from surrounding properties, and
2648construction of such permitted properties
2653will be soundproofed. In the event music and
2661entertainment is permitted, the premises
2666shall be air conditioned; and (3) Access, traffic generation, road
2676capacities, and parking requirements; and (4) Demands upon utilities, community
2686facilities and public services; and
2691(5) Compliance with the county's
2696restrictions or requirements and any valid
2702regulations; and 10. §3-6(g) of the Monroe County Code
2711provides that alcoholic beverage use permits
2717may be granted in the following land use
2725districts: Urban Commercial (UC); Suburban
2730Commercial (SC); Suburban Residential (SR)
2735where the site abuts US 1; Destination Resort
2743(DR); Mixed Use (MU); Industrial (I) and
2750Maritime Industries (MI). Notwithstanding
2754the foregoing, alcoholic beverage sales may
2760be permitted at restaurants, hotels, marinas
2766and campgrounds regardless of the land use
2773district in which they are located; and 11. Planning & Environmental Resources
2785Department staff found that the applicant has
2792demonstrated that all of the required factors
2799shall be met and recommended approval of the
2807application with conditions[.]
2810On August 26, 2011, Rock Harbor timely filed its appeal.
2820LEGAL DISCUSSION
2822Pursuant to a contract between the Division of
2830Administrative Hearings (DOAH) and the County, DOAH has
2838jurisdiction to consider this appeal under article VI,
2846division 2, section 102-213, M.C.C. The hearing officer "may
2855affirm, reverse or modify the order of the planning commission."
2865§ 102-218(b), M.C.C. In rendering a final order, the hearing
2875officer is subject to the following limitations:
2882The hearing officer's order may reject or
2889modify any conclusion of law or
2895interpretation of the county land development
2901regulations or comprehensive plan in the
2907planning commission's order, whether stated
2912in the order or necessarily implicit in the
2920planning commission's determination, but he
2925may not reject or modify any findings of fact
2934unless he first determines from a review of
2942the complete record, and states with
2948particularity in his order, that the findings
2955of fact were not based upon competent
2962substantial evidence or that the proceeding
2968before the planning commission on which the
2975findings were based did not comply with the
2983essential requirements of the law.
2988Id.
"2989The hearing officer's final order shall be the final
2998administrative action of the county." § 102-218(c), M.C.C. The
3007order must be rendered "within 45 days of oral argument." § 102-
3019218(b), M.C.C.
3021The issue of whether the Commission "complied with the
3030essential requirements of the law" is synonymous with whether the
3040Commission "applied the correct law." Haines City Cmty. Dev. v.
3050Heggs , 658 So. 2d 523, 530 (Fla. 1995). When used as an appellate standard of review, competent
3067substantial evidence has been construed to be "legally sufficient
3076evidence" or evidence that is "sufficiently relevant and material
3085that a reasonable mind would accept it as adequate to support the
3097conclusion reached." DeGroot v. Sheffield , 95 So. 2d 912, 916
3107(Fla. 1957).
3109In determining whether the Commission's decision is
3116supported by competent substantial evidence, the undersigned is
3124not permitted to second-guess the wisdom of the decision, reweigh
3134conflicting testimony presented to the Commission, or substitute
3142his judgment for that of the Commission as to the credibility of
3154witnesses. Haines City Cmty. Dev. , 658 So. 2d at 530. Moreover,
3165it is immaterial that the record contains evidence supporting the
3175view of the Appellant so long as there is competent substantial
3186evidence supporting the findings (both implicit and explicit)
3194made by the Commission in reaching its decision. See , e.g. , Fla.
3205Power & Light Co. v. City of Dania , 761 So. 2d 1089, 1093 (Fla.
32192000); Collier Med. Ctr., Inc. v. Dep't of Health & Rehab.
3230Servs. , 462 So. 2d 83, 85 (Fla. 1st DCA 1985).
3240A. Scope of Commission's Inquiry
3245Under the M.C.C., the role of the Commission in approving a
3256liquor license application is to (a) ensure that the relevant
3266criteria in section 3-6(e)1.-5. are satisfied, and (b) ensure
3275that the premises are located in an appropriate land use
3285district, as required by section 3-6(g). In doing so, the
3295Commission does not distinguish between restaurants with or
3303without hard liquor licenses, or beer or wine licenses.
3312B. Procedural or Due Process Violations
3318In contrast to the three-tier judicial review of final
3327administrative action by a circuit court, see City of Deerfield
3337Beach v. Vaillant , 419 So. 2d 624, 626 (Fla. 1982), DOAH's review
3349of a Commission decision is limited by the Code to a two-part
3361review: whether the Commission's decision is based upon
3369competent substantial evidence, and whether the decision departed
3377from the essential requirements of the law. See § 102-218(b),
3387M.C.C. See also Osborn v. Monroe Cnty. Plan. Comm. , Case No. 03-
33994720, 2004 Fla. Div. Adm. Hear. LEXIS 2583 at *40-41 (Fla. DOAH
3411Nov. 1, 2004)("the [Commission] review criteria are limited and
3421do not include consideration of whether procedural due process
3430was afforded by the Commission"); Upper Keys Citizens Ass'n v.
3441Monroe Cnty. , Case No. 01-3914, 2003 Fla. Div. Adm. Hear. LEXIS
3452211 at *36-37 (Fla. DOAH Mar. 5, 2003)(same). Therefore,
3461Appellant's contention that procedural due process violations
3468occurred during the Commission's review and/or hearing process
3476must be raised in another forum. 1
3483Even if the issues labeled as "due process" violations are
3493more in the nature of "procedural" irregularities that can be
3503decided here, as Appellant suggested at oral argument, its
3512contentions are unavailing. First, it argues that the Commission
3521issued a "defective notice" by not providing notice of the
3531application and hearing to all property owners within 500 feet of
3542M.C.C. However, no claim was made at the meeting that the notice
3554was defective; Mr. Stoia acknowledged that he personally received
3563a notice of the meeting by mail; Mr. Stoia, his counsel, and
3575witnesses were allowed to fully participate at the Commission
3584meeting; and Rock Harbor cited no real prejudice arising from any
3595purported defect. Notably, there is no evidence that any
3604adjacent property owner complained that a notice was not
3613received. Assuming arguendo that there was a defect in the
3623notice, it was waived by Appellant. See City of Jacksonville v.
3634Huffman , 764 So. 2d 695, 696-97 (Fla. 1st DCA 2000); Schumaker v.
3646Town of Jupiter , 643 So. 2d 8, 9 (Fla. 4th DCA 1994), rev .
3660denied , 654 So. 2d 919 (Fla. 1995). Likewise, a claim that
3671Appellant's procedural rights were violated because the
3678Commission and staff relied upon ten documents not made a part of
3690the record at the hearing is rejected. 2 Virtually all of these
3702documents relate to the development history of the property since
37122004; they appear to be public records compiled by the Commission
3723or County and readily available to Appellant; no prejudice was
3733shown by the staff's failure to physically attach them to the
3744staff report or request that they be made a part of the record at
3758the meeting; and most were referred to for the purpose of giving
3770background information on the property and were not necessary to
3780reach a decision on the merits of the instant application.
3790Finally, Appellant contends that its procedural rights were
3798violated because the applicant submitted a "defective and
3806fraudulent site plan" with its application, which misrepresented
3814the size of the restaurant, the dimension of the structures, and
3825the parking calculations. However, the site plan for the new
3835restaurant is governed by the MCU and related approvals, which
3845are not subject to review in this proceeding. In other words,
3856the site plan must comply with all requirements of those
3866approvals, regardless of any other calculations, numbers, or
3874drawings that accompanied the application. Thus, even if these
3883procedural "irregularities" occurred, there was no prejudice to
3891Appellant.
3892C. Competent Substantial Evidence
3896Appellant contends that there is no competent substantial
3904evidence to support the Commission's findings that the issuance
3913of the license comports with the criteria in section 3-6(e),
3923M.C.C. 3 See Initial Brief, pp. 15-20. These findings must be
3934sustained if there is any competent substantial evidence in the
3944record to support them. Fla. Power & Light Co. , 761 So. 2d at
39571093.
3958The first criterion requires that due consideration be given
3967to "[t]he effect of [the proposed] use upon surrounding
3976properties and the immediate neighborhood as represented by
3984property owners within 500 feet of the premises." § 3-6(e)(1),
3994M.C.C. The record shows that the site has been used as a
4006restaurant for decades; that the previous lessee held a 2COP
4016license authorizing the sale of beer and wine to diners as well
4028as package sales; that the only change in usage will be the sale
4041of mixed drinks, without package sales; and that the existing
4051commercial use comports with all County land use and zoning
4061requirements. Also, the character of the immediate neighborhood
4069and surrounding properties is mixed use, including commercial
4077retail, offices, marina, and residential uses, and a restaurant
4086selling beer and wine has coexisted with these uses for many
4097years. There is competent substantial evidence to support the
4106Commission's finding that there will be no adverse impacts on the
4117surrounding properties or immediate neighborhood.
4122Section 3-6(e)(2), M.C.C., requires that the Commission
4129consider the "suitability of the premises in regard to the
4139location, site characteristics and intended purpose." The record
4147shows that the location and intended purpose will not change in
4158any material manner, and that the site characteristics remain
4167essentially the same. There is testimony that the vacant
4176building has become an eyesore; that "shady people were starting
4186to move into the neighborhood and take over that area"; and that
4198Florida Keys has "cleaned it up." Also, the issuance of the
4209license is conditioned on the applicant shielding the surrounding
4218properties from any additional or replacement lighting that will
4227be installed on the premises. While Appellant contends that the
4237staff report failed to identify the size of the outdoor seating
4248area for the restaurant, and that the decision will violate the
4259MCU, the new restaurant must conform to the previously-approved
4268MCU and development agreement before operations begin. There is
4277competent substantial evidence to support a finding that the
4286premises are suitable for the issuance of a liquor license, given
4297the location, site characteristics, and intended purpose.
4304Section 3-6(e)(3), M.C.C., requires that the Commission give
4312due consideration to "[a]ccess, traffic generation, road
4319capacities, and parking requirements." Based upon traffic
4326studies prepared for similar applications, the traffic study
4334approved under the MCU, and a review of the application by the
4346County's traffic consultant (who opined that no additional trips
4355would be generated by the license), the staff concluded that the
4366liquor license would not cause adverse impacts on access, traffic
4376generation, or road capacities. There is also testimony in the
4386record that the sale of beer and wine "to go" by the former
4399restaurant generated additional traffic and parking concerns in
4407the area, which will no longer occur; and that this reduction in
4419traffic should offset some, if not all, of any new traffic and/or
4431parking impacts caused by serving liquor to restaurant diners.
4440On the other hand, parking requirements are governed by a site
4451plan previously approved with the MCU, which is not subject to
4462review here. Notably, the license itself is expressly
4470conditioned on Florida Keys "receiv[ing] a permit to install the
4480parking" as shown on an approved site plan submitted in 2007,
4491and/or to obtain an amendment or deviation to satisfy any changes
4502to that plan. In sum, there is competent substantial evidence to
4513support the Commission's finding that this factor has been
4522satisfied.
4523Section 3-6(e)(5), M.C.C., requires that the Commission give
4531due consideration to "[c]ompliance with the county's restrictions
4539or requirements and any valid regulations." The staff report
4548indicates that as of the date it was prepared, the site and
4560associated development are in compliance with all County
4568requirements except one open code enforcement case, which must be
4578resolved to the satisfaction of the County before operations can
4588commence. There is competent substantial evidence to show that
4597this factor was considered, and appropriately addressed, before
4605the application was approved.
4609Appellant argues, however, that the case of JPM Investment
4618Group, Inc. v. Brevard County Board of County Commissioners , 818
4628So. 2d 595 (Fla. 5th DCA 2002), rev. denied , 842 So. 2d 844 (Fla.
46422003), requires that the Commission's decision be reversed, and
4651that the matter be remanded back to the Commission for further
4662consideration of factors (1) and (3). In JPM , the court affirmed
4673a decision by Brevard County that a nonconforming restaurant
4682could not add liquor service to existing service of beer and
4693wine on the theory that this constituted an expansion of a
4704nonconforming use, which was prohibited under the Brevard County
4713Code. The Court went on to say that, as a matter of law, a
4727change in activity from the serving of beer and wine to all
4739alcoholic beverages is an expansion of a "use." Id. at 599.
4750But the building Florida Keys intends to occupy is not a
4761nonconforming use, and even if the "use" on the property will be
4773increased by serving hard liquor, the Commission has concluded,
4782based upon the record presented below, that any increase in the
4793intensity of the use will not adversely impact the surrounding
4803neighborhood, access, traffic, or parking.
4808D. Departure from the Essential Requirements of the Law
4817Finally, Appellant contends that the Commission departed
4824from the essential requirements of the law, that is, it failed to
4836apply the correct law in nine respects when it approved the
4847application. See Initial Brief, pp. 22-23.
4853Most of Appellant's arguments relate to the requirements of
4862the development agreement and MCU, which were previously approved
4871in 2007 and 2008, were never challenged, and are not subject to
4883review here. The remaining arguments concern issues already
4891addressed in this Final Order and are deemed to be without merit.
4903The Commission did not depart from the essential requirements of
4913the law when it adopted the Resolution.
4920DECISION
4921Based on the foregoing, Resolution No. P17-11, which
4929approves Florida Key's application for a 5SRX Alcoholic Beverage
4938Special Use Permit, is affirmed in all respects.
4946DONE AND ORDERED this 4th day of May, 2012, in Tallahassee,
4957Leon County, Florida.
4960S
4961D. R. ALEXANDER
4964Administrative Law Judge
4967Division of Administrative Hearings
4971The DeSoto Building
49741230 Apalachee Parkway
4977Tallahassee, Florida 32399-3060
4980(850) 488-9675
4982Fax Filing (850) 921-6847
4986www.doah.state.fl.us Filed with the Clerk of the
4993Division of Administrative Hearings
4997this 4th day of May, 2012.
5003ENDNOTES
50041/ During oral argument, the County cited a decision by the
5015Monroe County Circuit Court holding that a special magistrate
5024could decide constitutional issues, and address an alleged
5032Sunshine Law violation, when reviewing decisions by the City of
5042Key West Tree Commission. See
5047Havlicek v. City of Key West Tree
5054Comm. , Order Granting Certiorari re: Discovery Depositions, Case
5062No. 2009-CA-374-K (Fla. 16th Cir. Ct., Monroe County, May 13,
50722009). As noted in this Final Order, however, the Monroe County
5083Code itself limits DOAH's scope of review of Commission decisions
5093and does not authorize consideration of due process claims. 2/ Appellant points out that ten items were referred to by the
5114Commission and/or staff at the meeting but were not made a part of
5127the record at that time. However, its Initial Brief only
5137identifies nine. See
5140Initial Brief, p. 21. These are the staff
5148report to Major Conditional Use Resolution P69-07; Bufferyard
5156Variance Resolution No. P68-07; Development Agreement Resolution
5163493-2007; Gaines Survey dated March 25, 2004; 2004/2005 Demolition
5172Permits; 2006 Zoning Ordinance; 2006 Letter of Understanding; 2006
5181Resolution abandoning parts of First Street and Second Street; and
51912010 Letter of Understanding. 3/ Appellant has challenged only the findings relating to factors
5205(1)-(3) and (5).
5208COPIES FURNISHED: Gail Creech, Clerk
5213Monroe County Planning Commission
5217Marathon Governmental Center
52202798 Overseas Highway
5223Suite 410
5225Marathon, Florida 33050-4277 Andrew M. Tobin, Esquire
5232Andrew M. Tobin, P.A.
5236Post Office Box 620
5240Tavernier, Florida 33070-0620 Susan M. Grimsley, Esquire
5247Assistant County Attorney
5250Post Office Box 1026
5254Key West, Florida 33041-1026 Lisa A. Granger, Esquire
5262Assistant County Attorney
5265Post Office Box 1026
5269Key West, Florida 33041-1026 John A. Jabro, Esquire
527790311 Overseas Highway
5280Suite B
5282Tavernier, Florida 33070-2301 John Campbell, Esquire
5288Campbell & Malafy
529110887 Overseas Highway
5294Suite 201
5296Marathon, Florida 33050-3454
5299NOTICE OF RIGHTS
5302Pursuant to article VI, section 102-218(c), M.C.C., this Final
5311Order is "the final administrative action of the county." It is
5322subject to judicial review by common law petition for writ of
5333certiorari to the circuit court in the appropriate judicial
5342circuit.
- Date
- Proceedings
- PDF:
- Date: 05/04/2012
- Proceedings: Final Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 04/20/2012
- Proceedings: Appelle, Monroe County's Notice of Filing Order in the Case of Radim Havlick v. City of Key West filed.
- Date: 04/16/2012
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 04/02/2012
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for April 16, 2012; 2:00 p.m.; Marathon and Tallahassee, FL).
- PDF:
- Date: 03/02/2012
- Proceedings: Appellant's Renewed Motion for Extension of Time to File Reply Brief filed.
- PDF:
- Date: 02/24/2012
- Proceedings: Appellant's Motion for Extension of Time to File Reply Brief filed.
- PDF:
- Date: 02/17/2012
- Proceedings: Notice of Adoption of and Joinder in Answer Brief of Appellee, Monroe County Planning Commission filed.
- PDF:
- Date: 02/16/2012
- Proceedings: Amended Motion to Intervene (filed by Morgan Ocean Sunrise, LLC.) filed.
- PDF:
- Date: 01/26/2012
- Proceedings: Order (granting Appellee's Unopposed Motion for Extension of Time to File Answer Brief; parties have until February 17, 2012, in which to do so).
- PDF:
- Date: 01/26/2012
- Proceedings: Appellee's Unopposed Motion for Extension of Time to File Answer Brief filed.
- PDF:
- Date: 12/14/2011
- Proceedings: Order (granting Appellee's unopposed motion for extension of time to file answer brief).
- PDF:
- Date: 11/23/2011
- Proceedings: Order (granting Appellant's unopposed motion for extension of time to file initial brief).
- PDF:
- Date: 11/02/2011
- Proceedings: (Corrected) Motion to Intervene (filed by Florida Keys Quality Foods, Inc. d/b/a Mandalay Oceanfront Grill & Tiki) filed.
- PDF:
- Date: 10/26/2011
- Proceedings: Motion to Intervene (filed by Florida Keys Quality Foods, Inc. d/b/a Mandalay Oceanfront Grill & Tiki) filed.
- PDF:
- Date: 10/25/2011
- Proceedings: Order (on Appellant's motion for extension of time to serve initial brief).
Case Information
- Judge:
- D. R. ALEXANDER
- Date Filed:
- 09/26/2011
- Date Assignment:
- 09/28/2011
- Last Docket Entry:
- 05/04/2012
- Location:
- Marathon, Florida
- District:
- Southern
- Agency:
- Contract Hearings
Counsels
-
John W Campbell, Esquire
Address of Record -
Lisa Granger, Assistant County Attorney
Address of Record -
Susan Mary Grimsley, Esquire
Address of Record -
John A. Jabro, Esquire
Address of Record -
Andrew M. Tobin, Esquire
Address of Record