11-004994 Rock Harbor Marina, Inc. vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Friday, May 4, 2012.

Summary: Planning Commission Resolution approving liquor license for resturant was supported by competent, substantial evididence and did not depart from essential requirements of law. Due process claims not within the scope of DOAH's review.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROCK HARBOR MARINA, INC., ) )

Appellant, ) )

vs. ) Case No. 11-4994

)

MONROE COUNTY PLANNING )

COMMISSION, )

)

Appellee, )

)

and )

)

FLORIDA KEYS QUALITY FOODS, )

INC., d/b/a MANDALAY OCEANFRONT )

GRILL & TIKI AND MORGAN OCEAN )

SUNRISE, LLC, )

)

Intervenors. )

________________________________)

FINAL ORDER

Appellant, Rock Harbor Marina, Inc. (Rock Harbor or

Appellant), seeks review of Monroe County Planning Commission

(Commission) Resolution No. P17-11 (Resolution) dated August 4,

2011, which approved the application of Intervenor, Florida Keys

Quality Foods, Inc., d/b/a Mandalay Oceanfront Grill & Tiki

(Florida Keys), for a 5SRX Alcoholic Beverage Special Use Permit.

A two-volume record of the underlying proceeding was filed on

October 20, 2011. In support of its appeal, on December 2, 2011,

Appellant submitted an Initial Brief. The Commission, joined by

Florida Keys, submitted an Answer Brief on February 17, 2012.

Appellant submitted a Reply Brief on March 14, 2012. Intervenor,

Morgan Ocean Sunrise, LLC (Morgan), the owner of the subject

property, was authorized to intervene on February 24, 2012, but

did not file a brief. Oral argument was heard by video

teleconferencing at facilities in Marathon and Tallahassee on

April 16, 2012.

ISSUES

Appellant raises three issues on appeal: (1) whether the

findings in the Resolution are supported by competent substantial

evidence; (2) whether the Commission departed from the essential

requirements of the law by failing to apply the correct law in

evaluating the application; and (3) whether due process

violations occurred during the staff review and Commission

hearing process.

BACKGROUND

On January 8, 2008, Monroe County (County) approved an

application by Ocean Sunrise Associates, LLC, for a major

conditional use permit (MCU) for a single-phase development on a

3.29-acre parcel situated on parts of Blocks 2, 3, and 4,

Mandalay Subdivision, Key Largo. When fully developed, the

development will consist of 22 permanent residential dwelling

units, three transient dwelling units, 3,782 square feet of

commercial retail floor space, and 12 boat slips, and it will be

located on the Atlantic Ocean side of U.S. Highway 1, also known

as the Overseas Highway. (In November 2007, the County approved

a development agreement giving conceptual approval of a site plan

to redevelop the parcel.) Under the terms of the MCU, the owner

has four years to apply for its first building permit, and up to

ten years to obtain its first certificate of occupancy. To date,

much of the property remains vacant. There is no evidence that

Appellant contested the MCU or development agreement.

Since the late 1940s, a retail restaurant (operating under

different names and with different owners) has occupied a part of

the property. The most recent restaurant went out of business

around 2009, leaving vacant the building in which it was located.

From 1997 until it closed, the former restaurant had a 2COP

alcoholic beverage license, which allowed beer and wine sales on

premises, and "to-go" package sales. According to the Commission

staff's examination of state records, the beer and wine license

was "closed" in March 2010. The restaurant site sits just

southeast of the intersection of Second Avenue, which runs from

U.S. Highway 1 to the Atlantic Ocean, and Second Street, which

runs in an east-west direction just north of the site. Besides

the vacant building, a diving shop and another unit with several

residents are located in another building facing Second Street

just northeast of the restaurant. A condominium resort,

Mariner's Club Key Largo, lies on the south side of the property

(across Second Avenue) and within walking distance of the

restaurant, a boat rental business is located across from the

site on the property to the east, and a vacant lot (once occupied

by a mobile home park) which is part of the larger parcel is

across the roadway (Second Street) to the north. Although he did

not give a precise location, Appellant's owner, Sam Stoia

(incorrectly spelled as Stoya in the Transcript), stated that he

is the adjacent property owner to the larger parcel and owns

other properties within the area.

After the MCU permit was issued, in August 2009 ownership of

the property was acquired by Morgan. The new owner has an

agreement to lease to Florida Keys the property on which the

former restaurant was located, which intends to renovate the

building and operate a new restaurant on the premises. The

leased property consists of approximately 39,900 square feet of

the 3.29-acre parcel, or around 0.92 acres, and is located on

Lots 1 and 2, Block 4, at mile marker 97.6, 80 East Second

Street, Key Largo. Excluding the portion of the leased property

that is "bay bottom," the actual size of the restaurant site is

18,265 square feet, or around 0.41 acres. All restaurant

improvements must be consistent with the development agreement

approved in 2007, the MCU permit issued in 2008, and current

County codes. The restaurant building and outdoor seating areas

lie within the Suburban Commercial zoning district and the Mixed

Use/Commercial land use category, which are appropriate for that

type of use.

With the consent of Morgan, on April 25, 2011, Florida Keys

filed with the Commission an application for a 5SRX Alcoholic

Beverage Special Use Permit to be used in conjunction with its

restaurant. Approval of the application simply means that

Florida Keys may then file an application with the Florida

Department of Business and Professional Regulation, which

actually issues the license. The license will allow the sale of

alcoholic drinks (hard liquor) to diners on premises after the

new restaurant opens, but unlike the beer and wine license held

by the former restaurant, package sales will be prohibited. The

application also included a list of all property owners within a

500-foot radius of the restaurant property, as required by the

Monroe County Code (M.C.C.).

After evaluating the application, on May 23, 2011, the staff

submitted a report to the Commission for its meeting on June 8,

2011, when the application would be considered. The report

recommended that the application be approved with the following

five conditions:

A. Alcoholic Beverage Special Use Permits

issued by virtue of the Monroe County Code

shall be deemed to be a privilege running

with the land. The sale of the real property

which has been granted an Alcoholic Beverage

Special Use Permit shall automatically vest

the purchaser thereof with all rights and

obligations granted or imposed to or on the

applicant. Such privilege may not be

separated from the fee simple interest in the

realty. B. In the event that the holder's license by

the Department of Business and Professional

Regulation of the State of Florida expires

and lapses, this Alcoholic Beverage Special

Use Permit approval shall be null and void as

of the date of that expiration. Additional

approval by the Planning Commission shall be

required to renew the Alcoholic Beverage

Special Use Permit. C. All alcohol sales and consumption shall

occur only within seating areas approved by

the Monroe County Planning & Environmental

Resources Department. D. Prior to the issuance of a resolution

approving any Alcoholic Beverage Special Use

Permit, the property owner shall resolve the

code compliance issues associated with open

code case CE11040046 and be in complaint

[sic] to the satisfaction of the Director of

Planning & Environmental Resources and the

Director of Code Compliance. E. Prior to opening the restaurant, with or

without an alcoholic beverage permit, the

Planning & Environmental Resources Department

shall require that the applicant apply for

and receive a building permit to install the

parking as shown on the approved site plan by

Professional Design Associates, Inc. and Hill

Glazier Architects dated October 29, 2007,

which includes 12 parallel parking spaces

along the rights-of-way of 2nd Avenue and

9 angled parking spaces (one of which is to

be ADA compliant). Parking lot landscaping

associated with the parking spaces shall also

be required. The applicant cannot deviate

from the approved site plan without an

approved minor deviation, major deviation or

amendment to the major conditional use

permit. The level of review is based on the

scope of work to be revised. In addition,

any modifications must be in compliance with

the provisions of the major use permit and

development agreement.

Section 3-6(e), M.C.C., requires that the Commission give

"due consideration" to the following factors, where applicable,

before rendering a decision to grant or deny a liquor permit:

(1) The effect of such use upon surrounding

properties and the immediate neighborhood as

represented by property owners within 500

feet of the premises. For the purposes of

this section, "premises" means the entire

project site of a shopping center; (2) The suitability of the premises in

regard to its location, site characteristics

and intended purpose. Lighting on the

permitted premises shall be shuttered and

shielded from surrounding properties, and

construction of such permitted properties

shall be soundproofed. In the event music

and entertainment are permitted, the premises

shall be air conditioned; (3) Access, traffic generation, road

capacities, and parking requirements; (4) Demands upon utilities, community

facilities and public services; and (5) Compliance with the county's

restrictions or requirements and any valid

regulations.

In its report, the staff noted that each factor had been

considered and concluded that all requirements had been met.

Among other comments, the report stated that "[c]ommercial retail

uses, which include restaurants, are permitted" on the property

and that no other businesses in the vicinity hold an alcoholic

special use permit; that if "additional or replacement lighting

is installed, [the building] shall be required to be shuttered

and shielded from surrounding properties"; that "the building

shall be air-conditioned" to buffer event music and

entertainment; that although the applicant did not submit a

traffic impact study with its application, the "traffic impact

was approved under the previous [MCU] permit application"; that

"based on [traffic] studies generated for similar applications,"

the staff "does not anticipate that an approved 5SRX alcoholic

beverage special use permit will significantly or notably

increase traffic to the site," which is already approved for

commercial retail/restaurant use; that before the restaurant can

open, the applicant must "apply for and receive a building permit

to install the parking as shown on the approved site plan"; that

any deviations from the site plan with respect to parking "must

be in compliance with the provisions of the development

agreement"; and that the applicant "cannot deviate from the

approved site plan without an approved minor deviation, major

deviation or amendment to the [MCU] permit."

On June 8, 2011, the Commission continued the matter to the

next Commission meeting on June 22, 2011. At that meeting, the

staff again recommended that the application be approved subject,

however, to two additional conditions, identified in the report

as paragraphs F and G, which read as follows:

F. Prior to the application for the

alcoholic beverage license with the

Department of Business and Professional

Regulation, the applicant shall have an

assignment of lease or sublease approved by

the Board of County Commissioners in

accordance with the lease between BOCC and

the Pinellas Holding Corporation dated the

12th of November 1997, recorded in the Book

1736 at Page 1428 of the official records of

Monroe County.

G. No package retail sales on site.

The staff also submitted into the record an email dated

June 21, 2011, from its traffic consultant, Rajendran Shanmugan,

a professional engineer who had previously discussed the

application with staff and opined that there would be no

difference in trip generation based on the serving of alcoholic

beverages or the type of alcoholic beverages. He based this

opinion on the fact that the ITE [Institute of Transportation

Engineers] Trip Generation manual, which is used to develop

traffic studies for restaurants, "has trip generation rates for

types of restaurants (Quality, Sit-down, or High Turnover), but

not based on serving of alcoholic beverages OR types of alcoholic

beverages." He added that he knew of no literature or data that

indicate the difference in trip generation rates depending on the

type of alcoholic beverage served in the restaurant.

After hearing testimony from staff, the applicant and its

expert and attorney, Rock Harbor's principal (Mr. Stoia), agent,

and attorney, and nine members of the public, and after

considering the evidence and argument of counsel, by a 4-0 vote

the Commission approved the application, subject to the six

conditions recommended by staff. Its decision is memorialized in

the Resolution dated August 4, 2011, which made the following

findings of fact:

1. The subject property is divided within

three Land Use Districts: a Mixed Use (MU)

district (RE 00554420.000000), an Urban

Residential (UR) district (RE

00554670.000000, RE 00554740.000000 and

RE 00554730.000000) and a Suburban Commercial

(SC) district (RE 00554740.000000); and 2. Consistent with the boundary lines of the

Land Use Districts, the subject property is

divided within two Future Land Use Map (FLUM)

categories: Mixed Use Commercial (MC)

(RE 00554420.000000 and RE 00554740.000000)

and Residential High (RH)(RE 00554670.000000,

RE 00554700.000000 and RE 00554730.000000);

and 3. The restaurant building and seating areas

are located on the parcel identified as RE

00554740.000000, which is within the Suburban

Commercial (SC) district and the Mixed

Use/Commercial (MC) FLUM category; and 4. In 2006, a Letter of Understanding and

Development Rights Determination established

that 22 permanent market-rate residential

units, 11 transient residential units, 5,138

SF [square feet] of non-residential floor

area and 12 boat slips had been lawfully-

established on the subject property; and 5. In 2007, Monroe County entered into a

development agreement with Ocean Sunrise

Associates LLC which, in part, provided

conceptual approval of a site plan to

redevelop the subject property. Approval of

the development agreement was memorialized by

Monroe County Board of County Commissioners

Resolution #493-2007; and 6. In 2008, the Planning Commission approved

a request by Ocean Sunrise Associates LLC for

a major conditional use permit in order to

develop the subject property into a resort

area, consisting of 22 permanent, market-rate

dwelling units, 3 transient dwelling units,

3,782 SF of commercial retail non-residential

floor area, 12 boat slips and associated

amenities. The approval and conditions were

memorialized in Planning Commission

Resolution #P69-07. This approval applied to

the redevelopment of the entire subject

property and was reliant on the additional

approval of the 2007 development agreement

and the concurrently filed variance

application; and 7. As of the date of this resolution, the

redevelopment agreement and 2008 major

conditional use permit has not been

completed; and 8. Resolution #493-2007 was passed and

adopted on November 14, 2007. The resolution

and corresponding development agreement were

filed and recorded on January 18, 2008. Per

the development agreement, the effective date

was 30 days after the recorded agreement was

received by the state land-planning agency.

The State of Florida Department of Community

Affairs received the recorded document on

February 5, 2008; therefore the effective

date is March 6, 2008. Per item 2 of page 7

of the development agreement, the agreement

shall remain in effect for an initial period

of 10 years, commencing on the effective

date, and per item 12 of pages 17 through 18,

the owner shall have up to 4 years to obtain

the first building permit and up to 10 years

to obtain the first Certificate of Occupancy;

and 9. §3-6(e) of the Monroe County Code states

that the Planning Commission shall give due

consideration to the following factors as

they may apply to the particular application

prior to rendering its decision to grant or

deny the requested permit: (1) The effect of such use upon surrounding

properties and the immediate neighborhood as

represented by property owners within 500

feet of the premises. For the purposes of

this section, "premises" shall mean the

entire project site of a shopping center; and

(2) The suitability of the premises in

regard to its location, site characteristics

and intended purpose. Lighting on the

permitted premises shall be shuttered and

shielded from surrounding properties, and

construction of such permitted properties

will be soundproofed. In the event music and

entertainment is permitted, the premises

shall be air conditioned; and (3) Access, traffic generation, road

capacities, and parking requirements; and (4) Demands upon utilities, community

facilities and public services; and

(5) Compliance with the county's

restrictions or requirements and any valid

regulations; and 10. §3-6(g) of the Monroe County Code

provides that alcoholic beverage use permits

may be granted in the following land use

districts: Urban Commercial (UC); Suburban

Commercial (SC); Suburban Residential (SR)

where the site abuts US 1; Destination Resort

(DR); Mixed Use (MU); Industrial (I) and

Maritime Industries (MI). Notwithstanding

the foregoing, alcoholic beverage sales may

be permitted at restaurants, hotels, marinas

and campgrounds regardless of the land use

district in which they are located; and 11. Planning & Environmental Resources

Department staff found that the applicant has

demonstrated that all of the required factors

shall be met and recommended approval of the

application with conditions[.]

On August 26, 2011, Rock Harbor timely filed its appeal.

LEGAL DISCUSSION

Pursuant to a contract between the Division of

Administrative Hearings (DOAH) and the County, DOAH has

jurisdiction to consider this appeal under article VI,

division 2, section 102-213, M.C.C. The hearing officer "may

affirm, reverse or modify the order of the planning commission."

§ 102-218(b), M.C.C. In rendering a final order, the hearing

officer is subject to the following limitations:

The hearing officer's order may reject or

modify any conclusion of law or

interpretation of the 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 commission on which the

findings were based did not comply with the

essential requirements of the law.

Id.

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

administrative action of the county." § 102-218(c), M.C.C. The

order must be rendered "within 45 days of oral argument." § 102-

218(b), M.C.C.

The issue of whether the Commission "complied with the

essential requirements of the law" is synonymous with whether the

Commission "applied the correct law." Haines City Cmty. Dev. v.

Heggs , 658 So. 2d 523, 530 (Fla. 1995). When used as an appellate standard of review, competent

substantial evidence has been construed to be "legally sufficient

evidence" or evidence that is "sufficiently relevant and material

that a reasonable mind would accept it as adequate to support the

conclusion reached." DeGroot v. Sheffield , 95 So. 2d 912, 916

(Fla. 1957).

In determining whether the Commission's decision is

supported by competent substantial evidence, the undersigned is

not permitted to second-guess the wisdom of the decision, reweigh

conflicting testimony presented to the Commission, or substitute

his judgment for that of the Commission as to the credibility of

witnesses. Haines City Cmty. Dev. , 658 So. 2d at 530. Moreover,

it is immaterial that the record contains evidence supporting the

view of the Appellant so long as there is competent substantial

evidence supporting the findings (both implicit and explicit)

made by the Commission in reaching its decision. See , e.g. , Fla.

Power & Light Co. v. City of Dania , 761 So. 2d 1089, 1093 (Fla.

2000); Collier Med. Ctr., Inc. v. Dep't of Health & Rehab.

Servs. , 462 So. 2d 83, 85 (Fla. 1st DCA 1985).

A. Scope of Commission's Inquiry

Under the M.C.C., the role of the Commission in approving a

liquor license application is to (a) ensure that the relevant

criteria in section 3-6(e)1.-5. are satisfied, and (b) ensure

that the premises are located in an appropriate land use

district, as required by section 3-6(g). In doing so, the

Commission does not distinguish between restaurants with or

without hard liquor licenses, or beer or wine licenses.

B. Procedural or Due Process Violations

In contrast to the three-tier judicial review of final

administrative action by a circuit court, see City of Deerfield

Beach v. Vaillant , 419 So. 2d 624, 626 (Fla. 1982), DOAH's review

of a Commission decision is limited by the Code to a two-part

review: whether the Commission's decision is based upon

competent substantial evidence, and whether the decision departed

from the essential requirements of the law. See § 102-218(b),

M.C.C. See also Osborn v. Monroe Cnty. Plan. Comm. , Case No. 03-

4720, 2004 Fla. Div. Adm. Hear. LEXIS 2583 at *40-41 (Fla. DOAH

Nov. 1, 2004)("the [Commission] review criteria are limited and

do not include consideration of whether procedural due process

was afforded by the Commission"); Upper Keys Citizens Ass'n v.

Monroe Cnty. , Case No. 01-3914, 2003 Fla. Div. Adm. Hear. LEXIS

211 at *36-37 (Fla. DOAH Mar. 5, 2003)(same). Therefore,

Appellant's contention that procedural due process violations

occurred during the Commission's review and/or hearing process

must be raised in another forum. 1

Even if the issues labeled as "due process" violations are

more in the nature of "procedural" irregularities that can be

decided here, as Appellant suggested at oral argument, its

contentions are unavailing. First, it argues that the Commission

issued a "defective notice" by not providing notice of the

application and hearing to all property owners within 500 feet of

M.C.C. However, no claim was made at the meeting that the notice

was defective; Mr. Stoia acknowledged that he personally received

a notice of the meeting by mail; Mr. Stoia, his counsel, and

witnesses were allowed to fully participate at the Commission

meeting; and Rock Harbor cited no real prejudice arising from any

purported defect. Notably, there is no evidence that any

adjacent property owner complained that a notice was not

received. Assuming arguendo that there was a defect in the

notice, it was waived by Appellant. See City of Jacksonville v.

Huffman , 764 So. 2d 695, 696-97 (Fla. 1st DCA 2000); Schumaker v.

Town of Jupiter , 643 So. 2d 8, 9 (Fla. 4th DCA 1994), rev .

denied , 654 So. 2d 919 (Fla. 1995). Likewise, a claim that

Appellant's procedural rights were violated because the

Commission and staff relied upon ten documents not made a part of

the record at the hearing is rejected. 2 Virtually all of these

documents relate to the development history of the property since

2004; they appear to be public records compiled by the Commission

or County and readily available to Appellant; no prejudice was

shown by the staff's failure to physically attach them to the

staff report or request that they be made a part of the record at

the meeting; and most were referred to for the purpose of giving

background information on the property and were not necessary to

reach a decision on the merits of the instant application.

Finally, Appellant contends that its procedural rights were

violated because the applicant submitted a "defective and

fraudulent site plan" with its application, which misrepresented

the size of the restaurant, the dimension of the structures, and

the parking calculations. However, the site plan for the new

restaurant is governed by the MCU and related approvals, which

are not subject to review in this proceeding. In other words,

the site plan must comply with all requirements of those

approvals, regardless of any other calculations, numbers, or

drawings that accompanied the application. Thus, even if these

procedural "irregularities" occurred, there was no prejudice to

Appellant.

C. Competent Substantial Evidence

Appellant contends that there is no competent substantial

evidence to support the Commission's findings that the issuance

of the license comports with the criteria in section 3-6(e),

M.C.C. 3 See Initial Brief, pp. 15-20. These findings must be

sustained if there is any competent substantial evidence in the

record to support them. Fla. Power & Light Co. , 761 So. 2d at

1093.

The first criterion requires that due consideration be given

to "[t]he effect of [the proposed] use upon surrounding

properties and the immediate neighborhood as represented by

property owners within 500 feet of the premises." § 3-6(e)(1),

M.C.C. The record shows that the site has been used as a

restaurant for decades; that the previous lessee held a 2COP

license authorizing the sale of beer and wine to diners as well

as package sales; that the only change in usage will be the sale

of mixed drinks, without package sales; and that the existing

commercial use comports with all County land use and zoning

requirements. Also, the character of the immediate neighborhood

and surrounding properties is mixed use, including commercial

retail, offices, marina, and residential uses, and a restaurant

selling beer and wine has coexisted with these uses for many

years. There is competent substantial evidence to support the

Commission's finding that there will be no adverse impacts on the

surrounding properties or immediate neighborhood.

Section 3-6(e)(2), M.C.C., requires that the Commission

consider the "suitability of the premises in regard to the

location, site characteristics and intended purpose." The record

shows that the location and intended purpose will not change in

any material manner, and that the site characteristics remain

essentially the same. There is testimony that the vacant

building has become an eyesore; that "shady people were starting

to move into the neighborhood and take over that area"; and that

Florida Keys has "cleaned it up." Also, the issuance of the

license is conditioned on the applicant shielding the surrounding

properties from any additional or replacement lighting that will

be installed on the premises. While Appellant contends that the

staff report failed to identify the size of the outdoor seating

area for the restaurant, and that the decision will violate the

MCU, the new restaurant must conform to the previously-approved

MCU and development agreement before operations begin. There is

competent substantial evidence to support a finding that the

premises are suitable for the issuance of a liquor license, given

the location, site characteristics, and intended purpose.

Section 3-6(e)(3), M.C.C., requires that the Commission give

due consideration to "[a]ccess, traffic generation, road

capacities, and parking requirements." Based upon traffic

studies prepared for similar applications, the traffic study

approved under the MCU, and a review of the application by the

County's traffic consultant (who opined that no additional trips

would be generated by the license), the staff concluded that the

liquor license would not cause adverse impacts on access, traffic

generation, or road capacities. There is also testimony in the

record that the sale of beer and wine "to go" by the former

restaurant generated additional traffic and parking concerns in

the area, which will no longer occur; and that this reduction in

traffic should offset some, if not all, of any new traffic and/or

parking impacts caused by serving liquor to restaurant diners.

On the other hand, parking requirements are governed by a site

plan previously approved with the MCU, which is not subject to

review here. Notably, the license itself is expressly

conditioned on Florida Keys "receiv[ing] a permit to install the

parking" as shown on an approved site plan submitted in 2007,

and/or to obtain an amendment or deviation to satisfy any changes

to that plan. In sum, there is competent substantial evidence to

support the Commission's finding that this factor has been

satisfied.

Section 3-6(e)(5), M.C.C., requires that the Commission give

due consideration to "[c]ompliance with the county's restrictions

or requirements and any valid regulations." The staff report

indicates that as of the date it was prepared, the site and

associated development are in compliance with all County

requirements except one open code enforcement case, which must be

resolved to the satisfaction of the County before operations can

commence. There is competent substantial evidence to show that

this factor was considered, and appropriately addressed, before

the application was approved.

Appellant argues, however, that the case of JPM Investment

Group, Inc. v. Brevard County Board of County Commissioners , 818

So. 2d 595 (Fla. 5th DCA 2002), rev. denied , 842 So. 2d 844 (Fla.

2003), requires that the Commission's decision be reversed, and

that the matter be remanded back to the Commission for further

consideration of factors (1) and (3). In JPM , the court affirmed

a decision by Brevard County that a nonconforming restaurant

could not add liquor service to existing service of beer and

wine on the theory that this constituted an expansion of a

nonconforming use, which was prohibited under the Brevard County

Code. The Court went on to say that, as a matter of law, a

change in activity from the serving of beer and wine to all

alcoholic beverages is an expansion of a "use." Id. at 599.

But the building Florida Keys intends to occupy is not a

nonconforming use, and even if the "use" on the property will be

increased by serving hard liquor, the Commission has concluded,

based upon the record presented below, that any increase in the

intensity of the use will not adversely impact the surrounding

neighborhood, access, traffic, or parking.

D. Departure from the Essential Requirements of the Law

Finally, Appellant contends that the Commission departed

from the essential requirements of the law, that is, it failed to

apply the correct law in nine respects when it approved the

application. See Initial Brief, pp. 22-23.

Most of Appellant's arguments relate to the requirements of

the development agreement and MCU, which were previously approved

in 2007 and 2008, were never challenged, and are not subject to

review here. The remaining arguments concern issues already

addressed in this Final Order and are deemed to be without merit.

The Commission did not depart from the essential requirements of

the law when it adopted the Resolution.

DECISION

Based on the foregoing, Resolution No. P17-11, which

approves Florida Key's application for a 5SRX Alcoholic Beverage

Special Use Permit, is affirmed in all respects.

DONE AND ORDERED this 4th day of May, 2012, in Tallahassee,

Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of May, 2012.

ENDNOTES

1/ During oral argument, the County cited a decision by the

Monroe County Circuit Court holding that a special magistrate

could decide constitutional issues, and address an alleged

Sunshine Law violation, when reviewing decisions by the City of

Key West Tree Commission. See

Havlicek v. City of Key West Tree

Comm. , Order Granting Certiorari re: Discovery Depositions, Case

No. 2009-CA-374-K (Fla. 16th Cir. Ct., Monroe County, May 13,

2009). As noted in this Final Order, however, the Monroe County

Code itself limits DOAH's scope of review of Commission decisions

and does not authorize consideration of due process claims. 2/ Appellant points out that ten items were referred to by the

Commission and/or staff at the meeting but were not made a part of

the record at that time. However, its Initial Brief only

identifies nine. See

Initial Brief, p. 21. These are the staff

report to Major Conditional Use Resolution P69-07; Bufferyard

Variance Resolution No. P68-07; Development Agreement Resolution

493-2007; Gaines Survey dated March 25, 2004; 2004/2005 Demolition

Permits; 2006 Zoning Ordinance; 2006 Letter of Understanding; 2006

Resolution abandoning parts of First Street and Second Street; and

2010 Letter of Understanding. 3/ Appellant has challenged only the findings relating to factors

(1)-(3) and (5).

COPIES FURNISHED: Gail Creech, Clerk

Monroe County Planning Commission

Marathon Governmental Center

2798 Overseas Highway

Suite 410

Marathon, Florida 33050-4277 Andrew M. Tobin, Esquire

Andrew M. Tobin, P.A.

Post Office Box 620

Tavernier, Florida 33070-0620 Susan M. Grimsley, Esquire

Assistant County Attorney

Post Office Box 1026

Key West, Florida 33041-1026 Lisa A. Granger, Esquire

Assistant County Attorney

Post Office Box 1026

Key West, Florida 33041-1026 John A. Jabro, Esquire

90311 Overseas Highway

Suite B

Tavernier, Florida 33070-2301 John Campbell, Esquire

Campbell & Malafy

10887 Overseas Highway

Suite 201

Marathon, Florida 33050-3454

NOTICE OF RIGHTS

Pursuant to article VI, section 102-218(c), M.C.C., this Final

Order is "the final administrative action of the county." It is

subject to judicial review by common law petition for writ of

certiorari to the circuit court in the appropriate judicial

circuit.